Monday, October 31, 2005

Some Insight Into The Far Right

A good chunk of the "punditocracy" has had the chance to weigh in on the Alito nomination, and thus far the opinions seem to be falling on strict party lines. Conservatives are ecstatic, though they have retreated almost universally from admitting that the main reason they like Alito is he's against a woman's right to choose. The Right knows that overt antagonism towards Roe vs. Wade tends to turn-off the moderate center. Democrats are being cautious of course, mainly because, at least at the Senate level, they have no other engaged state. It's either cautiously concerned or cautiously optimistic.

So, what has Bush really wrought with the nomination of Alito? From the Alliance for Justice preliminary report:

Despite President Bush’s suggestion that he values judges who are “restrained” and understand the limited role of the courts, Judge Alito has aggressively sought to curb Congress’legislative authority to tackle issues of national importance, voting to invalidate a federal prohibition on machine gun possession and part of the federal Family and Medical Leave Act. For this reason, journalist and legal scholar Jeffrey Rosen, who supported the nomination of John Roberts, asserted that Judge Alito has been a “conservative activist” whose “lack of deference to Congress is unsettling.”

As anyone who follows legal and political matters is aware, "judicial activism" is one of the favored bits of political rhetoric repeated ad nauseum by Republicans whenever the issue of judges is raised. In reality, "strict constructionist" is just conservative code for a judicial activist that will re-interpret the Constitution in such a way as to foment the type of society that conservatives believe they want. After all, there has been precious little conservative outcry over Bush vs. Gore, widely regarded as the most activist Supreme Court decision in U.S. history.

Given that Alito is a strict reconstructionist , taking a look at his judicial decision making could offer some insight into the mind set of the Far Right.

In divided decisions in the area of constitutional freedoms, Judge Alito has: twice voted in dissent to uphold intrusive police searches of women and children who were not named in search warrants and were not the subjects of any investigation. In one of the cases, which involved strip searches of a mother and daughter caught in the wrong place at the wrong time, President Bush’s Director of Homeland Security, Michael Chertoff – then Judge Alito’s colleague on the Third Circuit – sharply criticized Judge Alito’s position.

The Conservative Right has long been a vocal advocate of being tough on crime, but the question remains: at what cost? Alito's decision in this case demonstrates a judicial philosophy that the right to freedom from illegal search and seizure could have almost limitless exceptions at the discretion of crime prevention. This sets a dangerous precedent, especially given the Bush Administration's view of the expanded powers of the executive to curtail citizen's rights in the interest of fighting terrorism. One would think that a stance so clearly at odds with the express language of the Constitution would stir some alarm in conservatives, but then it doesn't involve the Second Amendment so probably not.

[Alito] upheld curbs on reproductive freedom. When the Third Circuit heard Planned Parenthood of Central Pennsylvania v. Casey – the case that, in the Supreme Court’s hands, became the source of the new standard for the constitutional right to abortion – Judge Alito was the only judge who voted to allow the Commonwealth of Pennsylvania to require a woman to notify her spouse before having an abortion. Although both the Third Circuit and the Supreme Court in Casey allowed new restrictions on the right to abortion, both courts rejected his position. Justice O’Connor analogized the spousal notification restriction to common law rules that subjugated wives to their husbands and banned women from the practice of law.

Clearly, Alito's stance against a woman's right to choose is practically a given; after all, he is a Bush appointee. It would be folly to expect anything else. But Alito's decision in this case was predicated on the opinion that only a small subset of women seeking abortion would witthold such information from their husbands. Such an opinion effectively relegates that small subset back into a more "traditional" role for women: that of property.

The major issue that the Roe vs. Wade decision hinges upon is a Constitutional right to privacy, with which many, if not most, conservatives do not agree. The right to contraception, as laid out in Griswold vs. Connecticut, set the precendent of said right upon which the Roe vs. Wade decision was based. A judicial stance in opposition to this implied right could foreshadow the loss of numerous womens' rights; rights which, not coincidentally, the religious social conservatives do not wish women to have, as they do not agree with their narrow interpretation of Christian scripture.

Taking these examples, along with some other notable conservative positions, such as the Gay Marriage Amendment or the Patriot Act, one thing becomes clear: the true agenda of the conservative right is to curtail the rights of the American people. What appears to be a core belief on the social conservative right is that American society has evolved in such a way that many citizens enjoy rights that the conservatives believe are just not appropriate. This over-arching theme tends to define the difference between conservatives and liberals, especially given that a majority of the rights conservatives wish to have taken away effect women and minorities. This ideological shift represents a turning away from the libertarian tradition of prior years and towards socially restrictive religious dogma.

Alito could very well be the ideological victory that social conservatives have been working towards for thirty years; a rightward shift to the Supreme Court could remove one of the key protections the American people have against legislative tyranny. A loss of rights for women, fewer protections for minorities, strongly curtailed liability for corporate malfeasance and an institutionalization of religious symbology (Christian, of course), represent only a few of the many rights that conservative Republicans wish to see thrown to the wayside. It's hard to imagine a more fundamentally un-American role for the Supreme Court than to actively work at stripping the rights from American citizens. But that could be the reality to come.

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