January 4, 2006
Questioning Alito
By William
F. Buckley
Here is a coincidence
that we would term providential, except that one doesn't use that
language. At least, if one does use it, it is shrouded in mystery.
There is a great deal of swirl in the upcoming examination of
Judge Samuel Alito, and some of it does a pretty complete circle.
In 1985,
Judge Alito wrote to President Ronald Reagan's attorney general,
Edwin Meese, applying for a job. Quick ideological self-identification
was in order, and Alito wrote, "The greatest influence on
my views were the writings of William F. Buckley Jr., the National
Review, and Barry Goldwater's 1964 campaign."
The senators
who will be exploring Judge Alito's views will of course happily
welcome the opportunity to probe Alito on Baker v. Carr.
That was the decision of the Supreme Court in 1962 that ruled
unconstitutional electoral districts that were fashioned other
than under the auspices of one-man-one-vote.
It is generally assumed
that any electoral practice detached from one-man-one-vote is
an abomination. If the Supreme Court had the authority to do so,
the citizens of Rhode Island, beginning tomorrow, would be without
two senators in our bicameral legislature: There is no affront
in constitutional practice, save possibly the singularity of the
queen, that weighs so disproportionately against equality of votes.
But Baker
v. Carr became, overnight, absolutely sacred, and the examiners
will want to know whether Mr. Alito also thinks it sacred. When
in 1986 Antonin Scalia appeared before the Senate committee, he
said, with that finality with which he is comfortable speaking
from time to time, that he was not going to give his thinking
on any constitutional question, since he thought this wrong for
an appointed judge to do, just as Abraham Lincoln thought it wrong
to do, and even treacherous.
The point
wasn't pressed, but pretty soon the term "super-precedent"
came into use. Some scholars treat Baker v. Carr as a
super-precedent, deserving the august deferral that attaches to
Roe v. Wade or Brown v. Board of Education.
Simultaneously,
a quarrel has been ignited on the matter of abortion. This arose
when professor Jeffrey Hart quoted from his history of National
Review magazine in The Wall Street Journal. He said
there that it was the women's movement of the 1960s and '70s,
and not merely the musing of Supreme Court justices, that produced
Roe v. Wade.
Challenged on this,
Hart quoted Edmund Burke's 1791 "Thoughts on French Affairs."
Burke said there that he "(had) done on the subject"
of the French Revolution. Meaning that his thrust against the
French Revolution, published one year earlier ("Reflections
on the Revolution in France"), was no longer to be thought
relevant? That exactly was the position of Matthew Arnold, who
greeted Burke as having done an about-face, or at least as having
resigned himself to the French Revolution as a fait accompli.
In "Thoughts on French Affairs," Burke was arguing that
the English should make their peace with the new order lest they
appear "perverse and obstinate."
Off to the stacks
for more on that question. Roger Kimball, the learned, dogged
and indefatigable editor of The New Criterion, has written that
"Burke wrote 'Thoughts' in 1791; he lived on until 1797,
and the disaster of the French Revolution was never far from his
thoughts -- or his activities as a politician and rhetorician."
Conor Cruise O'Brien judged that Burke "had seen that the
French Revolution was potentially as explosive an event, in social
and political and military terms, as the Reformation had been."
These weighty questions
are being asked in arenas large and small. Would Edmund Burke
have interpreted the "right" to an abortion as issuing
from the rights of man? Mr. Kimball argues that the great events
of the last part of the 20th century touching on women's rights
tended toward a denial of women's right to reproduce. To bear
a child is thought in many quarters to be an economic nuisance,
a domestic imposition, an aggressive sociological act.
Jeffrey Hart's
new book on the history of National Review is called
"The Making of the American Conservative Mind." Mail
intended for Judge Alito can be sent to the Supreme Court, marked
"Please hold."
Copyright
2005 Universal Press Syndicate
