| Legal scholars debate merits of Alito nomination at WCL lunchtime forum BY MIKE UNGER The day before Samuel Alito Jr. was sworn in as the nation’s 110th Supreme Court justice last week, two constitutional experts took seats at a table in a Washington College of Law classroom to debate the judge’s qualifications, legal opinions, and philosophies. That Alito would be confirmed less than 24 hours later was never in question, but the merits of his nomination were—and likely will be a contentious issue dividing liberals and conservatives for years to come. Arguing on behalf of Alito during the lunchtime forum sponsored by WCL’s chapter of the Federalist Society, M. Edward Whelan, president of the Ethics and Public Policy Center and a former law clerk for Supreme Court justice Antonin Scalia, praised Alito as “one of the most qualified Supreme Court candidates we’ve had in decades.” Sitting to Whelan’s left, both figuratively and literally, was WCL professor Jamin Raskin, who called Alito a “right-wing partisan zealot.” Despite the highly charged rhetoric, the debate was a thoughtful, albeit intense, examination of differing political and constitutional viewpoints. During his opening statement, Whelan framed the Alito confirmation process as a battle between judicial philosophies: restraint versus activism. “We live in a representative democracy,” Whelan said. “The Constitution leaves a broad range of political issues to us as citizens to decide through our elected representatives. Those of us who advocate judicial restraint seek to restore and then retain that system.” Whelan went on to dismiss the idea of a “living Constitution,” saying those who believe in it think it’s “the role of five justices on an ongoing basis to serve whatever interests they think advance progress.” Countering, Raskin said “we have a living Constitution because the people can amend it. I can only regard with utter astonishment the solemn assurance that Judge Alito stands by judicial restraint.” Raskin then cited cases in which Alito, as a circuit court judge, struck down legislation, including a congressional ban on machine gun ownership, on the basis that it was unconstitutional. “The scary part is that the rule of law is under attack in America,” Raskin said. “We’ve got an administration that took us to war under false pretenses, ordered the NSA to spy on American citizens in direct violation of the Fourth Amendment. That’s why it’s important that they’re about to succeed in putting a right-wing partisan zealot on the court.” The next day, Alito was indeed confirmed by a 58-42 vote in the Senate. Just one Republican, Lincoln Chafee (R.I.), voted against Alito, while only four Democrats, Robert Byrd (W.Va.), Kent Conrad (N.D.), Tim Johnson (S.D.), and Ben Nelson (Neb.) voted for his confirmation. While this battle is over as far as Congress is concerned, it will rage on among legal academics in the halls of universities throughout the country. “It’s about the nature of the Constitution,” Raskin said. “Is it about the rights of the people or the powerful?” |
