On Judge Alito, the San Francisco Chronicle is Unfit to be a Newspaper

Today (Tuesday) the San Francisco Chronicle ran an editorial entitled, “Why Alito is the wrong choice.” Instead of demonstrating what it says, it demonstrates why the Chronicle has failed to do its homework as reporters, in preparing its editorial. Here’s why:

The editorial begins with this statement:

In some ways, Alito's taciturn approach to questions about the great constitutional issues of our time was similar to that of Chief Justice John G. Roberts Jr. But the distinction between the history of the two judges -- and the role of the justice they were nominated to replace -- are important.

First, this fails to note that the “taciturn approach” followed by Judge Alito was exactly the same as Justice Ginsberg’s. It is a gross violation of judicial ethics for any judge on any bench to comment publicly on any issue likely to come before him/her in a case.

As for the Justice that a nominee will replace, if all Justices should mirror the ones they are replacing, many of the current Justices would have been disqualified. If such a policy had always been in force, the Dred Scott case would still stand, upholding slavery.

The editorial continues:

....Alito had far more explaining to do about his past, and his answers fell short of satisfying concerns about his record of advocating repeal of Roe vs. Wade, highlighting his membership in a Princeton alumni group with retrograde views of women and minorities and all too frequently siding with government and businesses against individuals seeking redress.

Only laws can be “repealed.” Decisions of the Court, like Brown v. Board of Education which outlawed segregation, can only “reverse” prior decisions of the Court. Or, is the Chronicle just revealing its core belief that the Court is just an unelected supra-legislature with a roving commission to do whatever strikes its fancy on a given Friday (the day that Justices conference and decide the cases argued that week)?

Apparently, the information has not reached the editorial offices of the Chronicle that the anti-minorities and anti-women article from the Concerned Alumni of Princeton that Senator Ted Kennedy quoted from ad nauseam was a SATIRE. One of the tip-offs was that the article claimed for homosexuals “the right to bear children.” Helloooo. Didn’t anyone pay attention in high school biology?

The editorial next attacks Judge Alito’s suggestion as a staff attorney in the Reagan Administration that

Presidents... put... caveats with their signature on legislation. President Bush has been doing just that -- using ‘signing statements’ more than 100 times to essentially reserve his right to ignore a law he might find unduly constraining.

Apparently, the Chronicle missed the Supreme Court case which denied President Nixon the “right” to conduct “hold-backs,” refusing to spend money as authorized by Congress. Both President Nixon and the seminal case he lost were in all the newspapers, presumably in the Chronicle as well (unless it happened during the baseball season, as Tom Lehrer said at the hungry i.) Presidents can issue whatever statements they choose when signing legislation, but none of that changes anything about the laws just passed.

One last point. Apparently the Chronicle wants Alito to be a “moderate” or “centrist” like the departing Justice Sandra Day O’Connor. What do those words mean, in the context of a Justice of the Supreme Court?

Based on the example of Justice O’Connor, it means not going overboard in enforcing the Constitution. Enforce it sometimes; rewrite or ignore it in others. A Justice who thinks that way is in violation of his/her oath of office. The Justices are supposed to obey and enforce the Constitution in EVERY case that comes before them.

No one wants a “moderate” policeman, who will capture some of the criminals if he feels like it. No one wants a “centrist” surgeon, who will correct some of the patient’s physical problems, but not others. And perhaps no one wants a newspaper which attempts to write authoritatively about the role of the Justice of the Supreme Court in total ignorance of facts readily available to any competent researcher.

[The author is not merely an opinion writer about the Court and its Justices. He has practiced First Amendment law in the Supreme Court over a span of more than three decades.]

John_Armor@aya.yale.edu