A right justice at the wrong time?

If I object to ideological litmus tests on the right, it is a simple matter of intellectual honesty that I must also object to them on the left.

Having read four articles in the New Republic on Samuel Alito, President Bush’s nominee to the Supreme Court, all by people who seem well qualified to evaluate him, and all describing him in similar terms, I find that my objection to his nomination rests not so much on him but on his potential colleagues. I object to Alito because we already have Antonin Scalia and Clarence Thomas on the highest bench in the land.

Make no mistake: there is much on which I disagree with Alito. I do not accept that anyone should have any control whatsoever over anyone else’s body. I do not accept, therefore, his opinion in Planned Parenthood v. Casey, which would have upheld a spousal notification requirement in Pennsylvania. But one description emerges from all those articles. At last, I see an intelligent conservative.

The vast majority of conservatives are clearly dimwit idealogues, whose arguments boil down–eventually–to a claim that something is so, because Bush or some evangelical preacher or some CEO says it is so. Alito is not such an idiot. Alito, as one writer put it, has the ability to make radical opinions seem inevitable. He is an intelligent advocate, with qualities that I am compelled to respect.

I do not agree with Alito on a range of issues. But I see the possibility that he could become a great justice, not merely because he is wrong, but because he is so articulately and skillfully wrong. With Alito, conservatives would finally have an intelligent voice on the Supreme Court. And if I object to his nomination, I object to the proposition that conservative views have a right to be so articulately heard, I object to the proposition that a stronger “liberal” decision can emerge from vigorous debate which fully considers opposing views, and I fear I cross a line which some think I have already crossed, a line into being an idealogue, unwilling to consider opposing views for the simple reason that they are in opposition.

Demagoguery aside, it is not conservative, but liberal voices which strain to be heard. At this moment in history, Alito will not contribute to debate but enhance an already rightward tilt. His elevation to the Supreme Court will not make liberal decisions better, because there won’t be any liberal decisions to be had. His intelligence and articulation comes at the wrong time, a time when it will merely help to sustain, and in some cases, reimpose longstanding injustice; his voice will simply be lost in the din of a neofascist Court.

It’s too bad. Because when we carefully consider arguments such as Alito’s, our arguments become better. If I could somehow trade Alito for Thomas or Scalia, I would enthusiastically support his nomination to the Supreme Court. But Alito replaces Sandra Day O’Connor, not Thomas or Scalia. He comes therefore at the wrong time.

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