Verdict on Alito: Proceed with extreme caution


America is at war under a president chafing against all legal constraints to transform the executive branch into a dictatorship. The nation has been fracturing into bitterly divided camps over the question of abortion for quite some time now. And Alito, if confirmed, will replace Sandra Day O’Connor, who has played the role of ideological fulcrum on the court for at least a decade.

This editorial board is divided on abortion, so we suggest you retreat to your respective blue and red corners and seek counsel there to learn whether Alito is the man to preserve Roe v. Wade or make it history.

On the question of presidential powers, it’s important to speak up before such a gesture becomes all but meaningless. The burden rests on Alito to persuade us that he will stand up for the checks and balances that safeguard our democratic system and that he is not a judicial suck-up who dishes out impunity to his sponsor, President Bush, whenever he feels like subverting the Constitution or ducking war crimes charges.

Alito has to prove he deserves our trust. His responses to questioning by members of the Judiciary Committee have been so excruciatingly technical and boring that it is impossible to discern the first thing about Alito’s judicial philosophy.

Consider these blandishments in response to the judge’s Democratic cross-examiners.

‘“It’s really kind of important,’” said Sen. Joseph Biden of Delaware, ‘“whether or not you think the president does not need the authority of the United States Congress to wage a war where there’s not an imminent threat against the United States. And that’s my question.’”

Alito responded, ‘“What I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question.’”

And Sen. Dianne Feinstein of California essentially asked Alito if Congress had the right to set judicial rules to govern domestic spying during wartime or if the president could ignore legislative guidance and just do as he pleased.

Alito’s exquisitely modest response?

‘“I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.’”

This is serious business, and no time to play coy. We urge the Republican majority in the Senate to think long and hard before they install Alito in the Supreme Court. After all, it seems within the realm of possibility that they won’t have one of their own in the White House forever.