If you believe the statements they made during last week's hearings, Republican and Democratic senators agree that Samuel Alito, President Bush's nominee to replace Supreme Court Justice Sandra Day O'Connor, should be evaluated on the basis of his judicial philosophy--that is, on his general approach to interpreting the Constitution. "Will your judicial philosophy preserve these principles" of "executive power, congressional power, and personal autonomy?" asked Senator Charles Schumer of New York, in a characteristic opening statement. "Or will it erode them?"

Unfortunately, not a single senator followed such questions by articulating a coherent judicial philosophy against which Alito could be measured. Yes, Republicans offered platitudes about "judicial restraint," insisting that the job of judges is to interpret the law, not make it. And yet their model Supreme Court justices are Antonin Scalia and Clarence Thomas, who have voted to strike down more federal laws than any other justices on the Court. Democrats, by the same token, demonize right-wing judges for their conservative activism. But, in their eagerness to overturn state laws with which they disagree--such as those establishing school voucher programs and restricting late-term abortions--they are no more consistent than Republicans in their advocacy of judicial restraint. Indeed, their idea of a compromise candidate at the moment is O'Connor, who firmly believes that the courts, rather than the legislature, should resolve the most contested questions in society--from abortion to presidential elections--and who has voted to strike down more state and federal laws combined than any other justice except for Anthony Kennedy.

The New Republic, by contrast, does have a consistent and long-standing judicial philosophy. Ever since its founding in the Progressive era, this magazine has championed bipartisan judicial restraint and urged liberal and conservative justices to practice it consistently. Under the guidance of editors like Felix Frankfurter, Learned Hand, and Alexander Bickel, we have argued that judges should play a modest role in U.S. democracy, generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing. This vision of bipartisan restraint has led tnr to oppose activist Supreme Court decisions on both sides of the political spectrum, from Roe v. Wade to Bush v. Gore. And it has led us to support Supreme Court nominees of both Republican and Democratic presidents. During the Clinton era, we enthusiastically championed the candidacies of Ruth Bader Ginsburg and Stephen Breyer, predicting that they would serve as liberal models of restraint. On the Court, Justices Ginsburg and Breyer have surpassed our hopes, voting to strike down fewer state and federal laws than any other justices.

And, when Bush nominated Judge John Roberts to be chief justice, we were supportive again, albeit more cautiously. Based on Roberts's judicial record and Senate testimony, we were impressed by the apparent sincerity of his deference to the political branches. Although it is too soon to judge his performance, we hope that Roberts, too, will vindicate our confidence.

Is Samuel Alito committed to judicial restraint? Certainly, he is far from the most activist and intemperate candidate that Bush could have nominated. Unlike judges like Janice Rogers Brown, the radical California libertarian, Alito has impressed his colleagues on the bench as a judge who does not, in all cases, have a results-oriented ideological agenda. His law school classmate Anthony Kronman, the former dean of Yale Law School, testified that Alito had "no political agenda of any kind" and described him as a "lawyer's lawyer." Other colleagues testified about Alito's open-mindedness and devotion to incremental, rather than jarring, change. Moreover, Alito's intellectual ability has been obvious at every stage of his career. Temperament and ability matter a great deal on the bench, and, in the absence of countervailing evidence, they might be enough to convince us that Alito deserves the benefit of the doubt.

But there is countervailing evidence--lots of it. Asked what kind of judicial conservative he is, Alito endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers. Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power. "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption," Alito said.

Roberts, by contrast, disavowed originalism, insisting that he does not have an overarching judicial ideology that he wants to impose on every case. Alito's suggestion that "the Constitution itself doesn't change"--and that it contains a fixed meaning that should be applied to changing factual circumstances--suggests that he might join Scalia and Thomas in overturning well-established precedents, regardless of their broad legal and political acceptance or of the practical consequences.

Despite his less-than-reassuring attitude toward precedent, however, we are less concerned than Democratic senators about Alito's feelings on the perennial question of Roe v. Wade--particularly the semantic differences between the responses of Alito and Roberts. Alito said that Roe was an "important precedent of the Supreme Court," while Roberts said that Roe was "settled as a precedent of the court." Both refused to embrace it as a "super-precedent" entitled to special respect because it has been reaffirmed by justices appointed by presidents of both parties. Although tnr opposed Roe as an example of judicial overreach that cut short a growing (and healthy) debate in state legislatures about abortion, we believe that, since it has been reaffirmed in 38 cases since 1974--as Senator Arlen Specter noted during the hearings--it should not be lightly overturned. What's more, by imposing a Court-sanctioned solution on the states, Roe ignited a culture war that obscured many other substantive policy issues; overturning it now would simply repeat that mistake. Fortunately, even if both Roberts and Alito did vote to overturn Roe--a prospect that Alito supporters, such as Charles Fried of Harvard Law School, think unlikely--the decision to uphold Roe would still be 5-4, and Republicans would need another appointment to allow restrictions on early-term abortion.

More important in our view are the central questions of the confirmation hearings: namely, Alito's views about congressional and executive power. We were especially troubled by Alito's vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce. Indeed, in his hearings, Alito emphasized that, in his view, Congress needs to explicitly identify the effects of its laws on interstate commerce for them to pass constitutional muster. Alito reaffirmed his view that the Supreme Court's 1995 decision striking down the federal ban on guns in schools was a constitutional "revolution"--a development he seemed to view as positive. And he refused to say that all of the Supreme Court's Commerce Clause decisions of the past 50 years are "well-settled precedents," allowing only that "most" of them are settled. Showing little of Roberts's emphasis on the importance of judicial deference to Congress, Alito raised fears that he would join Scalia and Thomas in overturning a host of federal laws. After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution; and, if Alito is willing to deny Congress the power to regulate machine-gun possession, it's not unreasonable to fear that he might deny Congress the right to regulate drug possession or protect the environment.

And then there is executive power. Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration's rejection of congressional efforts to
restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

Although the decision is not easy, our concerns about Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito's confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.

If Alito is confirmed, we hope that he proves to be practitioner of restraint rather than a justice in the mold of Scalia and Thomas. But the stakes for the Court are too high, at the moment, for us to vote our hopes rather than our fears.

the Editors