January 24, 2006

January 24, 2006 | Commentary on Legal Issues

Legislative Lowdown -- Alito Scores Knockout Over Democrats

Perhaps the most revealing and underreported exchange during Judge Samuel Alito's confirmation hearings began when Sen. Dianne Feinstein (D.-Calif.) tried to pin Alito down on whether Roe v. Wade is so powerful as to be a permanent fixture in our constitutional jurisprudence.

Alito noted that the precedent in Roe, while important, "is not an inexorable command." Feinstein's sophisticated Roe radar went off. Former Chief Justice William Rehnquist, you see, once used this exact phrase in arguing for Roe's reversal. Feinstein concluded that Alito had sent a subtle signal that he would vote to overturn the constitutional underpinning to abortion.

Feinstein later summarized the political arguments on behalf of Roe. Roe, she insisted, has withstood 38 challenges over 33 years, enjoys the support of a majority of Americans, and is now "settled" law. Or, she asked Alito, is it?

While acknowledging a "general presumption" that precedents will be jettisoned only when a "special justification" exists for doing so, Alito reiterated his view that precedents aren't "inexorable commands." If they were, he explained, we would be stuck with constitutional abominations such as Plessy v. Ferguson (where the court first espoused the "separate but equal" doctrine).

"When an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to a judiciary of people with open minds."

In one sentence, Alito deftly shifted the discussion from a political one probing his adherence to abortion rights to terrain where he controlled the moral high ground. The real issue he continued, is whether judges should carry out their duties with "open minds" and consider all the arguments in cases properly brought before the court-or be, well, intolerant and unwilling to consider alternative perspectives.

"If I am confirmed as a justice on the Supreme Court," Alito explained, "it would be wrong for me to say to anybody who might be bringing any case before my court, ... 'I'm not even going to listen to your argument. I'm not going to discuss the issue with my colleagues. Go away. I've made up my mind.'" That, he concluded, "is the antithesis of what courts are supposed to do."

And pressuring judicial nominees to be close-minded on important issues that could come before the high court, Alito might have added, is the antithesis of how senators are supposed to carry out their "advise and consent" responsibilities.

Decision: Alito, by a knockout.

UN-Helpful

One lesson we've learned from the Index of Economic Freedom, a comprehensive annual survey of 157 countries compiled by experts at the Heritage Foundation and the Wall Street Journal, is that nations prosper when they enforce private property and contractual rights, keep taxes low and the regulatory burden light, and allow goods and services to flow freely across national borders. Indeed, the higher a country scores on the Index, the higher its rate of economic growth.

But some insightful analysis by my Heritage colleague Anthony Kim has uncovered another interesting relationship. Kim juxtaposed the UN voting records of all the countries from 2000 to 2004 with their Index scores and found that countries ranked "free" or "mostly free" were much more likely to support the U.S. position than were countries ranked "mostly unfree" or "repressed."

The 18 nations classified as "free"-including United Kingdom, Australia, Estonia, Chile and (surprise!) Sweden-aligned with the U.S. position almost half of the time. By contrast, economic misfits such as North Korea, Zimbabwe, Cuba, Iran and Libya opposed the U.S. position at least 80% of the time.

Kim's analysis reinforces the wisdom of a quixotic effort by freshman Rep. Louie Gohmert (R.-Tex.). Gohmert offered an amendment to last year's UN reform bill proposing a ban on all financial assistance to nations that oppose the U.S. position in the United Nations more than 50% of the time. He argued that we must "stop the flow of American tax dollars to countries that claim to be our allies" but then use that money "to spew anti-American venom."

The chairman of the House International Relations Committee, Henry Hyde (R.-Ill.), reluctantly opposed Gohmert, arguing that some foreign assistance can be justified when it serves our national security interests. Fair enough. But Gohmert's instinct is correct and certainly applies to the billions in non-military, economic development assistance we currently send to overt enemies of the United States.

The time is long overdue for Congress to demand something in return for our foreign aid.

Mike Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.

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Michael Franc Distinguished Fellow
Government Studies

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First appeared in Human Events