President Bush has nominated Judge Samuel Alito, a staunch conservative, to replace Justice Sandra Day O’Connor on the United States Supreme Court. Republicans may, at first glance, celebrate his appointment; however, a closer look reveals that all Americans have good reason to oppose Alito’s nomination, regardless of their political views. The importance of Alito’s confirmation extends beyond his views on abortion, states’ rights, and other such issues that typically determine the outcome of a confirmation. Rather, Judge Alito, if confirmed, will pose a risk to some of the most basic tenets of our democracy, from separation of powers to the principle of “one man, one vote.” The idea that legislative districts should be about the same size is widely accepted. It doesn’t seem logical that one district with 600,000 people should get the same representation in the state government as a district with 15,000 people. However, this was precisely the case for the majority of American history; legislative districts were not required to have comparable populations until the early 1960s. Today we recognize the legitimacy of the decisions made in the “one man, one vote” cases, and they are widely praised as an essential element of democracy in this country. However, not only did Judge Alito disagree with these decisions, but in an application for a job with the Reagan Justice Department, he claimed to have become interested in constitutional law “in large part by disagreement with Warren Court decisions, particularly…reapportionment,” as reported by the New York Times. “One man, one vote” is not a liberal-conservative issue; it is a pro-democracy or anti-democracy issue. If the Constitution mandates nothing else, it says that people should be equal under the law, and should have equal say in government. Since Judge Alito has never publicly reversed his stance, one must assume that he thinks otherwise. In the wake of the Bush Administration’s admission that the NSA had conducted surveillance on Americans without warrants, the question of executive power has become an important one for the Judiciary to consider. The President defended his actions as necessary in a time of war, despite possible violations of the Foreign Intelligence Surveillance Act (FISA), which makes it illegal for the government to spy on Americans without a court order. Of course, if the President can ignore Federal Law during a war of indefinite length, then the recently passed ban on torture has no purpose. The President could secretly override it just as he decided to override the law against spying on Americans. This relates to Judge Alito’s confirmation hearing because of his high regard for Presidential “signing statements.” He said that “the President’s understanding of the bill should be just as important as that of Congress” and, in essence, that the President can give himself some wiggle room by raising constitutional questions about a bill. Of course, the President has no judicial power to interpret law, but Judge Alito, a defender of such power, may give it to him. Separation of Powers means that the President must accept Congress’s laws and the courts’ interpretations, and execute them faithfully, but Judge Alito may let President duck the laws and the Constitution just enough to do whatever he wants. Traditional conservatives, wary of a big, powerful government should be cautious of this. Such theories and actions in the government have been a part of a larger anti-judicial trend among politicians, who often like to chastise “Activist Judges.” An independent judiciary, unaffected by political winds, special interest groups, or upcoming elections, is essential to democracy in this country. Those that blast judges know this – they are just trying to score political points by criticizing unpopular court decisions. However, Judge Alito is a true believer in limiting judicial power, whether in ensuring that all Americans have equal representation or in making sure that the President’s power does not run unchecked. The Supreme Court must focus solely on the Constitution without regard for turbulence caused by their decisions. Indeed, some of the Court’s greatest decisions, from “one man, one vote” to Brown v. Board of Education, to the late Justice Rehnquist’s intent of protecting the rights of states through cases like U.S. v. Lopez, were accused of “legislating from the bench.” But nobody who makes these claims would take these decisions back, and nobody denies that the judicial branch has an essential part to play in the government – with the possible exception of Judge Samuel Alito.
