Accord­ing to the George Wash­ing­ton Law prof. Jonathan Tur­ley on the Today Show,

There will be no one to the right of Sam Ali­to on this Court. This is a pret­ty hard­core fel­low on abor­tion issues.

COURIC: Not even Antonin Scalia?

TURLEY: They’ll have to make a race to the right, but I think it will be by a nose, if at all

This is from the pre­scient com­men­ta­tor who point­ed out that Har­ri­et Miers was “an amaz­ing­ly bad choice.“

Video here.

On a relat­ed note, Nina Toten­berg, NPR’s vet­er­an court watch­er, said:

if Judge Ali­to is con­firmed, the court will move dra­mat­i­cal­ly, dra­mat­i­cal­ly to the right. There are con­ser­v­a­tives who are less con­ser­v­a­tive than he

With Roberts, there were things that he wrote that were ques­tion­able. In the end, he showed him­self to be part of the main­stream of Amer­i­can law, albeit hug­ging the right bank. Ali­to is stuck in the malar­i­al swamps next to the river.

What John Roberts showed (oth­er than the ben­e­fits of hav­ing two first names) is that Democ­rats would offer real def­er­ence to the Pres­i­den­t’s selec­tion, assum­ing the can­di­date was qual­i­fied and fell with­in that part of the spec­trum of legal ideas which are sub­ject to mod­ern debate. I bet that you’d have seen the same dynam­ic form if McDon­nell were nom­i­nat­ed. He would have faced oppo­si­tion, but Roberts style oppo­si­tion, crit­i­cism of dis­turb­ing deci­sions, demands for paper. In the end, McDon­nell has shown that he’s a thinker and is will­ing to cross polit­i­cal lines in pur­suit of jurispru­den­tial consistency.

Ali­to (like Scalia) is less of an intel­lec­tu­al force, and more of a polit­i­cal force. While there is a hand­wave of judi­cial phi­los­o­phy that Scalia and his pro­teges can offer, Scali­a’s rul­ings tend to be dri­ven by con­se­quences on the polit­i­cal land­scape rather than a clear rea­son­ing from the law, the giv­en case, and con­sti­tu­tion­al under­stand­ing. Polit­i­cal con­ser­v­a­tives don’t mind because it’s con­ve­nient, but in abstract, that’s the def­i­n­i­tion of the “judi­cial activism” that they bitch about so much.

Ali­to would offer a third mem­ber of the “Con­sti­tu­tion in Exile” wing of the court. That move­ment has the explic­it goal of rolling back a body of Supreme Court deci­sions dat­ing back to the New Deal which broad­ened com­merce pow­ers and grant­ed broad­er def­er­ence to leg­isla­tive bod­ies. These changes allowed laws like the Civ­il Rights Act (jus­ti­fied under the Com­merce Clause, not the 14th amend­ment), Endan­gered Species Act, min­i­mum wage laws, work­er safe­ty laws, etc.

While 3 peo­ple are not a major­i­ty, that’s a sol­id bloc that can build con­sen­sus around rul­ings that crack the foun­da­tion of mod­ern Amer­i­can government.

There are those who’d say that the gov­ern­ment should­n’t rest on a Supreme Court deci­sion. Fine, but even worse would be to have it rest on how Judge Ali­to defines “com­merce.” I’d rather let the courts offer broad guid­ance on com­merce (sim­ply pos­sess­ing a gun isn’t com­merce), and let leg­isla­tive bod­ies work out an under­stand­ing that has some flexibility.

Judi­cial con­ser­vatism ought to be min­i­mal­ist. A con­ser­v­a­tive judge (legal­ly con­ser­v­a­tive, not polit­i­cal con­ser­v­a­tive) ought to write nar­row deci­sions which respect the oth­er parts of the gov­ern­ment. The Scalia/Thomas/Alito approach – strict orig­i­nal­ism – is judi­cial suprema­cy. It sub­sti­tutes a judge’s lin­guis­tic analy­sis for ratio­nal read­ing and the judg­ment of elect­ed rep­re­sen­ta­tives about what some­thing means.

For more on that, I refer you to this excel­lent post on non-orig­i­nal­ist tex­tu­al­ism by Pub­lius.

The point I want to draw from this is that an approach which gives a judge absolute pow­er to inter­pret the con­sti­tu­tion turns a democ­ra­cy into dic­ta­tor­ship. By fiat, Ali­to can declare, as Bill­mon notes, that women and chil­dren should be treat­ed as equal­ly need­ing of a man’s con­sent before under­tak­ing a med­ical pro­ce­dure. And I bet that one would­n’t have trou­ble find­ing that atti­tude in 18th cen­tu­ry Vir­ginia or New York (homes of Madi­son and Hamil­ton, prin­ci­ple authors of the Con­sti­tu­tion), and in the Wash­ing­ton, DC of Recon­struc­tion. But that orig­i­nal­ism does­n’t make the atti­tude any more right.

So the oppo­si­tion to Ali­to should come not just from polit­i­cal­ly inter­est­ed and intel­lec­tu­al­ly con­sis­tent lib­er­als, but also from intel­lec­tu­al­ly con­sis­tent con­ser­v­a­tives, the ones who reject the premise that judges should seize as much pow­er as they can.

Make Bush come back with a sen­si­ble judi­cial con­ser­v­a­tive. An hon­est-to-god cen­trist is too much to ask, but a man who posi­tions him­self to the right of Scalia is too much.