Fred Hiatt: The Man With A "Kick Me" Sign Gorilla-Glued To His Back

Eventheliberal Washington Post op-ed page has come out in favor of the confirmation of Sam Alito. And, also unsurprisingly but even more annoyingly, it does so in classic Fox News Democrat fashion, swallowing obviously incorrect Republican talking points wholesale:

His record on the bench is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn’t reach for the political outcomes he desires.

This, of course, is the obvious fallacy that because Alito writes in dry, technical terms rather than in the acerbic manner of a Scalia, he therefore must be less conservative. Alas, this is completely false. Alito pushed the law in a consistently conservative direction, and will no longer be bound by upper court precedents. As is true of all of the claims that Alito is a moderate and not a staunch conservative in the Scalia/Thomas mold, no evidence is presented, not a single area where he’s likely to cast less conservative votes is cited, and the civil liberties areas where he’s likely to be more conservative are ignored.

And then there’s this:

But it’s fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That’s not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

No, no, no, no. There is no evidence that Alito practices a consistent “judicial restraint.” Where is this “not substituting judgment for the political branches” in his embrace of the “new federalism,” up to and including the ridiculous “sovereign immunity” doctrine? How does favoring the executive branch over the legislative branch, or reading civil rights statutes to give less protection than Congress intended, constitute “judicial restraint,” let alone a theory of judicial restraint that is “applied apolitically?” As Dahlia Lithwick noted:

Best of all for Bush’s base, Alito is the kind of “restrained” jurist who isn’t above striking down acts of Congress whenever they offend him. Bush noted this morning: “He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”

Except, of course, that Alito doesn’t think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He’s managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.

But the really nice touch is the claim that because Roberts and Alito have “professed “a commitment to “judicial restraint,” is must be true. (Really, Hiatt’s contempt for the intelligence of his readers is positively Althousian.) We can perhaps call this the “but I thought she was going to marry that rich snob!” defense. Wow, I thought that Alito was going to say that he was a rabid activist ideologue who would completely ignore all legal restraints! But since counterintuitively he came out in favor of “judicial restraint,” well, now we have to vote for him. What an embarrassingly unserious editorial.