Alito signals inclination to uphold Roe

The litmus test of the religious right, which requires any Bush Supreme Court nominee to be a mortal foe of abortion rights, appears to have become inoperative in the case of Judge Sam Alito.

Supreme Court nominee Samuel A. Alito Jr. has signaled he would be highly reluctant to overturn long-standing precedents such as the 1973 Roe v. Wade abortion rights ruling, a move that has helped to silence some of his critics and may resolve a key problem early in the Senate confirmation process, several senators said yesterday.

In private meetings with senators who support abortion rights, Alito has said the Supreme Court should be quite wary of reversing decisions that have been repeatedly upheld, according to the senators who said it was clear that the context was abortion.

This will test the mettle of the "strict construction" euphemism of which the religious right is so enamored. In fact, this could inspire a whole new round of criticism from evangelicals who, frankly, couldn't care less about the constitution. If the constitution enshrined a woman's right to have an abortion, religious conservatives would fight over right to burn copies of it in the town square.

The leaders of the religious right believe that this Supreme Court seat is their Supreme Court seat. Bush might sit in the Oval Office with his finger on the button, but on this matter, they expect him to function as nothing more than a repository of their will. Their will is to see abortion outlawed in this country. The sigh of relief we heard from evangelicals upon Alito's nomination was based almost entirely on his written opinions restricting abortion rights. Conservative intellectuals are overjoyed about his pro-business, small-government leanings, but for the Christian right, it is all about protecting the unborn. They are not satisfied with vague assurances. They want to be certain that the next person who ascends to the Supreme Court will do so with the firm intention of striking down Roe at the earliest opportunity.

These remarks create the need for clarification and we may soon hear Dobson, Perkins et al begin to call for Alito to declare himself a foe of abortion rights. Any declaration of a predisposition to overturn Roe will make it impossible for Democrats to support him in significant numbers and will make a filibuster very easy to justify under the Gang of 14's "extraordinary circumstances" agreement.