Jeffrey Toobin should have� written about what Samuel Alito has actually did on the Third Circuit, as opposed to what he thinks Alito might do on the Supreme Court.

During a recent dinner conversation, I expressed indignation at the treatment of Samuel Alito by Senate Democrats and by the Left in general.� � My friend, a fairly liberal Democrat on most matters, acknowledged my sentiment.� � “Bush could have appointed Solomon to the Supreme Court and the Democrats would have still opposed him.� � It’s a divided country.”

My friend’s spirited retort would be more funny if weren’t so very true.� � Why is it that Democrats must oppose any judge appointed by a Republican President?� � Well, simply put, Democrats don’t want to be responsible for confirming a justice� who could be the deciding vote in overturning Roe v. Wade.� � That could get a Democratic Senator on the bad side of Ralph Neas in a hurry.

Before I go any further I must disclose something.� � My position on abortion is pro-choice.� � Indeed, in recent years, I had unsuccessful job interviews with pro-choice organizations in both Massachusetts and New Hampshire.� � No, I don’t support abortion on demand, and I believe in setting reasonable limits (i.e. parental notification, no abortions in the third trimester).� � On the other hand, I believe it is hopelessly impractical to pass a ban on all abortions.� � Those who have the means will find a way of obtaining the procedure.� � Those who do not might seek out the services of someone with less than savory ethics.� � Those who live in a jurisdiction that has restrictive abortion laws will simply go to another jurisdiction that does not.� � We also cannot compel women and girls who have been raped or victims of incest to carry out those pregnancies.� � This might be an unpleasant truth for many conservatives but it is a truth nonetheless.

Now that my position on abortion is out in the open I believe that I can� unambiguously state that Senate Democrats and the Left in general are behaving in a silly manner regarding Alito.� � If Senate Republicans could vote in favor of Clinton appointees Ruth Bader Ginsburg and Stephen Breyer, there is no reason that Senate Democrats cannot extend the same courtesy to Alito.

Yet I know such a display is about as likely to take place as the Nation of Islam honoring Charles Krauthammer.� � Case in point:� yesterday, I received an e-mail from an organization calling itself www.emailtocongress.com.� � They call for the Senate to filibuster Alito:

Alito is on the record stating that he believes in a dictatorial model of the president and that a woman’s private decisions are up for grabs.� He lied about his position on the former and categorically refused to repudiate the other.� � Robert Bork himself stated the other day he believes conclusively that Alito still holds that view.� � THAT is the evidence to filibuster Alito, not what he might have evaded saying at his hearing.

The e-mail goes on to state:

This is our litmus test.� If our senators will not protect us from this constitutional outrage, we call for each and every one to be defeated in their next election.

A constitutional outrage?� � Really?� � Someone desperately needs a taco.

Jeffrey Toobin might very well be in need of the three taco combo from Qdoba.� � Toobin doesn’t quite reach the heights of� hysterics achieved by www.emailtocongress.com but his article in the January 23rd issue of The New Yorker,“Unanswered Questions,” certainly raises some questions of my own.�

Toobin, who is also a legal analyst on CNN, describes Alito “as a zealous advocate in a fiercely ideological Department of Justice” during the Reagan years.� � Like others, he has noted Alito’s 1985 comment that he was “particularly proud” of his contributions on cases arguing “that the Constitution does not protect a right to an abortion.”�

Lawyer Alito may have been ‘particularly proud’ of his work to limit abortion rights, but Judge Alito insisted that this view would have no influence at all on Justice Alito.

Toobin mentions in passing that Alito was appointed to the Third Circuit Court of Appeals in 1990.� � He wrote skeptically, “In that job, he testified last week, his ideological inclinations were instantaneously rendered, so to speak, moot.”� � Yet Judge Alito did exactly that in several cases during his tenure on the Third Circuit pertaining to abortion.� It would have been nice if Toobin had written about what Alito has actually done on the Third Circuit as opposed to what he thinks Alito might do on the Supreme Court.

By not talking about his time on the Third Circuit, Toobin fails to mention that Alito sided with the majority in the 1995 case Elizabeth Blackwell Health Center for Women v. Knoll.� � This decision upheld a ruling by the U.S. Department of Health and Human Services that Pennsylvania had to provide state Medicaid funds for abortions in instances of rape and incest, without burdensome verification requirements.

Toobin also fails to mention that two years later, Alito again sided with the majority in Alexander v. Whitman.� In that case the� Third Circuit upheld the constitutionality of New Jersey’s wrongful death and survival statutes that denied recovery on behalf of stillborn fetuses.� � The requirements of Roe v. Wade were applied in this decision.� � Although Alito expressed reservations about certain human beings not being “constitutional persons,” he did wrote, “I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a ‘person’ within the meaning of the Fourteenth Amendment.”

Then comes a third strike against Toobin.� � He fails to mention that Alito again sided with the majority in July 2000 when the Third Circuit struck down New Jersey’s partial birth abortion law.� � In Planned Parenthood of Central New Jersey v. Farmer, the court struck down the New Jersey statute in part because of its similarity to a partial birth abortion statute in Nebraska that had been previously overturned by the U.S. Supreme Court.� � In June 2000, a month before the Third Circuit case, the Supreme Court ruled in Stenberg v. Carhart that Nebraska’s law was unconstitutional because it a) did not include a provision protecting the health of the mother, and b) imposed an undue burden� on a woman’s ability to choose the dilation and evacuation procedure, the most common type of second trimester abortion performed.� � Now, many in the pro-life movement scoff� at provisions protecting the health of the mother, precisely because such provisions are so vague that� they could encompass the common cold.� � I am certain that Lawyer Alito in the Reagan Justice Department might have similarly scoffed.� � But in Planned Parenthood of New Jersey v. Farmer, Judge Alito wrote, “Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.”� � If those decisions made by Alito on the Third Circuit do not attest to the mooting of his ideological inclinations, then what does?

But what can one expect of Toobin, who applauds members of the Senate Judiciary Committee for having “conducted a high-level debate” during the infamous, ill-fated confirmation hearing of Robert Bork in 1987.� � Could Toobin be referring to the same confirmation hearing where Senator Ted Kennedy declared, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government?”� � If that is Toobin’s idea of a high-level debate, I would hate to think what in Toobin’s mind constitutes a low level of debate.� � �

Well, actually I might have some idea here.� � Toobin seems to believe that Supreme Court nominees should run for elected office:

Politically, Alito’s silence may be golden, but it is absurd that it is tolerated.� Like most candidates for public office, the eighteen senators on the Judiciary Committee went before the voters of their states with public stands on the issue of legalized abortion.� � Indeed, virtually all politicians in the country are expected to have a view on Roe, yet the nine individuals who can actually decide its fate are not.

Yes, a seat on the Supreme Court is a public office.� � But the last time I checked we have a separation of powers in this country.� � The judiciary is independent of our elected bodies.� � Samuel Alito has held public office for the past 15 years and, if given half a chance, could hold another public office.� � Yes, Samuel Alito and all other judges engage in politics and address political questions.� � But Samuel Alito is not a politician.� �

Does Toobin expect Alito and all other nominees to the Supreme Court, Circuit Courts and District Courts to host fundraisers, kiss babies and eat rubber chicken?� � Does Toobin want Alito to go out on the stump and promise to overturn Roe v. Wade?� � Does Toobin want Alito to run against another lawyer for his seat on the Supreme Court?� � Would Toobin back Laurence Tribe against Alito?� � Or Cass Sunstein?� � Would their slogan be “Defeato Alito?”

Conservatives have long criticized the Left for legislating from the bench but Toobin is actually going a step further.� � He is essentially arguing that the separation between the legislative and judicial branches� should be ended� and that the courts should become another legislative body that writes new laws rather than interpreting existing ones.� � Judges would become advocates rather than arbiters.� �

Toobin concludes his article by lamenting that Supreme Court confirmation hearings have become a “charade.”� � Well, Supreme Court confirmation hearings became a charade during the Bork debacle, a period of history that Toobin deems to be the height of intellectual debate in the hallowed halls of the Senate.� � They have become a charade because Democrats and their supporters opted to defame people with sleight of hand instead of helping to define people who will uphold the law of the land.� �

Samuel Alito ought to be rigorously judged by Senate Democrats before the Senate Judiciary Committee� — based on his work as a judge.� � Not on what he did during the Reagan Administration.� � Not on what he did at Princeton or Yale.� � Not on what he did while attending Steinhart High School in Hamilton, New Jersey.� �

To do otherwise is an indication of poor judgment on the part of Senate Democrats.