When discussing the vital importance of the Alito nomination it is
extraordinarily important to remember the Justice that Alito would replace -- Sandra Day O'Connor. My objections to John Roberts were not only to his positions, to the degree they were discernible, but to the unprecedented stonewall erected by the White House on documents and information that shed light on Roberts' views. It placed the Senate in a position where it could not properly carry out its constitutional duty of advice and consent. But, in the end, Roberts replaced Chief Justice Rehnquist. It is unlikely that Roberts ascension alone will cause a change in the Court. But Alito's nomination is different. He is slated to replace one of the most powerful Justices of modern times who has been considered the center of the Court.
And that is why the Alito nomination is of singular importance. Consider this excerpt from O'Connor's opinion in Hamdi:
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
Compare it to Alito's proposal for Presidential signing statements that would permit the President to infringe on the Congress' exclusive lawmaking power:
Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."
"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."
More on the other side.
Compare this excerpt from O'Connor's opinion in
Casey:
Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical respects, the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty, because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term, no matter how difficult it will be to provide for the child and ensure its wellbeing. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.
to Alito's 1985 Memo on the Thornburgh case:
[B]y taking these cases, the Court may be signalling an inclination to cut back [abortion rights]. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime mitigating its effects?
. . . We should file a brief as amicus curiae supporting the appellants [thus supporting the laws restricting abortion rights] in both cases. In the course of the brief we should make clear we disagree with Roe v. Wade . . .
. . . While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice . . . Roe took from state lawmakers the authority to make this choice and gave it to the pregnant woman. . . .
On these two issues, it is obvious that replacing O'Connor with Alito could lead to wholesale changes in our constitutional jurisprudence. The divergence in views could not be more stark.
Indeed, one could say the change would be extraordinary.