We'll have plenty of analysis and discussion about President Bush's new nominee, since the confirmation hearings likely won't be until January, but here's a quick take. The AP reports:

Judicial conservatives praise Alito’s 15 years on the Philadelphia-based court, a tenure that gives him more appellate experience than almost any previous Supreme Court nominee. They say his record shows a commitment to a strict interpretation of the Constitution, ensuring that the separation of powers and checks and balances are respected and enforced. They also contend that Alito has been a powerful voice for the First Amendment’s guarantees of free speech and the free exercise of religion.

Liberal groups, on the other hand, note Alito’s moniker and say his nomination raises troubling concerns, especially when it comes to his record on civil rights and reproductive rights. Alito is a frequent dissenter on the 3rd Circuit, one of the most liberal federal appellate benches in the nation.

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

“The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion,� Alito wrote.

He has not been a down-the-line abortion foe. In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother’s health was endangered.

Of course, what this does not reveal is his attitude on stare decisis. Sitting on the Supreme Court, would he still hold to Supreme Court precedents when they run up against his personal ideology?

The Washington Post reports that he's been a conservative judicial activist:

Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

And, regarding Casey:

Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.

"Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here," he wrote.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion.

"In addition," he wrote, "the legislature could have reasonably concluded that Section 3209 [the spousal provision] would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. . . . The Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse. "

"Some legitimate government purpose?" "Husband's interest"? He makes it sound like a real estate transaction. Obviously he feels that the woman does not own her own womb, and that a marriage commitment includes always notifying the husband of any plan to abort a woman's pregnancy, even if he's an abuser (which sadly is not uncommon enough) or simply gone (which sadly is not all that rare, either).

Justice Sandra Day O'Connor, whom Alito would replace on the bench, had a much clearer view of the issue, unclouded by ideological bias or unexamined misogyny:

On the spousal notification provision, O'Connor wrote for the court that it did indeed constitute an obstacle. The "spousal notification requirement is . . . likely to prevent a significant number of women from obtaining an abortion," she wrote.

"It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases," she said.

Plus, it "embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry, " she said.

"The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family."

Alito also whips up fantasy scenarios of possible reasons a woman may choose to abort a pregnancy, as if they represented the significance or gravity of all possible scenarios. To me, it's something like arguing that some people are obese, therefore it's not unreasonable for the state to cancel food stamps programs for the poor.

Predictably, such a divisive nominee, coming from the president that puts party politics above national interests foreign and domestic, has triggered split responses:

“The president has made an excellent choice today which reflects his commitment to appoint judges in the mold of Scalia and Thomas,� said Kay Daly, president of the conservative Coalition for a Fair Judiciary.

“It’s a pretty predictable move from a politically crippled president,� said Democratic consultant Jim Jordan. “Toss out a judicial extremist to pacify his base and provoke a fight that he hopes changes the subject away from indictments and Iraq and Katrina and a soft economy.�

Of course, it's no surprise considering Bush's talent to divide a nation united. Clearly Karl Rove is back, and Bush is set on pitting American against American, all in the name of the national defense of the GOP.

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