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. Last Updated: 07/27/2016

Another Lost Opportunity

The nomination of Samuel Alito Jr. to the U.S. Supreme Court raises a lot of questions about the judge's attitudes toward federalism, privacy and civil rights. But it has already answered one big question about President George W. Bush. Anyone wondering whether the almost endless setbacks and embarrassments the White House has suffered over the last year would cause Bush to fix his style of governing should realize that the answer is: no.

As a political candidate, Bush had an extremely useful ability to repeat the same few simple themes over and over. As president, he has been cramped by the same habit. The solution to almost every problem seems to be either to rely on a close personal associate or to pander to his right wing. When the first tactic failed to work with the Harriet Miers nomination, Bush resorted to the second. The Alito nomination has thrilled social conservatives, who regard the judge to be a surefire vote against abortion rights.

Alito is clearly a smart and experienced jurist, with 15 years on the 3rd U.S. Circuit Court of Appeals. The nominee should be given a serious hearing. The need for a close and careful review of Alito's record is all the more crucial because he will be replacing Justice Sandra Day O'Connor, who has been the swing vote of moderation on so many issues.

The concerns about this particular nominee go beyond his apparent hostility to abortion, which was most graphically demonstrated in 1992 when his court ruled on what became known in the Supreme Court as the Casey decision. Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse.

Alito has favored an inflated standard of evidence for racial- and sex-discrimination cases that would make it very hard even to bring them to court, much less win. In an employment case, he said that just for a plaintiff to have the right to a trial, she needed to prove that her employers did not really think they had chosen the best candidate for a job. When lawyers for a black death-row inmate sought to demonstrate bias in jury selection by using statistics, Alito dismissed that as akin to arguing that Americans were biased toward left-handers because left-handed men had won five out of six of the preceding presidential elections.

At least as worrisome are Alito's frequent rulings to undermine the federal government's authority to address momentous national problems. Dissenting in a 1996 gun control case, he declared that Washington could not regulate the sale of fully automatic machine guns. In 2000, Alito said Washington could not compel state governments to abide by the Family and Medical Leave Act, a position repudiated by the Supreme Court in a decision written by Justice William Rehnquist.

When a judge is more radical on states' power than Rehnquist, the spiritual leader of the modern states' rights movement, we should pay attention.

There are more moderate rulings in Alito's record as well, and it will be up to the Senate to sort this out. Does he show merely a conservative bent or a zealotry outside the mainstream that poses a threat to basic rights and protections?

Whatever the answer, this nomination is yet another occasion to bemoan lost opportunities. Bush could have signaled that he was prepared to move on to a more expansive presidency by nominating a qualified moderate who could have garnered a nearly unanimous Senate vote rather than another party-line standoff. He could have sent a signal about his commitment to inclusiveness by demonstrating that he understood his error with Miers had been in picking the wrong woman, and that the answer did not have to be the seventh white man on the court. But he didn't, any more than he saw Sept. 11 as an opportunity to build a new, inclusive world order of civilized nations aligned against terrorism.

Anyone who imagines that the indictment of Lewis Libby and the legal troubles of Karl Rove will be a cue to bring fresh ideas to the White House should read the signs. With more than three years to go in this term, the bottom line is becoming inescapable. Bush does not want to change, and perhaps is not capable of changing. The final word on the Supreme Court is yet to come, but the message about the presidency could not be more disheartening.

This comment first appeared as an editorial in The New York Times.