Bench Memos

Durbin on Fox

From Senator Durbin’s interview on FoxNews Sunday this morning:

WALLACE: Do you think that if [Judge Alito] issues conservative rulings from the court during his time after he is confirmed and apparently he will be, do you think that’s a legitimate campaign issue in the 2006 elections?

DURBIN: It will be. If he issues rulings as Sandra Day O’Connor did, it will be no issue at all. If he goes to the court and comes forward with rulings such as we’ve seen from Justice Scalia and Thomas time and again, it will be an issue.

So, does this mean it will be “no issue” if a Justice Alito votes to constrain federal regulatory power (as Justice O’Connor did more reliably than Justice Scalia) and upholds the exercise of executive authority to detain terrorist suspects (as Justice O’Connor did, but Scalia did not)? Or, perhaps Durbin is simply referring to abortion. In the same interview, Durbin identified Alito’s “1985 memo” (the one saying the Constitution does not protect a right to abortion) was evidence he would bring “a point of view . . . that is not positive” to the Court if/when confirmed.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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