Reading the tea leaves on Alito

The failed nomination of conservative iconoclast Robert Bork was a watershed in the history of presidential Supreme Court appointments.

Back in 1987 When Ronald Reagan nominated Bork to a seat on the U.S. Supreme Court the outspoken arch-conservative made an easy target for liberals and moderates. "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, children could not be taught about evolution," said Sen. Ted Kennedy in a speech on the floor of the Senate. So effective were the attacks on Bork that his nomination went down in defeat and the word "bork" entered the vocabulary, meaning "to destroy a judicial nominee through a concerted attack on his character, background and philosophy," according to The New York Times.

Since then American presidents have learned to be somewhat more circumspect when nominating a Supreme Court justice. Rather than pick a candidate who will be a lightning rod for controversy from either the left or right, they tend to look for "stealth" nominees that have left little in the way of paper trails that might betray their judicial leanings.

The culmination of this "stealth" approach was the recent nomination of Harriet Miers, counsel to President Bush, who was seen as so stealthy that Bush's conservative base went wild fearing Miers could become another David Souter.

Souter was the pick of the current President Bush's father. Rather then hewing to the conservative line, Souter proved himself to be his own man and has become a moderately liberal voice on the Court - much to the chagrin of conservatives.

Thus, when Miers was nominated and her paper trail was found to be nearly invisible, Bush's far-right base became rabid from fear that Bush Junior would repeat his daddy's mistake of appointing a closet liberal to the Supreme Court. In appointing a stealth candidate whose true opinions would evade the liberals' radar, Bush enraged his base who were as uncomfortable trying to read the tea leaves to discern Miers' stands as were the liberals. Even Bork participated in the "borking" of Miers, according to the online encyclopedia, Wikipedia:

Bork arguably borked judicial nominee Harriet Miers in an October 19, 2005 Wall Street Journal editorial where he states she lacks "the basic skills of persuasive argument and clear writing", is without a "philosophy of judging", and "demonstrates absolutely no ability to write clearly and argue incisively." Those who view "borking" as an unfair attack misrepresenting a nominee's paper trail would disagree with that assessment, as Bork's disagreement with the Miers nomination stemmed from her lack of public participation in important debates about the role of the judiciary, and his assessment of her qualifications, rather than attacks on her character, judicial philosophy, or motivations.

Conservatives are not alone in casting for signs and portents among the tea leaves when stealth candidates are nominated. LGBT organizations are likewise forced to look for any scrap of evidence to predict whether a given nominee would expand (or at least preserve) LGBT issues or return the nation to the days when the notoriously anti-gay 1986 Bowers v. Hardwick decision was the law of the land.

In the case of Miers, a 1989 questionnaire she filled out for a Dallas LGBT political group while running for the city council became the tea leaf for what might be her stands on LGBT issues. Her responses provided a mixed message: she expressed general support for equal rights for gays and indicated she opposed discrimination based on sexual orientation, but she also said she would not support a bill to repeal the Texas sodomy law, according to an article in The New York Blade.

Bush's first Supreme Court pick, Chief Justice John Roberts, faced the same sort of tea-leaf-reading when it was reported he provided assistance to a pro-gay group preparing to argue the 2003 Lawrence v. Texas case that would eventually overturn the Texas sodomy law (as well as other sodomy laws pertaining to same-sex couples). Even Roberts' "cross-dressing" performance as Peppermint Patty in an all-male school production of You're a Good Man, Charlie Brown raised eyebrows.

Now we have Judge Samuel Alito, Bush's second attempt at replacing retiring Justice Sandra Day O'Connor. Though Alito comes with a much clearer conservative pedigree to appease Bush's conservative base, the tea-leaf reading continues. Take, for instance, today's Boston Globe and its article headlined Alito writing backed privacy, gay rights:

As a senior at Princeton University, Samuel A. Alito Jr. chaired an undergraduate task force that recommended the decriminalization of sodomy, accused the CIA and the FBI of invading the privacy of citizens, and said discrimination against gays in hiring "should be forbidden."

The report, issued in 1971 by Alito and 16 other Princeton students, stemmed from a class assignment to study the "boundaries of privacy in American society" and to recommend ways to protect individual rights.

The far-ranging report, which satisfied a requirement for public policy students and which was stored in the university's Seeley G. Mudd Manuscript Library, provided a glimpse of a more liberal Alito than the jurist is now perceived.

"We sense a great threat to privacy in modern America," Alito wrote in a foreword to the report, in 1971. "We all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."

Behold! New tea leaves to read!

But before we get carried away and decide that Alito might be "gay-friendly" (or at least not of the "let's-round-up-the-queers-and-burn-'em-at-the-stake-like-God-wants" gay-UNfriendly sort), keep in mind a few things:

1. Alito's pro-gay writing goes back to 1971, a decidely more liberal time (especially compared to today).

2. He wrote the report as a law school assignment. That doesn't mean he necessarily agrees with it. I can remember writing essays for a very right-leaning philosophy instructor in college who saw every philosophical school of thought through the lens of unbridled free-market capitalism. Those of us in the course quickly learned that re-stating his own opinions was the easiest path to a good grade. For all we know, Alito was writing to please a liberal instructor.

3. As the former classmate who actually wrote the section on gay rights tells The Boston Globe, he "could not remember whether Alito personally agreed with the recommendations."

It's possible Alito could be a vote to expand LGBT rights on the Supreme Court. It's also possible he could be the crucial vote to roll back those rights. It seems the tea leaves have given the same frustrating answer that those old "Magic 8 Balls" would give occasionally: "Answer uncertain. Ask again later."

When it comes to stealth Supreme Court nominees, the answers provided by tea leaves, Magic 8 Balls, crystal balls, or whatever form of prognostication seem rigged to always return an "ask again later" reply. Unfortunately, "later" means after the nominee is sitting on the bench.

In a nation so polarized along the lines of right/left, liberal/conservative, pro-choice/pro-life, pro-gay/anti-gay/ religious/secular, etc., etc., the practice of trying to sneak a stealth nominee by the opposition will likely continue. That's too bad because it results in a "crap-shoot" process that doesn't serve the nation. We end up with Supreme Court justices more concerned about shoe-horning a case into their ideaologies rather than jurists who will give reasoned, thoughtful deliberation to the cases brought before them.

In the best of all possible worlds a Supreme Court nominee would openly state where he or she stands on abortion, LGBT rights, privacy issues, or any of the other hot-button issues of the day. At least that way it would push the Court away from extreme positions on either side and more toward a moderate middle ground.

But as has been proven time and time again, this is far from the best of all possible worlds.