Last Monday morning President Bush nominated Judge Samuel Alito to fill Sandra Day O’Connor’s seat on the US Supreme Court.  This of course follows the rather disastrous nomination of Harriet Miers for that same seat.  When she withdrew her name, the President quickly acted to nominate Alito.  (Many of us wonder why the President did not nominate Alito in the first place.)  This nomination will be contentious and difficult, but Alito will probably be confirmed.  I am devoting a significant portion of this week’s Issues in Perspective to an analysis of this nomination.

• First a few comments about Judge Alito.  Judge Alito was appointed by the President’s father to the Third Circuit Court of Appeals and confirmed unanimously by a Democratic-controlled Senate.  Before that he served as an assistant solicitor general in the Reagan administration, arguing 12 cases before the Supreme Court; as US Attorney General for New Jersey; and as deputy assistant attorney general in the office of Legal Counsel.  It would be absurd to argue that Judge Alito is not qualified to serve on the Supreme Court.  He is also a devout Roman Catholic.  (Indeed, if confirmed, he would be the sixth Catholic currently on the Court.)  The challenge, of course, is that Judge Alito has put 15 years on the federal bench, whereas Judge Roberts only two.  The result is a much longer paper trail for his opponents to sift through and challenge.  As Jonathan H. Adler, law professor at Case Western Reserve University, has commented:  “Judge Alito’s credentials are more like those we have come to expect from Supreme Court nominees, including an Ivy League education and substantial judicial experience—more than any Supreme Court nominee since World War II.  Yet he also has significant executive branch and prosecutorial experience that could add a unique perspective to the court.”  In short, what we have in Alito is a brilliant legal mind on display in his public record.  One Democratic aide has reportedly called Alito a “right-wing wacko.”  Anyone who is intellectually honest will reject such baseless politicking.  Alito is not a dogmatic conservative; instead, he is far more interested in “getting the law right and faithfully applying applicable precedents” and not advancing a rigid ideological agenda.  He said earlier this year, “Judges should be judges.  They shouldn’t be legislators, they shouldn’t be administrators.”  Ann Althouse, law professor at the University of Wisconsin, has written, “To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work.”  This nomination debate will be over ideology, as the Democratic Party and the left-wing interest groups have argued—but it should not be about ideology.  Indeed, Senator Patrick Leahy, the ranking Democrat on the Judiciary committee, has argued “This is not over competence.  [Alito] certainly is competent.  This is the whole issue of ideology.”  But it must be about competence and Alito passes that test.

• Second, the most important aspect of the debate about Alito will no doubt be abortion.  In a controversial ruling in 1991, Alito was the lone judge on the Third Court of Appeals who believed that a state law requiring married women to notify their husbands before having an abortion was within the bounds of the Constitution.  When the case made it to the Supreme Court—Planned Parenthood v. Casey—the majority disagreed with Alito and invalidated the spousal-notification provision, saying that “woman do not lose their constitutionally protected liberty when they marry.”  But this issue in this case was whether spousal notification was an “undue burden,” the test the Court would adopt.  After a careful reading of the available Supreme Court precedent, Alito concluded that spousal notification was a constitutional permissible limitation on a woman’s right to an abortion.  He wrote, “Whether the legislature’s approach represents sound public policy is not a question for us to decide.  Our task here is simply to decide whether [the law] meets constitutional standards.”  This is the epitome of judicial restraint. 

• Third, the Casey case and Judge Alito’s role in that case, necessitates a quick review of abortion and the law.  The 1973 Roe v. Wade established the right to an abortion under the Constitution.  The court ruled that in the first trimester of a woman’s pregnancy, the state could not intervene.  In the second trimester, the state could only regulate abortion in “ways reasonably related to maternal health.”  In the third trimester, the state could regulate all abortions unless the mother’s life or health was at stake.  In the 1992 Planned Parenthood v. Casey, the right to abortion was re-affirmed but amended saying it was a quasi-fundamental right—permitting the state to regulate or ban abortion so long as an “undue burden” was not placed on the woman.  That ruling also eliminated the trimester framework and instead distinguished between abortions before a fetus was viable and afterward.  The “undue burden” distinction is vague, but currently 34 states require some form of parental involvement in a minor’s decision to have an abortion.  Further, 29 states require a woman to have counseling before receiving an abortion.  And 26 states have imposed bans on certain late-term abortions, especially partial birth abortions.  This month a major case will be argued before the Supreme Court, Ayotte v. Planned Parenthood of Northern New England.  Here the court will review a ruling of the First Court of Appeals in Boston, which held unconstitutional a New Hampshire law requiring girls under the age of 18 to notify their parents 48 hours before an abortion, even if their health is at risk.

• Finally, a word about judicial activism as a legal position within the judiciary.  Today, most conservatives deplore judicial activism unless of course it applies to conservative ideology, like overturning affirmative action cases, gun control legislation or affirming strong property rights.  The best guide for judicial restraint, the opposite of judicial activism, is for a judge to stand on court precedent or to stand on the original intent of the Constitution.  Judge Alito gives every evidence of having a mixture of the two.  He has striven faithfully to respect precedent.  But he has also made clear that judges are to interpret the law, not legislate or administer.  In so many ways, we are really not certain how Alito would rule on key cultural/legal issues of our day.  But his record shows that he is a man of precedent and a judge who respects the Legislative and the Executive branches of government.  He is a brilliant man, a man of deep faith, and a man of the utmost integrity.  He has the makings of a superb Supreme Court Associate Justice.  He deserves to be confirmed.

See Michael Kinsley editorial, Washington Post (4 November 2005); Lauren Etter, Wall Street Journal (5-6 November 2005); Jonathan Adler editorial, Wall Street Journal (1 November 2005); Ann Althouse editorial, New York Times (1 November 2005).

The relationship between the Christian and the political realm has always been a challenge.  Should Christians be involved in politics?  Should Christians run for political office?  To what degree should Christians seek to influence public policy?  I wrestled with these questions when I wrote my book on ethics—Biblical Ethics.  A recent article by Darrell Bock offers some most helpful thoughts.  In this Perspective, I want to summarize and interact with his ideas.  Bock makes a careful distinction between government and the Kingdom.  They are distinct and the Christian must maintain that distinction.

• First, Bock establishes that one of the great calls upon the believer’s life is that we must engage and influence culture.  Faith and civic life must be integrated.  This is certainly what Jesus meant when He called us to be salt and light.  “Faith in God deals with all of life, so culture and the state are inevitably a part of the equation.  The [critical] question is how does an individual believer best integrate faith into the surrounding political culture?"

• Second, he affirms that there are two clear and distinct realms within the believer’s life.  Government has the right to exist and has stewardship responsibilities before God.  But the New Testament also teaches that the kingdom of God is a thing unto itself.  “It is a community in the midst of the world and as such stands alongside the nations.  It operates not so much in states as between them.  Primary loyalty for the Christian is not to a nation, but to the kingdom of God.”  The kingdom of God is made up of a specific group of believing people from a variety of backgrounds, countries, and cultures.  “It has no boundaries of concern other than to love God and its neighbors, whoever they may be, just as Jesus taught and modeled.”

• Third, Bock reviews with great clarity, the relationship between the state and the Kingdom.  (1)  History teaches us to be wary of confusing church and state.  We see that with the results of Emperor Constantine in the 4th century.  (2)  History also teaches us that Christianity actually introduced the concept of the separation between church and state.  We see that in the teachings of Jesus on paying taxes and in Paul’s theology of the state in Romans 13:1-7.  (3)  Bock also shows the modern Europe has taken this separation to an extreme.  For that continent, the separation means pure secularism, with religious values and beliefs on the fringe of society.  The US is in danger of following suit here.    

• Finally, Bock argues for the Kingdom in compelling terms:  “The church can uniquely model a redeemed society for societies that are fallen.  Churches can incarnate the very reconciliation Jesus died to provide. . . we can offer evidence of a lived value system that stands out as an expression of both love and truth.  We do our best when we can make the case that the values we contend for are best for all of us, believer and nonbeliever alike.”  The kingdom of God is best spread, not when we force its ethics on others, but when we demonstrate through tender care for our own and our neighbor what the gospel looks like.  “For if the Cross means anything, it means the kingdom of God is not realized through an exercise of power.”  Instead, we demonstrate that kingdom through love.  When we engage in politics, we argue for our values because we “believe they represent the best for all people—while giving visible evidence of those values in how we live within our communities.  As we advocate, however, we recognize that as citizens of the state, we are part of a community we cannot and should not turn into a church.  States are responsible to God to fulfill their calling.  Our call is to be faithful in making our case and to make sure we make it with the best motives.”  As Chuck Colson said years ago, we do not seek power, we seek justice and love.  There are three lessons to be learned from a proper view of the role of the state and the role of the church:  (1)  These thoughts warn us against an over-mingling of religion and state.  This is especially appropriate when we have a current administration so open to evangelicals and their ideas.  (2)  For those who are not strongly evangelical, such teachings remind us of the danger of becoming so focused on social and political change.  Such an emphasis ignores the truth that the fundamental problem of the human race is not social, political or economic—but spiritual.  Transformation does not come from the state but from the Spirit.  (3)  Legislation can only do so much.  Legislating a moral position is difficult and will rarely accomplish the desired end without the inner transformation that the Spirit brings.  Listen to Bock’s closing challenge:  “The danger is to the church.  Our cultures need communities that know no national boundaries, that do not depend on their legislatures being of one brand, and that are open to serving our neighbor’s need.  To be a member of the church is to recognize that there is more to our world than our culture or the state.  God calls the church to be distinct from our culture, but to influence it in its own unique way, to be a visible, third influence in our world.” 

See Darrell Bock “The Politics of the People of God,” Christianity Today (September 2005), pp. 84-86.