HOW HE SEES IT A question for Judge Alito

By SIDNEY ZION
NEW YORK DAILY NEWS
Peggy Lee haunts me in the runup to the Senate hearings on Samuel Alito for the Supreme Court. "Is That All There Is?" she sang.
Listening to the pols and reading the pundits and watching the talking heads, you'd think that all there is in the 15-year judicial career of Alito is his vote to require a wife to let her husband know she wants an abortion.
The Supreme Court didn't agree with Alito, but even if they had, Roe v. Wade would stand. This was a peripheral issue, as is the present case before the high court on parental notification.
It's not all there is for the Senate to inquire about if they take seriously the constitutional requirement of advise and consent.
Alito is presented by President Bush as a jurist who believes foremost in judicial self-restraint, a man who would never legislate from the bench. In his opinions he has been respectful to states' rights, holding, for instance, that Congress had no power to prohibit machine guns near schools.
'Originalists'
Members of the conservative movement have posed themselves as the true readers of the Constitution -- "originalists" who believe that judges must never "make law," just interpret statutes as the Founders would.
In Bush v. Gore, though, all of this went out the window, in a 5-4 ruling that ran against everything their principles stood for. It was a judicial coup d'etat, and it embarrassed conservatives as much as it outraged liberals.
During now Chief Justice John Roberts' confirmation hearings, I urged the Democrats to put aside Roe v. Wade and push Roberts to say what he thought about Bush v. Gore. One senator asked, Herb Kohl of Wisconsin, but let Roberts off the hook because he wanted the judge to say how he'd vote if he were there at the time.
Roberts didn't bite. "It's inappropriate to comment on whether they were correct or not," he said.
But if they put it to Alito differently, the Senate and the country will discover something about him.
"In your opinion, were the principles you stand for -- states' rights, judicial restraint, no legislating from the bench, honored in the court's opinion in Bush v. Gore?"
If he says yes, he violates everything he stands for in law. The Supreme Court stopped a recount ordered by the Florida high court on the ground that the state's election statutes violated the equal protection guarantees of the 14th Amendment. This by a majority who couldn't care less about equal protection and who stipulated that the ruling would not apply in any other case.
Judicial activism in living color. Law made from the bench to put a preferred candidate in the White House. To hell with states' rights and self-restraint.
Just ask him, senators, and we'll know if we have an honest man.
X Sidney Zion is a columnist for the New York Daily News. Distributed by Knight Ridder/Tribune Information Services.