Not fit for the court

SAMUEL ALITO tells a moving and very American personal story about the path his immigrant father took to raise a son who would one day be poised to sit on the US Supreme Court. But Judge Alito's judicial philosophy, his written record of court decisions, and his unconvincing, sometimes evasive, answers in his nomination hearings far outweigh the personal appeal. He should not be sent to the Supreme Court, where he could reverse the progress this nation has made toward lifting precisely the kinds of barriers his father struggled to overcome.

In four days of hearings before the Senate Judiciary Committee, Alito appeared contained and well informed. But Americans who were concerned about his views on presidential power, privacy, and minority rights heard little to have those fears allayed.

Alito declared his overarching constitutional philosophy of originalism: a strict adherence to the actual written text. In deciding court opinions, he said, ''We should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." Given that, at the time of its adoption, women could not vote and slaves were considered three-fifths of a person, such a philosophy is outdated, to say the least.

On the right to a legal abortion, Alito said he would keep an open mind and repeatedly talked about respect for precedent. But Republican Senator Sam Brownback of Kansas, perhaps not overly helpful, got Alito to agree that if the court ''makes a mistake" and reaches a ruling that is ''repugnant," precedent need not have much weight at all.

On executive powers, Alito distanced himself somewhat from a radical approach he once seemed to embrace, telling the committee that the president is not above the law. But in the current dispute about secret domestic wiretapping, President Bush's supporters insist the law is on his side.

Amid the torrent of words uttered this week, it was disturbing to note what Alito didn't say. He did not say that Roe v. Wade was settled law. He would not publicly condemn the odious Concerned Alumni of Princeton club he once claimed fealty to, whether he was an active member or not. He did not say, as Chief Justice John Roberts did in his hearings: ''I am not an ideologue."

This page supported Roberts's appointment to the court despite his conservativism because we felt he has a supple mind that can embrace modern ambiguities. We do not have such confidence in the text-obsessed Alito.

It should be remembered that Bush nominated Alito only after his first choice, Harriet Miers, was roundly rejected by extreme conservatives who found her ideology insufficiently pure. These were not people who wanted an independent, open-minded jurist. They have smugly signaled that they approve Bush's second choice. We can not.