Monday, October 31, 2005

Alito Alights

I'm no expert on appellate jurisprudence, so here's my admittedly quick and dirty take on Alito. Having spent a few hours going over his record and reading a bit from both his boosters and detractors, I like this nomination and think Bush got it right. Alito is basically as advertised, and conservatives could not have asked for much more. While perhaps liberals could have done worse, of course they know that they could have done much better. Some of the talking points I've read from the Left on this are a mile wide, an inch deep, and come with lots of exclamation points. The debate over Alito's dissent in Casey is a good example. Effective opposition to any Supreme Court nominee takes a huge amount of slogging; without it, there is only shallow and reflexive inferring of the nominee's policy preferences. Opinions must be read and precedents and settled law understood. So far, at least, I'm not seeing much of that from the Left. Feel free to point me in the direction of any particularly coherent reading if you disagree with me.

It's probably not surprising that my reaction to this nomination is also similar to my initial (and since changed) post-Kerik thoughts about Michael Chertoff: it puts the extent of the previous disaster into stark relief. The SCOTUS nominations are the self-professed holy grail for some of the Right's wild-eyed fanatics, who need to ask themselves honestly whether today justifies enduring and in many cases overlooking the myriad train wrecks including Iraq (seven more U.S. troops killed today), Katrina, and government spending. Avoiding disaster the first time around seems to be a big problem for this administration. What worries me is that we know about the stuff that's already hit the fan. What lurks beneath?

120 Comments:

Anonymous Anonymous said...

Seems pretty unfair to charge that liberal objections have so far not been hugely researched, since until 12 hours ago this guy was just another dude on the winger wish list, and a white dude at that, so probably not someone anyone was gonna do huge amounts of advance research on since this was supposed to be the diversity pick.

It seems pretty obvious to me that this guys is about a century too late to make the 19th century plutocrats' dream team SCOTUS. I can't see how that counts as "getting it right".

10/31/2005 8:09 PM  
Anonymous Antonie said...

Well, he is from New Jersey. Can't be all that bad.

10/31/2005 8:28 PM  
Blogger R.S. said...

It use to be Presidents appointed Supreme Court Justices, Bush was forced to pull his and let the extreme right o it instead.

10/31/2005 9:32 PM  
Blogger Mitchell J. Freedman said...

If the far right can derail Miers and still be considered "loyal," why can't "moderates" do the same with Alito?

I am suprised by the Cunning Realist. I read several of the cases, mostly dissents of Alito, and was struck by how wide of the mark Alito was compared to his colleagues and how much he wants to undermine precedent in civil rights cases. Proving racism by circumstantial or indirect evidence is as necessary as it is when trying to prove fraud. Nobody wants to admit it and most of us have our codes. With his crabbed view of federal power for ameliorative legislation, he is more of a Gilded Age judge than our Founders intended or even the framers of the 14th Amendment intended.

I just don't see a mandate for Bush to give this guy a lifetime position on the US Supreme Court.

11/01/2005 1:42 AM  
Anonymous Tim Pearson said...

Compare and contrast (powerline (http://powerlineblog.com/archives/012108.php) vs billmon (http://billmon.org/archives/002322.html))

11/01/2005 1:43 AM  
Anonymous Andrew said...

To Anonymous: Of course it's fair to criticize the knee-jerk nature of liberal objections. If they haven't had time to research and offer an informed opinion, they should either admit that or say nothing. Instead, they're acting like they all KNOW that Alito's the biggest right-wing nut imaginable, when they're actually just mindlessly spouting PFAW talking points.

11/01/2005 4:01 AM  
Anonymous Anonymous said...

Seems like there are two camps. I belong to the camp that believes the litmus test should be whether the judge supports personal rights over that of corporations, supports the personal decisions of the individual over states regulation of our private lives and states rights against federal powers. The other camps only concern seems to be whether or not the judge will ban abortions.

I agree with CR, the anti-choice crowd sure has to overlook a multitude of transgressions of this administration to support their agenda. It seems like their only concern is with the rights of the unborn fetus, because healthcare for the poor is non-existant, we have increased the amount of hunger of the poor under the Bush administration and increased the number of children without health insurance. Congress just voted to cut funding for food stamps on Friday, so please tell me exactly what the "culture of life" really is?

Many if not most abortions are given to women in the 20's, who are unmarried and have a median income of $24,000. Tell me how the pro-life crowd would handle this crisis if abortion is outlawed. Tell me how we'd take care of these poor women and children? This crowd wants to ban birth control and Plan B and prevent the teaching of proper sex education, which further exasberates this problem.

11/01/2005 10:46 AM  
Anonymous lilybart said...

The far right Christians want to adopt those nice white babies that they will force the women in their 20's to bear. They won't adopt the kids already born, desparate for a home though.

"christians" only seem to care about the sex that others are having. They are not pursuing an agenda based on the teachings of Jesus. I wouldn't object to them so much if they were.

I object to yet another white male from the same insular set of schools and clubs.

11/01/2005 11:12 AM  
Anonymous Anonymous said...

The Dems need to do all they can to talk about the substance of his rulings and stay away from personally attacking him. They also should forget about the filibustering because at the end of the day they will have to cave just as they did on the Brown/Owens et al debacle....they can vote against him, make his views known and pelt him with question during the hearings but they have to guard against just being petty and personal. They guy does not appear to be a Bork (personality wise) and so it if the Dems come across as attackers the American people (and yes I have talked all of them ;-)) will shut the DEMS out. What they really should be focusing on is finding some outraged Republican committee chair (like Tom Davis) and start working on them to hold hearings into the Plame leak. Mr Fitzgerald may be limited in what he can do but Congress has lots of lattitude to get to the bottom of not only what is illegal but also what is just not right.

11/01/2005 11:14 AM  
Anonymous Anonymous said...

It is incorrect to say Bush picked him.

Bush is being lead by the nose by the radical religious right (the ring is being squeezed and twisted), and the moderates or the "real" conservatives, with any common sense, are being left in the dust. I agree with all but one of the comments; especially agree with, "believes the litmus test should be whether the judge supports personal rights over that of corporations, supports the personal decisions of the individual over states regulation of our private lives and states rights against federal powers." I'm so sick of hearing about abortion. I use to have a teacher that would call certain students rebels and other problems solvers. The rebels just wanted their way to heck with anyone else and they lived on making noise for their own personal glory. The other group, analyzed problems and looked for well-thought out solutions to real problems for the majority. Faith does not solve problems, pretending something doesn't exist doesn't solve problems, identifying the root causes and actually doing something does.

I think I'll wait for the Supreme Court Nomination Hearings and let our representatives do their job (hopefully!). Too bad Miers wasn't given that opportunity, regardless. Saturday night live did an excellent skit on Miers.

Fox New reported on Miers: Republicans were short of "eating their young" [Go to and click on "Goodbye Girl" to see the Republican frenzy. Also catch in the video - Lott's faux pas, "man, woman or minority"... A minority isn't a man or woman in Lott's mind.

11/01/2005 11:33 AM  
Anonymous kindness said...

The Dems don't have to cave.

Seems like the #2 wish from the right is that Dems abdicate.

No, what we have here is the beginning of a full fledged revolution. It'll start with a filibuster, ebb on by a change in filibuster rules, race forward with a change of Quorum rules and then a real shooting civil war comes on.

All this so the fringe of the republican/christian right gets their due? Seems pretty spoiled childlike to me. I hope I'm wrong about the war part. But I won't deny it might happen.

11/01/2005 12:31 PM  
Anonymous Anonymous said...

There's going to be a fight one way or the other. Only question is how acrimonious it will be.

11/01/2005 12:41 PM  
Anonymous Anonymous said...

I think the Dems shouldn't totally take the bait on it. Eye on the prize: Plamegate. Of course, neither should they roll over.

11/01/2005 1:00 PM  
Anonymous Anonymous said...

The moderates in the GOP has as yet, to mount any effective defense against the nuttier aspects of the GOP and this administration. It usually seems like the so-called moderates just roll over and let the hard line get what they want. The center or moderate of either party is not exactly trusted by the rest of their respective parties - and are labled DINOs or RHINOs and pilloried.

11/01/2005 1:25 PM  
Blogger Tlaloc said...

Billmon has a good take down on Alito. Alito's equating adult women legally with children was especially telling.

11/01/2005 1:51 PM  
Anonymous Anonymous said...

alito is a throwback to that mythical land of macarthy's 50's. women are to have minimal rights over selves and the country will once again be the shining city on the hill for white male 'muricans.

this is not a right wing neo conservative nation, it is, however, a nation being strangled by just that group. the constitution is the basis of our national identity. it has been taking some major hits and is now marginalized in what the far right has managed to recreate into an evil country.

we've watched this admin screw everything possible, so why not let them continue unabated?????

i swear, conservatives live under one umbrella and fear liberals far more than the fascists they coddle! clean house god damn it! you voted this shit in, you enable it daily, and you make noises that the dems can't say jack about it? open your eyes and see!

power breeds corruption and you sure as hell have it! you have the house and senate, you have the exec, you have the judicial. thanks for the ride, you've surfaced every single putrescent postule of hate and fearful humanity in only 5 yrs ( and the 20 or so years quietly working in the background) to unmake a dream worth striving toward ( a nation of equality and brotherhood for all born and carried in imperfect stutter steps but still trying. ) into a mean spirited dreamless fear filled and hatred bound animal farm.

alito isn't some balanced and thoughtful scolar with vision or respect for inclusive justice. so i'm sure the neos will get him in robes for life to continue this particular dog and pony show and make it perpetual.

stay under your umbrella, don't look across the aisle and see a fellow citizen with any kind of desire to keep this country alive as a nation of many. don't waste your time doing what is right or anything.

and enjoy this happy hell you've enabled! especially when the right to dissent is completely ripped away.

feral

11/01/2005 3:17 PM  
Anonymous Anonymous said...

The SCOTUS nominations are the self-professed holy grail for some of the Right's wild-eyed fanatics, who need to ask themselves honestly whether today justifies enduring and in many cases overlooking the myriad train wrecks including Iraq (seven more U.S. troops killed today), Katrina, and government spending.

I am quite perplexed here. You're sort of assuming that the right-wing has made a deal, that they will accept incompetence in return for their judicial picks.

I would challenge that assumption. Why would you assume that the right-wing base wants anything but train-wrecks in governance? They seem to be happy with military defeats, torture, incompetence, bruising institutional warfare - it feeds into a worldview marred by visions of end times and hatred. If you track the polling, the only group whose support for the President hasn't dropped is the Republican base. They saw Katrina, Iraq, etc, and decided they liked what they saw. It seems to me that there's not enough evidence that they want a functional government to suggest that they do.

11/01/2005 5:00 PM  
Anonymous Mary said...

For commentary that seems trustworthy (to me), you might try Dahlia Lithwick's Slate column, or the Lawyers, Guns, and Money site, or Legal Fiction.

Your comments made me wonder: What is it that you like about Alito? I don't mean this rhetorically or sarcastically. Do you not believe that (among other things) this guy thought women should be legally required to notify their husbands of their intent to have abortions, and that he seems intent on limiting the authority of Congress? Or do you think these are good qualities in a judge?

One final thought: Of course the "left wing talking points" are shallow. As you must know, about 99 percent of all public discourse is a mile wide and an inch deep. All of us (and by "us" I mean not just people on the left, but ALL people) rely on other people whom we trust to help us come to grips with issues and people outside our own areas of expertise.

11/01/2005 5:05 PM  
Blogger Roy said...

Wow!!!! It seems many have proved TCR's point about the left not attacking with substance. I have read many posts most of them attacking fundamentalist christians. As a non-believing conservative, who backs abortion and gay marriage, it is frightening to see the level of christian hating and confusion about neo-cons. It seems many believe that neo-cons are christian crazies, not quite. It seems to me that the christians dont like the neo-cons, just ask Pat Buchanan, the term is usually for Jewish conservatives, but I digress.
Alito seems like a good choice, although I do have a problem with life-time status for all of these judges. It is more than reasonable to rule that a wife should notify her husband before an abortion. For one, there is no reasonable expectation of privacy in marriage. It is a legal contract, integrating two peoples lives. He did have a stipulation that abusive or out of town husbands would not have to be notified. Simply notifying husbands is not an undue burden.
He has a large paper trail since he has served for 15 years and he seems to be extremely intelligent and fair. Two former liberal law clerks have come out and defended him. Andrew Sullivan has links to the sites.

11/01/2005 6:55 PM  
Blogger Dr. Bloor said...

The SCOTUS nominations are the self-professed holy grail for some of the Right's wild-eyed fanatics, who need to ask themselves honestly whether today justifies enduring and in many cases overlooking the myriad train wrecks including Iraq (seven more U.S. troops killed today), Katrina, and government spending.

The question would never enter the mind of the folks you're referring to.

11/01/2005 10:45 PM  
Anonymous Anonymous said...

This is one of your poorer posts. Not because you support Alito, though I think your support is quite misplaced. The problem is that you castigate the "Left" for shallow thinking, and you offer what yourself in the way of detailed analysis... precisely nothing.
You talked about Casey without even directly addressing the question of spousal notification.

I suspect you like Alito because he will give knee-jerk support to every pro-business argument that SCOTUS hears. If that's the case, you should simply say so. Your arguments do not reveal your true reason for approval----unless you have lapsed into that thoughtless, moronic state of grace you described from earlier in your life, in which you just "knew" that conservatives were right.
Well, they aren't, and you aren't.
Please do some actual research and thinking before posting on Alito again.


I am a BIG fan of yours, and don't always agree.. I just want you to know that. You simply haven't met your own high standards with this post.

11/02/2005 1:20 AM  
Anonymous Anonymous said...

Another point: No Roman Catholic should get a pass on answering a question about what they would do in a case where their decision could lead to excommunication from the Church.
The Vatican is interfering in US constitutional processes, and no man should be allowed on SCOTUS who does not publicly, vocally, STRONGLY repudiate any Vatican influence. If Alito votes to overturn Roe vs. Wade for constitutional reasons, so be it; but if he so votes because he is afraid for his eternal soul----then damn him to hell.
Separation of Church and State must be respected.

11/02/2005 1:28 AM  
Anonymous Anonymous said...

Alito seems like yet another conservative who has spent his life on the payroll of the government.

There's something jarring about people who say that government is the problem, not the solution, when they've never actually had to survive in the dog-eat-dog world of private industry.

11/02/2005 9:00 AM  
Anonymous Anonymous said...

The Cunning Realist asked for links to liberal reactions to Alito that weren't knee-jerk. I have not provided any links until now, since it took time, of course, for liberals to do adequate research about Alito before they could form an opinion on him.

That said, here is a link to a blog I read often, that has a nice, succinct breakdown of some of the more important rulings and dissents Alito has handed down. At the bottom of the post, the blogger offers more links to other articles and opinions about Alito, some better than others.

Perhaps TCR should have waited until the Left did their research and formed their opinions before announcing that their reactions were without substance.

http://bitchphd.blogspot.com/2005/11/samuel-alito-undue-burden-on-us.html

11/02/2005 9:31 AM  
Blogger 277fia said...

Alito couldn't get a conviction against the Lucchese family in 1988? I'm from Long Island and I know better.

11/02/2005 1:25 PM  
Blogger 277fia said...

Bit of trivia - Both Neil Migliore and Joey "Boom Boom" Massino of the "Lucchese" or "Luchese" crime family have had access to the Supreme Court in the last decade.

God Bless America.

11/02/2005 1:36 PM  
Blogger Nathan said...

I think my biggest problem with the nomination was not the nomination exactly as I know nothing about him, but the timing and the Rovian aspects of it. I am glad that the Democrats did not take the bait... for once it does seem like they might be, gulp, leading and showing leadership.

And to an anonymous post above, I think the very heart of the matter with this nomination, the miers nomination and perhaps the roberts nomination is not about abortion. That is simply a veil. The heart of the matter is protecting the corporate shadow government we now have and enabling corporations even further.

11/02/2005 2:19 PM  
Blogger 277fia said...

Oops! - I meant Joey "Boom Boom" Massaro, Massino is another NY mob case.

11/02/2005 5:12 PM  
Anonymous Julie Zuber said...

Here is an excerpt from Roll Call & AEI Resident Scholar Norm Ornstein (You have to be a subscriber to read the whole article)
To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito's dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We're talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce--and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."

Whatever it is, it's not judicial restriant.

Roberts is a very conservative guy, and a strict constructionist--one who means it. He understands that Congress is the branch the framers set up in Article 1, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article ll, which created the executive branch, and almost four times as long as Article lll, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don't like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don't even pay lip service to the principle when voting to overturn legislative acts.)

Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well (he served as U.S. attorney in New Jersey). It is true, of course, of Roberts too, but he has a least demonstrated deference to Congress. This is one of the reasons I have advocated putting more people with legislative experience on the court. It is a shame that we are losing Sandra Day O'Connor, our only justice who was ever elected to office, and have only one remaining, Stephen Breyer, who has worked in Congress.

President Bush had alternatives--strong consrvatives who understand the role of the courts and the role of Congress. Judge Michael Mcconel is one. It is a shame that the president didn't choose one of these men or women. Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.

Like the Cunning Realist, I also am in unfamiliar territory regarding judicial nominations. However, instead of just listening to Knee-jerk reactions, I waited to hear some reasoning behind the decisions. I think Norm Ornstein makes some good arguments.

11/02/2005 10:04 PM  
Anonymous GMF said...

I'm curious to hear CR's take on this Boston Globe story on Alito's involvement in the Vanguard funds case.

(Since I'm HTMLazy click on my name for the story link.)

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