Thursday, January 12, 2006

Alito: No

I wrote a lot about Roberts and Miers; but haven't substantially discussed Alito since early November when I argued that his Casey dissent wasn't all that unreasonable.

Bush has put Democrats in a tough spot with this nomination. This would be easier with a more outspoken nominee like Priscilla Owen or Janice Rogers Brown, where we could point to a litany of public statements and rulings that fall far outside mainstream thinking. With Alito, one really has to dig; fortunately, unlike with Roberts, we have a 15-year paper trail to scrutinize.

If you've only been watching the confirmation hearings -- and honestly, who can bear them? -- you would see a mousey, deferential candidate being harangued by windbag senators, struggling to fend off transparently leading questions without being given a chance to answer. It appears as though we have a judge from the conservative end of the mainstream spectrum who is being held to an unreasonably liberal standard. After all, whatever we may think of the present expansion of executive power, it is not questioned that it is the President's privilege to appoint Supreme Court justices.

At the end of the day, it will appear to most Americans that Democrats are left to vote against Alito based purely on partisanship.

But that is not the case. Alito knows how to position himself as an attractive candidate and can effectively gauge what his potential employers want to hear. That's not a bad thing; any smart job-seeker tailors their resume and cover letter to the position and plays up relevant strengths, even to the point of exaggeration, in order to seal the deal.

That is why these hearings are a farce. The circus act led by Senator Kennedy is just playing into Alito's hands, because it allows him to come across as the victim of partisanship. We cannot predict what Alito will do on the Court based on three days of constantly interrupted testimony.

We can predict what he will do on the Court based on his record.

Judge Alito is not on the conservative end of the mainstream spectrum. He is far, far to the right of it. He does not approach cases with an open mind, but rather tailors his decisions to match his specific ultra-conservative agenda. Time and again his is the sole voice of dissent in panel rulings, and his dissents come under fire for consistently landing outside mainstream thought. On issues ranging from reproductive freedom to asylum to executive and legislative power to employment, his rulings elucidate a consistent pattern of ideology, not of fairness.

Many conservatives in this country support the regular recitation of the Pledge of Allegiance, which ends, "with liberty and justice for all." Judge Alito clearly does not believe in that.


Steve Chapman said...


I will agree that the belief that we can have a debate about a candidate to the highest court in the land is laughable.

There SHOULD BE tough questions asked of the perspective jurist before approval but from what I have seen that has not happened. Senator Kennedy showed himself to be very incompentent when his rabbit trail lead him to Judge Alito's membership in the Alumi organization.

I am not arguing that Judge Alito's membership should not be considered, what I am saying is that the way Senator Kennedy brought it up made him looked bad and Alito good.

The future of the Court is too important to be left in the hands of this Senate Committee. I don't think that the Democrats have the "balls" or votes for a Fillibuster so unless Christ returns Alito will be on the Supreme Court.

Let's just pray for Stevens and Ginsberg's health. Hopefully, they can outlast Bush.

little-cicero said...

I liked this post very much until the line "We can predict what he will do on the court based on his record"

You gave no support to this statement in the following paragraph. Considering his pro-choice ruling and his statement that the president and Congressmembers do swear to uphold the Constitution (which shows that he is not friendly to unConstitutional executive power) as well as other items do not make him a far right judge. Give me three items which give you this impression of Alito. (PLEASE!)

Andy said...


1. Bray vs. Marriott Hotels: In a workplace discrimination lawsuit, Alito's dissent was criticized for placing a nearly impossible burden of proof on the plaintiff; his colleagues on the bench said his standard would "eviscerate" Title VII.

2. Chen vs. Ashcroft: A young Chinese woman was compelled by the Chinese government to undergo an abortion during the 8th month of her pregnancy because she was unmarried; the father was 19, and under Chinese law males cannot marry until they are 25. They applied for asylum in the US but Alito would not grant it to the man citing the couple's non-married status, arguing that since he was not the woman's lawful spouse he was not entitled to protection under US law, even though such exemptions are regularly granted in similar circumstances. His unwillingness to respect a committed relationship simply because it wasn't sanctioned by law -- in addition to being heartless and unfair -- bodes ill for marriage equality issues that will inevitably come before the court.

3. United States vs. Rybar: Argued that the commerce clause does not give Congress the right to regulate the sales of firearms. The majority on that decision criticized him saying it was "counter to the deference that the judiciary owes to its two coordinate branches of government."

Andy said...

Let me elaborate a bit on these. Alito defends himself by saying that judges are bound by the law, which correlates to the conservative idea of an "originalist" reading of the Constitution. But sometimes it turns out that laws are misguided, have unintended negative consequences, become outdated, or are just plain unfair. In these instances, the judge has the right to say the law is wrong; that is part of the system of checks and balances that the Founders bequeathed us. It reminds me of the apellate court in New Jersey that ruled same-sex marriage is illegal because it's against the law; they did not address whether it's fair or not. Some would call ruling that a law is unfair "activism." I call it justice.

little-cicero said...

Assuming that our only difference on the subject is whether "strict constructionism" is right or wrong, I would explain my side as such:

If you remember back in school learning about government, the legislature makes laws and the judiciary interprets them, as with the Constitution. If I believe it is unfair to not be able to do such and such, and the judiciary says it is settled law, it is up to the legislature to change the law. This way, rather than depending on the wim of individual judges to bend the laws, we can change the laws so that they are fair. If we did not stick to this process, we may as well have no legislature, and simply rely on judges to decide what is fair and not fair.

One thing you ought to consider is the all-important difference between fairness and justice. That I think it unfair that I can't marry my dog Newt does not make it unjust. Fairness is subjective whereas justice is objective. It is when you confuse the two that you tend to support a level of judicial activism, and this is why judicial activism tends to occur on the left...because liberal judges, unlike conservative judges, have no concept of the differentiation between fairness and justice. Judges who look at a case based on fairness have no place in the system of justice! Beware the Dictatorship of Judicial Relativism! (Probably the title of my next post)