We Have Ourselves A Judicial Battle
By Pejman Yousefzadeh Posted in The Courts — Comments (11) / Email this page » / Leave a comment »
Patterico notes that Judge Samuel Alito has come out as a conservative. I note that the article Patterico linked to doesn't necessarily state that he is opposed to abortion, only that he was proud to work on Justice Department cases regarding abortion. Given the Reagan Administration's stance on abortion, however, I am sure that a proper inference can be drawn.
The most revealing statement made by Judge Alito is the following one:
Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.
"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.
"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.
The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.
"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."
The best response to this is to point out that if absent this kind of writing--written when Judge Alito was an advocate and not a jurist--and relying only on what Judge Alito wrote during his time on the Third Circuit bench, one would not be able to figure out the Judge's political philosophy, then Judge Alito is clearly not letting his political philosophy unduly influence his jurisprudence. I have no problem, of course, with a conservative, strict constructionist/originalist jurisprudence, but it is valuable to note when a jurist sticks with calling it as he/she sees it whatever the jurist's political philosophy.
It is also good to respond to any charges that Judge Alito is a conservative by saying in pertinent part "Darn tootin', he is!" Let's not have any attempts to try to pass the Judge off as some kind of moderate. Conservatives should be proud of their advocacy. I didn't see Ruth Bader Ginsburg or her advocates try to disclaim her liberal legal writings during her confirmation hearings for the Supreme Court. Why should Judge Alito and his advocates be forced to do so?
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He just says it was wrongly decided in the first place. It does not say anything about his view of stare decisis, which is equally important in determining whether someone would overturn Roe v. Wade.
That's not to say certain Senators aren't going to make a big deal about it. They might even be so outraged they won't manage to get a question in before their time runs out.
A majority of the SC (and much of the legal community) agrees that Roe was wrongly decided. The legal question is whether it is sufficiently harmful to merit overturning settled law (as Plessy was but many other wrong decisions are not). In the Casey decision (IIRC), only 3 Justices fully endorsed the original reasoning of the Roe decision. The O'Connor middle (along with Kennedy and Souter I believe) reformulated the "right" to abortion and changed the criterion that laws must meet.
Alito thinking there is no "right" to abortion in the Constitution should pretty much be a given considered he is being appointed by a President who agrees with that sentiment. The question (which he can't answer) is whether he would overturn past law to fix a wrong decision in this area. Chief Justice Roberts did a great job explaining the process of how one should decide the magnitude necessary to overturn precedent. The first step is recognizing that a decision was wrong. But that is only the first step.
Nevertheless, Senators will ask him "do you still hold this outdated view of 'women's rights'?" and other such political questions that avoid the debate on the Constitution.
that is why the emphasis during Roberts hearings was on CASEY instead of ROE.
Now, given Alito's dissent in the Original decision (obviously not the SCOTUS decision), the left will spin this.
And actually, I think the 1985 document might have us moving towards the constitutional option on judges.
Of course, that begs the question, can the GOP get themselves together enough for ANYTHING these days.
Still, if DeWine, McCain, and Graham vote for the constitutional option, that should be enough (it means we can give up Chafee, the Maine Sisters, and Spector and still win) ... seems like I'm missing someone here.... Hagel?
I've never been keen on ending Judicial filibusters, but with Bush losing control of the congress recently (and I think his failure to veto any bills is what has led to that), I'm beginning to think that we need a simple majority so that Bush can continue to nominate conservatives to the appelate court for the next three years, which is what will be his biggest legacy.
it gets pretty tricky for both sides. if the Dems decide to filibuster (a necessary precursor to the Republicans going "Constitutional"), then the Rodney King Caucus ("Gang of Fourteen" - Can't We All Get Along?) has to collapse - which will take some doing. You have the Caucus Seven plus a number of Red State Dem Senators who may not support a filibuster - and will feel enormous pressure - choosing between the left's funding sources/elected leaders and their home state voters.
BUT - if that happens and the Dems get a filibuster going, the pressure switches to the Republicans - and in that scenario the folks you have mentioned PLUS McCain, Warner and Hagel are all weak spots.
Overall - it seems to me that it is Advantage Republicans. Alito is just too strong a nominee - and this IS SCOTUS - and a filibuster on one of the arguably most qualified nominees in history (passed senate twice unanimously, more judicial experience than 102 of 109 SCOTUS members in history) would be - to use a word - REALLY "extreme".
It's a myth that McCain and Hagel are weak spots on qualified judges.
Yes, McCain perpetrated an abomination on our society with his campaign finance demasculation of free speech.
But he's been on the right side of all of the judges, Hagel too.
As much as I dislike the Gang of 14, it's not implausible to suggest that without the Gang of 14 we wouldn't have Priscilla Owen or JRB on the bench. The other judges left behind in the 'Deal' weren't likely to get majority support anyway on the floor. Arguably JRB wouldn't have gotten a majority vote either, but the Gang made it acceptable to vote for her so she ended up with 56-43.
I don't think this document is a major problem for Alito. For Conservative Senators, this tells them what he really believes, and makes them more likely to vote for him. To liberal Senators, Alito can tell them what Roberts told them over a similar document: he wrote this opinion as a LAWYER trying to represent his client, not as a judge. Roberts was easily confirmed--if Alito is as smart as Roberts was during his hearings, Alito should also be confirmed.
Compared to the appalling information we found out about harriet miers, and to a degree John Roberts, the news about Alito is all good.
And as for overturning roe v wade, lets hope it happens. That is an abomination to the United States of America. The sooner it goes the way of Dred Scott the better.
Lets act like people who control both branches of the federal government. Alito is a strict construtionist and a Conservative. He also sees abortion for the horror and abomination that it is.
I can't think of anyone better for the United States Supreme Court. If the left tries to stop this, we should all be willing to take to the streets in protest to oppose them, just as many of us did when algore and the democrats tried to steal the 2000 presidential election.
The only two Reubs we lose for the Constitutional option, and maybe not even Collins (replace her with Snowe?) and only because of reelection in '06. We can only hope it comes down to this. It might cause some people in NB and ND decide to run for Senate when those 2 Dems vote to filibuster. It might also help Katherine Harris if Bill Nelson decides to stick it out also.
Plus its gonna give Casey fits in PA. Somebody should email Nan Aron all his comments that hopefully the press, finally doing its job, will wring out of him. Dont hold your breath.
Look for this scenario, those Redstate Dems, seeing the hand writing on the wall about the Constitutional option, join in the vote NOT to filibuster
he wasn't representing a client in a legal brief or internal memo, he was applying for a job in the Justice Department, which means he either really believes what he wrote, or was dishonest in an attempt at employment. I doubt dishonesty is the case (and one doesn't admit that sort of thing, regardless), so he'll have to come out and say, "Yes, I'm a conservative, and I stand by those beliefs,"
Get ready for the fireworks, ladies and gentlemen.
I don't think we even lose Chafee on the Constitutional option over Alito.
If John McCain votes to kill the filibuster (and I am 100% confident he would given what we currently know about Alito) he'll bring all the GOP moderates with him.
Snowe and Collins and Chafee and Specter will vote to kill the filibuster.
Once it is clear that the GOP will stand firm, the Dems will acquiesce and not follow through with it. They're dead scared that Stevens or Ginsburg will retire or pass before Bush leaves office. The closer to 08 they get, them more they can play their games and delay a replacement until after GWB is out of office. That's their goal.
Even with Alito, Casey is still likely to be a 5-4 decision (Scalia and Thomas for sure, Roberts and Alito as likely). We need to get replacements for Stevens, Souter, Ginsburg, Breyer, and/or Kennedy to make a change. Or we need to really find a way to persuade Kennedy, but I don't think that happens until we replace one of the first 4. Kennedy would be okay with a new Casey vote that goes 6-3 the other way, but he wouldn't want to be the deciding vote making it go 5-4.
of the document, he did say he believed that the constitution does not protect a right to an abortion. In the second to last paragraph on page 2 of the Smoking Gun copy, Alito says in the first sentence that he was happy to work for Reagan to advance legal positions in which I personally believe very strongly. Then, he seems to go on to list two particular instances of legal positions in which he believes strongly: racial/ethnic quotas and abortion. That's how it looks to me, anyway. You can try to skirt it and say that those two weren't meant as instances of causes in which he believes, but were rather just issues on which he thought he'd done really great work for Reagan. But, that seems the unnatural reading. Yes, or no?