Judge Alito

[AustinHoya03]

Do the opinion polls matter? If you polled the American people on the recent Kelo v. New London decision, most of them would probably disagree with the court's holding. I don't think that means the court should reverse itself. Furthermore, I think opinion polls may be misleading when it comes to Roe, because there's a widespread misconception that Roe's repeal would instantly criminalize abortion in America.

DallasHoya, George Will touched on your point in a column today, found here. Decent column, but I don't know if I agree with Will's last two paragraphs. There are just as many R's out there who wish to use the Supreme Court to reach "desirable social outcomes" as there are D's. I think this the discussion in this thread alone is probably evidence of that.

[Cambridge]

kchoya said:

one said:

Easyed
Bush v. Gore was also decided by 9 justices rather than the state of Florida, as it should have been. Strict constructionists conveniently overlook that bit of "judicial activism" when railing against all the liberal judges who "legislate from the bench." Tellingly, those same strict constructionists seem to stand by their strict constructionist principles only when they advance their cause.

There seems to be two different views of judicial activism. Democrats/liberals think that conservative judges are activists when they apply precedent which leads to an outcome which they disagree with. Even Breyer, in Bush V. Gore, agreed that the recount was unconstitutional but argued that the recount should go forward because it was a "highly politicized matter."

On the other hand, conservatives think that liberal judges are activist when they say the law is whatever the judge says it is and the judges tries to improve or build upon the statute or Constitution.

I don't want to get into a constitutional argument, but I just have to say that the "originalists" are incredibly adept at coopting a seemingly innocuous and warm and fuzzy label for themselves, yet are strangely blind to history and precedent when it doesn't seem to back their vision of history or precedent. They love to say they are about original intent, but conveniently ignore clear signs of legislative intent when it disagrees with their agenda. All justices on the supreme court are activist by definition. They interperate, clarify and rule on the constitutionality of the laws of this land. That was ther role granted them by our constitution - which made them one of three branches of our democracy. All equal. All central to our society and freedom.

[AustinHoya03]

cambridgehoya said:

They love to say they are about original intent, but conveniently ignore clear signs of legislative intent when it disagrees with their agenda.

Well, that's not completely accurate. There's a disagreement among conservative jurists on this matter. One group, which includes Justice Scalia, says we should never look at legislative intent at all, because the President doesn't sign legislative intent (evidenced by committee reports, floor speeches, etc.) into law. He signs the words which constitue the statute into law. Others say it's okay to look at legislative intent when a statute is unclear and looking at intent clears things up (which is the only time you'd look at legislative intent anyway). I imagine you're referring to the latter group.

[hilltopper2000]

Austin - Opinion polls matter for two reasons. First, as we were discussing, they indicate what a post-Roe world would look like. That is, as you note, overturning Roe would not instantly criminalize abortion. Second, signficant precedent is not overturned without a major shift in public opinion. There are only two cases I can think of where the Supremes explicitly reversed themselves on a hot-button political topic (maybe someone can come up with others): (1) Brown -- broad consensus among Americans outside of the South that segregation was wrong (and embarassing for the nation); and (2) Lawrence -- broad consensus among American that consensual sodomy should not be a criminal act. Until there is a similar shift in public opinion I don't see how Roe gets overturned. If you don't think the justices read public opinion polls, take a gander at Rehnquist's majority opinion in Dickerson, or even, I would argue, Casey itself.

[kchoya]

dallashoya said:

Actually, nine justices did not decide Roe v. Wade. If memory serves, there was only seven on the bench at the time.

I'm just waiting for Schumer or someone to whine about replacing a middle of the road, pro-abortion rights justice like O'Connor with a right wing, anti-abortion justice like Altio. I don't remember him saying that when Clinton replaced a middle of the road, anti-abortion justice (White) with a very liberal, pro-abortion rights justice (Ginsberg).

There were 9 justices, just as there have been since the 1860's.

I do agree with your point that I don't know where this replace a "moderate justice" with another moderate comes from. The White-Ginsberg switch is a perfect example. I guess the Presidential prerogative doesn't extend to being able to nominate justices of like philosophy.

[Cambridge]

hilltopper2000 said:

Austin - Opinion polls matter for two reasons. First, as we were discussing, they indicate what a post-Roe world would look like. That is, as you note, overturning Roe would not instantly criminalize abortion. Second, signficant precedent is not overturned without a major shift in public opinion. There are only two cases I can think of where the Supremes explicitly reversed themselves on a hot-button political topic (maybe someone can come up with others): (1) Brown -- broad consensus among Americans outside of the South that segregation was wrong (and embarassing for the nation); and (2) Lawrence -- broad consensus among American that consensual sodomy should not be a criminal act. Until there is a similar shift in public opinion I don't see how Roe gets overturned. If you don't think the justices read public opinion polls, take a gander at Rehnquist's majority opinion in Dickerson, or even, I would argue, Casey itself.

Lawrence was much more about consensual victimless acts between adults done in private that cause little to no harm to the public welfare...more broad than just dealing with sodomy.

[HoyaDestroya]

news.findlaw.com/newsmakers/samuel.alito.html

[kchoya]

Interesting Scalia vs Alito comparison:

www.slate.com/id/2129107/?nav=navoa

[HoyaDestroya]

not so interesting comparison when you look at the objectivity of its author -

Robert Gordon is senior vice president of the Center for American Progress.

From CAP's website:
"Before joining the Center, Robert was the domestic policy director for the Kerry-Edwards campaign, where he served as the campaign's designee on the Democratic platform drafting committee. Previously, Robert worked for Senator John Edwards, first as his Judiciary Committee counsel and legislative director in the Senate, then as the policy director for his presidential campaign... Prior to his work on Capitol Hill, Robert was a law clerk for Justice Ruth Bader Ginsburg"

[hoyarooter]

Interesting article in the LA Times today interviewing former clerks and current colleagues of Alito on the bench. The unanimous view of this group, which included a number of self-proclaimed liberals, is that Alito, while conservative (which certainly isn't in and of itself a disqualifying factor), is a good and fair man who considers every case on its merits and has no agenda. The typical comment is that he seems much more like Roberts than Scalia. Most interesting, I thought, was that Leon Higginbotthom, an extremely well respected African-American jurist, said at one time that Alito was his favorite colleague on that circuit court.

While it's still early to pass judgment, it's looking very much like Bush has made two excellent choices (2 out of 3 ain't bad, I suppose). Hard to believe.

[showcase]

Larry Tribe had some thoughts on Alito - here's an excerpt:

This is a judge alert to the religious discrimination against Muslims and Lakota Indians lurking within facially neutral rules about wearing beards and raising bears. He is no Anatole France, praising the majestic equality of the law as it forbids rich and poor alike to beg in the streets and sleep under the bridges of Paris. The point isn't to fault this distinguished jurist for lacking the clairvoyance to predict what the Rehnquist court would shortly hold. But did one really need a crystal ball to detect the ''self-fulfilling cycle of discrimination" that relegated women to roles as ''primary family caregiver," fostering ''employers' stereotypical views about women's commitment to work and their value as employees?"

Or consider Alito's opinion upholding Pennsylvania's ban on abortions by women too fearful to tell their husbands what they are contemplating doing. The Supreme Court reversed, using the case to reaffirm Roe v. Wade's core holding in an opinion by Justices O'Connor, Kennedy, and Souter. Recounting the appalling incidence of spousal abuse that the notification requirement aggravated, that opinion exposed the illogic of regarding the resulting burden as somehow diminished by all the unmarried women to whom the ban simply didn't apply.

My concern here isn't that Alito miscalculated the trajectory of the Supreme Court's evolving ''undue burden" standard for abortion restrictions, or even that he may inadvertently have revealed a readiness to overrule or severely limit Roe if given the opportunity -- something I suspect senators will spend much time pressing him, no doubt unsuccessfully, to confess or to deny.

I do wonder, though, about the window through which Alito was gazing at the social world in which the controversy arose. Was he perhaps viewing the ''burden" on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no ''undue" burden? That would accord with Alito's opinions finding it only natural to permit a husband, but not a fiancee, to contest a woman's deportation to a jurisdiction threatening coerced abortion of the couple's unborn child. And didn't the distinctive burdens women face in juggling work and family likewise recede for the judge into something like a natural background he deemed Congress powerless to treat as legal inequality?

Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.

Today's controversies over liberty, equality, personal privacy, and government power have implicated practices from body cavity searches to infrared surveillance of home life to spousal or parental involvement in abortion. Tomorrow's may involve questions about cloning body parts, implanting once-frozen embryos, deploying genetic screening or brain scans, and heaven knows what else. Slogans about just following ''settled law" as though it were a computer application, sticking to the text's ''original meaning" as if that were a matter of scientific fact, never ''legislating from the bench" as if judges ever think they're doing that, remaining within an imagined ''mainstream," and by all means respecting precedent -- particularly so-called ''super-precedent" -- offer precious little insight into how a justice might actually approach these brave new worlds.

If we care, we'd better stop the charade of pressing the nominee to tell us where he or she ''really" stands on buzzwords like privacy or states' rights and start probing for clues to the nominee's basic ways of understanding society and law's place within it. Only then will the confirmation process be worthy of the Constitution it guards.

Seems like Alito may be a bit too Ward Cleaver in his 'worldview.' That may be exactly what social conservatives want in a SC, but I'm not convinced it makes for a good Associate Justice for the nation as a whole.

That said, the party I back lost the election and has to take what's coming, for better or worse. Hopefully whatever may be presented about Alito and his views on the role of law and SCOTUS in american society will show him to be a bit more in tune with the circumstances and practicalities of today's society.

[SFHoya99]

As a person with a "liberal" viewpoint on quite a few issues, doubt I would ever wholesalely agree with a candidate that a Republican President put forward, much less someone I disagree with as much as Pres. Bush.

But it seems like Alito is a good, fair jurist (or as fair as a human being can be). Hopefully, that admittedly shallow view of him that I've generated from various articles will prove right.

He's going to be confirmed, and I wish that the Dems would back off on this one instead of making everything a fight. That said, the politicians know that too many within their party would be furious if they did that.

[hoyarooter]

According to today's LA Times, indications are that the Dems will back off. There seems to be very little inclination at this point toward a filibuster. Of course, that could change tomorrow.

[showcase]

I wonder if this means he'll be confirmed before 2006. I thought I remember hearing Sen. Spector say that a 2005 confirmation process was out of the question. Makes a difference, since the Court will have to rehear argument on all close cases not decided by the time Justice O'Connor steps down, and given that she's often the deciding vote, there could be quite a number of such cases.

[kchoya]

I think they've already scheduled hearings to begin in early January.