Alito

I think it would be just fine if Alito didn’t get confirmed, because I don’t trust him. Not about abortion, as I never expected to trust him on that one. He and I have differing opinions on that topic, but there’s nothing exactly surprising there, and I would be confused if there were. I think it’s a given that anyone Bush nominates will merrily work toward jamming the government’s invisible hand as far up a woman’s uterus as possible. Yes, today Alito is saying he’d deal with abortion cases with “an open mind,” and I’m sure he will, for the values of “an open mind” that are immediately followed by the phrase “on how to erode Roe v. Wade to a useless nub.”

(Oh, no, Roe v. Wade will never be overturned; the cover and fundraising opportunities it provides to conservatives is too useful. It’s just that from now on South Dakota will be the template for “reasonable” access to an abortion. Women with unwanted pregnancies, be sure to say “thanks” to those Nader voters! Yes, it’s still all their fault. As for the rest of you, well, just be sure to promote the advantages of abstinence and/or teenage lesbianism to your daughters.)

However, what I really don’t like about Alito is the whole philosophical set up he has of the administrative branch of the US government being more equal than the others. One would hope that someone at the topmost perch of the judicial branch would choose not to promulgate the theory that the highest and best thing he could in service to the country and its Constitution is to bend over for the president. It’s possible but unlikely that the Senate might agree to my innovative concept of co-equal government branches as well. We’ll see.

Of course, in the unlikely event that Alito is not confirmed, does anyone actually think the Bush administration will offer up a new candidate whose judicial philosophy isn’t mold-injected from the same factory as Alito’s? If we know anything about the Bush administration, it is that it is remarkably resistant to learning. It has its bag of tricks and vengeful petulance for those on whom its tools do not work, but that’s all its got. The administration got as close to moderation as it’s going to get with Roberts. And it’s pretty clear it’ll keep doing what it’s doing until 11:59 am, January 20, 2009. In that sense, not confirming Alito won’t solve anything.

Which is not a reason to confirm him — indeed not — just a recognition that the next nominee isn’t going to be any different.

51 thoughts on “Alito

  1. Why wouldn’t a president nominate judges who are in the same philosophical vein? Is it an administration’s duty to put up diverse candidates?

    I just don’t see why you’d be surprised or outraged by this.

  2. Oh, no, Roe v. Wade will never be overturned; the cover and fundraising opportunities it provides to conservatives is too useful.

    I know the Republicans have been stringing the ultra-right wing along with that for awhile now, but I wonder how much longer they can get away with it. In the past they had the excuse that either the White House or the Senate was controlled by the Democrats. Now they control both and have the chance to replace two Justices – the only thing stopping them from packing the court is the threat of a filibuster.

    With that in mind, how accepting will the ultracons be if the Court reaffirms Roe v. Wade? My guess is they would go ballistic and tear the Republican Party apart…

  3. When I try to explain to my conservative friends what my problem with Bush’s judicial nominees is, I often am not eloquent enough to fully convey the depth of the problem with unchecked executive powers supported by the judiciary. However, I have determined one phrase that really seems to convey the idea to them: “Would you trust Hillary with a blank check to wiretap and detain ‘enemy combatants’ without due process?” Sadly, even though I like Hillary, that’s the best way to convey to them the idea of what Bush’s judicial nominees stand for to them.

  4. And, should you ever decide to discuss the advantages of teenage lesbianism with Athena, please be sure to record it and share it with us – that would be rather entertaining…

  5. Nate:

    “I just don’t see why you’d be surprised or outraged by this.”

    I invite you to show where I suggested I am either surprised or outraged. I fully expect Bush to nominate people who are philosophically consonant; I just don’t like his philosophy of executive power.

  6. John – with a record of Roberts, Meyers, and Alito, what makes you think that the next nominee would be exactly like Alito? If anything, I’m surprised at how different the nominees have been, given political weight these nominations carry.

    Not that I’m saying the next one wouldn’t be just like Alito, but the track record doesn’t suggest a litmus test thus far, does it?

  7. My personal feelings about Alito’s nomination is like a newspaper clipping I read once, which said that politicians are corrupt, have no moral values,and downright imbeciles. I know of no one in the political arena that is truthful, honest,or has principles. They care about no one or country, but themselves and their pockets.

  8. Brian:

    The common thread here would be the primacy of the executive branch; I don’t think there is any question that Meyers would be sympathetic to the idea of an ascendant executive, although whether that idea was rooted in a genuine judicial philosophy or just her feeling that Bush, was, like, the best president ever(!). Roberts I’m not too terribly sure about; it wasn’t a big feature of his hearings, if I remember, and we didn’t know about all that wacky phone tapping stuff then. But I wouldn’t be at all surprised.

  9. Also, to follow up on this last post, allow me to suggest, possibly unfairly, that Meyers is actually closer to Bush’s intent of the “Executive Ascendancy” than Alito. Which is to say I don’t actually believe that Bush or his administration have any deep commitment to a “Unitary Executive” philosophy — they just want to do what they want to do without having to run it by anyone.

  10. Josie:

    I used to think that way, until I realized that the worst of the politicians are probably only too happy for people to think they are all more-or-less equally corrupt. That pretty much guarantees that the occasional truthful, honest, and principled person who tries to enter politics won’t get very far, which suits the rest of them just fine. It makes getting away with shit much easier when people throw their hands up in the air and turn away from it.

  11. Alito said, “The president has to follow the Constitution and the laws.” He elaborated on that. Is it his mention of the “twilight zone” (which may well be an appropriate metaphor for this administration) that, as Justice Robert Jackson said, is “likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law” what worries you?

    I’m not defending Alito. Given a choice, I would have preferred Bush to have no chance to appoint anyone to the Supreme Court. I’m just curious why the certainty that he does believe the administrative branch to be more equal.

  12. As for the rest of you, well, just be sure to promote the advantages of abstinence and/or teenage lesbianism to your daughters.

    I’d laugh if things were a little less disheartening.

  13. “…Meyers is actually closer to Bush’s intent of the “Executive Ascendancy” than Alito…”

    Who wants to bet that Alito will be all about executive ascendancy while Bush (or another GOP’er) resides at 1600 Pennsylvania Avenue, but has a change of heart if/when Hillary (or another Dem) resides there?

    Ah, i’m probably just overly jaded…..

  14. Erin Hartshorn:

    “Following the Constitution and its laws” means something interesting if Alito’s interpretation of the Constitution is that it allows for enhanced executive powers as a natural matter of course, outside of specific, compelling events, and there’s enough in his history to suggest it’s the case. Here’s a digest (nb: from the People for the American Way, which is opposed to Alito) of some of those positions.

    Now, it’s entirely possible his position has evolved away from this, but then, if it had, why would Bush have nominated him?

  15. My issue with Alito is simple: he lied, and has admitted lying, on several previous occasions when he was applying for work with the government. Given that record, there is exactly zero reason to trust ANYTHING he says about moderation, or accepting past precedent. All of his past record demonstrates his judicial philosophy — that the administration essentially has a blank check, that individual rights are limited to what little the administration feels like providing, and that he will go FAR beyond his mandate to enforce his judicial philosophy.

    How difficult is it to reject such a poor applicant, regardless of his intelligence?

  16. Not only did he lie there, he promised this very committee he would recuse himself for certain cases and he didn’t. To quote what Senator Feingold said yesterday.

    The fact the Alito said that he would recuse himself from certain opinions during his 3rd Circuit confimation hearings (Vanguard cases), and ruled on those cases anyway, is questionable.

  17. John H. Costello:

    “Have you considered that anyone else Bush might nominate might be many times worse from a liberal standpoint than Alito?”

    Alito: Possibly somewhat less unacceptable than any other potential nominee! Yes, that’s a sterling recommendation.

    In any event, as far as I know, the co-equality of the branches of government is a non-partisan concept (or, indeed, if the word “conservative” is to have any relation to its primary meaning, a deeply conservative one), and that’s the basis of my primary objection to Alito.

  18. “However, what I really don’t like about Alito is the whole philosophical set up he has of the administrative branch of the US government being more equal than the others.”

    Assuming (and you know how tricky that can be) that you are using the word “administrative” in that sentence as a synonym for “executive”, then I respectfully suggest you reconsider your position in light of an inescapable truth of contemporary (post-FDR) politics; namely, that the executive branch is by a longshot the branch of government most responsive to the will of the voters. Simply consider how many Presidents (and therefore administrations) there have been in the years that Grand Kleagle Byrd and the manslaughterer Kennedy (D., Chappaquiddick) have occupied their seats in the Senate.

    Until the legislative branch imposes term limits upon itself (i.e., never), incumbency re-election rates in the House and Senate will continue to click along at 90%+. Meaning that those aggrieved by an over-reaching executive (such as you currently and me during the Clinton years) need only wait 4 – and in no case more than 8 – years to have an excellent chance at real, substantive change in the way the country is run. You know, non-trivial things like war and peace, law enforcement (through the Justice Dept.), environmental regulation (EPA), education policy (DOE), alternative energy (the other DOE), and all that stuff that I am assuming (there I go again) are important to you.

    Practically speaking, that’s a good thing, no?

  19. Lis Riba has several links in this post. I know I have seen other links, though I believe the incidents they reference are the same. It’s my understanding that the judiciary is supposed to base its conclusions on evidence, not assertions — and I hope one or more Senators makes the point that the evidence is all against Alito either speaking the truth in these hearings or judging fairly.

  20. John,

    I agree that the idea of the co-equality of the branches of government is a non-partisan concept. I’m just not sure that I agree with its validity, especially under various conditions (like a time of war). I forget which federalist paper spoke to the power of the executive branch (its been many moons since I’ve read them), but I remember that it distinquished the different level of authority and needs of the executive versus the other branches. Specifically, that although the other branches retained checks and balances against one another in the crafting of the law, once enacted the sole authority of enforcing or executing those laws resided with the executive branch.

    This reminds me of an interesting article that I read many years ago which pointed out that it was amazing how much power the founding fathers placed in the executive branch. This was almost certainly a result of the fact that all the founders believed that George Washington would be the first president, and that they all had complete trust and admiration for him.

    Historically there is a lot of precedent that, at least at time of war, the executive is entrusted, and according to the founders intent, and properly so, with massive powers. Abraham Lincoln’s suppension of habeas corpus, and FDR’s internment camps are just a couple of actions where the Supreme Court has upheld those sweeping powers.

  21. Benedict:

    “that the executive branch is by a longshot the branch of government most responsive to the will of the voters.”

    So what? Leaving aside the issue that congress is elected (i.e., it is the will of the voters to re-elect their incumbents 90% of the time, or whatever the actual percentage is) so your thesis is broken at the root, are you under the impression the founding fathers wanted each branch of the federal government to be immediately responsive to the will of the voters? And if so, why did they specify lifetime terms for the judiciary? Because, and maybe it’s just me here, if the founding fathers wanted the judiciary to be immediate responsive to the will of the voters, they could have had it written into the Constitution that they were to be popularly elected.

    Oddly, they did not. No, see, the founding fathers thought it might be a good idea to have various levels of remove from the passions of the electorate baked into the mechanisms of the federal government, and to have each of three branches of the government actually be able to check the other two in fundamental ways, and for none of them to have primacy over the other two.

    All things considered, I’m sticking with James Madison on this one.

    Tim:

    “Abraham Lincoln’s suppension of habeas corpus, and FDR’s internment camps are just a couple of actions where the Supreme Court has upheld those sweeping powers.”

    Actually, Tim, the Supreme Court (or more accurately Chief Justice Taney, riding circuit) said that President Lincoln did not have the right to suspend habeas corpus (Ex parte Merryman, 17 F. Cas. 144) and not only that, but Congress also rejected a bill that would have legitimatized Lincoln’s suspension. Ultimately Congress did authorize suspension of habeas corpus in 1863, but — please note — the authorization for the suspension came from Congress.

    Despite the fact that Lincoln ignored the Merryman ruling, the ruling established a precedent regarding suspension of habeas corpus (i.e., that suspension could only be authorized by Congress) that was most recently reaffirmed in Hamdi v. Rumsfeld, which as you’ll recall went 8-1.

    The precedent is not as well-established as you appear to remember it being, Tim.

    As for the Japanese internments, it’s worth noting that in the relevant most Supreme Court case, Korematsu v. United States, a federal district court judge in 1983 granted a writ of Coram Nobis and the convictions in the case were overturned, because, as it turns out, the government had submitted false information in order to make its case to the Supreme Court. The defendant in the case, Fred Korematsu, was later awarded the Presidential Medal of Freedom.

    Also worth noting: Tom Clarke, who adminstered the internments (and who would later serve on the Supreme Court) would later write that the Japanese internees were unconstitutionally deprived of their rights under the constitution, due to FDR’s executive order. Naturally, Justice Clarke’s opinion has no force of law, but if the man who coordinated the internments — and later sat on the highest court of the land — is of the opinion the executive order was in fact unconstitutional, that’s a relevant opinion.

  22. John:

    That smell is the odor of a straw man burning. I never used the word “immediately” or “immediate” in describing the responsiveness of elected officials to the electorate. That is your restatement of my position. And it’s not an accurate one. You better than anyone should know that words mean things.

    The words I used were “most responsive to the will of the voters”. And as between the responsiveness to the electorate of the legislative branch and the executive branch, well, there’s no contest, as your silence on that issue seems to concede.

    Of course I want “levels of remove from the passions of the electorate baked into the mechanisms of the federal government” – I am one of those “governs best which governs least” kind of guys. But tell me, where were those firewalls when Congress passed the abomination that is the Department of Homeland Security? Or when, as you yourself pointed out, it suspended habeas corpus? C’mon, John; we’re talking about an institution to which voters elect the likes of Sonny Bono’s widow!

    So what’s an aggrieved voter to do? Make heroic efforts to change, at best and given enough time and money, 2/100ths of the Senate or 1/435th of the House? Isn’t it infinitely more effective to give the fish a new head which, hopefully, isn’t so rotten?

    As for your Supreme Court point: Of course the federal judiciary is not supposed to be answerable to the electorate. But surely there were enough clues about my political persuasions in my post for you to infer my position that, given such complete unaccountability, the judiciary is the branch of government which should wield the least power. Unfortunately, that is not the case, as – much to your chagrin, I am sure – Al Gore can tell you. Or the people of New London, Connecticut.

  23. Benedict:

    “I never used the word “immediately” or “immediate” in describing the responsiveness of elected officials to the electorate.”

    Fine. Strike the word “immediate,” if you so choose — the argument still stands. If the framers had wanted the judicary accountable to voters, it would have made its seats electable. And my “so what?” question still stands.

    “The words I used were ‘most responsive to the will of the voters.’ And as between the responsiveness to the electorate of the legislative branch and the executive branch, well, there’s no contest, as your silence on that issue seems to concede.”

    You know, I love people who castigate someone for making assumptions, and then make them themselves. I do not concede that point, and given the current low polling of the president and his positions on just about everything, nor would I suggest that the executive branch is at all responsive to the will of the voters at the moment, or at the very least no more or less than the individual representatives and senators are (generally) responsive to the will of those who voted for them.

    Aside from this, why is being “responsive to the will of the voters” manifestly the best criteria of the effectiveness of a branch of government, particularly a branch, such as the judicary, which is explictly meant to be insulated from the passions of the electorate? Personally speaking, given the choice of, say, “responsive to the will of the voters” and “faithfully making/judging/administering laws in accordance to the Constitution,” I’d generally go for the latter.

    “But surely there were enough clues about my political persuasions in my post for you to infer my position that, given such complete unaccountability, the judiciary is the branch of government which should wield the least power.”

    Again, so what? Your fetish for an unequally strong executive branch doesn’t particularly impress me. Given your interpretation of the balance of power between the branches of the government and James Madison’s, I know whose I am going to use.

  24. given such complete unaccountability, the judiciary is the branch of government which should wield the least power.

    This is pretty silly. There’s nothing to suggest that the Framers intended ‘accountability’ to be directly related to a branch’s power.

  25. I agree – this is pretty silly (although a rather impressive duel between two guys who have a firm grip on the English language).

    My understanding (“I am not a lawyer, blah, blah, blah”) is that the different branches provide checks and balances for each other, but I’m not aware of anything in the Constitution declaring them equal in every case.

    In fact, there’s pretty clear evidence that different branches get more power in a wide variety of circumstances. Examples: Congress is the only branch that can spend our tax money. The President can veto a bill (check/balance), but can’t ammend it in any way – that requires Congress. Similarly, only the Judicial can overturn a court ruling (remember Terry Schaivo? Congress met in the middle of the night to send her case to another court. They had no power whatsoever to change the previous court’s ruling (which the other court eventually upheld).

    I haven’t seen the hearings (unlike John, no TV at work), but if Samuel Alito truly believes that the Executive branch should have more power than the others, the correct question would be “in what circumstances?”

  26. Checks and balances. These are concepts wholly alien to the current executive branch of our government, and, with someone like Alito on the Court, the judiciary too.

  27. My understanding (“I am not a lawyer, blah, blah, blah”) is that the different branches provide checks and balances for each other, but I’m not aware of anything in the Constitution declaring them equal in every case.

    In fact, there’s pretty clear evidence that different branches get more power in a wide variety of circumstances. Examples: Congress is the only branch that can spend our tax money. The President can veto a bill (check/balance), but can’t ammend it in any way – that requires Congress. Similarly, only the Judicial can overturn a court ruling (remember Terry Schaivo? Congress met in the middle of the night to send her case to another court. They had no power whatsoever to change the previous court’s ruling (which the other court eventually upheld).

    Essentially right. One very minor correction: the legislature can’t overturn a judicial ruling as it applies to a particular case (which is what you presumably meant) — but if it doesn’t like a ruling, it can pass a law that prevents the same ruling in future cases (as long as the laws thus passed are Constitutional).

    As for all the other issues under discussion here . . . well, for whatever it’s worth I am a lawyer, blah, blah, blah, and I agree with John completely. I’m probably somewhat more favorable toward Bush on the whole than John is (which is like being taller than Herve Villechaize) but I’m just as opposed to the current administration’s tendency to ignore Constitutional checks and balances on executive power.

    In general I’m pretty unimpressed by the current crop of “conservatives” in the camp that began to come into prominence about a quarter century ago with Meese and his fellow travelers. These folks neatly reverse the Constitution by claiming, in effect, that the Constitution limits the people (in the sense that if the Constitution doesn’t expressly list one of your “rights,” either you don’t have it or the government can ignore it), but that it doesn’t limit the government (those Founding Fathers would surely never have suggested that the executive branch needed to get warrants for anything really important!).

    Madison schmadison. The only way to prevent tyranny in this country is to give the executive branch full discretion to do whatever it wants. (Oops, I mean “to do whatever is necessary to protect the security of the American people.”)

  28. given such complete unaccountability, the judiciary is the branch of government which should wield the least power.

    This is pretty silly. There’s nothing to suggest that the Framers intended ‘accountability’ to be directly related to a branch’s power.

    It’s pretty silly for another reason too. In this context, the only real “power” the judiciary (the “least dangerous branch”) really possesses is the power of judicial review, i.e., the power to declare the actions of the other branches unconstitutional — so the hazard of an unchecked judiciary is that the other branches of the government might wind up being too limited. Why that prospect frightens a “conservative” is more than I can fathom.

  29. [T]he judiciary is the branch of government which should wield the least power. Unfortunately, that is not the case, as . . . the people of New London, Connecticut [can tell you].

    So let me see whether I have this straight. A Republican-majority SCOTUS refused to strike down an exercise of eminent domain as unconstitutional — and this is an example of an unchecked judiciary?

    If you think the SCOTUS should have ruled different in Kelo, then I think you must mean that it should have exercised its power of judicial review and limited the authority of the federal and state governments.

    Instead, what you got is exactly what the folks in your camp claim to want — a SCOTUS that limited its own Constitutional authority to overrule government actions and refrained from exercising judicial review to undo an action that the executive branch of a local government believed to be necessary — and what do you do? You turn around and complain about a too-powerful Court.

  30. Posted by: Bearpaw at January 10, 2006 03:01 PM

    Alito said, “The president has to follow the Constitution and the laws.” He elaborated on that.

    Given the somewhat dodgy way Alito appears to define the law, John’s critique is spot on. Compare:

    The president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president — and it’s set out expressly in the Constitution — is that the president is to take care that the laws are faithfully executed and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.

    and:

    I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system…. And it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

    It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents.

    and:

    I don’t think that activism has anything to do with being a liberal or being a conservative; it has to do with not following the proper judicial role. It has to do with a judge’s substituting his or her own views for what the Constitution means and for what the laws mean.

    The thing that Alito is glossing over is that to an American lawyer (and I’m another one), the decisions of the courts–and especially the Supreme Court–are the law too. When Alito says–and I couldn’t find the quote on CNN, but heard him say it on NPR this morning–that the President must follow the statutes and Constitution, he’s essentially ignoring the function of the courts as a check upon executive power. What I’m hearing between the lines is that Alito will defer to the President’s interpretation of the Constitution and of acts of Congress without necessarily giving proper weight to what is essentially the American version of common law: the accumulated opinions of the judiciary.

    Notice in the above quotes that Alito’s list of the sources of law doesn’t include the prior precedents of the United States Supreme Court. Notice that Alito’s idea of the proper role of a judge emphasizes the Constitution and laws–as well it should–but excludes the weight of precedent as a factor in a judge’s decision. And, finally, notice that he treats stare decisis as a “general presumption”–he is correct that stare decisis is not an “inexorable command” (precedent can, after all, be overruled), but it’s a bit more than a “presumption” that old decisions will be followed; the Supreme Court’s interpretation of the Constitution–unlike the legislature’s or executive’s–creates binding precedent that carries the force of law.

    I am not so worried about Chief Justice Roberts: while only time will tell, I suspect the Bush administration has underestimated Roberts’ influences. Although Rehnquist was one of my least favorite people in the world, I can grudgingly give him credit for promoting a strong and healthy judicial branch and being concerned with the Court’s valuable place as an institution; I suspect his protege, Roberts, will prove to have similar values. But Alito… candidates like Alito and Meyers are shameful; I have little use for Scalia, but at least he has some skepticism of the executive that appears to be sorely missing from the present nominee.

    Whether Alito likes it or not, the Court is a source of law, and a counterweight against the other two branches of government.

  31. Watching excerpts today on PBS

    While discussing stare decisis the questioner asked Alito, “if he knew how many times the SCOTUS had overturned its own precedents?” (or words to that effect). Alito responded that he didn’t know the exact number. The questioner then provided the exact number (which I didn’t catch, but it was over 100) and followed “or nearly 200 times”. I don’t know if his figures are correct but that seemed to be an awful high number.

  32. An awful high number relative to what? The Supreme Court makes judgments on dozens of cases a year (I believe the average is somewhere close to 100), and been in business for two centuries. If the SCOTUS overturns previous decisions on average less than 1% of the time it rules, it would seem a rare event indeed.

  33. John,

    I meant that SCOTUS overturning itself tends to be news which would be more prominent in the history books, but off the top of my head I can only remember a few.

  34. Ah. Well, I would imagine not every reversal of a previous ruling is of a ruling that has an obvious and immediate social effect. There’s a lot of boring, non-sexy law that the SCOTUS deals with, too.

  35. At the risk of seeming shallow…

    I was able to listen to the first 2 and a half days of the hearings on NPR. During that time (and with minimal other exposure to Alito related info) I began to come to the conclusion that I might not agree with Alito, but the like so many of the other sitting SC Justices, he seems to be an intelligent and decent person.

    My next exposure to the hearings were the recaps on my local PBS news station. Upon actually seeing Alito’s face during the same q/a’s I had previously only heard, my opinion of him began to crumble.

    I’d hate to discover I am unduly biased by a “book cover” but he looked less the intelligent and decent person I had pictured, than he looked to be weaving, dodging and generally attempting to gloss his way through the hearings.

    This morning I finally had some time to do a little extra-curricular reading on Alito (okay so most of it is blog surfing, but I have read a few real news outlet articles) It only confirmed what my instincts began hinting towards.

    My conclusion?

    With Roberts, I felt a sense of clarity and strength of character, despite my dislike of some of his opinions. I was comfortable with his confirmation. (still not sure about Chief, but hey)

    Meyers? heck no.

    Alito? I don’t trust him… Superb resume and references, etc. aside. He has an odd sense of the ethical boundaries of recusal. He is very clear on the technical boundaries, but his interpretation of what that means in actual practice bothers me more than anything else.

    My two cents.

  36. John,

    This thread has slipped over into outright slander, which is a shame because you usually manage to rise above your own bias enough to keep things honest.

    First off, the courts are not a source of Law as a poster stated. It is because they have tried to become a source of Law that these hearings have become contentious.

    Secondly, the unchallanged assertions that Alito is a liar goes beyond the pale. You cite the very biased and liberal PFAW as a source without acknowledging just how partisan and unhinged they are on this issue. It would have been better if you had turned to the ABA, a group that has never been considered conservative, who is generally held up as a neutral evaluator of Judges. They give Alito an unqualified top rating. Specifically they judge him to be honest and ethical, and yes they did look at the “vanguard” case.

    Finally, there is a panel of circuit court judges who worked with Alito who are testifying on his behalf right now. This group includes several who would describe themselves as being left of your public opinions. They all speak highly of Alito. Unfortunately, of the democrats on the committee only Feinstein has bothered to stay and listen to them. The rest were too rude and left.

    If there were serious charchter issue they would have come up. Instead we got three days of Kennedy suggesting that Alito be held accountable for things said by a group he joined years ago and wasn’t active in. Pathetic, especially coming from Kennedy. The only other thing they could come up with was the “vanguard” case. You will notice that the Democrats were careful not to get into the specifics of the case. That’s because vanguard wasn’t really even a party to the case.

    Dislike the guy for political or philisophical reasons, that’s your right. However to question his integrity or qualifications is slander, and you are better than that.

  37. Paul:

    First, it would be libel (because it’s written), not slander. Second, nothing in this thread is even close to libel (or slander), and suggesting that it is shows a profound lack of understanding what libel (or slander) is, particularly for public figures (which Alito certainly is at this point).

    If you’re going to solemnly lecture me about slander and “how I’m better than that,” please do me the courtesy of having the first fucking clue what you’re talking about, because otherwise it’s insulting to me and it makes you look as ignorant as a chicken.

    I don’t at all appreciate the suggestion that I am tolerating libel here, or that I am performing it myself. And it doesn’t appear you know enough about it to make an informed statement as to whether it’s happening or not. So I would suggest you take the comment back, Paul. Libel’s one of the few things I have very little sense of humor about.

  38. Imagine thinking that disagreeing with a Supreme Court nominee’s apparent views on executive power constitutes defamation, but publicly posting a false statement that John Scalzi has committed an actionable tort does not constitute defamation.

    What a brilliant and incisive legal mind you must have, Paul.

  39. Heh. Well, even if it were, I’m very unlikely to pursue the issue outside this thread. I just prefer not be called a libeler (or a slanderer) when I’m not.

  40. Well, even if it were, I’m very unlikely to pursue the issue outside this thread.

    I figured as much — I just think it’s funny that Mister Ooh-Ooh-That’s-Slander didn’t even consider the possibility that his own ill-considered screed might be defamatory.

    In all likelihood, for stuff posted to your blog you’d count as a limited public figure anyway, so you’d have to show actual malice. Unfortunately, actual stupidity wouldn’t be sufficient, or it would be a slam-dunk.

  41. First off, the courts are not a source of Law as a poster stated. It is because they have tried to become a source of Law that these hearings have become contentious.

    Firstly, that’s my statement, not John’s.

    Secondly, that statement has nothing to do with libel or slander.

    Thirdly, the hearings were predestined to be contentious because of the current political climate and the makeup of the present legislative and executive branches of government, not because of something that the Supreme Court of the United States has been doing since Marbury v. Madison.

    Fourthly, the common conservative claim that “courts do not make law” is (a) a veiled way of saying that they disagree with certain court decisions and (b) a misstatement about how attorneys and judges actually perceive and use the American common law tradition. When the Supreme Court says that Amendment V requires that a subject under arrest has a right to counsel or that the Amendment VI guarantees a defendant subject to imprisonment a right to counsel, they are (whether you agree with the result or not) establishing enforceable procedures and rights–they are generating law. I cite these examples because I’m an assistant public defender, but a patent lawyer could point you to his favorite cases or a maritime lawyer could point you to another example.

    The SCOTUS’ role in defining what the Constitution means and thereby establish law is important enough that even a conservative like Rehnquist saw the need to uphold a decision he publicly despised (Miranda v. Arizona) against a legislative effort to make an end run around the Constitution as interpreted by the Court. And this is my biggest issue with Alito: I personally don’t think he respects the role of the Supreme Court as an institution. I may not like all of the case law generated by the Court, but as an attorney I have to accept that it is the law of the land and deal with it as such.

    His integrity, as such, is of somewhat less concern to me. I will say, however, that it does not reflect well on the man at all that he waited until now to disavow CAP. By way of a hyperbolic analogy, if one were to join the Klan and then say later, “Well, I only agreed with them about one issue and I never went to any of the meetings or rallies,” I doubt that anyone would find it a terribly good excuse even if it happened to be entirely true. I’m quite aware that CAP is many orders of magnitude less horrible than the KKK, but it was a bigoted and misogynistic society bent on keeping Princeton “pure” for white males, and willing to use some dishonorable and deceitful tactics towards that end. If Alito had sent them a letter in the mid-1970s saying, “I was a fool to join your racist club, go to Hell!” instead of using his membership to vouchsafe his credentials when applying for a job at Justice, it would say a great deal about his character. (I cannot help wondering what Alito’s application essay actually says about the Reagan administration, but I suppose that’s another thread.) As thing stand, Alito’s token participation in CAP and belated repudiation does not reflect well on him, even if attributed to youthful indiscretion.

    Phew! Sorry for the length.

  42. Hm.
    That use of “slander” feels like someone who wanted to say “treason” but couldn’t quite make “criticism of a Bush appointee” stretch that far during the confirmation hearings. (It would be a different matter, no doubt, for a confirmed judge.)
    It’s another iteration of the “anything but respect others’ right to disagree with me” impulse. Note the occurrence in case of future pattern, file, forget.

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