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January 15, 2006

Confirm Alito

I first posted the following as a comment on the string A judge calls for civility, but given the currency of the topic, I decided to give it its own string.


I've been able to watch just a few hours of Judge Alito's confirmation hearings, but even that little bit (scattered over several days) has been painful -- particularly those moments when 1) various senators have pressed for what amounts to an advance decision on issues that might come before the court; and 2) various senators have offered adulatory speeches that left we wondering where the judge left his halo and wings.

The way some lines of questioning have been framed is disturbing. Questions concerning whether Judge Alito sided with the government or the "little guy" in deportation cases is one example. In seven of eight cases in which there was a split decision by the appellate court on which he sits, Judge Alito sided with the government, said the senator (Durbin, if I recall correctly).

First, or course, is the possibility that the government was right in those seven cases (though the possibility of the government being right seven of eight times about anything strikes me as being remote). More to the point, though, is that in limiting the context to split decisions, Sen. Durbin, or whoever, left us ignorant about the judge's total record. Maybe, if all decisions were considered, we'd have a totally different impression about how deferential Judge Alito is to the government's position.

Judge Alito has a pretty substantial record; in reading some of it, about some of it and in listening to the questions during the hearings, I see things that bother me a lot and other things I find admirable. Pretty much the same with sitting members of the court.

I greatly admire Justice Stephens, but I think's he's been way wrong on some cases -- recent ones on eminent domain and medical marijuana to name two. I most often disagree with Justice Thomas, but on these two cases, he took what I thought was the right position -- on the side of state and individual rights.

Picking someone for one of the nine chairs is, in the end, the biggest gamble a gambling nation takes.

The mechanism we use is rife with partisan strife as bitter as that which accompanied our birth, but with the vicious street corner phamplet amplified by the wonders of the communication age.

In the end, too, it is impossible to know the manner in which our choice will react to the reality of a civic responsibility unique to the position -- past is no sure predictor of the future.

Among sitting members, Justice Souter has fulfilled his responsibilites in a manner that displeases that segment of society that viewed him as "their" guy when he was nominated. The street corners are awash in phamplets.

Then there's the case of Earl Warren. He was first a law-and-order county prosecutor who, as attorney general and governor of California, was a leading proponent of interning "the Japs." If I'd been in the Senate at the time of his nomination, I'd never have voted for him.

But he and his court gave us Brown vs. Board of Education, Miranda vs. Arizona and the one-man, one-vote ruling.

Judge Alito is not under-qualified, as was Harriet Miers.

No shocking ethical blemish has emerged, though it is troubling that, having gone out of his way to pledge recusal in Vanguard cases, he then ruled on one. The explanations have been a bit lame.

He has, despite the many cautious and hedging answers given the committee, said straigforwardly that he recognizes a constitutional right to privacy. Please, do not see code for "abortion" when I mention privacy, though if Judge Alito truly does see privacy as a protected right, it will make it more difficult for him overturn Roe vs. Wade.

Privacy is pretty much a joke these days, what with credit card companies losing and selling information about us, with lists of our phone calls availble for sale on the internet -- the sins against privacy are rampant and rapidly getting worse. 'nuther one of the wonders of the information age.

If we are ever to retrieve the situation short of the DHS and leading retailers installing chips in us, we need friends in high places. Will Judge Alito be one?

The president that nominated him has little if any respect for privacy; the Senate that will consent, or not, does too little to protect us; more often it rushes to approve ever-more invasive measures. (Let's talk more about Real ID sometime real soon.)

Neither the weakness of the nominator nor those of the consenters should disqualify Judge Alito. Haven't seen, heard or read anything else that does, either.

It's time to roll the dice.

Posted by jcb at January 15, 2006 12:18 PM


David Brooks made an interesting point on NPR the other day about the abortion issue.. He claims to be pro-choice but wants to see Roe v. Wade overturned in order to get the issue out of the courts and up to the states. I'm not sure if that opinion is a wolf in sheep's clothing but I think we could all agree that if abortion rights weren't an issue these confirmation hearings might be more productive and possibly more civil.

I think the stunt with his wife was pathetic. I don't think many of us have the luxury of bringing our spouses to a job interview. Yes, the democratic senators were being jerks with some of their questions but everyone knows that the confirmation hearing was a formality and that he'll get confirmed. The stunt with his wife was a political move to further vilify Kennedy, Durbin, et al.

Democrats have done a pretty good job of picking their battles in the last year or so. Go over GOP talking points and look at where they say "Silence is defeaning" - that's where they've chosen to stay out of a battle. I think it is time they chose to let this one go and let Alito's confirmation go along. Getting this out of the headlines will get the media's full attention back onto Abrahamoff, Delay, Iraq, and wiretaps.

Posted by: t at January 15, 2006 05:00 PM

I can't tell you how offended I am with you t, for characterizing Ms. Alito's tears as a stunt. I don't know if you are a Ms., Mrs. or Mr., but consider the fact that at your job interview (you have a job, I'm sure) your spouse, your mother, or your "other" would have to sit behind you, with TV cameras and national press in attendance, while your obvious intellectual inferiors insinuated you were a racist, or worse. I can't know your reaction, because I don't know you, but my reaction would be to punch the @sshole in the face.

But that's just me.

Posted by: paladin at January 15, 2006 05:52 PM

t, the Brooks argument has been made by various people ever since Roe vs. Wade was decided, and it has some merit.

Polls consistently show majority (or plurality) support for the pro-choice position. (Results in recent years) Most states, in passing laws in the wake of Roe being overturned would, I believe, generally leave the choice where it belongs -- with the pregnant woman. But what a nasty brawl the issue would engender everywhere.

It's also possible that the Supreme Court, given its longstanding trend toward usurping state and individual rights, would negate state pro-choice laws.

The case to watch at the moment is Gonzalez vs. Oregon, in which the Oregon Death with Dignity Act is the issue. It was the first case heard by the court after John Roberts was named chief justice, and the ruling, when it comes, will give us some hint of where we're headed.

If the court decides that some obscure federal regulation overrides the results of two referenda and a state statute in Oregon, we're in trouble.

Here's a string on this issue from last fall

Posted by: jcb at January 15, 2006 06:19 PM

t, when you say that "if abortion rights weren't an issue...these confirmation hearings might be more productive and possibly more civil", I have to agree. I wish someone would explain to me how abortion became the most sacred ritual in the country.

Abortion will never be "banned" no matter what NARAL wants us to believe. At the most, the question would go back to the states, where it was before Roe v. Wade. I'm sure Illinois would immediately institute all abortion all the time with no restrictions, even if the "fetus" was 12 years old. But the more conservative states like Utah and Kansas would not have to live by the rules of CA, NY and IL. And why should they?

Weirdly, a while back, I saw something from a Congressperson from VT or NH, hoping that Roe would be overturned because then his/her state could become the "abortion capital of the country" and draw women from those states that restricted abortion. Knowing how craven the abortionists were, I was not in the least surprised.

Posted by: paladin at January 15, 2006 06:57 PM

Wow.. I insulted someone who feels it necessary to compare Cindy Sheehan to Fred Phelps.

Nowhere does it say a spouse *has* to be present at a confrimation hearing. If Mrs. Alito couldn't keep herself composed then she should have stayed home and watched it on TV. Maybe it wasn't a stunt, but it did seem to be very well timed and very distracting from the proceedings. If the shoe were on the other foot I think conservatives would not only be saying the same thing but also pointing out how "weak" she was.

And if the same thing were happening to my wife (yes, I have one of those and a job) I would either sit there or leave if I couldn't keep my emotions in check. She is a grown woman who should not (and would not) *need* my presence at such a hearing/job interview/whatever.

Wanting to "punch someone in the face" is barbaric, unwarranted in the case of verbal attacks and very telling about the person. But maybe that's just me.

Posted by: t at January 15, 2006 07:17 PM

Prove it's a "stunt" t, or I'll punch you in the face. Hee!Hee!

But you're not alone. From what I've read in the NYTimes, the Dem leadership, who met after the "crying" episode, were shocked, SHOCKED! that the press had focused on the crying and not on that paragon of moral virtue, Ted Kennedy's denunciation of Alito's membership in a club back when Alito was at Princeton. Maybe the press should have asked Mary Jo Kopechne for a comment instead. Or not.

But I do enjoy moral outrage, whether warranted or not.

Posted by: paladin at January 15, 2006 08:45 PM

Confirm him already! What dingbat in the Senate was muttering today about a filibuster? Please, spare us even the thought of that...

I agree 100 percent with JCB's privacy concerns. Big Brother looms large. The Founding Fathers would be shocked...

Meanwhile, appointing a Supreme would not be so supremely stressful if -- and I'm not even going to pretend to supply the historical context -- the court hadn't usurped the legislature. God only knows what the Supremes are going to cook up next, and we don't have to look any farther than the infamous eminent domain ruling to find a case that right- and left-wing extremists alike can agree on. (The right to privacy notwithstanding!)

Posted by: Michael Romkey at January 16, 2006 05:13 PM

Mrs. Alito needs to suck it up. If she can't get through the hearings with boo-hooing, she's not going to deal with being the wife of a justice very well. Do you all think she's never going to hear a cross word after he's confirmed?

Maybe she can console herself with the fact that her husband will have a prestigious job, highly paid, and guaranteed for life! Many women, and men, would deal with a bit of unpleasantness for that reward.

Posted by: Vita at January 17, 2006 09:13 AM