pageok
pageok
pageok
Will It Be Sam Alito?:
I've seen some speculation around the blogosphere that Judge Samuel Alito of the Third Circuit may be tapped by President Bush to fill the O'Connor slot, perhaps as early as tomorrow. I know Judge Alito a little bit, and have two quick thoughts. First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. Alito picked up the "Scalito" nickname early on, but while clever it's not accurate. Judge Alito is much more of a process-oriented judicial-restraint type than Scalia. While Alito is well-known for his early dissent in Planned Parenthood v. Casey, generally speaking he hasn't approached the job of appellate judge with an ideological edge. Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.

Related Posts (on one page):

  1. Quick Thoughts on the Alito Nomination:
  2. Will It Be Sam Alito?:
Scott Scheule (mail) (www):
Orin,

Where would you peg him so far as libertarian vs. conservative goes?
10.28.2005 2:19am
Scott Scheule (mail) (www):
Incidentally, one of my professors is Judge Silberman of the DC Circuit--Alito was his prediction as well. If it's a man, that is. If it's a woman, Silberman predicted Owen.
10.28.2005 2:20am
The General:
is he an originalist?
10.28.2005 2:37am
Beerslurpy (www):
If he isnt a mini-Scalia, then what is he?

How is he on deferring to govt authority?
How is he about federalism?
How is he about RKBA?

Enquiring minds want to know.

-jim from FL
10.28.2005 3:11am
BTD_Venkat (mail) (www):
How about Maureen Mahoney?
10.28.2005 4:12am
Marc Bohn (mail):
I heard Maureen Mahoney speak on a solicitors general panel at GWU yesterday... she claimed her most memorable/favorite argument before the Supreme Court was the recent Michigan affirmative action case. For some reason I think the far right will have a hard time swallowing that one.
10.28.2005 9:09am
Public_Defender:
Mahoney once strayed from the camp, an unforgivable sin for the Right.

Where would Alito likely stand on Blakely and Booker? The Booker remedy (making the guidelines advisory instead of throwing them out) had only five votes, two of whom were Rehnquist and O'Connor.

Roe may enflame the bases of both political parties, but few, if any, issues will have as much effect on present and future cases than Blakely/Booker. The issue affects almost every single federal criminal case (and every single criminal case in many states) in a very fundamental way.

Outside of a few sentencing geeks (Professor Berman comes to mind), it appears that very few legal commentators understand the earth-shattering significance of Blakely/Booker.
10.28.2005 9:40am
jurisprude:
Mr. Bohn also will note that when the panel was asked for their thoughts on the confirmation process, Ms. Mahoney extremely sarcastically said, "sounds like a lot of fun" (or something to that effect). That doesn't necessarily mean that she's not interested in being nominated to the Supreme Court, but that's the sense that I got.
10.28.2005 9:44am
Lawbot2000:
Quote from the NY Times Editorial today, notice how the NYT assumes that being both a judge of obvious quality and a member of the right wing is inherently contradictory:
"Has the president learned that he should nominate someone of obvious quality? Or has he decided that he has to continue to bow to the increasingly strident demands of his party's right wing?"
10.28.2005 10:15am
Lawbot2000:
Also note how the NYT claims that conservatives didn't support her because she wasn't a "safe enough bet to rule against legalized abortion" and Democrats didn't support her because she wasn't "just not qualified."
I know everybody already realizes this, but the NYT is disgusting.
10.28.2005 10:20am
anonymous coward:
Ah, lawbot, I'm no fan of the NYT (who is?), but this quote
"Has the president learned that he should nominate someone of obvious quality? Or has he decided that he has to continue to bow to the increasingly strident demands of his party's right wing?"

does not indicate there are no right-wingers of "obvious quality." Rather, the NYT is wondering what the Bush team thinks is the more important lesson from the Miers debacle: don't nominate unqualified people, or don't piss off your base. (Actually, the real lesson is not to do both at the same time, because then your nominee will have no base of support.)
10.28.2005 10:41am
Andrew Edwards (mail):

I know everybody already realizes this, but the NYT is disgusting.


Ugh. This kind of invective helps no one. They published an opinion. In the opinion section of the paper. That you disagree is pertinent, and I'd love to hear why you thought Democrats didn't support her, or why you thought that the conservative base didn't support her. But calling an opinion "disgusting" simply because it favours one party over another isn't helpful.

For what it's worth, my read was that the conservative base really was uncomfortable with her on abortion and gay marriage, two very big issues for them. It seems coherent and reasonable for that to be a reason for them to oppose her. If I were a strong social conservative, that would be my reason.

Intellectuals on both sides seemed uncomfortable with her lack of qualifications, but qualifications were the only reason why Democrats said they opposed her. The right was more mixed - intellectuals and the base gave a variety of reasons. As a first-order approximation, "conservatives because of philosophy, liberals because of qualifications" is certainly a simplification, but it doesn't sound completely unreasonable to me.

But I'm not a conservative - I'd love to hear your interpretation of the process.
10.28.2005 10:46am
Daniel Chapman (mail):
How does the fact that there was continuous conservative opposition to her nomination right through the revelation that she supported a pro-life amendment to the Constitution fit into your worldview, Andrew?

You also leave out the fact that there was substantial opposition to Justice Roberts from most liberal groups, as there will be for every nominee regardless of qualifications. The fact that they happened to be RIGHT this one time does not suddenly make their concern for qualifications honest and heartfelt.

Yes, there were conservatives who opposed her simply because they doubted she'd reverse Roe. (although Dobson supported her... how does THAT compute?) There were also liberals who opposed her out of an honest concern for her qualifications and didn't care about de-railing a Bush nominee.

Yes... your over-simplification is unreasonable. If it came from People from the American Way, I'd call it "spin."
10.28.2005 11:06am
Justin (mail):
Alito not ideological?

Well, a fight was what I expected before they nominated Miers, I guess it was just delayed a bit.
10.28.2005 11:13am
Paul Rosenzweig (mail):
Public Defender — Alito was part of a Bipartisan group that looked at the post-Booker Sentencing Guidelines, chaired by Ed Meese and Phil Heyman. Their report is at the Constitution Project's web site under Sentencing Initiative. It gives a pretty good start at his views on sentencing issues.. FYI
10.28.2005 11:23am
J..:
Intellectuals on both sides seemed uncomfortable with her lack of qualifications, but qualifications were the only reason why Democrats said they opposed her. The right was more mixed - intellectuals and the base gave a variety of reasons.

How is what Andrew posted (and I quoted) unreasonable? There are of course exceptions (e.g., NARAL, iirc, came out against Miers for non-qualifications reasons) but this seems to be the dominant story.
10.28.2005 11:24am
Goober (mail):
Um, I'm not saying, I'm just saying, but what reason do we have to lend credence to the buzz about who they're going to pick? No one foresaw John Roberts (think of all the speculation going on then, w.r.t. the two Ediths), and impossible as it may be to believe, Miers was even more out of the blue.

I'm not saying it's not fun, but I can't help but think it's unproductive.
10.28.2005 11:49am
Matt Barr (mail) (www):
For what it's worth, my read was that the conservative base really was uncomfortable with her on abortion and gay marriage, two very big issues for them. It seems coherent and reasonable for that to be a reason for them to oppose her. If I were a strong social conservative, that would be my reason.

Intellectuals on both sides seemed uncomfortable with her lack of qualifications, but qualifications were the only reason why Democrats said they opposed her. The right was more mixed - intellectuals and the base gave a variety of reasons. As a first-order approximation, "conservatives because of philosophy, liberals because of qualifications" is certainly a simplification, but it doesn't sound completely unreasonable to me.


Whether somethng sounds reasonable isn't always or often dispositive of whether it's true.

Would you say you are pleased or disappointed that Harriet Miers nomination was withdrawn?

Pleased 42
Disappointed 35
No opinion 23

[Asked of those who are pleased] If you had to choose among the following, which would you say is the most important reason why you are pleased that Harriet Miers' nomination was withdrawn -- her views are too conservative, her views are not conservative enough, she does not have strong enough qualifications to serve on the Supreme Court, or she is too close to George W. Bush personally?

Too conservative 8
Not conservative enough 4
No strong qualifications 49
Too close to Bush 35
No opinion 4


From a Gallup poll of 516 national adults, aged 18 and older, conducted Oct. 27, 2005, summarized here.
10.28.2005 12:10pm
Hans Bader (mail):
Alito isn't as conservative as Scalia, as his rulings in social security and disabilities cases show.

Still, he is fairly conservative.

And he is well-qualified to sit on the Supreme Court.

Batchelder and Jones would be better, though.
10.28.2005 12:19pm
Half Sigma (mail) (www):
My pick for supreme court is Judge Frank Easterbrook of the 7th Circuit.
10.28.2005 12:26pm
Dot dot dot:
Please keep in mind (1) that groups such as NARAL have no choice but to oppose a Bush pick because (A) it is a key opportunity to mobilize the left-wing base and get people donating, and (B) the odds are very good that the nominee disagrees with the seminal case -- no pun intended -- that is the raison d'etre of the interest group; and (2) that many democratic senators voted against Roberts (A) to send a message to the Whitehouse about future nominees and (B) to send a message to the people that elect them. And before anyone assails the left for acting/voting in such a machiavellian manner, please acknowledge that (1) Clinton's picks were endorsed by high-profile republicans such as Hatch, and (2) no Republican who voted for Breyer or Ginsburg could or would vote against a Bush choice, also motivated by political reasons.
10.28.2005 12:29pm
Jacob (mail):
Lawbot2k wrote:

Quote from the NY Times Editorial today, notice how the NYT assumes that being both a judge of obvious quality and a member of the right wing is inherently contradictory:
"Has the president learned that he should nominate someone of obvious quality? Or has he decided that he has to continue to bow to the increasingly strident demands of his party's right wing?"


As someone already pointed out, the editorial writers of the NYT aren't exactly representative of the paper itself (and it's arguable whether this is even their purpose). Also, I don't think it's splitting hairs to point out the distinction between being a member of the right-wing and being accepted by the right-wing. So the quote you list from the NYT editorial doesn't really say a quality judge can't be a member of the right-wing. Besides, so few judges are blatantly political; I'm not sure how many would of the ones so often labeled "conservative" or even "libertarian" would qualify as "right-wing" in anyone's mind (the whole judges-not-being-political thing...).
10.28.2005 12:35pm
Daniel Chapman (mail):
J..: You missed the key segment of his post that my "unreasonable" was obviously in response to.

"As a first-order approximation, "conservatives because of philosophy, liberals because of qualifications" is certainly a simplification, but it doesn't sound completely unreasonable to me. "

THAT is what is unreasonable.
10.28.2005 12:54pm
Doug B. (mail) (www):
10.28.2005 1:11pm
Gordon (mail):
My prediction? Mahoney. Based upon nothing other than raw intuition.

-She's female.
-She's young
-She's got Roberts-ish personal qualities (apparently)
-She will be proof that a nomination doesn't have to come from the existing federal judiciary, which may be an important point to the Bush team as an anti-elitist measure
-She has no judicial track record to criticize
-Like Roberts in his Romer v. Evans problem with the far right, she will be able to claim that she was working and getting paid to argue Grutter v. Bollinger, and it was her ethical duty to put forward an effective argument
-Affirmative action may be anathema to academic conservatives, but it doesn't resonate like the abortion and gay rights issues with the socially conservative right.

Of course I'm probably wrong. But she seems eminently qualified to me. And the thought that a Supreme Court Justice has to have prior bench experience, most likely prior federal bench experience, is a relatively new and unwelcome development, in my humble opinion.

The best and most effective justice of the last quarter century had no federal bench experience before she joined the Court in 1981.
10.28.2005 1:47pm
Matt Barr (mail) (www):
Bleg:

Can anyone with Lexis or Westlaw or whatever send me Judge Alito's concurring opinion in Rappa v. New Castle County, 18 F.3d 1043, 1072 (3d Cir. 1994)? It's not on the 3rd Circuit site, Villanova's 3rd Circuit archive, Findlaw or anywhere else I can find on the web. I'm doing a piece on Alito and the First Amendment. The e-mail address next to my name above is the one. Thanks so much in advance if anyone can help a blogger out.
10.28.2005 2:15pm
Bob Flynn (mail):
Alito would be a fine choice. Speaking of Silberman upthread, I read somewhere that after Bork was Borked, and Ginsburg yanked -- the choice came down between Silberman and Anthony Kennedy.

And, the religious right, thought Kennedy would be more likely to overturn Roe, because he was a devout catholic.

I woulda picked Silberman.
10.28.2005 2:32pm
Unnamed Co-Conspirator:
Gordon, just when I thought you were coming around (your comment a while ago, on another thread, after it had dawned on you that judicial activism can cut in all directions, and doesn't necessarily favor a lefty worldview), you come up with this -- O'Connor the "best and most effective" (at least you don't suggest that the two things are the same) justice of the last 25 years? O'Connor is indeed a strong argument for making judicial experience a prerequisite. She approaches cases as a lawyer would, not a judge: she establishes a particular result as her objective, then searches for something to support her decision. Too often, she's just invented constituional law out of thin air. Her dissent in Kelo wasn't quite one of these, but Grutter was. At least in Kelo, assuming that incorporation through the 14th amendment isn't an issue, she happened to land on the right answer and fall into support that was consistent with the constitution and popular all at once (chalk it up to the blind squirrel theory). But her opinon in Grutter was an indefensible inversion of the equal protection clause (and, for what it's worth, I'm no a "color-blindness" absolutist; rather I think the EPC permits some race-based remedies for harm caused by racial discrimination). If she's been effective, then she's been effective in helping make a mess of our constitutional jurisprudence. The sooner she goes, the better.

Btw, I don't think judicial experience should be a requirement; some of the best justices weren't judges before they joined the Court . . . Robert Jackson comes to mind.
10.28.2005 2:54pm
Shelby (mail):
The strongest argument against both Mahoney and Alito is that neither one has been confirmed to a position by this Congress. If Bush wants to minimize the fight, he'll pick someone who's recently been approved for a similar position. Some people will still say "she was qualified for that, but not for SCOTUS," but this approach limits the degree of likely opposition.

dot dot dot:
no Republican who voted for Breyer or Ginsburg could or would vote against a Bush choice

Are you familiar with sens. Chaffee and Snowe? If they see a nominee as too conservative they could well vote against her.

Jacob:
the editorial writers of the NYT aren't exactly representative of the paper itself (and it's arguable whether this is even their purpose)

Well, they're the formal voice of the paper, so they are in fact THE representatives of the paper itself. Though that voice is subject to change at the Ed-in-Chief's or Publisher's whim. It's fair to draw a distinction between the editorial and news functions; the WSJ news and editorial departments seem only vaguely related.
10.28.2005 3:25pm
Legal Thoughts (mail):
Hans (and others, I suppose) - I'm intrigued at the constant buzz over Batchelder, especially as someone more qualified (read: more conservative?) than Alito. I'm pretty familiar with the recent state of the Sixth Circuit, and I can't think of any particularly notable appellate opinions that she has authored or joined, other than her alliance with Boggs et al in Grutter (of which I don't think anyone on that court should be proud). On the contrary, she issues an inordinate number of unpublished opinions (something that is generally a problem on the Sixth Circuit), was until recently among the slowest judges in producing opinions, and asks virtually no questions from the bench.

But I'm willing to reconsider. Can someone point me to any work by her that demonstrates her supposed abilities?
10.28.2005 3:45pm
David Maquera (mail) (www):
My personal preference is McConnell. However, I am not the POTUS. Nevertheless, whomever the President nominates, it is of the utmost importance that such nominee have the intellectual firepower of a John Roberts to take on the Senate "Demogogues" on the Juduciary Committee if need be. Conservatives will unite behind such a conservative intellectual and are more than ready to take on our liberal counterparts to defend the nomination. Now, if only our Senate Republicans can find the backbone to "plow the field" for such a nominee to the SCOTUS. BTW, Syria delenda est.
10.28.2005 3:50pm
Steve:
Alito is pretty confirmable. There is a bit of a game, where the GOP knows they can't get away with nominating someone who openly opposes Roe v. Wade, while the Dems know they can't get away with opposing someone solely on the basis of Roe, or in this case, Casey.

Alito obviously has a strong resume and that makes it pretty hard to stop him, given that he is nowhere near as ideological as Bork.
10.28.2005 3:58pm
Walter Sobchak:
Goober said, "No one foresaw John Roberts"

Well, actually someone did, Maureen Mahoney: D.C. litigator made the call on Judge Roberts

Rumor is Mahoney interviewed with the President for the O'Connor spot before Miers was tapped.

Someone should ask Mahoney who will be the next nominee.
10.28.2005 4:46pm
Gordon (mail):
Unnamed Co-Conspirator:

In defense of O'Connor:

Her flaw, as you see it, it that she doesn't let some grand constitutional theory interfere with her common sense. Now this might be diastrous if we were talking about William Brennan's common sense, but O'Connor has, in my opinion, an uncommonly large portion of the good kind of common sense in her makeup.

I personally don't think Grutter v. Bollinger was one of her high points but, as the author of "strict scrutiny" in dealing with racial preference programs, she had the right to draw the line and prove to skeptics (such as the idiot law professor who compared her to Bull Conner after Richmond v. Croson came out) that strict scrutiny was not always "fatal in fact."

Her concurrence in McCreary County v. ACLU provides the best summary of why we have the Establishment Clause that I have ever read. I won't quote it again (I've done so before on a previous thread).

Her opinion last term in Jackson v. Birmingham School Board was another classic O'Connor common sense opinion. When dealing with a typically ambiguous statute, why not interpret it in a way that promotes its purpose of gender equality in school athletics, even if that means allowing the coach to sue for retaliation?

As for lack of Constitutional principles, that's a bum rap. The most important contribution O'Connor has made is the revival of the Tenth Amendment and the resurrection of federalism. And if that's not an important constitutional principle, I don't know what is. Her dissent in South Dakota v. Dole, which affirmed the federal government's right to use its purse strings to force states conform to federal policy, is about as principled as anyone can get.
10.28.2005 6:08pm
Andrew Edwards (mail):
See, now, I don't agree with Daniel Chapman.

But I'm a liberal on a right-libertarian comment board, so it's not altogether surprising that there are people who disagree with me. And with the liberal opinion section of the NY Times. (In much the same was as the WSJ editorial board often gets knocked around on liberal websites)

But Daniel Chapman's or Matt Barr's posts were so much better than the ad hominem

I know everybody already realizes this, but the NYT is disgusting

that I'm not going to debate Daniel or Matt. Just thank them for wiping up the useless and inflammatory spittle of lawbot's post by giving me a real viewpoint from across the aisle. Cheers.
10.28.2005 6:25pm
Unnamed Co-Conspirator:
Ok, Gordon, I'll grant you that O'Connor has lots of common sense. She should have run for elected office (again) where should could have put it to use making policy on the up and up, rather than interpreting law to reach the policy results she preferred. There's a difference between applying common sense to determine what a law says, and applying it to determine how one thinks it should have been written. I'll remind you of your previous comment acknowledging the dangers of judicial activism, and ask you to imagine a decision of the Court in which a 5 justice majority decides that Harry Blackmun reached the wrong scientific conclusions, or that technical developments have revealed new information regarding fetal development, and the Court decides that a fetus is a "person" sometime around the [you fill in the blank] week of pregnancy. I'm sure there's something like that among the penumbras, as there seems to be virtually no limit on what a penumbra can hold. One man's (or woman's) common sense is another's judicial activism.
10.28.2005 6:50pm
Rhadamanthus (mail):
Okay, with all this debate about the new nomination I'd like to throw a sympathy gesture here to O'Connor. I men she probably thought that she'd be off fishing right now, or whatever she was planning on doing in her retirement. Instead she's been forced to sit out as that worst nightmre of a lame duck judge. First she thought there was a solid nomination, then that had to be switched. Then the inevitable delay leads to this farce. How long before she can pack up her robe and head out to wherever she's going?
10.28.2005 8:19pm
Gordon (mail):
She also hoped to be hanging out more with her Alzheimers-afflicted husband.

Here's to hoping her federalist sympathies remain long enough on the bench to be the deciding vote for Oregon.
10.28.2005 8:23pm
Rhadamanthus (mail):
Gordon, as she has effectively retired and is a 'lame duck' I would be surprised if she voted as the deciding judge in ANY case. It would be pointless if her replacement would vote the other way. I understand why sghe has agreed to stay until a replacement but I think it will be a stilted court until Christmas- unless POTUS gets his act together.This of course will mean more work in the latter half of the term
10.28.2005 10:02pm
alexandra (mail):
It might be a fitting end to see O'Connor walk out the door with a vote to deny parents notification of their daughter's abortion. She will be rewarded with a portrait in the offices of NARUL. Her grandchildren will be so proud.
10.30.2005 1:10am
Samuel Alito (mail) (www):
The people who call me Scalito are making more of a procedural than an ideological comment. Here on the thirt circuit, we are what would be considered a "liberal" court. (I use quotes because I myself am not particularly fond of the terminology, but it is all that is available).

As a "conservative" (though not entirely an "originalist"), I find myself frequently writing dissents. I try to make these dissents as convincing as possible, and some court watchers have declared them to be Scalia-like in their language.

I respect Antonin, and have played squash with him on a few occasions (he beats me, of course) but don't see myself as any kind of ideological child of his.

While this may seem controversial to say in a "conservative" setting, one of the jurists whose opinion I most admire is Oliver Wendell Holmes. While Holmes is frequently thought of as a "liberal," he actually often argued in dissent on an activist court. Whether the court is activist in a conservative or liberal fashion is irrelevant. I abide, at the least, by his signature quote:

"It is the virtue of the common law that it decides the case first, and the principle later."

find out more: samuelalito.blogspot.com
10.30.2005 9:47pm
Samuel Alito (mail) (www):
One more thing:

Can we all agree that the person this is hardest for is Sandy O'Connor? Her husband is ill, she only wants to go to Phoenix and care for him, and she is being dragged back to Washington because of forces entirely beyond her control.
10.30.2005 9:49pm