pageok
pageok
pageok
Alito's Personal Statement:
The statement of his political views that Sam Alito made as part of his application to become a political deputy at the Office of Legal Counsel in 1985 is available here, on pages 15-16. The document was written in response to the following question:
  Have you ever served on a political committee or been identified in a public way with a particular political organization, candidate, or issue? (Please be specific . . . )
  Link via Colonel Bashman.

  UPDATE: A reader points out that I may be misreading the form, and that the Alito essay is probably a response to this somewhat different question:
  Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this administration, or would show that you are qualified to effectively fill a position involved in the development, advocacy and vigorous implementation of those policies.

AF:
From a recent Gallup Poll, as summarized on this site on November 2:

"If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%."
11.14.2005 3:48pm
Bob Flynn (mail):
Alito, arguably, is the most, qualified nominee the Supreme Court has ever seen.

Hyperbole? Perhaps. Except that if you compare his credentials to every single member of the sitting court, he comes out on top (even over Roberts). And, if you compare his credentials to former SCOTUS members, he still comes out on top.

The bottom line: If Alito is not confirmed, it can only mean one thing: The left has politicized/degraded the Court so much, that it, really is, all about Roe.
11.14.2005 3:55pm
TL:
AF-I hope you post that poll figure in sarcasm. If you endorse it as reality, I will exchange account numbers with you and we can do some wagering. Alito will be confirmed.
11.14.2005 4:06pm
TL:
> Lotsa party politicking is yet to be done. Asking before even a Senate confirmation hearing seems a little fortuitous.
11.14.2005 4:08pm
Erik H.:
The bottom line: If Alito is not confirmed, it can only mean one thing: The left has politicized/degraded the Court so much, that it, really is, all about Roe.


I'm not sure how you blame this phenomenon on the LEFT, insofar as it seems to have been Bush who selected Alito, and the right wing--not the left--who castigated Meiers for not being 'anti-Roe-enough'. And it's the right wing who focuses on Roe when discussing a new justice, as much as (or more then) the left.

So yes, for many people it's all about Roe, either for or against. Most non-lawyers don't get the criminal stuff all that well and are unlikely to get worked up about a change in the exclusionary rule. Roe hits close to home especially for certain Christians.


Make no mistake: Alito is hugely qualified. But that's not a fun debate, or a particularly compelling one. The only real debate will be whether politics SHOULD come into it from the Senate. After all, politics aree obviously crucial in the Presidential nomination. If 'qualified' was the only criteria, we'd expect the judges who Bush (or any other president) appointed to span the realm from liberal to conservative, which obviously they do not do.

Personally, I think the Court is--and will-be politicized, so it would be nice to have the political part open, and not hiding behind veils of 'competence'. I doubt that will happen.
11.14.2005 4:08pm
TL:
Erik: above seems a little shortsighted. Conservatives backlashed at Miers DESPITE knowing that she seemed "an enemy of Roe." Conservatives are looking for judicial temperment (Judgment over Will) more than you think. Abortion was the one thing about which people claimed having Miers pinned down. Yet there really wasn't enough support from the base, was there?

And if you think that she stepped down completely of her own accord, then I won't wager with you, I'll sell some LA swampland to you.
11.14.2005 4:15pm
magoo (mail):
"I'm not sure how you blame this phenomenon on the LEFT"

You can't be serious. Pro-choice nominees who would vote to affirm Roe, such as Justice Ginsburg, get confirmed 96-3. Nominees suspected of being anti-Roe, such as Chief Justice Roberts, get denounced as sympathizers with clinic bombers. NARAL even slammed Justice Souter by passing out pamphlets saying "If Souter is confirmed, women will die." The left's credo seems to be: When in doubt, drag them through the mud. The Miers debacle was about many things, but even if one views it as entirely about Roe, her opponents were pikers compared to the pro-choice crowd. Did anyone ever utter the words "If Miers (or Ginsburg, or Breyer) is confirmed, babies will die"? No. Of course not.
11.14.2005 4:25pm
Pete Freans (mail):
Democrats may be salivating at the prospect that they found a smoking gun, but I'm not at all alarmed. This personal statement was written twenty years ago, in the context of persuading an employer (in this case, the Reagan AG's office) to hire a young, aspiring lawyer. If his statement sounds zealous, that's exactly what the AG would have expected in a prospective candidate. The fact that Judge Alito expressed these views as an attorney and not as a member of the Judiciary, makes all the difference. In the
strictest sense, Judge Alito would be lucky to receive an A+ from pro-life groups based on his jurisprudence to date. As the Washington Times points out today: "Judge Alito sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself."

11.14.2005 4:27pm
Steve:
No, of course "no one" ever said that pro-Roe judges are baby-killers. Of course not.
11.14.2005 4:32pm
Michael B (mail):
"I'm not sure how you blame this phenomenon on the LEFT, insofar as it seems to have been Bush who selected Alito, and the right wing--not the left--who castigated Meiers for not being 'anti-Roe-enough'. And it's the right wing who focuses on Roe when discussing a new justice, as much as (or more then) the left." Erik H.

Would like to see those statements supported.

Firstly, it's highly doubtful either Roberts or Alito would, in any simple sense which ran roughshod over stare decisis for example, "overturn" Roe v Wade. Even Alito's Casey decision was a partial dissent only and where it did dissent it rather strictly adhered to O'Connor's previously decided findings. Secondly, where did the "right" forward the argument Miers wasn't "anti-Roe-enough"? (That was occasionally voiced, but it was by no means primary or even a noteworthy secondary appeal.) Thirdly, it's the Left which is looking for a positive enforcement of Roe despite any other judicial qualifications. In general (individual exceptions can always be found) the right is perfectly fine with constitutionally based jurists, such as Roberts, even though it's well known they give a decided, primary role to stare decisis, rather than looking, by hook or by crook, for an ideological agenda to be forwarded despite precedent and other suitably supported judicial constraints.
11.14.2005 4:33pm
Humble Law Student:
Is it just me, or did his personal statement seem rather unimpressive?

Maybe I expect too much from a soon-to-be justice, but I was hoping for some flair or some creativity, etc.
11.14.2005 4:38pm
DJ (mail):
Getting back to Alito, it seems to me that his statement doesn't give the White House much wiggle room. As I read it, Alito makes clear that, as a lawyer in the Solicitor General's office, he "very strongly" agreed with the Administration's constitutional positions regarding the right to abortion and affirmative action. I don't think it's plausible to read this as expressing a personal political or philosophical view. He's saying that, as a matter of law, he completely endorses the Administration's legal arguments.

I suppose his (and this Administration's) response will be that, now that he's a judge, he has an obligation to carefully consider all arguments and, as Judge Roberts said during his hearing, faithfully apply the Court's precedents on precedents. I wonder, though, if that will be enough to temper the alarm of pro-Roe senators like Specter or Snowe?
11.14.2005 4:39pm
DNL (mail):
Why would Specter care? This was written pre-Casey and pre-Carhart. At the time, Roe was mere precedent, not super-precedent.

I mean this is all seriousness (even if it does cause a bit of a giggle). If Specter's schtick is that Roe is solid law because of how many times it has survived, then Alito's mid-1980s stance on it should be a non-issue.
11.14.2005 4:46pm
Dem:
TL and Michael B: Sure, some conservative opposition stemmed from her qualificiations. But the fact that she was an unknown on abortion and other religious right issues caused most of the anger. If I had a dollar for every post on redstate.com worrying whether she'd be another Souther I'd be a rich man. And, may I remind you, that when Dobson expressed his support for Miers, it wasn't because he had confidential information about her qualifications.

To suggest that either side—left or right—is concerned only about qualifications and not at all about ideology is just ridiculous. The day Bush (or any future President) decides to pick nominees based solely on qualifications and entirely without regard to ideology is the day it is fair to argue that the Senate can't consider ideology in the confirmation process.
11.14.2005 4:49pm
DJ (mail):
DNL, that strikes me as a bit too lawyerly to work for the Committee as a whole. But you've got a point with Specter. Maybe that's why Specter claimed after his meetings with Alito that Alito agreed that "super-precedents" (Specter's term, of course) are to be accorded significant deference. Alito and the White House surely were aware of this Reagan Library document, and Alito's conciliation to Specter on "super-precedents" might be their response.
11.14.2005 4:51pm
Dem:
Oops, sorry for the obvious typo in my previous post.
11.14.2005 4:51pm
Aultimer:

Bob Flynn:
Alito, arguably, is the most, qualified nominee the Supreme Court has ever seen.


Qualified is a minimum standard, not the sole consideration. The question should be what, besides being "qualified" makes the nominee a good choice. I submit that "independence" is at least as important based on my reading of the Federalist Papers. I think adding novel perspectives is another factor - I'd prefer a hispanic nominee from the western U.S., who went to a big state school to balance the current bunch a bit.
11.14.2005 4:55pm
Sebastianguy99 (mail):
The Constitution is silent on the subject of "credentials". Instead, the Founders left both the selection and confirmation of nominees to the political bodies.

At most, a certain set of credentials might entitle a nominee to a presumption of qualification and that presumption can be rebutted for political reasons. Intellectual ability(and Ivy League pedigree) alone cannot, and should not, suffice as the ultimate indicia of qualification.
11.14.2005 5:00pm
spot:
DJ- he will say that Roe has been affirmed several times since that time and that more weight shoudl be given to precedence when it has been affirmed over and over. He will not say that it is improper to overturn longstanding precedence- just that there is a higher bar to reach. ANd then he will point to his 15 years on the bench to show that he is not an ideologue. That will be enough to get him confirmed.
11.14.2005 5:00pm
Philq (mail):
Don't know what Alito said about Veterans day, but here's what he SHOULD have said:

On Veterans Day we gather (mentally, at least) to honor those among us who served in defense of our country. But in a larger sense, our thoughts and words provide faint honor; the brave men, living and dead, who fought on behalf of our country have honored themselves far beyond our poor power to add or detract.

History shows that some wars are more noble than others. This fact is generally lost upon those fighting; their job is not to question the nobility of the cause but rather to do their duty. The fundamental nobility of the cause does nothing to add or detract from the nobility of the duty done and the sacrifices made by our soldiers. It is that duty and those sacrifices we honor today.

Rather it is for the rest of us and for the historians to question the nobility of the cause for which we have sent our young people off to fight and die. After all, they are fighting for us, in our name, for our country. In that sense we, all of us, have sent them off to fight and die.
The fact that our involvement in Viet Nam was immoral and in retrospect a colossal blunder both politically and militarily in no way devalues the service of those who fought and died there. Those soldiers were simply doing their job. The fundamental immorality of the cause however puts their deaths on the conscience of all of us (or at least those of us with a conscience).

In like manner, history will show that our involvement in Iraq was based a preconceived plot hatched among the neocons in the White House, none of whom had actually served in the military themselves. It was a preconceived war looking for a cause, and though 9/11 had nothing to do with Iraq, it provided the people in the White House with the cause they needed. Through trumped up "intelligence" the Bush team justified going to war; who cares who else believed the incorrect justification for going into Iraq, the blood is on their hands too. The bottom line is that the plot was hatched inside the White House.

Now 2065 of our young men and women have died over there, more die each week. Over 15,000 have been permanently disabled in the war. The result of the war thus far leads to the inevitable conclusion that the world is far less safe as a result of the operation.

This is in no way to devalue the duty and sacrifice of our young people fighting in Iraq, we should honor them, and we must.

But by simply mouthing empty words in praise of those fighting for us and waving our flags harder without understanding for whom they are fighting and why, we don't honor them, we dishonor them. They fight for us, they fight in our name, and they fight for our country.

The light of history will show that the war in Iraq was begun on false pretenses and was therefore fundamentally immoral. We will be forced to acknowledge that the blood of the dead is on the hands of those in the White House who hatched the plan and who sold it to their countrymen as a response to 9/11.

By denying ourselves this fundamental truth we must acknowledge that we're at fault too. Our freedoms extend...they MUST extend...to the right, duty and obligation of the citizens to hold accountable those who wage an immoral war in our names.

These are our soldiers, living and dead. They fought for us. As our soldiers their blood is on our hands, their deaths and injuries on our conscience, all of us. Can you look yourself in the mirror and be certain that you have done right by them? Should they expect any less?
11.14.2005 5:03pm
TL:
I agree with above that qualified is a threshold inquiry (Don't agree that novelty is worth very much). But as to above--there was more information available on her "philosophy" regarding abortion than on any other principled subject in law.

Philosophy vs. Single-Issue Thinkers
Though there exist judges that believe abortion is ok whom conservatives could support, I don't think a conservative should support any judge who thinks there is an absolute Fundamental right to abortion, free from state restraints (the pre-Roe status quo-- you may remember--abortion was not criminalized via the national government).

All the faithful readers of this blog and other areas of legal academia know that the penumbras are regarded as a vastly bastard-ized line of jurisprudence: mysterious indeed in its origin.

A nominee that makes it to this level will be more than just a one or two-issue "hack" who is merely looking to get a foot in the door to mandate views on pet issues. Ginsburg would be perhaps the best example: Though she held (perhaps still holds) wild views regarding sexual autonomy/freedom that are vastly outside the mainstream, she is otherwise a competent jurist (though I disagree frequently with her analysis).

It is time to be frank in this debate and recognize that no candidate for SCOTUS will fail this competence test. Therefore, to the Presidential victor go the spoils--the nominations. Democrats can try to steal his glory. But I don't think that when the music stops this will in fact take place.
11.14.2005 5:14pm
Rob Johnson (mail):
Here is the single most important sentence in the application:

In the field of law, I disagree strenuously with with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.

I can't wait to debate the merits of this statement in the public arena. Republicans win on this one every time!
11.14.2005 5:21pm
FXKLM:
I don't think concerns over Roe were the driving force behind much of the anti-Miers crowd on the right. I do, however, think that the lack of opposition on the left was motivated by their belief that she would uphold Roe or, worse, that she vote to overturn Roe, but she would be such an ineffective proponent of overturning Roe that she wouldn't be much of a threat. I agree that there's plenty of unseemly Roe obsession on the right, but I think the left is generally worse.

Unfortunately, there don't seem to be any Senators willing to argue that Roe isn't an especially important doctrine. It might be true, but no political constituency is interested in hearing it.
11.14.2005 5:24pm
Michael B (mail):
Dem,

Dobson's view was well publicized, that doesn't at all mean he was decisive or primary, in fact the Dobson publicity per se arguably worked against the nominee rather than for her, that was certainly the case from my pov and others, beyond those identified with the left. I don't wish to merely quibble, but the statements we're referring to are not prima facie supported. It wasn't merely "some" opposition which stemmed from the perceived lack of qualifications (due to a lack of a paper trail, lack of a coherent judicial philosophy and other factors), it was a huge and pivotal part of it.
11.14.2005 5:31pm
J.. (mail):
Is it just me, or did his personal statement seem rather unimpressive?

Maybe I expect too much from a soon-to-be justice, but I was hoping for some flair or some creativity, etc.

Not just you. Alito is a techincal writer, but not a good writer. He does not even do simply styslitic things to keep a reader's interest (e.g., changing sentence length and strucutre, or repeat theme).

As for if Alito is the most qualified ever, it is hard to argue that he is even more qualified than Stephen Breyer. I could see them being similarly qualified, but I can't see it as more qualified. Perhaps he is more qualified than Ginsburg, based on his accademics, (though this isn't obvious), and perhaps he is more qualified than Kennedy, based on his gov't exp (this, too, isn't that obvious), but I can't see the argument that he is clearly more qualified than Breyer (though, this is really just a quatitative assessment, so other than clear examples [e.g., O'Connor], there is not much that is clear or obvious).
11.14.2005 5:33pm
Sebastianguy99 (mail):
"In the field of law, I disagree strenuously with with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate."


I wonder then if he agrees with Marbury? Where would he draw the line between judicial review and "usurpation"?
11.14.2005 5:41pm
J.. (mail):

He does not even do simply styslitic things

Pot.Kettle.Black!
11.14.2005 5:44pm
Dem:
Michael B: It is difficult to quantify presicely how much the right's opposition to Miers was driven by ideology versus qualifications, but it was definitely one driving factor. In any event, I'm not concerned with Miers primarily. A better example of what I'm getting at might be Gonzales, who many leading right-wing fgures publicly (and preemptively) said was unacceptable because of his abortion votes in Texas. My point is this: ideology plays a significant role in how Bush selects nominees and in whether the conservative base supports them. Since that's the case, I don't see how it is unfair for Dems to use ideology to critique nominees. And, if polls show that a majority want to keep Roe and would oppose confirmation of Alito if he would vote to overturn it, then focusing on that issue is just good politics. Personally, and in all honesty, I'm more concerned with criminal justice issues and I think some criticisms of Roe are pretty persuasive (still not convinced yet, but I'm definitely not knee-jerk on the issue.) All I'm saying is that I'm tired of reading (some) right-wingers complaining that it is unfair for Dems to bring ideology into the debate, or unfair for them to focus on abortion, when the right is focued on these same things.
11.14.2005 6:05pm
Lab:
Should be even more interesting to see Specter squirm here.

There is now not a shred of a doubt that he will help kill Roe.
11.14.2005 6:07pm
Wintermute (www):
Alito was born in 1950. What was his Vietnam draft status and how did he deal with it? Graduate school deferment?

It was a lot easier to rise in the ranks back then if you parroted prevailing ideology.

I wondered how Roberts could spend four years at Harvard and still sound like a parrot.

I was hoping Alito was some sort of self-arrived libertarian, but now I'm hearing that same parrot squawk.
11.14.2005 6:20pm
gr (www):
"What was his Vietnam draft status and how did he deal with it? Graduate school deferment? "

He was in ROTC. I have no idea when he signed up or how that gets you out of service or what kinds of educational deferments are also available.
11.14.2005 7:08pm
KeithK (mail):
According to an AP story posted by CNN (see here: http://www.captainsquartersblog.com/mt/archives/005722.php)
Alito signed up for the Army Reserves because he had a draft number that made it likely that he would be drafted. He served in the reserves for eigth years after graduation, finishing with the rank of captain.
11.14.2005 7:20pm
Al Maviva (mail) (www):
Thanks for that good info Keith, and for raising the point, Wintermute.

What's clear then, is that Alito isn't fit to sit on the Supreme Court, because no man who has avoided war, is fit to send other people's sons into war.

Sure, you can argue the technicalities that only Congress and the President can send our military into war, but what with the Court arrogating the treaty and foreign policy power to itself, it's only a matter of time before it becomes the OLINC of the military and seizes the CINC power for itself too. (OLINC- Old Lawyers In Charge, kind of like CINC, but not actually accountable to anybody, and possessed of infinitely higher breeding and intellect. Except for Taft of course, the exception who proved the rule).
11.14.2005 9:05pm
Student:
Question: I haven't read any of J. Alito's opinions, but I've assumed that he is an orginalist because I've heard him referred to as "Scalito." In the linked application, however, he identified Alexander Bickel as an inspiration. Bickel is (I believe) a legal process theorist. (please correct me if I'm wrong.) The role of judicial review that Bickel identifies is at odds with the role of judicial review that Bickel believes originalism is committed to.

Has anybody here read Alito's opinions enough to feel like they have a good understanding of his understanding of the role of judicial review in constitutional cases?
11.14.2005 9:12pm
DJ (mail):
Student, try this: http://volokh.com/archives/archive_2005_10_30- 2005_11_05.shtml#1130951101. The short answer to your question is "Probably not."
11.14.2005 9:24pm
Student:
Thanks.
11.14.2005 10:12pm
ANM (mail):
"I'd prefer a hispanic nominee from the western U.S., who went to a big state"
Of course, you HAVE to be a different race to think differently, because, obviously, race determines your entire person.

"I was hoping Alito was some sort of self-arrived libertarian, but now I'm hearing that same parrot squawk."
Felt the same way, but you cannot get around the fact that, from the perspective of this libertarian, conservatives are far better than liberals. Hopefully Alito &Roberts will be more of a Thomas than a Scalia.

Abortion attracts far too much attention. If you and your mate act responsibly, why would you ever care about the availability of abortion? I argue not against it, but against spending so much time debating it.

Question: Would conservative justices in general and the SCOTUS ones in particular, be comfortable with striking down campaign finance regulation but not media (eg television, or specifically obscenity) regulations? I figure that the broader the case, the better the chances of the regulation being struck down.
11.14.2005 11:21pm
Justin (mail):
In the field of law, I disagree strenuously with with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.

Yawn. Kelo. Morrison. Lopez. Bakke (for that matter, Brown). Hans. Seminole Tribe. Youngstown. Any case involving the application of an environmental regulation. Etc. Etc. Etc.

To say that this is the "conservative" position is silly. As someone mentioned, its simply a refutation of Marbury.
11.15.2005 12:30am
b.trotter (mail) (www):
Eric, Miers position on Roe v. Wade was never in doubt to any of us. I still recall Anne Coulter on Bill Maher's "Real Time" saying "Of course she'll vote to overturn Roe v. Wade, but there will be other cases besides Roe v. Wade!" The problem with Miers was that with a lack of track record, we didn't know how she would rule on much more substantive issues, such as the New Liberty case that virtually guarantees that you don't own your home anymore, you merely lease it at your local government's convenience... or how she would rule on whether or not I have any say how a school discusses sex with my son... or whether a terrorist with a bomb in a backpack has a right not to be searched before he blows me to kingdom come on the subway just so the rest of us aren't inconvenienced...

Personally, I think that the Roe V. Wade issue is about the biggest NON issue in the courts... Let's assume for the sake of argument that the first thing Alito and Roberts do is overturn Roe. V. Wade... And that Alito wrote a perfectly constructed argument, etc... This would simply put the issue back into the hands of individual states (WHERE IT BELONGS)... In many states, nothing would change at all. I find it highly unlikely, however, that Alito would even vote to overturn Roe V. Wade in the first place. He's 3 for 4 in decisions affirming abortion rights, and the 1 he dissented on (Casey) he was addressing an issue very near and dear to my heart... spousal notification. My child would be 20 this year. I never got a choice.
11.15.2005 4:13am
b.trotter (mail) (www):

What's clear then, is that Alito isn't fit to sit on the Supreme Court, because no man who has avoided war, is fit to send other people's sons into war.

By that argument, we should have never had Clinton in office, and a majority of our Senators and House members would need to be removed from office...
11.15.2005 4:24am
Medis:
Student,

The only aspect of Alito's thought I have looked into in any depth is his writings on criminal procedure (and that was hardly comprehensive--just his U Pitt L R article and his opinion in the infamous strip search case).

But for what it is worth, I didn't think Alito came off as much of an originalist in this area, and indeed he seemed skeptical of the sort of originalist techniques a judge like Scalia might use when interpreting the relevant constitutional provisions. Instead, he struck me as operating very much within a pragmatist and minimalist framework, meaning that he wanted the legal rules to reflect the practical problems faced by prosecutors and the police, and he also argued for a relatively limited judicial role in defining and enforcing those rules or otherwise constraining the actions of the government.

And as noted, that would indeed put him at odds with someone like Scalia, who can be quite adamant about certain criminal procedure rules, and supportive of the judicial definition and enforcement of those rules, when he determines that those rules are required by the Constitution on the basis of originalist techniques. See, for example, Crawford v. Washington, or Scalia's participation in the Apprendi-Blakely-Booker line of cases. Most notably, perhaps, see Scalia's dissent in Hamdi v. Rumsfeld.
11.15.2005 6:37am
Aultimer:

ANM

Of course, you HAVE to be a different race to think differently, because, obviously, race determines your entire person.

I'm glad we agree that it's better to have a variety of perspectives on the court, but you assume too much.

It's quite possible to think differently from others who share your life experiences. However, Congressional hearings are not well-suited to determining or demonstrating how a person thinks.

In America, being a different race guarantees different life experiences. Shouldn't be that way, but it is. "Different race" is simply an efficient proxy "different perspective."
11.15.2005 10:06am
mummifiedstalin (mail):
Re: Ideology vs. competence.

I don't understand the arguments against not supporting a nominee based on ideology. Since a president will obviously *not* choose a candidate whose track record on political/ideological issues differs significantly with his/her own, why should his political opponents not fight him on those grounds? Since the court will decide issues that have as many political consequences at stake as well as legal ones, then are we not fooling ourselves by continuing to give lip service to the notion that the Court is *not* a political entity? As much as I may agree in principle with the notion that the court should be a politically free entity, how can I respond as a political creature when a nominee will legally support positions contrary to my own if there are other candidates who will also *legally* support my own positions? Given that the Supreme Court has to decide on questions of interpretation, and that reasonable people continue to disagree, why are "politically" motivated disagreements disallowed in the context of confirming candidates?
11.15.2005 11:07am
Sebastianguy99 (mail):
"This would simply put the issue back into the hands of individual states (WHERE IT BELONGS)... In many states, nothing would change at all."

If you're a woman in one of those red states that decides to criminalize certain reproductive choices(and they will), then I doubt you would see the loss of those choices as "simple". Giving the issue back to the states seems to me a prescription for years, maybe decades of turmoil, especially given that better than 60% of the country wants Roe to stand.



"My child would be 20 this year. I never got a choice."

The question becomes then whether or not husbands have veto power over their wives reproductive choices. Then we're on to extending that question to boyfriends and paramours;before you know it, we're back with men exercising dominion over women. With that veto power now established, we'll have to confront questions about birth control. Does the interest only apply once the woman is pregnant? If the woman finds out she's pregnant during or after a divorce does the interest still apply? How about a woman who becomes pregnant by IVF, does the interest turn on sperm or relational status? Can a husband deny the wife the choice to use contraceptives, or certain forms of contraceptives? How far does this new power extend over the lifestyle choices of wives?

It seems to me that "spousal notification" is a Pandora's Box that really should not be opened.Perhaps when men can actually carry and give birth to children spousal notification laws will make sense, but until technology affords that opportunity, this an invitation to disaster.
11.15.2005 1:31pm
gr (www):
b.trotter:"This would simply put the issue back into the hands of individual states (WHERE IT BELONGS).."

I don't think this is correct. The issue would return to the majoritarian political branches. That includes the states, but importantly also includes Congress. Besides the privacy right, what other doctrine do you see that keeps Congress from regulating abortion like they regulate, say, marijuana?
11.15.2005 1:48pm
Erik H.:
The concept that state's laws will allow people to choose their residence based on the laws they like is nice, but fails in practice. Moving between states is expensive. For anyone who has a job, it's a potential career-changing move; you have to change schools, change friends...

Even more to the point, for many of the poor, (or anyone on public assistance, which is notoriously difficult to get as a new state resident) there is no real way to move. The laws of their state are the only laws to which they have access.

Differing state laws are great for the rich: they can run to New Hampshire, and FLorida; they can incorporate in Delaware. But the poor get screwed.

Say you get pregnant. Unexpectedly. While using birth control (happens all the time). Are you going to pack up and MOVE to get an abortion? Can you afford to do so, right now? Can you suggest that most, or even many, people can? Does anyone really want to put on a honest face and suggest that--for those people who can't buy a plane ticket to New England--the result of 'state's rights' isn't that a decent minority of people will lose all opportunity to get an abortion?

Of course not.

And, as Seinfeld would say, there's nothing wrong with that. I'm pro-choice personally, but I'm not pretending I think Roe was a perfect decision. And if you think abortion should be illegal, that's your call. Be straight.

It's like that "this is all the left's fault" jazz. Hey, you can have your point of view; you can think abortion is murder or that Roe ought to be overturned. The right and left can both care strongly about the issue. Just dont' LIE about the fact that you care.
11.15.2005 3:00pm
therut (mail):
Well just to show how hypcritical some are I as a woman am more burdened and angry that the Federal Government and the USSC and most lawyers and elite law schools see nothing wrong with allowing States to deny me my Second Amendment Rights. The thought of being charged as a felon in NJ for having in my possession one hollow point cartridge which I have every right to own in my home state sends chills down my spine. And they alow this for my protection? Somehow, I don't see it that way. Those crying a river for abortion restricitons really do not get much sympathy from me. Remember no right is absolute. At least that is what I hear from those infringing on my other right. Maybe if there was consistency on the part of so called Civil libertarians they might be more believable.
11.15.2005 5:26pm
BobNelson (mail):
The argument that Alito was just saying what he needed to say in order to secure a job is supposed to reassure us???
11.15.2005 5:40pm
Michael B (mail):
"The right and left can both care strongly about the issue. Just dont' LIE about the fact that you care."

Or PRESUME, we wouldn't want any presumption either. The very thought offends.
11.15.2005 5:53pm
gwulaw:
Just a note... while weathering criticism from some in the conservative camp for weeks, Miers nomination really hit the wall when comments she made showing sympathy for the right to privacy were published. Regardless of where she stood on the issue, Roe was the straw that broke the camel's back.
11.16.2005 4:29pm