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Washington Post on Alito:
The Washington Post has a thoughtful editorial supporting the confirmation of Samuel Alito:
However one reasonably defines the "mainstream" of contemporary jurisprudence, Judge Alito's work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.
anon) (mail):

No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.


Why not? Congress can do whatever it wants, anyway. Besides, it isn't as if ALito is some great scholar, or he has a great track record as a lawyer or something. He worked for the government his whole career. He never represented a corporation or an individual.

I don't really care one way or the other, but this guy ain't no "giant."
1.15.2006 12:00am
Justice Fuller:
Anon),

By your standards, how many giants are on the current court? And why does representing a corporation make one more qualified to sit on the Supreme Court? Is your concern that Alito won't understand the needs of corporations?
1.15.2006 12:11am
Bruce Hayden (mail) (www):
I think that this is an indication of why the WaPo seems in my mind to be pulling ahead of the NYT as the more reputable of the two. It concedes its obviously liberal biases, and yet, in the end, comes out in favor of confirming Judge Alito.

I think too, the quote points out the obvious - that the mainstream has moved. It is no longer just what the NYT and WaPo agree with, but, with the Republicans controlling both the Presidency and Congress, through popular election, it includes the jurisprudence of Judge Alito and CJ Roberts. In short, the mainstream now includes conservative jurisprudence in accordance with the electoral results of the last decade.
1.15.2006 12:21am
Christopher M. (mail):
Yeah, I don't get this sentiment. I'm very much against the Kennedy-esque attempt to demonize Alito. He seems like a decent conservative-Reagan-establishment guy. But I--and many liberals--very deeply disagree with his views on how to interpret the Constitution (and possibly statutory law as well; I don't know Alito's views on that). That why we should vote against him. I wish the Democrats had the guts to say this. The Vanguard business is a disreputable smokescreen. We think Alito should be defeated because, though he's distinguished, he obviously subscribes to a school of constitutional interpretation that we reject.
1.15.2006 12:26am
Jim Rhoads (mail):
Christopher's comments are refreshingly honest. I thoroughly agree that those on the left side of the political spectrum need not approve of a Justice with whose judicial philosophy they vehmently disagree.

OTOH, they should not be permitted to push that very real democratic principle into the right to block confirmation with a filibuster.

There are no possible "extraordinary circumstances" which would justify a departure from the agreement of the "gang of 14".
1.15.2006 12:36am
Reason:
I'm with Christopher M. and Jim Rhoads. It was Robert Bork who said that if people thought they would disagree with how he would vote on the Court they should vote against him.
There is nothing wrong with that - it's why the Senate and President have to agree on a candidate (and why the Senate has in the past rejected perfectly well-qualified people, like John Parker of the 4th Cir., for Supreme Court seats).
1.15.2006 12:45am
Kate1999 (mail):
Christopher M.,

Alito is probably the most moderate judge on the Bush shortlist. Consider the names:

Michael Luttig
Samuel Alito
Janice Rogers Brown
Edith Jones
Michael McConnell
Harvie Wilkinson
Edith Clement

If I'm not mistaken, Alito is the most moderate, least conservative Judge on the list. So is your view that Democrats should vote "no" on all of them? If so, who could Bush nominate that you think a Democrat should vote to confirm? Should Democrats vote against anyone who is not a liberal?
1.15.2006 12:48am
Reason:
Kate 1999 -
For what it's worth, and speaking as a certified liberal, if I were in the Senate and faced with that list I would vote for McConnell.
Perhaps ironically, this is because I know him well enough to trust that as a litigant before him I would get a fair hearing and a reasonable decision -- the same argument that many of the liberals who know Alito are making.
Let's all hope that they're right.
1.15.2006 12:52am
Sonofagun (mail):
I'm not sure what the author is arguing here. That Congress should just rubber stamp whoever the President selects? The President has exercised his perogative by nominating his selection and now Congress will exercise their perogative by voting to confirm or deny him.

Of course this also begs the question, Why was it ok for the President to be denying the perogative of nominating Harriet Miers?
1.15.2006 1:05am
James Dillon (mail):
Bruce,

Are you suggesting that "conservative jurisprudence" was not part of the "legal mainstream" during the Rehnquist Court, with its conservative majority?
1.15.2006 1:08am
Bushrod, J. (mail):
Where were all the Republican Senators supporting a President's so-called right to put whomever he wants on the Court when Clinton wanted to nominate Bruce Babbitt?

The story goes that Orrin Hatch said the then-Republican Senate would give Babbitt a hard time -- not because of his views on the Constitution. But because of decisions made while serving as Sec'y of the Interior.

Clinton didn't want the fight. So he went with someone else.

But that doesn't change the fact that what we keep hearing from the Republicans that presidents who win elections get to choose who goes on the Court. And if the nominee is qualified, that's that.

Bull. It's about power. Period.
1.15.2006 1:17am
Marcus1 (mail) (www):
It's an interesting idea that because a partisan president is elected, he has the right to chose a partisan Supreme Court justice.

I'm not sure at all that Alito's views are in the mainstream. His refusal to comment on jurisdiction stripping, for instance, even with regard to the First Amendment, strikes me as quite alarming and indicative of a view outside of the mainstream. This idea that Congress can simply tell the Supreme Court to ignore the Bill of Rights, a view currently embraced by the majority in the House of Representatives, could well be our next constitutional crisis.

I don't know Alito's heart, but my gut tells me he will be another Scalia/Thomas. While the results of these judges may appeal to heartland Americans, they are not in the mainstream of legal thought. For a Supreme Court justice, I find the latter to be the proper inquiry, since most Americans have little understanding of our Constitution.

While filibuster may or may not be appropriate, I would certainly vote against him.
1.15.2006 1:34am
David M. Nieporent (www):
Christopher M -- that's an honest, forthright approach. But here's the problem: it turns judicial nominations into mere partisan tests of numbers. A Republican president is unlikely to ever nominate someone who subscribes to your judicial philosophy. Should Democratic senators simply vote en masse against every Bush nominee? What incentive does Bush have, in that case, not to nominate the most extreme person he can find? If Democrats plan to treat Alito no differently than they treated (for instance) Bork, then why shouldn't Bush just go ahead and nominate (the next) Bork? Why bother to compromise on someone like Alito?

And what happens when a Democratic president faces a Republican senate? Should they reject all of his nominees until he nominates a judicial conservative? Should they force President Howard Dean to nominate Janice Rogers Brown by voting against all his nominees until he does so, on the grounds that none of those nominees share their judicial philosophy?

Nobody would argue that Senate Democrats must vote for every Bush nominee no matter what -- indeed, one would hope that Senate Republicans would provide some scrutiny and not act as a rubber stamp. But if their only criterion is "We're Democrats and he's a Republican," then doesn't that cheapen the whole process just as much?
1.15.2006 1:39am
Christopher M. (mail):
Alito is probably the most moderate judge on the Bush shortlist

It all depends. I think the crucial constitutional issue for the next few years is the "executive vs. congressional/judicial power" issue -- in other words, can the President override clear statutes, or binding precedent, if it serves the national interest and fits into the President's foreign affairs power?

I say no. I think the President is almost totally subservient to the Congress; his primary duty is to make sure that the laws are faithfully executed.

Is my view that Democrats should vote 'no' on any Bush nominee? I don't know, because I don't know the views of all of the Bush nominees on this. But it wouldn't surprise me if the answer were 'yes--vote no on all Bush nominees'. Bush has clearly made expanding and solidifying the role of the president into a central theme of his presidency. Since I think that's a terrible development, I'm more than happy to oppose any appointee who I think will futher that development.
1.15.2006 1:43am
Enabler1:
I assume a "thoughtful editorial" means "one where they support my guy after some hand-wringing."
1.15.2006 1:57am
Kate1999 (mail):
Christopher M,

Do you have any evidence -- any at all -- that Alito would buy the incredibly silly John Yoo article II theory? It seemed to me that, in his testimony, Alito was careful to distance himself from that theory. So as I see it, you want to reject Alito because you think that he would accept an argument he has strongly hinted he would reject.
1.15.2006 2:34am
bmac:
Judicial nominations are a partisan test of numbers. The greater control a party has of Congress the easier it is to have a presidential nomination confirmed or denied. The closer the numbers, the harder it is. Our forefathers trusted that over a period of time the people would "adjust" those numbers through the election of their president and representatives and arrive at an equitable solution. Nothing guarantees that each and every election cycle will produce equity. Parties that overstep reasonable boundaries lose clout and elections. We test this process through the "advice and consent" clause. Based on what we've seen it is extremely likely that Judge Alito will be confirmed. If the Republicans have overstepped, we have the opportunity to change that balance in 2006 and 2008. It is the responsibility of each of us to support the process, particularly when it doesn't benefit us, so that we can rely on it when it does.

BAM
1.15.2006 2:55am
jgshapiro (mail):
David N:

I think you are oversimplifying Christoper's argument. It's not that all Dem senators should vote against a Republican nominee, but that they can vote for some otherwise qualified Republican nominees and against others. (And vice-versa for the Republicans when a Democrat is in the white house). On that basis, Alito would probably fall into the latter category, while someone like O'Connor would fall into the former category.

Moreover, you are assuming that all Republicans (and all Democrats) think and vote alike. Bork was rejected in part because of the votes of Republicans like Specter. So the deterrant for Bush nominating another Bork is that he needs to get 51 votes, and he would not get them -- even with 55 Republicans -- if he had nominated another Bork. 55 Republicans is not the same thing as 55 conservatives. If you doubt this, look at the lengths that Alito's supporters went to make the point that that Alito supports Griswold, Reynolds and Youngstown Steel. It wasn't the Dems his supporters were principally concerned about.

A president only has to compromise to the degree that a majority of the Senate is not already on the same page. Isn't that as it should be? If the Senate is equally as conservative or liberal as a president, shouldn't he be able to get someone more 'extreme' on the court? On the other hand, if the Senate is more moderate or controlled by the other party, he will have to compromise. Seems to me that reflects a good approximation of where the overall electorate is, rather than assuming that on judicial selections, the electorate is where the president is.
1.15.2006 3:20am
davod (mail):
JG Shapiro:

You forget your history. The senate was diferent place when O'Connor was nominated. There were more than enough Democrast who expressed serious misgivings about O'Connor. At that time however it was still felt that short of serious malfeasance a qualified person should be voted onto the court.

What we have now is political theatre. Each side is seeking to score points with the nominee in the middle. The Democrats sought, by selective and misleading comments, to paint Alito as a racist anti-women bigot, who's judicial record is suspect.

Reason, in his comments relating to McConnell, says it well. He would vote for McConnell because he knows him and considers he would get a fair hearing the same as the liberals who support Alito say about him.

The Democratic senators would rather take their lead from biased activist groups than listen to those that know him best (Most left the room for all but their own sides speakers, when, if they were being impartial, they should have stayed to listen to the other side (they already knew the views of their own witnesses.)
1.15.2006 3:44am
Noah Klein (mail):
Bushrod:

The Senate was not in Republican hands in 1993-1994 when Clinton nominated his two judges. The Republicans did not take over until 1995. But you are right, Clinton did not want a fight. A fight would have hurt him, because of his previous failed nominees. Yet when the Republicans did get the Senate, this idea of presidential prerogative or allowing the nominees to pass simply because the president won the last election was non-existent. Hundreds of Clinton's nominees were left to languish for years without a hearing or vote.

Marcus1:

I diagree with Alito on several issues, especially the presidential power one. We do not know his views on the scope of SCOTUS's appellate review. But the majority of the House of Representatives is somewhat correct. The Constitution does give the Congress a little authority in determining the scope of the Court's appellate review. Specifically, Art. III Section 2 says "In all other cases before mentioned, the supreme Court shall have appellate Jurisdication, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make."

Noah
1.15.2006 3:58am
o' connuh j.:
"His integrity, notwithstanding efforts to smear him, remains unimpeached."

Take that, haters !

Your addlepated, desperate, ill-informed, hyperbolic attempts at smear given the summary and contemptuous slapdown it deserves.

Well done WaPo, for not buying the hysterics.
1.15.2006 4:17am
Bushrod, J. (mail):
Thank you, Noah Klein, for correcting my factual error.

And I agree with you.
1.15.2006 8:06am
JohnO (mail):
I think the WaPo point is that if the Dems vote party line, what happens if they retake the White House in 2008 and the Republicans keep control of the Senate? Wouldn't the Democrats' conduct on the Alito nomination have legitimized a party line vote (and possible rejection) of a nominee who is within the mainstream but on the left side of that mainstream?
1.15.2006 8:24am
Hank:
Kate 1999: Why should we compare Alito to Bush's other favorites? Why not compare him to those whom the Democrats could insist on if they had any guts? "Advise and consent" includes the power to dictate. The Washington Post editorial places the convention of deferring to the president's choice if that choice is intellectually capable to preventing this nation from turning into the equivalent of a monarchy, with an executive not subject to the laws.
1.15.2006 8:26am
MDJD2B (mail):
But I--and many liberals--very deeply disagree with his views on how to interpret the Constitution (and possibly statutory law as well; I don't know Alito's views on that). That why we should vote against him. I wish the Democrats had the guts to say this. The Vanguard business is a disreputable smokescreen. We think Alito should be defeated because, though he's distinguished, he obviously subscribes to a school of constitutional interpretation that we reject.

Remember that the road from Berlin to Moscow also goes from Moscow to Berlin. If this is what liberals try to do, then they will set a precedent for conservatives to block liberal candidates when there is a Democratic president.
1.15.2006 8:58am
Ryan Waxx (mail):

Judicial nominations are a partisan test of numbers. The greater control a party has of Congress the easier it is to have a presidential nomination confirmed or denied.


Well then in THAT case, since there is a Rebublican majority in BOTH the presidency and the houses, Bush can IMMEDIATELY appoint and get approved anyone who the republican base will not themselves reject.

Using your words... BAM!
Using my own... Game over, man! Game over!

If people subscribed only to your antiethical "might makes right" rule, this debate would be OVER since there would be no "gang of 14", the "nuclear option" would be in place, and all we'd hear of this issue is a couple of whimpers from the democrats on page Z-95 of the NYT's comics section (Deansbury).
1.15.2006 9:05am
Ryan Waxx (mail):
Don't advocate hardball when you forgot to bring your glove. Thatisall.
1.15.2006 9:06am
magoo (mail):
Kudos to Ben Wittes at WaPo. This took some courage.
1.15.2006 9:48am
Frank Drackmann (mail):
I still wish Bush would go the Nixon route and nominate Senator Byrd if Alito isnt confirmed.
1.15.2006 10:04am
Just an Observer:
I think Kate1999 was right to point out that Alito disassociated himself fairly convincingly from the radical theory of executive power propounded by John Yoo and the Bush/Cheney neoconservatives.

This was good news for Alito's nomination; it was bad news for the Bush administration's legal posture. I think that observation applies to the "executive power" issue generally and to the NSA surveillance controversy in particular.

The only justice (I include Justice-to-be Alito) who has come close to embracing the Bush adminstration's view of exclusive executive war powers is Thomas, in his lone Hamdi dissent. Both Roberts and Alito, I think, would be more comfortable with the O'Connor plurality in that case (in which Rehnquist joined) -- an opinion that rejected exclusive executive power, explicitly staked out a role for all three branches in wartime, and cited the mainstream Youngstown case as precedent.

Yoo rejects the Youngstown framework as inapplicable. Recall that Alito repeatedly cited it in his testimony as the framework he would apply in analyzing the NSA controversy, if the constitutional question is reached there.

If the Yoo theory of executive power were presented squarely to the new court such that the matter had to be decided -- a scenario that may never occur -- it would most likely be rejected 8-1. That is probably why the Bush adminstration is loathe to advance the radical theory publicly, relying instead on surrogate advocates in academia, op-ed pieces, blogs, etc.
1.15.2006 10:19am
Bruce Hayden (mail) (www):
Are you suggesting that "conservative jurisprudence" was not part of the "legal mainstream" during the Rehnquist Court, with its conservative majority?

It really is how you define it, and arguably, the MSM, law school profs, et al., probably did define the legal mainstream to exclude the majority of the Rehnquist Court. Surely, Justices Scalia and Thomas, and probably Rehnquist himself, were so portrayed.

I think Ann Althouse had a good point:
I have heard so many liberals say that they only want to talk about ideology. They want to rely on the portrayal of judging as ideological, but then deny the President his choice of ideology. This doesn't work, and it shouldn't work. If we accept the foundation of the argument -- that judging is ideological -- then there is no trump to the President's appointment power when his party controls the Senate. Your unhappiness with the President's choice of ideology has one answer: Win elections. By declining to frame arguments in terms of legal analysis, the Democrats empowered the nominee to win by simply explaining a lot of legal arguments.
1.15.2006 11:24am
Rodger Lodger (mail):
There's a hilarious piece in today's (Sunday)Times about Democratic hang-wringing at their impotence over judicial confirmation. Why hilarious? Because they still don't get it! Who's the general public going to identify with, the son of immigrants appalled at the privileged running around Princeton campus doing anything but studying and attending classes, who may or may not have been ticked off at affirmative (non-merits) action admissions, or Ted Kennedy, moral teacher to us all, who never had to worry about such "little people" trivia as admissions hurdles? Or Joe Biden, who is now revealed as borderline deranged, diarrhea-mouthed self-enchanted gag man who can't stop lecturing and showing us pix of his children? The Liberal Elite is falling off the cliff, and will no one clue the Dems in?
1.15.2006 11:25am
Kate1999 (mail):
Hank,

Monarchy? Huh? Your argument is profoundly silly. To repeat: Alito strongly indicated that he REJECTED the John Yoo Article II argument. That's the problems with the Dem opposition to Alito: It is based entirely on a fantasy that Alito is someone else. The Dems certainly wish Alito were an Italian John Yoo, as it would give them a great campaign issue for 2006 and 2008. But Dems who belong to the "reality-based community" realize that Alito is actually pretty moderate and should be confirmed; he is not the radical of the Daily Kos fantasy world.
1.15.2006 11:40am
Hank:
Kate 1999: "Monarchy" was hyperbolic, though, with Bush v. Gore, the Republicans' possibly having stolen Ohio in 2004, and Congress's refusal to enact legislation requiring a paper trail, one cannot know where we're headed. But I borrowed the concept from "Realty-Based Community" (on Volokh's blogroll, to the right), which suggests that Alito did not reject Yoo's argument as strongly as you suggest. R-B C writes:

Now that Judge Alito has finally come out of the closet as a royalist, the Senate Democrats have two choices: (1) filibuster to prevent his confirmation or (2) admit that their huffing and puffing about warrantless wiretapping wasn't really serious in the first place.

Alito says presidents can violate law
'It would be a rare instance,' he says

Stewart M. Powell
Hearst Newspapers
Jan. 13, 2006 12:00 AM

WASHINGTON - Supreme Court nominee Samuel Alito, pressed on President Bush's controversial domestic spying policy, told the Senate Judiciary Committee on Thursday that a president has the constitutional authority on "very rare" occasions to violate federal law.

Alito responded to questions from Senate Democrats about Bush's decision to order secret domestic surveillance without getting the approval of a special court that Congress and President Jimmy Carter set up in 1978 to curb abuses by intelligence agencies.

Alito appeared receptive to Bush administration claims that a president has the authority as commander in chief under the Constitution to embark on a domestic surveillance program without getting approval of the court, as required by the 1978 Foreign Intelligence Surveillance Act.

Citing Bush's claim that the Constitution hands a president wide leeway to protect the country in time of war, Alito said: "I think it follows from the structure of our Constitution that the Constitution trumps a statute."

Alito added: "It would be a rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example."

Bush has defended the super-secret program run by the National Security Agency by claiming the government was trying to eavesdrop on Americans and foreigners in the United States who were receiving telephone calls and e-mails from suspected al-Qaida operatives overseas.

Sen. Dianne Feinstein, D-Calif., said FISA gives presidents wide flexibility to spy on terror suspects inside the United States with approval by the special 11-member court. The FISA statute grants presidents emergency authority to spy on suspects for up to 72 hours before obtaining a court order.

The law makes violations a felony, subject to imprisonment and fines.

If Congress has "explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law or does his plenary authority supersede that law?" Feinstein asked Alito.

"The president, like everybody else, is bound by statutes that are enacted by Congress," Alito said.

But he said a president could violate a statute "if statutes are unconstitutional because the Constitution takes precedence over a statute."
1.15.2006 11:50am
Just an Observer:
Hank,

You have to read Alito's "rare instance" quote in the context of Justice Jackson's Youngstown framework, which Alito endorsed.

That rare instance requires that the statute be unconstitutional.
1.15.2006 11:58am
Kate1999 (mail):
Kate1999,

It seems pretty obvious to me -- and most of the media and other commentators -- that the hypothetical possibility of a "very rare" case does not cover a truly massive, extraordinarily far-reaching, ongoing surveillance program in blatant violation of FISA. Non-lawyers and reporters who don't cover a legal beat (like Powell, cited above) can fantasize that this means that Alito would buy the John Yoo theory, but any lawyer who is following this closely can see that Alito is pretty clearly distancing himself from the totally silly John Yoo argument.
1.15.2006 11:59am
Kate1999 (mail):
Er, rather, "Hank," not "Kate1999." (I didn't mean to be addressing the post above to myself....)
1.15.2006 12:00pm
Gene Vilensky (mail) (www):
Hank--

Deep revelation here, that you've posted, that the President has the authority (and responsibility) to follow the Constitution, and so has a duty to ignore unconstitutional statutes. Yeah, that's a monarchy if I've ever seen one!
1.15.2006 12:09pm
Marcus1 (mail) (www):
Noah,
The Constitution does give the Congress a little authority in determining the scope of the Court's appellate review. Specifically, Art. III Section 2 says "In all other cases before mentioned, the supreme Court shall have appellate Jurisdication, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make."
Article III also states that "[t]he judicial power shall extend to all cases, in law and equity, arising under the Constitution." Reading the two clauses together, with an eye to the history, there is simply no way that Congress can make an "exception" for the First Amendment.

The purpose for the exceptions/regulations clause was a concern for excess appellate review of fact, which some feared would usurp the state systems of trial by jury. This is discussed in Federalist 81. It was not so Congress could take the Concstitution wholly out of the ambit of the Supreme Court.

It would be one thing if these clauses were difficult to reconcile. But they're not. 1. The judicial power extends to all cases under the Constitution. 2. As far as which courts have jurisdiction over exactly what, and whether review of factual determinations is also covered, Congress can make exceptions and regulations.

The idea that an "exception" can be made for the Bill of Rights, however, is plain nuts. That would eviscerate the judicial power, something Congress may not do. It would be like Congress passing a law to promote interstate commerce that required the President to spend the next four years soliciting business in Australia. Yes, Congress can regulate interestate commerce, but it has to do so in a way consistent with the executive power.

That Alito doesn't see this in regard to an "exception" for the First Amenmdent, to me is a significant concern.
1.15.2006 12:11pm
Reason:
Guys, if the President is going to disobey a statute on the grounds that it's unconstitutional don't you think s/he ought to say so and set up a court test rather than simply violate it, wait to be caught, and then make the claim of unconsitutionality to the press?
1.15.2006 12:14pm
nn (mail):
Christopher's approach is honest but the Wapo is rightly going beyond that. They acknowledge that -- within limits -- the POTUS can nominate someone who shares his judicial philosophy so long as it is not too extreme.

The reasonable test is to ask, What did the Republicans do?

They confirmed RB Ginsburg who was as far to the left of the nation's center as Alito is to the right. It is unlikely that Alito will be more to the right of center than RBG.

But the Wapo is acknowledging that the center has moved as well and understand that for the nation to function without constant internecine warfare, a reasonable standard has to prevail that's consistent with the tenor of the nation. This is especially (and asymmetrically binding) on those who would argue for a "living" constitution.

In contrast, the NYT and the Left-Dems are arguing that they get to define the proper center and anything outside of that is "extreme." This is akin to those bloggers who say that Moveon.org is the moderate Left, that NYT and Clinton represent the center-right, and George Bush is the far right.

It doesn't pass the laugh test. So all Kennedy et al can do is try to demonize Alito because they would lose if they just depended on up or down votes. Every failure to demonize a candidate successfully moves them further to the Extreme Left in the minds of the public. It also widens the center for the Right. An Alito nomination must be seen as a strategic as well as tactical victory for the conservative movement.
1.15.2006 12:17pm
o' connuh j.:
Hank, stop embarrassing yourself.

'But he said a president could violate a statute "if statutes are unconstitutional because the Constitution takes precedence over a statute."'

Unless of course in your view the President is not meant to uphold and defend the constitution.

This is not rocket science.
1.15.2006 12:21pm
Just an Observer:
Hank,

Note further that in the case of the NSA controversy, the Bush administration has not asserted that FISA is unconstitutional. That argument has been made by fringe surrogates arguing apologies for Bush, and seems to be what Yoo's theory would say.

But the Bush lawyers have not made such a far-fetched claim. They only flirt with it by talking about the President's Article II powers.

Alito's analytical framework -- which is really the same framework adopted by critics of the NSA surveillance, including me, and the method that most any judge would adopt -- says that the question of statutory interpretation should be answered first. If the President did violate the statutes -- which I think is the most obvious conclusion to reach -- then that raises the constitutional issue and puts us into Category 3 of Youngstown.

And in such a case, unless the statute being violated is unconstitutional, the President loses. Far from providing comfort for the Bush administration case, the framework Alito outlined is a roadmap for its rejection.
1.15.2006 12:29pm
M.A. (mail):
The reasonable test is to ask, What did the Republicans do? They confirmed RB Ginsburg who was as far to the left of the nation's center as Alito is to the right. It is unlikely that Alito will be more to the right of center than RBG.


Not hardly. Ginsburg was recommended by Orrin Hatch as a candidate who would command bipartisan support, largely because she often voted with Republican-appointed judges (more often than with some Democratic judges). She was, and remains, a moderate justice by any definition of the word, and she had bi-partisan support.

Alito was forced on Bush precisely because he didn't command bi-partisan support, and the right wing of the party wanted an active movement conservative who usually ruled to the right of other judges. He is to the right of Republican judges; Ginsburg was to the right of Democratic judges. Ginsburg was a bi-partisan choice; Alito is a choice meant to screw over the 48% of the country that doesn't vote Republican, and the majority of the country that wants Roe v. Wade upheld.

The media, as so often, turns everything into a horse-race and pretends the Democrats are as bad as or worse than the Republicans; but the fact is that the Republicans are far more in thrall to ideologues than the Democrats are, and Alito v. Ginsburg is a demonstration of that.
1.15.2006 12:37pm
old maltese:
I wouldn't put the quoted paragraph in the 'thoughtful' category.

It translates: 'If we weren't alarmed at the long-term implications of denying Judge Alito a Supreme Court seat -- i.e., Congress's cavalierly denying a future Democratic President's nominee a seat -- we'd have serious second thoughts about Alito's confirmation.'

'Pragmatic', perhaps, but not thoughtful.
1.15.2006 1:13pm
Bruce Hayden (mail) (www):
I respectfully disagree as to which party is more the ideologue, and, indeed, whether Justice Ginsburg or Judge Alito is more out of the mainstream. Yes, Senator Hatch picked Ginsburg from among those on Bill Clinton's short list. BFD. It is clear that Judge Alito was not on that list, nor Robert Bork, John Robers, or probably anyone with any Republican connections whatsoever. One can only guess at the other, more extreme, possibilities on the list. All that can be said about Hatch's acceptance of Ginsburg is that probably some, or most, on that list were more extreme than she, but since most of us don't know who else was on the list, we really don't know whom she was more acceptable than, or not as radical as - just that President Clinton could find some potential nominees who were. All you have to do is look at her voting record after being confirmed to see that her legal ideology is one of the most extreme on the Court today.

Which brings me back to the original point - the mainstream is where the Republicans say it is, because they have won the last two presidential elections and have a majority in the Senate. If you can peel off six of them based on a paranoia about Executive Power, etc., in the NSA situation, then fine, then that isn't in the mainstream. But you won't.

If appointment to the Supreme Court is based on ideology, then, pretty much by definition, the party that has won the last two presidential elections and controls the Senate determines what is the ideological mainstream.
1.15.2006 1:16pm
Marcus1 (mail) (www):
I'm curious what the examples are of extreme things Ginsburg has done or said on the bench.

I'm also curious whether people think "mainstream" should refer to mainstream in the legal community, or mainstream amongst laypeople. Of course, mainstream legal opinion tends significantly toward the left of mainstream society. I think this has at least something to do with lawyers having a greater acquaintance with the law. I mean, if you're looking for a judge who would allow putting the Ten Commandments up on the Supreme Court lawn, for insance, as most Americans seem to pretty much want, you're going to have to get somebody well outside of the legal mainstream.

Clearly George Bush, as a guy, is in the mainstream of America. But would he really make a mainstream Supreme Court Justice?
1.15.2006 1:37pm
M.A. (mail):
If appointment to the Supreme Court is based on ideology, then, pretty much by definition, the party that has won the last two presidential elections and controls the Senate determines what is the ideological mainstream.


The Republicans worn the last two presidential elections due to a stone-cold fluke in 2000. The Democratic senators represent as much of the population as the Republican senators. It's a 51/49 country at most; yet a Supreme Court justice is being picked on the basis of his appeal to a small cadre of movement conservatives. I don't consider that "mainstream," nor do I think that the Democrats should roll over and let their half of the country be screwed over (though they undoubtedly will do just that).
1.15.2006 1:37pm
John Lederer (mail):
Does anyone disagree that Congress can unconsitutionally intrude on the Executive's power? For instance may Congress dictate the conduct of a campaign in wartime (specifically mentioned in Ex Parte Milligan as an example of an unconsitutional act)? Might Congress say that the President may not pardon certain offenses?

Does anyone contend that the President's power gives him monarchial powers to ignore any law he chooses? I don't think so.

So we are somewhere in between, and, I suggest that is where the "mainstream" is, and it does little good to argue the two extremes.

I suspect the near dispositive factor on the consitutional question is whether one believes viscerally the US is at war or not, not one's interpretation of the Consitution..

I suspect the practical politically dispositive factor is that already suggested by the way poll responses vary. If satisified that the surveillance is determined on the basis of military factors, most would allow it. If the belief is that it is politically determined, few would. Note the difference in polls when the question is "may the NSA.." compared to "may the Bush administration.."
1.15.2006 2:15pm
Just an Observer:
Another quote from the excellent Post editorial:

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law -- which is repugnant to the ideal of the rule of law.


This point is both principled and pragmatic. I hope, perhaps in vain, that this will not be a party-line vote. The pragmatism of the Post's position has been noted by a prior commenter here in a different context. I find it interesting to look at the Democratic senators' position today in a pragmatic sense.

What can they, or their national party, possibly hope to gain by staging more of what the public obviously considers a partisan tantrum? Surely they have polling data by now, demonstrating how poorly they have fared in the public's eye during the hearings.

The only possible strategem I can think of is that someday the court might actually overturn Roe v Wade, which would enable Democrats to campaign on a we-told-you-so platform. But that prospect is both distant and uncertain.

If I were Reid I would not ask the caucus for a party-line vote. If I were Leahy, Feingold or another Democrat who voted to confirm Roberts, I would be inclined to do the same for Alito. It is good politics, not to mention good principle.
1.15.2006 2:30pm
Jutblogger (www):
I think it was Biden who recently remarked that the hearing process itself was becoming obsolete. I would think, for any opposition party, if you can't make a person look like Bork (i.e., a little crazy, inhuman and with a bad temperament), then you should forego the hearing process and just vote yes or no. If I watch these hearings, find that he is reasonable and somewhat moderate, and then you say he is "extreme", "outside the mainstream" and all this other posturing, I'll take it as just that, posturing, and find your vote disingenuous. Rather, just say: "I don't want alito on the court, I don't want the court to go that direction," and vote no. period. It's honest, and you don't look like a bully or a hyperbolic grandstander. You can then note the bad things about the person, his judicial record, and simply say your constituents would not want that in the court and thus you reject.
I don't think I've watched a single political pundit give a more than a negative score to the dems for this week's hearings (including liberal pundits).
1.15.2006 2:47pm
JamesB:
John Lederer, as a nation are we in danger of invasion? As a nation are we currently invading anyone else? As a nation are any of our allies with wich we are obligated by treaty to assist, under attack? As a nation have we mobilized our entire infastructure to defeat an enemy? The answer to all 4 of those questions is no. A war, which gives the President enormous additional powers must have a clearly defined end. The war on "terror" has and never will have such an end. There will always be people and organizations that hate us. I am unwilling to expand presidental power to such an extent permentantly.
1.15.2006 2:54pm
Just an Observer:
John Lederer: "I suspect the near dispositive factor on the consitutional question is whether one believes viscerally the US is at war or not, not one's interpretation of the Consitution."

I disagree that the question of FISA turns on this issue. FISA was enacted to govern surveillance of foreign powers and their agents in the United States, in peace and in war. If it had been in place during WWII, Roosevelt would have been bound by it.

Congress is granted certain explicit war powers. The Youngstown case, cited as the mainstream framework for analyzing constitutionality of war powers shared by the branches, occurred in a wartime case (Korea).

The legal case against the NSA surveillance in no way is predicated on an assumption that we are not at war with Al Qaeda. I believe we are, and that does not prevent me from reaching the tentative legal conclusion that the surveillance is illegal.

Rather, the administration case as articulated rests almost entirely on the logical fulcrum that the 2001 AUMF provided statutory authority. If that argument fails, Bush's constitutional argument fails with it -- unless he begins to assert the claim that FISA is inherently unconstitutional. If he does make that claim, he must substantiate it, and he had better pull a better rabbit out of his hat than John Yoo's theory.

The Supreme Court has never been asked to decide the constitutionality of FISA. I don't think there is any reason to think the court would strike it down now because we are at war. The best indicator we have right now is the Hamdi case, and that does not read at all well as support for such an ambitious claim.
1.15.2006 2:57pm
Fishbane (mail):
Christopher M -- that's an honest, forthright approach. But here's the problem: it turns judicial nominations into mere partisan tests of numbers.

I don't think so. Remember that Roberts was just appointed. That I don't like some of his decisions (and I'm hardly a Democrat - I'm voting that way because I want gridlock, but am much more of an anarcho-capitalist/libertarian than most of the posters here) doesn't stop me from noting that he is honest, smart, and thoughtful. I must say, in considering Alito, I only see at most two of those.

I believe the "gang of 14" compromise was only unacceptable to those who demand unquestioned one party rule, something that I would at least like to think is anathema to most believers in democracy.
1.15.2006 3:18pm
Ryan Waxx (mail):
Well, when one party controls the Presidency and both houses, one would like to think that increases their influence somewhat.

Else, what would be the point of elections if the other party gets equal say no matter how much they lose?
1.15.2006 3:27pm
Ryan Waxx (mail):
Most "belivers in democracy" would also believe in abiding by the results of lawful elections. Sad to say, that doesn't seem to be the overwhelming sentiment here:


The Republicans worn the last two presidential elections due to a stone-cold fluke in 2000.



...with Bush v. Gore, the Republicans' possibly having stolen Ohio in 2004, and Congress's refusal to enact legislation requiring a paper trail...


Don't see much support for democratic principles there...
1.15.2006 3:55pm
anon) (mail):
To answer your earlier question, Justice Fuller: nobody on the court now is a giant.
1.15.2006 3:56pm
Marcus1 (mail) (www):
I think Breyer could be a giant if he were Chief.
1.15.2006 4:02pm
dk35 (mail):
I agree with Marcus1. By the standards bandied about on this blog with regard to qualifications, it does seem that Breyer wins.
1.15.2006 4:28pm
Rob Natelson (mail):
Two comments regarding who's mainstream:
1. First, regarding the suggestion that the legal mainstream is to the left of the popular mainstream, does "legal mainstream" include all lawyers or only law professors? If the former, I doubt that there is much distinction politically between the legal and popular mainstream. And if there is a difference, then we have to ask which mainstream (if either) counts. Since this is supposed to be a government of, for and by the people and not of, for and by lawyers, I think the answer to that is obvious.
2. Having had some modest political experience, I can say that if I were a consultant to the National Republican Committee, which I'm not, I'd hope that every last Democrat votes against Alito and that he is confirmed with GOP votes alone. Then I'd use that to pound home to my base, my contributors, and to any non-liberal moderate who still had any interest in the Democratic Party the difference between Republicans who respected the results of the previous Presidental election and voted for Ginsburg and partisan Democrats who refused to do so. I'd have a great time.


BTW: The contributors who suggested that RBG/ACLU are closer or the same distance from the American political center than the Alitonians need to get out more.
1.15.2006 4:29pm
Fishbane (mail):
Most "belivers in democracy" would also believe in abiding by the results of lawful elections. Sad to say, that doesn't seem to be the overwhelming sentiment here

So, Ryan, I take it when the Demos retake some of the ground they've lost (probably by 51-49), you'll just quietly go along for the ride when they start appointing people as far to the left as Alito is to the right? Don't play Ginsberg: she's a moderate by any measure.

After all, with such a for-shame head shaker when on top, I can only assume you were quiet on the side lines during Clinton.
1.15.2006 5:17pm
Ryan Waxx (mail):
When they capture both houses AND the presidency? Yes.
1.15.2006 6:06pm
Noah Klein (mail):
Marcus1:

I hate to disagree with you, since we agree on so much else, but on the issue of Congress' power to make exceptions to the review of the Supreme Court you are wrong. When I first read your post in response to me, it sounded reasonable, but when I examined the relevant sentence again, I saw that you are wrong. First, the sentence begins "In all the other Cases before mentioned." The sentence before this addresses the original jurisdiction of the Supreme Court which includes, "cases affecting Ambassadors, other public Ministers and Consuls and those in which a State shall be a Party." Thus the sentence that I first quoted regards all cases that were discussed in the first paragraph of section 2 of Article III. This includes "all Cases, in Law and Equity, arising under this Constitution." Thus unfortunately you are wrong as to which cases the relevant sentence addresses.

Second, you argument saying that there is a distinction between Law and Fact in this sentence was pretty convincing until I read the sentence again. As you say, "The purpose for the exceptions/regulations clause was a concern for excess appellate review of fact, which some feared would usurp the state systems of trial by jury." Yet the Constitution clearly states that "the Supreme Court shall have apellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Having just read Federalist #81, I can see that you are correct in saying that the worry of many Anti-Federalists was that the court "would usurp the state systems of trial by jury." This is why the article addresses these concerns about apellate Jurisdiction as to fact since these essays were a response to Anti-Federalist concerns. Federalist #81 though does not deny that the Congress would have the ability to make "exceptions" and "regulations" of the Supreme Court review as regards the law. In fact, many times it repeats these exact words of the Constitution.

I would suggest that you read Ex Parte McCardle. This case concerns several of the Reconstruction Acts. McCardle appealed to a lower and then the Supreme Court saying that the military could not charge him with "incendiary and libelous articles." After this case was heard by the Court and the Court ruled on it, the Congress passed on March 27, 1868. "That law stated that so much of the 1867 Act 'as authorized an appeal from the judgement of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is, hereby repealed.'" In Ex Parte McCardle, Chief Justice Chase gave the opinion, citing previous cases like Durousseau v. The United States, 6 Cranch (10 U.S.) 307 (Marshall C.J.; 1810), that the Court did not have the jurisdiction to rule on this case because the Congress had denied them such jurisdiction. The source I used for the Ex Parte McCardle case is Constitutional Law, Fourteenth Edition, by Kathleen Sullivan and Gerald Gunther, which is part of the University Casebook Series.

I am sorry we disagree on this, because I agree that the Congress should not circumvent the Supreme Court's jurisidiction on the Bill of Rights. But as a matter of law you are wrong.

Noah
1.15.2006 8:50pm
Noah Klein (mail):

With regards to who is in the mainstream or not, it is fair to say that the legal mainstream of the United States is to the left of the mainstream of the American people. Just look at organizations like the ABA and Trial Lawyers of America.
Now the question is should the legal mainstream be the standard for assessing a judge or should the mainstream of the legal philosophy of the American people be the standard? I think that the legal mainstream should be the standard. Judges are meant to focus on the issues of law, not the issues of politics. Lawyers have a certain training that allows them to have a better knowledge of the law than the average public. While politics is hard to eliminate from legal issues, the simple fact that lawyers know the law better than the public makes their opinion more worthy of consideration. On an issue of medicine, do you think the opinion of a majority of the American people would be more persuasive than the opinion of the majority of American doctors? Of course not.

Thus it is up to us to decide, whether Alito falls within the mainstream of jurisprudence as defined by the legal and the judicial communities. I would say that a fair standard is to make Thomas the extreme of the mainstream judicial right (I know many will say he is well outside the mainstream, but he is a Supreme Court Justice and thus must be considered mainstream) and the Ninth Circuit the extreme of the judicial left (RGB is most certainly more moderate than the Ninth Circuit). Does Alito fall within this spectrum? The answer is yes. Alito is most certainly to the left of Thomas, although not that far to the left. While I most likely will disagree with him on many cases, it is unfair to deny Alito the Supreme Court when he will not even be the most conservative member on that court.

Noah
1.15.2006 9:06pm
byomtov (mail):
So the Washington Post thinks:

Alito's record is troubling in areas. His generally laudable tendency to defer to elected representatives at the state and federal levels sometimes goes too far -- giving rise to concerns that he will prove too tolerant of claims of executive power in the war on terror. He has tended at times to read civil rights statutes and precedents too narrowly. He has shown excessive tolerance for aggressive police and prosecutorial tactics. There is reason to worry that he would curtail abortion rights. And his approach to the balance of power between the federal government and the states, while murky, seems unpromising.

But they want him confirmed anyway. Lapdogs.
1.15.2006 10:53pm
ruidh (www):
I'm reading the Constitution, and I can't seem to find the clause that suggests that the president should not be denied the prerogative of putting his choice on the Supreme Court. I see no reason for any Senator concerned about either choice, the "unitary executive" or even torture to vote for Judge Alito. It has nothing to do with his qualifications. Even a highly qualified justice can turn out to be a legal crackpot once on the SC.
1.15.2006 11:11pm
SimonD (www):
I agree with Marcus1. By the standards bandied about on this blog with regard to qualifications, it does seem that Breyer wins.
Why? I like Breyer, and I like reading his opinions, but while he remains the second brightest star in the SCOTUS constellation, but what is it in particular that makes him seem a great to you?
1.15.2006 11:24pm
Tom952 (mail):
There is an assumption here that judges are going to impose their personal beliefs on decisions, and it is just a matter of getting a conservative one or a liberal one appointed. This is not necessarily so. In fact, a judge of strong intellect and character will maintain his/her impartiality, to fairly weigh the facts, issues, and the law in each case. A good way to do this is to avoid nurturing a strong personal opinion on divisive issues. Although Alito has a 15-year track record, no one in the Senate hearings maintained that he pursued a personal agenda from the bench.

The alternative is a judge that DOES pursue a personal agenda. This may seem convenient for you if her/his agenda happens to coincide with yours, but in the bigger picture, it is a serious breakdown of our democratic system of government. The agenda needs to be changed in the chambers of the democratically elected representatives of the people, not by totalitarian judges beyond the reach of any check and balance. Besides, you can bet the ranch that sooner or later, the judge’s personal agenda will not coincide with yours, and which point you too will be a big advocate of the democratic process.
1.15.2006 11:24pm
Bruce Hayden (mail) (www):
Noah,

I would differ with you as to characterizing either the ABA or the ATLA as representing the legal community. Rather, they represent certain, more liberal, constituancies. The ATLA is easy - they represent primarily plaintiff's attorneys. I belonged for a short time right after graduation when it was free, and they made this obvious - including a prohibition against defense attorneys belonging (don't know if this is still in effect). Nevertheless, they have an extreme built-in economic bias in favor of extending tort law in particular. No surprise that they are liberal, and, indeed, that its members are some of the biggest donors to the Democratic Party as a result of the huge attorneys' fees they received from class action tort suits, such as against tobacco and asbestos companies.

As to the ABA, their membership, as far as I know, is primarily big firm attorneys and academics. Most of the small firm and solos I know (which groups are a majority of attorneys) distain the organization because of its fairly distinct liberal bias. Again, I haven't belonged since shortly after graduation for precisely this reason = I refuse to contribute to groups that spend my money on primarily liberal causes (when I was in a moderate sized firm, they pushed very hard for me to rejoin. I was able to get them to allow me to join the AIPLA instead).

So, in my view, that these organizations are both notably to the left of center says precisely nothing about the legal fraternity in general, but only that, that their membership is left of center.
1.15.2006 11:35pm
Conrad (mail):
Many of the commentors here advocate the Senate should act scrupulously, applying an objective standard while looking to the greater good.

Well, this ain't Utopia.

Fortunately, the Founding Fathers understood this and designed a system that both anticipated and would survive the debased mud-wrestling match that the confirmation process (and much else) has become.

The Senate is largely comprised of Poltroons. So, historically, has been the Executive and the Courts. For every Webster and Lincoln and Marshall, there's been covey of Bilbos, Hardings and Moores. The beauty of the American system is that (unlike the rest of the world) the accession to power of the base, contemptible and idiotic has not led to democide, revolution or impoverishemet. The Consititution pits them, one against the other, largely leaving the rest of us unharassed.

I like to think of the three branches of government as like an episode of the Three Stooges, absorbed with biting, kicking and gouging one another, while we, the audience, has a laugh.
1.16.2006 1:07am
therut (mail):
Hayden====I believe what you say about the ABA. The AMA, APediatricA, APsychiatryA etc. are all left leaning. Most Physicians are not members. I am not going to give them 500.00 of my hard earned money to support causes I disagree with. They are sly in that they are like the AARP(they try to get you at 50 years of age) in that when in Medical School and Residency they sign you up free hoping to indoctrinate you into their fold. Of coarse those interested in politics and teaching end up running the organizations while the rank and file physicians take care of patients.
1.16.2006 2:26am
Marcus1 (mail) (www):
Noah,

>Thus the sentence that I first quoted regards all cases that were discussed in the first paragraph of section 2 of Article III. This includes "all Cases, in Law and Equity, arising under this Constitution." Thus unfortunately you are wrong as to which cases the relevant sentence addresses.<

Certainly, the "exceptions and regulations" clause is in regard to all cases other than the original jurisdiction, as you say. What I'm saying, though, is that there is a difference between a limit on jurisdiction and a limit on power. The Constitution allows Congress to set limitations on Jurisdiction. If this were all it said, then Congress could certainly make any exceptions and regulations it pleased. But the Constitution says more. It says that the Judicial Power shall extend to all cases under the Constitution. Therefore, my point is that Congress may only make exceptions and regulations to jurisdictional rules such as does not violate this previous clause, which lacks an exception, and which says that the Judicial power shall extend to all cases under the Constitution.

So basically, to comply with both parts, if Congress wants to make an exception to jurisdiction of one court, it has to give that jurisdiction to another court. It can't simply remove jurisdiction over an area completely. Otherwise it would be an exception to the judicial power, something Article III does not allow. The Judicial Power would then not extend to all cases in law and equity arising under the Constitution. This violates the text of the constitution.

This may sound like over-parsing, but I don't think so. It should be intuitive that Congress cannot simply eliminate large swaths of the judicial power. And the fact is, the Constitution by its text simply does not allow it. It is only by taking the exceptions and regulations clause entirely out of context that one can claim that such an action is permissible. Article III in its entirety clearly states that such an action is not allowed.

Of course, you might say eliminating review of fact would still reduce the judicial power. But not as defined in Article III. All article III says is that the judicial power shall extend to all cases in law and equity, etc. Even without review of fact, this provision is met. I suppose another question would be if Congress could limit the Supreme Court to review of fact, and not of law. Perhaps that wouldn't be a literal violation of Article III. In that case, I think it would simply be a quite plain violation of the Constitutional structure.

I have read McCardle, although it's been a while. I think it is widely viewed as a bow to Congress, where the Supreme Court went along because it had another avenue of jurisdiction anyway. In many of these cases, the Supreme Court has avoided confrontation. I'm certain that it hasn't settled the issue, however.

Anyway, thanks for your kind disagreement. My tone is probably brusque (and perhaps not it's most persuasive), but only because I'm quite tired and should be in bed. Maybe we can pursue the issue tomorrow.
1.16.2006 3:08am
Joe Yowsa (mail):
"His generally laudable tendency to defer to elected representatives at the state and federal levels sometimes goes too far — giving rise to concerns that he will prove too tolerant of claims of executive power in the war on terror."

That statement in the editorial doesn't even make sense. Deferring to elected representatives can only mean (in thoughtful minds) adhering to legislative laws or intent. Executive power is something different. Nor does the WaPo support deferring to elected representatives or consider it a "generally laudable tendency" on its pages. Not even in the editorial itself. What are "abortion rights"?

Later in the editorial:

"Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That's not all bad."

Looks like it just went from "generally laudable" to "that's not all bad". Come on. Let's not fool ourselves. This is schizophrenic.
1.16.2006 4:21am
KMAJ (mail):
Noah,

You are usually quite reasoned in your statements, but I was aghast that you even proferred this statement:

Now the question is should the legal mainstream be the standard for assessing a judge or should the mainstream of the legal philosophy of the American people be the standard? I think that the legal mainstream should be the standard. Judges are meant to focus on the issues of law, not the issues of politics. Lawyers have a certain training that allows them to have a better knowledge of the law than the average public.


Do you really comprehend what you are stating ? That a small segment of the population should have the right or deference to determine what is mainstream in the law for the rest of the people. Do you know how elitist and arrogant that sounds and how against everything this country stands for ? You want lawyers to determine what is good, legally, for the masses. Yikes !! This is a government by, of and for the people, not the lawyers or legal profession. You are just one part of the people and I, for one, am not willing to cede my rights to the determination of what is mainstream to anyone or any group.
1.16.2006 4:25am
bmac:
Ryan Waxx,

Ummm, my signature is BAM, not an attempt to settle an issue. Perhaps a little reading of the ENTIRE post would increase your understanding of the matter. There is no anti-ethics involved. Try again. To quote, "Parties that overstep reasonable boundaries lose clout and elections. We test this process through the "advice and consent" clause." We test it again when Congress votes on the nominee. The closer the count in Congress the the more control the minority party can exercise over a nominee. The wider the gap, the less control they may exercise. The post was meant only as statement of judicial nominations being a matter of numbers. There is no hardball unless, I presume, your ox is the one gored. To prevent further confusion for you I'll skip the sig this time.
1.16.2006 5:21am
raj (mail):
I don't have a particular objection to Alito, but it strikes me that he is little more than a "workmanlike" jurist, one who used his political connections to go along and get along. I would prefer to see someone like Richard Posner (7th circuit) or Kozinski (9th circuit).

Of course, neither Learned Hand nor his cousin Augustus Hand, both of the 2d circuit, arguably two of the most brilliant jurists of the early to mid 20th century never made it to the US SupCt. The nominations to the US SupCt are not based on their intelligence, they are based on politics.
1.16.2006 10:50am
SANE (mail):
On the Alito hearings, thought this might be of interest @ http://www.iasps.org/opeds/show_article.php?article_id=506

January 17, 2006

Jurisprudence and Certainty: The Alito Hearings

An indication of the corruption of a nation’s political integrity and quite possibly its existence simply is the degree to which its constitutional jurisprudence is relegated to “opinion” or uncertainty. Constitutional law, a republic’s founding and fundamental jurisprudence, is predicated on certainty. This is not the least important and related aspect of our tragic confusion about Applied Science as Certainty, and all else as Uncertain. I ask that readers who are not clear about this matter take note of this “problem” as you read about “jurisprudence and certainty” here.

Certainty in constitutional matters arises from fidelity to the meaning of words, logic, and above all from knowing that it is not an “opinion” that men live necessarily in sovereign bodies. When constitutional questions are no longer guided by the plain language of the Constitution itself, when the historical record of the founding understandings of that document are held to be “irrelevant,” when the law of foreign nations becomes constitutionally persuasive, and when legal scholarship dismisses common sense, certainty gives way to a radical uncertainty and the stage is set for a political battle over a jurisprudence adrift, no longer moored to the bedrock of the nation’s founding understandings. The resulting political battle is not the cause of the malevolence; it is the manifestation of a corruption at the very core of a society’s being. The Senate confirmation hearings for Supreme Court justice nominee Judge Samuel Alito and the Supreme Court’s 1973 decision to overrule state law protections of the life of the unborn child in Roe v. Wade, illustrate this point.

§

In the Alito confirmation hearings, the questions posed by Senators obsessed with Alito’s view on abortion turned upon the legal doctrine of stare decisis, the rule that underscores the certainty of prior legal decisions. Would Alito honor certainty and not overrule Roe? The question suggests that Roe itself was the product of constitutional integrity. It was not. The real question posed by these Senators was not whether Judge Alito as a Supreme Court justice would uphold authentic Constitutional precedent, but whether he would uphold radical departures from Constitutional law, which themselves had undermined the certainty and integrity of the Constitution, and allow the Supreme Court to continue its move toward even greater uncertainty. Constitutional “uncertainty” is called lawlessness.

The point was made when Senator Joe Biden, a senior Democrat, lawyer, and one of the legal experts in the Senate, raised a pocket copy of the Constitution in his right hand and asked Alito how the judge could say logically that Freedom of Speech was settled Constitutional law and Roe v. Wade’s “privacy” right to abort a fetus was not. Unlike Chief Justice John Roberts at his confirmation hearings, who conceded Roe was settled law “for the Court,” Alito would not opine on abortion and Roe one way or the other even to that limited extent. But Judge Alito answered pertinently to the effect that Freedom of Speech is expressly written in the Constitution; a privacy in right to abort is not. When given the opportunity, Alito explained that while there are protections for aspects of one’s “privacy” included in certain very specific provisions in the Bill of Rights, the “right” to abort was “interpreted” to exist by the Supreme Court. In another forum, this judge would have said “legislated” or “manufactured” or possibly “divined” by the Court. But he understands freedom of speech in an aspect Mr. Biden strained in his dramatic question.

Other Senators asked the same type of question contrasting the constitutional principle of “One Man, One Vote” with abortion, since Alito was prepared to speak of the voting principle as settled law. On the “One Man, One Vote” contrast, the judge danced around it by saying it was “settled” because it was “settled”. His answer in a less constitutionally corrupt and politically charged forum would have been: On the one hand, “One Man, One Vote” is settled law because the country is not divided on this question – and it is not divided because the principle is a manifestly logical rule of constitutional government grounded in a people sufficiently cohesive to form a nation. On the other hand, the country is sharply divided over the idea that the right to life guaranteed explicitly by the Constitution can be trumped by a right effectively derived from Science to abort the unborn – and it is divided because the Court legislated, not adjudicated, a new, unprecedented law.

In such an environment, Alito could have explained that the Constitutional debate over the definition of life is not something five out of nine unelected lawyers on the Supreme Court should simply craft from whole cloth. As for Constitutional precedent, the decision did not have one. Considered at the level of Constitutional scholarship, very few would argue that the legal opinion in Roe was anything more than a result in search of a long-winded policy analysis with little constitutional integrity. Even as policy, it essentially urged a specious medical analysis as support for a utilitarian position that puts method before ends. This is to say it was based in the opinion, which is contrary to fact, that “ends” have been replaced, of all things, by Science.

The 5-4 Roe opinion sought to create Certainty with Science (in this case, “medical science”) in inverse proportion to its radicalizing the uncertainty of Constitutional law. These shenanigans of jurisprudence, poorly conceived and thus poorly received, are murderously consequent if the five men erred by redefining the Constitutional understanding of “life” by relinquishing the depth of Constitutional meaning vested in judging to medical science. Judge Alito danced around the questions of stare decisis because he understood that the debate has been corrupted beyond the tools of language to repair. To have said what everyone knows, that Roe itself was a revolutionary departure from U. S. Constitutional law and the basic principles of federalism constituting America’s ground as a nation, would have ended his aspirations to join Justices Scalia and Thomas to bring the Supreme Court back to its founding mission: Constitutional law predicated upon certainty.

§§

Certainty and law are as one in an ordered and stable society. When constitutional jurisprudence, the law of the law, becomes a tool for the political goals of a radical relativism whose certainty is grounded in the magical incantations of the modern scientist, history, precedent, logic and commonsense become the primitive “opinions” of an age surpassed by “progressive” and “scientific” ethics and “rights” limited only by the reach of the new scientific age. Science, as I have noted, knows of no nations (i.e., “Doctors Without Borders”). It is unpatriotic and value-free. The End of existence, the purpose of national existence, the sanctity of one’s own People, mean nothing to the scientist who has not learned that the certitude of mathematical physics rests first of all in the apriori absence of just these things, that is, of Ends, nations, Peoples. Method and Process are the new constitutional framework. In trading scientific certainty for the rule of law America joins other Western societies, and is now, like them, drifting toward incertitude about who and even what they are; and about national life as such.

David Yerushalmi, Esq.
1.16.2006 11:11am
xyzaffair:
An example of a extremely rare circumstance occurred when President Andrew Johnson in 18 68 removed the Secretary of War and replaced him with someone else in direct violation of the Tenure of Office Act , which provided that any civil officer appointed by and with the advice and consent of the Senate was entitled to hold such office until a successor has been appointed by and with the advice and consent of the Senate , which removed the President's previous unlimited power to remove any of his Cabinet members at will. For violating the Act, Andrew Johnson was impeached and almost removed from office. In 1929, the Supreme Court in Myers vs. United States ruled that such laws were unconstitutional in violation of the President's inherent authority to remove Cabinet officers.
1.16.2006 12:46pm
ctw (mail):
"our tragic confusion about Applied Science as Certainty, and all else as Uncertain"

it's unclear who the author thinks is confused, but hopefully he isn't so ignorant of the scientific method as to think that scientists or others who appreciate it are included.

the recurring theme of the quote (notably by ID proponents in recent attacks on teaching science in the public schools) has been refuted endlessly and is given the lie by reading any credible discussion of currently open scientific issues (open due not to lack of "certainty" but to lack of a preponderance of evidence). it's utility as an indicator that what follows likely will be logically and factually flawed was demonstrated by the article.
1.16.2006 1:31pm
ctw (mail):
re. SC jurisdiction

a casual (and lay) reading of the relevant parts of article III, the mccardle opinion, and the relevant section of prof amar's recent "history", suggests to me that noah's argument in favor of congress technically having the power to limit SC appellate jurisdiction has considerable support. but as marcus argues, the contrary position seems more logical: since constitutional rights are supposed to temper the will of the majority, how can they be subject to abridgement by the branches that are elected by majority vote via an indirect (jurisdictional) attack when they aren't via direct (substantive) attack?

practically, it's hard to imagine that a congress could get away with removing jurisdiction for cases involving an explicit right such as (literal) political speech. but it requires no imagination to fear exactly that with respect to rights that require some interpretation since, as I understand it, such actions are currently being discussed.

I'm not clever enough to frame it explicitly, but it strikes me that there may be something akin to russell's paradox lurking here. SC: this opinion is (un)constitutional, etc. and if so, perhaps also an alternative argument for theism for a based on the need for a "higher authority" to avoid a self-referential judicial decision? maybe J. scalia is right after all. (:>)
1.16.2006 2:36pm
Inspector Callahan (mail):
Don't play Ginsberg: she's a moderate by any measure.

I've heard this in several comments in this thread. Please, give me one example of a decision that's considered "moderate".

I cannot think of one single decision she's made (of any importance) where she voted with the conservative block of the court.

TV (Harry)
1.16.2006 2:41pm
Marcus1 (mail) (www):
I'm actually not even sure how jurisdiction stripping is theoretically possible. When a guy comes to the Supreme Court, and he's been prosecuted under a specific statute for saying he opposes George Bush, and Congress has said the Supreme Court lacks jurisdiction to decide questions under the First Amendment, what happens? Does the Supreme Court just say that the conviction stands?

I would say the jurisdiction stripping statute would be rendered irrelevant. The SC would say: Ok, we got this "Honor George Bush" statute saying one thing, and we have the Constitution saying another thing, and then we have this Jurisdiction stripping statute saying we can't compare them. Well, we start with the Constitution, and that tells us that this guy can't be prosecuted for this. As far as the other two, we simply don't have the authority to apply them in contravention to the Constitution, so we have to ignore them. So the guy gets off.

Of course, this was what was said in Marbury v. Madison. The SC applies the law, so it has no choice but to decide what to do when the sources of law are inconsistent. The Constitution says that it is supreme, so therefore it comes first. It makes a lot of sense to me. Perhaps stripping jurisdiction over a statute is different, but over the Constitution, I would say it's impossible.
1.16.2006 3:05pm
Derek W. (mail) (www):
"Don't play Ginsberg: she's a moderate by any measure."

That simply isn't accurate. Do you also consider left-wing groups like the ACLU to be "moderate by any measure"?
1.16.2006 3:20pm
Noah Klein (mail):
Marcus and ctw:

ctw, I always thought that the greatest check on the Congress to not strip jurisdictional power was the pwoplw who would completely reject this. I think this is one reason that there has been no serious effort to do this in Congress.

Marcus, I read your last post and it seems perfectly logical. Maybe I was wrong about this "exceptions" clause applying to the Constitution. As a matter of law, this has not be ruled on. Maybe it only applies to statutes, because a statute of Congress cannot supersede the Constituion and the constitution give the Court the ability to review acts of Congress, which violate the law. The "exceptions" clause might apply to the Constitution, because as I said above it talks all cases mentioned above, but your reading of the constitution is completely logical and thus would not allow Congress to limit the jurisdiction of the Court as to the Constitution.

Noah
1.16.2006 4:45pm
Noah Klein (mail):
KMAJ:

I never said that Congress should not respect the people's opinions on the law or that these opinions were illegitimate. I, myself, am not a lawyer, but instead a student. What I said was to define the legal mainstream that a should fit into for an appointment to a judgeship, we should use the legal community's views and not the people's views on the law. We don't ask what the American's people's view of the mainstream is in terms of the medicine, or physics or any other such discipline. We instead ask what the mainstream is of the medical community or physicists or the people who had training in that discipline. Why is that a such a radical view? People choose their representatives and these representatives do not need to apply the standard that I presented, but I offered what I thought was a reasonable standard. Look at who currently occupies the bench from Thomas on the right to the Ninth Circuit on the left and choose in between. Do you find this standard unreasonable?

Therut and Bruce:

If you can give a group that represents more lawyers than the ABA or the ATLA then I will accept that group's positions as the positions' of the mainstream of lawyers. Until you offer an alternative to these two groups, I must accept their opinions to determine what the legal mainstream is.


Noah
1.16.2006 4:57pm
KMAJ (mail):
Noah,

Unlike physicists and the medical field, or other such disciplines, the judicial branch is one of three co-equal parts of our system of government, of, by and for the people. It is because of that major difference, that I would find giving any small segment of the population such power over the rest of the people to be objectionable. Should we then give deference to politicians to determine what is mainstream in the legislative and executive branches because they are more familiar with how things in the political arena work, and would thus bring more expertise to their opinion ?

I find your opinions thought provoking and informative, this one just really jumped out at me as a dangerous threat to our constitutional system of government. As it is, the legal profession is not held in the highest regard by the public at large, so why would we allow them to set up a definition of mainstream for judicial positions that may not reflect the mainstream of the society for which they are to interpret the rule of law ? That is the first step towards tyranny. It is society, and the people that make up that society, that set up the rule of law, through their mores and folkways, that shall govern it. To do otherwise is to engage in social engineering. The rule of law is not a universal construct, it may have foundational shared precepts, murder, theft, but beyond that, a free society shapes the law to fit and reflect its mainstream mores and folkways.
1.16.2006 5:48pm
John Lederer (mail):
. "First, regarding the suggestion that the legal mainstream is to the left of the popular mainstream, does "legal mainstream" include all lawyers or only law professors? If the former, I doubt that there is much distinction politically between the legal and popular mainstream."

i don't want to generalize from a single state, but I don't think there is any question that the bar here (Wisconsin) is considerably more democratic than voters in the state generally (about evenly split).
1.16.2006 6:14pm
Mylar Thompson (mail):

I'm curious what the examples are of extreme things Ginsburg has done or said on the bench.



I heard she let a nasty one rip. If that isn't an extreme thing to do to a bench, I don't know what is.
1.16.2006 7:52pm
Mylar Thompson (mail):

I'm actually not even sure how jurisdiction stripping is theoretically possible. When a guy comes to the Supreme Court, and he's been prosecuted under a specific statute for saying he opposes George Bush, and Congress has said the Supreme Court lacks jurisdiction to decide questions under the First Amendment, what happens? Does the Supreme Court just say that the conviction stands?



It's a jurisdiction stripping statute. In other words, the court lacks jurisdiction. So the guy files in federal court and teh courts says, "You can't file this case here. Sorry." There is no decision rendered. What the guy can do, however, is file his claim in state court, and if he loses a federal question in a state supreme court on federal grounds (not an AISG), then he can appeal to SCOTUS.
1.16.2006 7:55pm
Mylar Thompson (mail):
Jurisdiction stripping statutes prevent lower federal courts from taking cases, they don't prevent state courts from doing so. SCOTUS can always hear an appeal of a denial of a federal right from a state supreme court.
1.16.2006 7:56pm
Marcus1 (mail) (www):
Mylar,

>It's a jurisdiction stripping statute. In other words, the court lacks jurisdiction. So the guy files in federal court and teh courts says, "You can't file this case here. Sorry." There is no decision rendered. What the guy can do, however, is file his claim in state court, and if he loses a federal question in a state supreme court on federal grounds (not an AISG), then he can appeal to SCOTUS.<

No, I believe the attempts have been to strip all federal jurisdiction over these issues, not simply that of the lower federal courts, or of appeals from the lower federal courts. From this article on Findlaw:
Specifically, if the MPA were to become law, the federal courts would be divested of the powers to hear two kinds of "federal question" cases: Cases relating to the MPA itself, and certain cases relating to the Defense of Marriage Act (DOMA).
The theory is that lower federal courts are entirely discretionary in the first place, and that SC jurisdcition over the Constitution and statutes is as well. Thus, according to the theory, federal jurisdiction over the Constitution can be removed entirely.

So the SCOTUS would have to decline to take any appeal, even if from a state court.

I suppose the SCOTUS could do as you say and simply decline to hear it, if it lacked jurisdiction either over the Constitution or over the statute. It's just such an absurd idea that I have a hard time imagining the SCOTUS actually doing it, since it would be such a clear unconstitutional infringement on the judicial power.
1.16.2006 9:11pm
AlanDownunder (mail):
WaPo editorial:

No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

Then why "advice &consent"? There is no "should" about this. If the President has the numbers in the Senate, he gets his nominee installed; if not he doesn't. Then we get to discussing filibuster &nuclear option.

On the merits of Alito, I'd be disappointed if there were not a significant number of Republican Senators alarmed by -

1. his disdain for the powers of their Legislature vis-a-vis the Executive - a disdain which does not lie within any reasonable mainstream of jurisprudence as the WaPo claims.

2. the heartless and authoritarian attitudes which characteristically motivate his minority and successfully-appealed decisions - i.e. his departures from the legal competency which is said by WaPo to alone justify his appointment and confirmation.
1.16.2006 9:57pm
jac0285 (mail):
Advice and Consent pertains to the Senate advising and consenting to a judge's qualifications, not their political philosophy. Not even Democrat Senator Feinstein can find anything wrong with Alito's qualifications, yet she still finds reason to vote against him. Is that not misconstruing and abandoning her duty as an elected official to vote based on the Constitution rather than her own ideological preferences?
1.16.2006 10:29pm
Noah Klein (mail):
KMAJ:

"Should we then give deference to politicians to determine what is mainstream in the legislative and executive branches because they are more familiar with how things in the political arena work, and would thus bring more expertise to their opinion?"

Don't we already give deference to politicians to determine what is mainstream in the legislatvie and executive branches. It is not the people directly, but instead their legislators who decide on matters of law and policy. When people have polled Americans on whether they would support many acts of Congress and the President, they have disagreed several times on those actions taken. Yet on the whole, they agree with their Congressman or the person they voted for President. Thus doesn't Congress determine what is the mainstream for Congress? Doesn't the adminstration determine what is the mainstream of the executive branch? Of course, the people have the ultimate check on these branches through amendment to the constitution and voting them out of office, but that does not mean that they do not determine the mainstream of the people in that profession.

I would like to say, all I did was offer a standard to judge a judge. If you disagree, then please tell me what you think would be better and I would be happy to debate you.

Jac0285:

The constitution does not say what the standard the Senate should use to assess a judge, it just says that the Senate should advise and consent on the choice made by the President. This would indicate to me that either the Senate could make the rules on how to assess a judge or leave that up to each individual Senator.
Also the standard you offer (qualifications) has many different meanings. Do you mean just his resume? If that is so, then why not reject this person for a person who has a longer resume as a Court of Appeals judge. Do you mean educational background? If that is so, then Justice O'Connor and others would never have reached the bench. Some might suggest that "qualifications" the reasoning of his decisions. Thus wouldn't Senator Feinstein's concerns be legitimate? I think for you to be so authoritarian in your belief is somewhat beyond the evidence. In the Clinton Administration, hundreds of judges were held up. Was that legitimate? If not, then you should convince the Republicans who did so and if so, then you should insist on another standard.

Noah
1.17.2006 12:39am
Jack John (mail):

So the SCOTUS would have to decline to take any appeal, even if from a state court.



This is wrong. Appeals from state supreme courts would always be appealable to the Supreme Court. Congress can eliminate jurisdiction in the lower federal courts because it can eliminate the lower federal courts enitrely (Madisonian compromise). But Congress cannot make a federal question exclusive to federal courts that do not exist and state courts are presumed to have concurrent jurisdiction over federal questions unless explicitly stated otherwise by Congress (see Federalist Paper No.82; commentary of Joseph Story). Thus, a jurisdiction stripping statute is the corrollary of exclusive federal jurisdiction: you can have eliminate one or the other, but not both. That would violate Due Process.
1.17.2006 2:18am
Jack John (mail):
In other words, either you are misreading the article or the reporter got it wrong. Jurisdiction-stripping statutes limit the appellate jurisdiction of the Supreme Court to hear cases from the lower federal courts.
1.17.2006 2:22am
LolaLA (mail):
Thought there may not be a clear test on how to "judge a Judge," a filibuster is always the wrong way to go. Especially as here when there is no clear reason why that should happen - Alito is definitely qualified enough to warrant a vote in Congress. In my opinion, that is clear.
1.17.2006 12:10pm
ctw (mail):
"Appeals from state supreme courts would always be appealable to the Supreme Court."

but doesn't this lead to the possibility of the catch-22/paradox to which I earlier alluded?

congress passes a J-S bill re X. subsequently, a state bill that addresses X is challenged in a lower court as to constitutionality, and the result is appealed to the SC which must first establish jurisdiction.

according to the (as yet unajudicated) J-S bill, it has none. can it assume the J-S bill is unconstitutional, take the case, and then collaterally ajudicate constitutionality of the J-S bill? if so, and it decides "yes", then it erred in assuming jurisdiction. does this negate any decisions then made under that assumption, in particular, the constitutionality of the J-S bill? if so, the constitutionality of the J-S bill remains - and will remain - unajudicated. just as would be the case if it were to assume the J-S bill to be constitutional and decline to accept the case for lack of jurisdiction.

so, under my assumptions the only possible ajudication is for the SC to assume the J-S bill to be unconstitutional, accept the case, and confirm its assumption.

no doubt I am making one or more wrong assumptions. what are they?
1.17.2006 1:15pm
Noah Klein (mail):
LolaLA:

I agree that Alito has met the qualifications to be confirmed by the Senate. I further agree there may be no clear standard to "judge a judge." Although, I did try to offer one up for discussion. I can't agree that a filibuster is never necessary or legitimate. A filibuster is a tool given to the minority of the Senate. It is a long-standing and very effective check. Why would it not apply to the confirmation process, especially when it has in the past?

CTW:

The SC could grant cert. to the case and then decide if the J-S bill is constitutional leaving aside the other considerations until that bill was decided. Remember, this happened in Ex Parte McCardle. The SC also decided the standing of Dred Scott in that case. Once it had ruled on the standing, all the rest of the decision was superfluous.

Noah
1.17.2006 1:23pm
NickM (mail) (www):
Jurisdiction-stripping statutes would not have the effect of denying a party a Constitutional defense, because they would strip a court of the authority to hear that case entirely - including its prosecution. In the case of stripping the Supreme Court's jurisdiction, that would leave some other court as the final authority on the question. In the case of a statute that strips the federal courts entirely of jurisdiction, you would either leave the state courts as the final word, or, if you sought to prohibit any court from having jurisdiction, would create a situation where you could not use a court to enforce the law either, making the law a nullity.

Jurisdiction-stripping is immensely stupid as a policy matter - unless the majority in Congress really wants the MA Supreme Court or Ninth Circuit to be the final word on an issue.

Nick
1.17.2006 3:59pm
Mylar Thompson (mail):
the result is appealed to the SC which must first establish jurisdiction

It has jurisdiction. What has been stripped is its ability to take appeals from the lower federal courts, which is all Congress can reach. Congress cannot deny both, because then there would be NO review of federal rights, which would mean the Supreme Court is not Supreme -- which violates Article III and Due Process. I already addressed this. It isn't a conundrum, it is answered in Federalist Paper No. 82 and Joseph Storey's commentaries, from over a hundred years ago.

Let me be clear: Congress can etsablish or destroy the inferior federal courts by statute. The Constitution creates the Supreme Court. See the difference?
1.17.2006 6:22pm
ctw (mail):
Mylar:

I understand your argument, I'm just not convinced it's correct as to the SC jurisdiction remaining in the wake of a J-S statute. if it were as clear-cut as you suggest, one could not google 'mpa doma "jurisdiction stripping"' and find numerous articles discussing the unanswered legal questions and potential dangers attendant to J-S statutes due to denying SC jurisdiction. none of those I read even alluded to, never mind asserted unequivocally, that appeal from state courts would be allowed. this seems to support marcus's view, stated earlier.

so, the real flaw in my scenario seems to be that constitutionality of J-S statutes might never reach the SC. ie, they're potentially even worse than they appear at first glance.
1.18.2006 1:31pm
jac0285 (mail):
Noah: I am not a senator, therefore, I'm not the one that has my own criteria as to what "advise &consent" means to me. However, Senator Feinstein obviously does, and she has admitted that Alito is fully qualified to sit on the Supreme Court as a confirmed justice. The problem is that she is politicizing what should be a completely judicious process.

Furthermore, you speak as if qualifications of one nominee should be based against those of any other person that may be more qualified. Are you forgetting that it is the president's responsibility and duty to appoint these justices? Senators are merely there as a check on that authority, and if they find nothing wrong with his/her credentials he/she should be consented to and confirmed.

This is the problem I am finding with Feingold and her cohorts. I'm not looking for some standard that nominee's qualifications should be held up to. That's up to the sitting president's discretion. I'm asking for senator's to stand by their judgements and confirm a justice that deserves to be confirmed, like Alito. Even Senators Kennedy, Bill Bradley and Frank Lautenberg, sung his praises not so long ago in 1990 when they voted to confirm him. Why not now?
1.18.2006 7:46pm
Noah Klein (mail):
jac:

The president does not have the authority to decide what standards a Senator uses to "consent" to the nominee. Remember in the Constitutional Convention, theere was great debate over whether the Executive or the Senate should choose the Judges for the Judiciary. They decided on the system we have today. Thus I think while the president obviously has the greatest authority here, due to the fact that it is his ultimate choice. This does not mean that the Senate is just a rubberstamp or a double-checker. There meant to have power too. First, to make suggestions and then ultimately to decide if they agree with the choice made by the president. The constitution lays out no standard and in the past politics and philosophy has prevented a person from attaining the bench. Just ask George Washington. Thus I think that you're maligning Senator Feinstein without cause. If her standard is so wrong, then what about the standard set by the Republicans during the Clinton Administration.

Finally, you ask what has changed from 1990 to now. Fifteen years have passed. The majority of my life has passed. And Alito has made a variety of judicial opinions that augment how these people view him. If confirming a person in the past is a standard, then why wasn't LBJ's chief justice confirmed in 1968?


Noah
1.18.2006 8:38pm
jac0285 (mail):
Noah: No offense, but I think you are either misunderstanding me or missing the point. I'm not asking Senators like Feinstein to "rubber stamp Alito." I'm asking her and those like her who have publicly stated that Alito is more than qualified, to take the next step and confirm him. As Feinstein stated on January 15, "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."

Under her advice to the president, she believes by her own words that he is a qualified nominee. Why is she not voting to confirm him? Is it a political stunt? Is it because she cannot get passed her own ideological preferences? If so, she and her cohorts certainly wrangled Alito for quite a while over keeping "politics" out of the judiciary process.

By her behavior and "precedent" she is setting, ia politics really supposed to mingle into the confirmation process, or is she abdicating her role as an elected official? If the latter, I am not surprised, the Dems have done more uninspiring things before. If the former, then why do we even attempt to go by the Constitution?

If you want to discuss Republican behavior during the Clinton years, let's talk about how the Senate approved Justice Ruth Ginsberg by a vote of 96-3. And that's with a nominee that answered virtually no questions! Alito has been much more forthcoming throughout these preceedings than we can ever imagine Ginsberg to have been-and Republicans not only put up with it, but respected Clinton's decision to appoint a qualified judge to the High Court, knowing her liberal background.

This stalling on the Alito vote is a bunch of nonsense. I'm confident that he will be confirmed because it's the right thing to do. Out of respect for the majority of American people that support his confirmation, out of respect for his high qualifications, and out of respect for the Constitutional process, Alito will and should be confirmed to the Supreme Court; and, all those who accept that he is qualified, such as Kennedy (he seems to change his mind often, but what Dem doesnt?) and Feinstein, should vote in consent.
1.18.2006 10:46pm
Noah Klein (mail):
Jac:

"If you want to discuss Republican behavior during the Clinton years, let's talk about how the Senate approved Justice Ruth Ginsberg by a vote of 96-3. And that's with a nominee that answered virtually no questions! Alito has been much more forthcoming throughout these preceedings than we can ever imagine Ginsberg to have been-and Republicans not only put up with it, but respected Clinton's decision to appoint a qualified judge to the High Court, knowing her liberal background."

Firstly, on the issue of who answered more questions more forthrightly, that's a judgement call. I think that Alito obsfucated and did not answer questions fully. You think the same of Ginsburg. Either way, we can't convince each other because there no objective way to demonstrate one way or the other.

On Ginsburg, the Republicans actually advised. On Alito, the Democrats did not have an oppurtunity to advise. Remember, Clinton asked Hatch who he thought Clinton should put on the Court. Hatch picked a Democrat, but that does not mean she was the most liberal judge in the country. There were definately more liberal judges. Hatch though advised Clinton. And this was when the Republicans were not in control of Congress.

Now the situation is reversed and Bush did not let the Democrats advise on his choice. When Democrats were asked what they wanted they said Miers, Miers was drummed out. And Bush didn't ask them again. This is why your not going to get the same vote. A lot of politics is about making sure other people respect you. Here Bush has not shown the respect for Democrats that Clinton showed for Republicans. So, you are not going to get the same outcome.

You have been saying that, well she says he's qualified so that means I should vote for him. That is not the standard she is using. I am not saying what her definition of qualifications are, but I will assume they are not the same as yours. Your thinking appears to be that if a nominee is qualified that means he is suitable for the court and thus should be on it. Her definition of qualifications does not seem to be that. Thus, as I said above, it might mean that he has the proper resume for a Supreme Court justice, but this is not enough to be on the Supreme Court. And since there is no Senate rule saying what the standard should be, she can make up her own standard. He may be qualified to her, but that is not enough for her. She wants him to be closer to her judicial philosophy. Now this does not mean he would have to agree with her on many things, but it means that she feels he is so far beyond what her understanding of the Constitution is that she cannot justify voting for him.

I don't see why you have such a hard on this. The Republicans have done this ever since they took control of the Congress. Remember, it was the Republicans who would not even allow a hearing of hundreds of Clinton's judges. They never said these people were not qualified or did not pass any other standard or even allowed for a hearing to determine such. They just said no, we will not make any determination and thus we will not allow this person on the court.

I really do not see a difference. Either way, one is saying that I don't want this person for something other than their integrity and educational background. Each side has thus said there is something more important with judges than just their "qualifications" that needs to be met to get my consent. Where do you see a difference? And if there is no difference, then what are you complaining about?

Noah
1.19.2006 1:49am
Mylar Thompson (mail):

I understand your argument, I'm just not convinced it's correct as to the SC jurisdiction remaining in the wake of a J-S statute. if it were as clear-cut as you suggest, one could not google 'mpa doma "jurisdiction stripping"' and find numerous articles discussing



You certainly could if the reporters who wrote the articles did not know what they were talking about.
1.19.2006 2:01pm
ctw (mail):
"You certainly could if the reporters who wrote the articles did not know what they were talking about."

this is just defensive arrogance. the items in question were by lawyers, some of whom were legal scholars, none reporters. bottom line, the evidence suggests you were wrong. live with it.
1.19.2006 11:53pm