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Crystal Balls and Future Judicial Nominations:

Assuming that Judge Alito is confirmed by the full Senate, the "precedent question" rears its ugly head--will party-line votes become the future of Supreme Court nominees? The heated Bork and Thomas confirmations did not appear to set a precedent, in that Ginsburg and Breyer were confirmed by overwhelming bipartisan majorities. Assuming Alito is confirmed on roughly a party line vote, will this set a precedent? Joe Malchow says "yes," what goes around inevitably will come around (and adds a pithy quote from Senator Jon Kyl to back it up). And the urging of the base will ensure that. The subsequent confirmations of Ginsburg and Breyer, by contrast, suggest that the Bork and Thomas experiences did not seem to set a precedent.

And while I have your ear, a question for the gathered. Leaving aside Vanguard and CAP (which seem to have evaporated as issues) is there a principled reason why a Senator might vote for Roberts but against Alito? Are there particular questions or elements of their record that would justify a different vote in the two cases? Moreover, it seems to me that by almost any reasonable analysis of the record, Alito looks much more like Roberts than either Bork or Thomas (whose confirmations were somewhat sui generis, for different but unique reasons), so it is not obvious to me why Alito's "no" vote total would look more like Bork's and Thomas's than like Chief Justice Roberts's.

While I'd be interested in hearing from anyone who can articulate a principled explanation for why one my vote differently on Roberts versus Alito, I'd be especially interested in hearing from readers who supported Roberts but would oppose Alito (as some 20 or so Senators appear poised to do). I ask because if there is a principled distinction between the two, that could very well shed some light on whether a party-line vote on Alito could be precedent setting.

ron (mail):
not so sure. Correct me if I'm wrong, but believe Ginsburg and Breyer were vetted by repubs before nomination. Recall repubs objected to Babbitt and Clinton acceded. Not the case with Roberts nor Alito. Executive poked the dems in the eye with this nomination and this is the consequence.
1.24.2006 8:46pm
Justin (mail):
I think its principled to say that the President gets more deference to replace a conservative stalwart in a way that will not upset many precedents than replacing a swing justice.

I also think its principled to say that because Alito's statements on how he'd act as a justice were untruthful in the eyes of most liberal observers (assuming you're a liberal Senator and agree), you should vote against him. Note also that Roberts's vote in the Gonzales v. Oregon case appeared to directly contrast his own testimony, and a Senator might be more skeptical this time around.

Most importantly, given that between Roberts and Alito the President of the United States admitted to an impeachable offense, and having not resigned, pronounced a new Article II to the Constitution that is literally frightening, and then picked a guy whose most known for his deference to the executive, one would be more than hesitant to vote to confirm Alito.
1.24.2006 8:47pm
Justin (mail):
Oh, and I supported Roberts, because at the time I did not realize the importance of the Article II issue, and figured (like Senator Feingold, whose support for Roberts cannot be seen as "political") that the President gets significant leeway in his appointment position. However, he has squandered the presumption by violating his oath to the Constitution of the United States.
1.24.2006 8:59pm
Lastango:
For there to be a principled reason to vote against any nominee - compared to Roberts or not - there needs to be a material objection to the nominee. With regard to Alito, I can't think of one.
1.24.2006 9:01pm
A Berman (mail):
I am not a lawyer, but it seems to me that to answer this question, it would be helpful to answer some other questions:
1) Is it principled to vote based on the overall constituency of the court as opposed to the qualifications of the individual members? If everyone on the court suddenly died, but a mad scientist made nine clones of Anton Scalia, and Bush nominated all nine, would members of Congress be right to reject some of them?
2) Is it principled to reject a form of interpreting the constitution? Would it be principled, correct or not, to simply reject originalism as fundamentally illegitimate? How about saying that it's only legitimate if balanced with other viewpoints (a reinterpretation of question #1)
3) For fun: Is the debate about originalism/texualism/"active liberty" or whatever really just a facade in the first place? Is it really just about sexual morality (Griswald/Roe/etc..)?
1.24.2006 9:05pm
VC Reader:

Oh, and I supported Roberts, because at the time I did not realize the importance of the Article II issue, and figured (like Senator Feingold, whose support for Roberts cannot be seen as "political") that the President gets significant leeway in his appointment position. However, he has squandered the presumption by violating his oath to the Constitution of the United States.

Huh?
1.24.2006 9:10pm
Hoosier:
The "balance" question appears to be the fig-leaf hiding the naughty bits of many Democratic senators at this point. I should like to know how many Senate Democrats who find an ideological swing dispositive today found a more significant swing in the other direction perfectly acceptable when the retiree was Byron White.

I don't much like it when the rules are changed unilaterally. The idea that O'Connor must be replaced by someone like O'Connor came as a surprise to me. And how would you vet such a nominee anyway? "Do you promise to be so inconsistent that constitutional jurisprudence will become a crazy-quilt in your wake?"

I don't want any more Scalias or Thomases. But Alito does not strike me as of that ilk. He's more of a process conservative than a teleological conservative; more like Oakeshott, less like Gingrich. He and Roberts will, I tend to think, bring some consitency and sobriety to the Court. Not a radical shift toward Scalia.

BTW: I have voted for my junior senator, Evan Bayh, three times, including once for governor. But his vote against Roberts was too much for me to take. nothing says "I wanna be Hillary's running-mate" quite like a vote that is this out-of-character. Bahy is a sharp and suave guy, and a genuine moderate. But he wouldn't know a principle if it bit him on the behind. And I'm a moron for not recognizing that fact until now. Mea maxima culpa.
1.24.2006 9:19pm
Ian (www):
Three responses

1) Ron is exactly right. Ginsberg and Breyer were not only vetted through the Republican minority, but, according to Orrin Hatch's autobiography, they were actually suggested by Hatch:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.


Numerous conservative judges would have been acceptable to the current Democratic minority, including several Bush appointees such as Reena Raggi, Ed Prado, Consuelo Callahan and Allyson Duncan. Bush choose instead to appoint someone who is only acceptable to his right-wing base, so he shouldn't be surprised by the Democratic response.

2) The primary difference between Roberts and Alito is that Roberts was a crapshoot (albeit with loaded dice). His very limited record left some doubt as to what kind of Justice he would be. Alito's long record on the Third Circuit leaves no doubt whatsoever.

3) I agree that the era of easy confirmations may have ended, but we have only Bush to blame for this. Had Bush nominated a mainstream conservative, future Democratic presidents would feel comfortable following President Clinton's lead an nominating moderate liberals who would keep the Court from fluctuating erratically. Given the kind of Justice Bush has prefered, however, Democrats are left with no choice to nominate the most awesomely leftist jurists they can muster, in the hopes that an extreme leftist will provide balance to Bush's extreme rightists.
1.24.2006 9:20pm
Hoosier:
Ian--

????????????

By "mainstream conservative" I assume you mean "not conservative".

Your planted axiom--that Alito is not a "mainstream conservative"--needs to be dug-up and examnined. I have my shovel ready. Any evidence?
1.24.2006 9:26pm
John Thacker (mail):
I think its principled to say that the President gets more deference to replace a conservative stalwart in a way that will not upset many precedents than replacing a swing justice.

Giggle, snort, Byron White -> Ginsburg wasn't changing a swing justice to a liberal stalwart, very funny.

Correct me if I'm wrong, but believe Ginsburg and Breyer were vetted by repubs before nomination. Recall repubs objected to Babbitt and Clinton acceded. Not the case with Roberts nor Alito. Executive poked the dems in the eye with this nomination and this is the consequence.

Yeah, but Babbitt would have been, by all indications, more moderate than Ginsburg. The Repubs objection to Babbitt had to do with qualifications, not ideology. Dems objected to any conservative candidate on the basis of ideology, but didn't care about qualifications. The candidate that was suggested and vetted by the Dems' leader in the Senate, Harry Reid, was the absurdly unqualified one.
1.24.2006 9:33pm
Evelyn Blaine:
My personal view is that there's a distinction between having a shopping list of preferred outcomes and voting in confirmation hearings on the basis of that list of and having a systematic, thoroughgoing theory of constitutional interpretation -- which, if it's at all honest and consistent, means one that occasionally requires outcomes one doesn't like -- and voting on the basis of the degree to which one expects the nominee's decisions will conform to that theory.

If one has really thought long and hard about constitutional interpretation and has very strong views on the subject, then one presumably believes that those views are right in some sense that transcends mere personal taste or short-term political advantage; on the basis of that presumption, it's only reasonable to want to confirm those nominees who will get things right and not wrong. I expect the other side to act the same way: I tend to disagree strongly with a lot of aspects of the constitutional theory held by most conservative senators, but I certainly don't fault them for trying to maximize compliance with that theory among nominees they're considering confirming, and indeed I'd think that they were rather unserious about their beliefs if they didn't.

In addition, aside from the issues on specific individuals, the choice to confirm or not to confirm nominees is a vital weapon in the power struggle between Congress and the President and one that the legislature should not give up easily. In fact, I feel so strongly about some of the constitutional issues at stake in this administration's actions (specifically, the separation-of-powers and human rights issues around spying, treatment of detainees, and the torture laws) that, were Democrats solidly in control of the Senate, I might well want them to block all nominees, judicial and executive, from Supreme Court justices to the lowest undersecretaries, until the administration yielded on those issues. In the last instance, between confirmation, impeachment, investigation, and the power of the purse, Congress can always make the executive bend to its will if it really wants to, and I think that there are some things important enough to fight over with the full weight of all those powers.
1.24.2006 9:34pm
Broncos:

I should like to know how many Senate Democrats who find an ideological swing dispositive today found a more significant swing in the other direction perfectly acceptable when the retiree was Byron White.



The ideological composition of the court is a relevant concern for all parties, I think. (Otherwise, why should one understand/respect a President who insists upon the confirmation of his Justice?) Moreover, I'm not sure that it's hypocritical for Democratic (or Republican) Senators to insist upon a "balance" to the court, to the extent that they have the power to do so. (Though this concern is more legitimate, I think, with respect to a judicial nominee than with a nominee to the Executive branch.) The Senate doesn't have to "find another" O'Connor for this strategy to be rational or successful, having the power to exclude a nominee is sufficient.
1.24.2006 9:34pm
Ian (www):
Hoosier~

I'm not going to begin the entirely fruitless process whereby we each try to convince each other to adopt the other's definition of "mainstream." I'm merely going to reiterate my point from above. By nominating Judge Alito to the Court, President Bush has invited all future Democratic Presidents to nominate Justices who are exactly as offensive to the right as Judge Alito is to the left.
1.24.2006 9:35pm
arbitraryaardvark (mail) (www):
Senate principles include: do what constituents want, do what contributors want, do what your wife tells you, do what's in your gut, do what the party bosses tell you, do what's right for the country. Another: don't stick your neck out. A no vote is safer than a yes vote. Many, regardless of party of faction, thought Roberts was an improvement over Rehnquist. It's more difficult to see Alito as an improvement over O'Connor, except perhaps to some on the far right. It's possible to vote no as a signal Miers wasn't well treated. While Alito might be a good pick for the Jersey Catholic seat, he's less of a fit for the Western female elected offical seat. (Not that there are "seats", but some senators might think so.) It's not that Alito is evil - he just seems like he might be sort of dull. I'm willing to be proved wrong.
1.24.2006 9:35pm
Dustin (mail):
Ian, you mean like Kennedy ( I know the dems didn't name him) and Ginsburg?

Alito isn't a sure bet for the hard right by any stretch of the imagination.

It is fairly easy to come up with excuses to vote against anybody, and I'm afraid that this is exactly what will happen for the forseeable future.
1.24.2006 9:38pm
Daedalus (mail):
The comments of a layman and non-Lawyer - It would appear that the biggest difference between the two is your belief in abortion. Roberts did not shift the court to the right, and Alito probably will. Using that logic, those who are supported by the alter of unlimited abortion and owe their current position to that belief will be more inclined to vote against Alito. The support of unlimited abortion is extremely principled to some people as was evidenced in the recent hearing for Alito.

The recent revelations of NSA wiretapping and the reach of executive branch powers as articulated in Article II of the Constitution could also give principled individuals a different view of shifting the court to the right as Alito most likely will do. While the legality of the wiretaps is in serious dispute, there is no dispute that it will become a highly contentious battle of principled individuals on both sides before it's all over.
1.24.2006 9:42pm
Hoosier:
Ian-

It isn't a matter of your definition of "mainstream" versus mine. You haven't provided a definition of mainstream. You've just planted the "fact" that Alito isn't within it, and moved on from there. So why won't you say *why* he's out of the conservative mainstream? Otherwise your cvonclusion, viz., now Democrats can do whatever they want, doesn't exactly follow. After all, I don't think that Teddy Kennedy should be allowed to arrogate to himself the right to define the *conservative* mainstream. So, again, what's your evidence?

Aardvark--"Dull" is one of my favorite characteristics in a jurist. Dull jurists don't tend to pick fights over Ten Commandment monuments. Or get arrested for drunk driving. Besides, there are many, many dull Americans. Don't we deserve representation on the Court? (Please, please. Can't some Senator make that argument now?)
1.24.2006 9:50pm
Spoons (mail) (www):
This actually won't start anything. The Right has been provoked over judges before, and still has behaved responsibly -- giving Dem Presidents their choices. If Ginsburg could be confirmed after Bork was rejected, or after the Clarence Thomas atrocity, then Republicans simply can't be roused on this issue. This is understandable based on the facts that: 1) national Democrats care about judges more than Republicans do, because Democrats are more dependent on the actions of judges to further their agendas; and 2) Republicans are more deferential (and properly so) to the President's Constitutional perrogatives on this topic.
1.24.2006 9:52pm
ron (mail):
Thanks for the quotes, Ian. Moreover, re: Roberts vs. Alito. Myers was vetted and the repubs withdrew her under pressure from the religious right, making this much more of political debate. Further, to the question of principled difference between Roberts and Alito, two words: unitary executive.
1.24.2006 9:52pm
Broncos:
Suppose the "mainstream" of liberal jurisprudence saw grounds to explore a Substantive Due Process right to welfare, and a Democratic president (with a Democratic House and Senate) nominated someone who probably shares this view.

Why would it be unprincipled for a conservative to vote "no" to such a nominee? Why would it be unprincipled for a strategic conservative to agree to put 1 such justice on the court, but not 2?
1.24.2006 9:58pm
Paco (mail) (www):
"Allyson Duncan"

I don't know anything about the others, but I practice in the Fourth, and she isn't a "conservative" in any sense of the word.
1.24.2006 10:02pm
Jeremy Pierce (mail) (www):
Ron: So Roberts doesn't believe that the executive branch is led by the president? After all, that's all Alito believes under that title, despite repeated attempts of Democratic senators to confuse that view with the issue of the scope of the executive's powers. Alito's view on this is not exactly outside the mainstream of conservatism. I don't think it's even outside the mainstream of liberalism.
1.24.2006 10:15pm
Hoosier:
Broncos--

The impact of your hypothetical question is dwarfed by the hypothetical GOP electoral dominance that would result from the "mainstream" of the Democratic Party proclaiming a SDP right to welfare.

Perhaps they could make Rove and co. even happier, say by changing their party's name to the Atheist-Socialist Nun-Molester Party. But the right-to-welfare idea will do until then.
1.24.2006 10:16pm
Broncos:
So it would be unprincipled?
1.24.2006 10:23pm
Hoosier:
So it would be unprincipled?So it would be unprincipled?So it would be unprincipled?

Is molesting nuns unprincipled?! I should say so!

("Nun-molestation? Good lord, Elizabeth! I can't support that kind of thing.")





Or if you meant the other thing, please provide me with the equivalency here, before I pronounce judgment. Since I'm not following the parallel that you are drawing (No sarcasm intended. I just am not sure what issue is bothering the hypothetical principled liberal senators.) What has Alito said that is equivalent? And I most certainly *don't* mean "What has Kennedy deliberately misinterpreted him as saying?" 'Cause that doesn't count.
1.24.2006 10:32pm
Fishbane (mail):
While of somewhat recent vintage, this argument strikes me as principled, even if you disagree with it:

Through our history, the Court has had a mixed record in fulfilling this responsibility. [....]

At other moments, however, the Court has performed admirably. [....]

The single most critical factor that distinguishes the decisions in which the Court failed from those in which it succeeded was the character and constitutional philosophy of the Justices serving at the time. Those Justices who abdicated their responsibility and chose blindly to defer to excessive presidential claims approved the pervasive suppression of dissent during World War I, the Japanese internment, and the rampant abuses of McCarthyism. Those who were determined to ask hard questions and to insist that the President and Congress comply with the Constitution gave the nation the steel seizure decision, the Pentagon Papers decision, and the 2004 decision preserving the due process rights of American citizens.

[....]

Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the Justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.

Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate -- Republicans and Democrats alike -- to deny his confirmation to the Supreme Court of the United States.
1.24.2006 10:45pm
ron (mail):
Jeremy: doesn't matter whether it's conservative or liberal. It's a threat to our Constitution and its system of checks and balances. It's of particular concern when, as today, the executive branch contends that it can legislate (interp of AUMF as authorizing warrantless searches and that a standard other than probable cause applies to such searches is really legislating), determine when a search is reasonable and be the sole arbiter of these issues (judicial function). Reference is to AG's comments on public broadcasting today.
1.24.2006 10:51pm
agesilaus:
Alito is hardly a far right conservative. If President Bush wanted to poke the liberals in the eye he would have appointed the conservative favorite Janice Brown.

I think the Dems behavior is based on their concern about a possible third vacancy. That would change the direction of the court and they are trying to influence that with their current irrational behavior.

But the chance of another Ginsberg getting through the process is now slim unless the Dems win a filibuster proof majority in the Senate. This is especially true after the breaking of the agreement on the date of the vote in the commitee which will come back to haunt them.
1.24.2006 10:54pm
Fishbane (mail):
Agesilaus: I think the Dems behavior is based on their concern about a possible third vacancy. That would change the direction of the court and they are trying to influence that with their current irrational behavior.

Do you call it irrational because they (legitimately or not) fear a third vacancy? That would seem very rational, at least from an outcome oriented perspective. Or do you think it irrational for the reasons given in your next statement?

But the chance of another Ginsberg getting through the process is now slim unless the Dems win a filibuster proof majority in the Senate. This is especially true after the breaking of the agreement on the date of the vote in the commitee which will come back to haunt them.

I'm just trying to determine which of those is your referent for that comment. ("Both" is a fine answer, too.)
1.24.2006 11:06pm
Justin (mail):
The only person who wants JRB on the Court less than Democrats is Bush. JRB is a radical liberterian, and as much as you all try to pretend otherwise, Bush lacks a single liberterian bone in his body.
1.24.2006 11:17pm
John Thacker (mail):
Myers was vetted and the repubs withdrew her under pressure from the religious right, making this much more of political debate.

Wait, are you pretending that Myers was qualified, then? Plenty of people who weren't "religious right" thought that it was a poor nomination, including Democrats, from a sheer qualifications point of view.
1.25.2006 12:18am
ron (mail):
Well John, think about the illogic of your statement (even assuming your statements about qualification are assumed): Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.
1.25.2006 1:32am
ron (mail):
Well John, think about the illogic of your statement (even assuming your statements about qualification are true): Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.
1.25.2006 1:32am
Robert Schwartz (mail):
"Numerous conservative judges would have been acceptable to the current Democratic minority,"

Sure, and I am 15 feet tall.

What struck me about the foregoing is that the anti-Alito people upchucked the DNC talking points without advancing the ball.

I claim a forfeit. There are no principled reasons to vote against Alito. All of the reasons set forth related to things like inside baseball (the president didn't consult with me) or supposed policy outcomes of his imputed judgments of cases that have not been presented yet.

Look, I am so far to the right of you people that it would take six days of bushwhacking for the next most right among you to get to me. I think Thomas and Scalia are correct in their judgments most of the time. I hope Alito forms a tight voting block with them, but I have no real idea of how he is going to vote. He could turn out to be just as much of a barking moonbat as David Souter is.

But I see no principled reason why any Senator could vote against him. He is magnificently well qualified, his record is spotless, his colleagues and clerks of all political stripes spoke glowingly of him.

If your only principle is that my side has to win, Alito has to vote for my clients regardless of whether they are right or wrong, then I guess that is why you will vote against him and those are your principles, but not anything a civilized man could recognize as principles.

I believe that the era of 96-3 votes is over. The process is totally political. The democrats must hope that the 2008 election produces not only a Democrat president, but a substantial Democrat majority in the Senate.
1.25.2006 2:04am
Fishbane (mail):
Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.

So, we *can* assume Mieirs was unqualified, but had her shots, however, we can't assume that Alito is qualified, but has *not* had his?

Sorry. I don't feel so bad, because there's a lot of semantic silliness about on both sides, and we all know what will happen.
1.25.2006 2:05am
minnie:
I am somewhat stunned that anyone could think that this is a strict party line vote on the part of the Democrats. As a person who passionately supported Thomas, and strongly supported Roberts, I am literally horrified at the thought of Alito being on the SC.

For the best superficial argument against Alito (meaning an argument that would address issues with which those not following the hearings closely but who get most of their information from the media can identify), I would direct one to listen to Sen. Feingold's words of today.

My own opinion is that the real issue was never touched upon by any of the Democrats, or the leftist groups in their knee-jerk and distorted, almost laughable attacks on Alito. To my mind, the issue is that contrary to what was said and re-iterated a thousand times, Alito is not a man of integrity. I read him as a craven opportunist who carefully plotted a lifetime path of acting in a certain fashion to maximize his chances of being nominated to the SC when the time came, but was nevertheless not able to entirely hide his true nature. I think his answers on the Vanguard issue, which is not really an important issue, granted, revealed a Class A liar and an insultingly duplicitous person.

Also, whereas Roberts came across as a cheerful, essentially good hearted person, Alito came across, in my view, as anything but. Any astute person with an open mind would have been insulted by the "gimmick" Alito used during the hearings. Instead of responding to the questions in a truthful, informative manner, yet mindful of the fact that he could not duplicate the Roberts approach of saying that he could not comment on cases to come before the court as the Democratic Senators were clearly not going to buy that this time, he instead resorted to the classic doubletalk approach. Talk, but don't actually say anthing. He carefully crafted and then expertly employed a whole new technique of merely stating what the legal procedures were for deciding any particular issue and what factors a jurist had to take into consideration. I guess whoever said you can fool all of the people some of the time was right, and this was that time, as it appears to have washed. Senator Feingold addressed this point in his speech. But you had to listen to every word of the hearings to fully appreciate the enormous extent to which Alito engaged in doubletalk.

My personal view is that the real issue is the man himself. Maybe he was okay as a judge on the courts on which he served. After all, there isn't a world of discretion there---a judge is supposed to apply the written law in a methodical fashion, and most judges who are not whackos at least attempt to do that.

What was not stressed nearly frequently enough is the immense difference between the Supreme Court and the lower courts. The Supreme Court, in its essence, when the case is not a mundane one but rather has genuine importance to the general public, is about interpreting the Constitution, not merely applying the law. The Rule of Law, when important, controversial cases hit the SC, is almost beside the point. There is a world of difference, as we have seen, in how any two justices, say Ginsberg and Scalia, both of whom were deemed by most Democrats and Republicans to be principled and eminently "qualified", approach that interpretation.

How a SC Justice interprets the Consitution can drastically affect our lives and personal liberties, whereas judges on lower courts can do but limited, and hopefully temporary damage. They can harm a few people greatly, but if their decisions are broad principles to be applied to the population in general, and are clearly disturbing and antithetical to common sense, those cases will ultimately find their way to the Supreme Court.

In my opinion, Samuel Alito has a dark side. I read his questionable dissents, and do not believe it is possible when carefully considering his words in those dissents to avoid that conclusion.

Whether a person wants a conservative/libertarian on the court, as I do, or a liberal judicial activist is one thing. But putting a person on the SC whose concept of human dignity is skewered is another thing, and it is a scary thing.

The case that most convinced me that Samuel Altio is esentially, deep down, deep deep down, a cruel person when he is not trying to further his career by winning over people or to impress his colleagues in the legal community, or his political supporters, is the case about the retarded person who was harrassed by his co-workers. I am at a loss how anyone can read Alito's opinion in that case and not get a case of the shudders. What I call incredibly cruel and sociopathic behavior on the part of the co-workers is to Samuel Alito acceptable, macho-type fun and games, business as usual among those with a certain mind-set and warped sense of life.

Exactly what type of upbringing did Alito person have? I wish I knew a lot more about that.

How much different things would have been if Bush had nominated Janice Rogers Brown, a person with the most delicately honed conception of human dignity.

I believe that many good people who are ill advisedly supporting Alito are going to come to rue that decision in the years ahead.
1.25.2006 2:22am
stealthlawprof (mail) (www):
Perhaps I misread events, but I had the distinct impression that the Democrats had given the President a list of people they found unacceptable for the Supreme Court. The list clearly included anyone who had been filibustered in recent years and apparently also included Michael Luttig and Edith Jones and presumably a few others. The President picked a person not on the list and floated it over the weekend for reaction. While the Republicans responded well, the Democrats howled. The President's aides then added a bit of fuel to the fire by circulating other names from the Democrats' banned list, most prominently Luttig. Finally, the President made the appointment he had hinted that he would make, still avoiding anyone the Democrats had specifically black-balled. Now, my question is how it can be regarded as poking someone with a sharp stick when you give them a chance to blackball candidates and you avoid anyone on their blackballed list. The cynic in me thinks perhaps the Democrats would have howled about any qualified, conservative candidate, and perhaps that is the breach of trust -- you are given the opportunity to object in advance to potential nominees and yet you act as if you have been mistreated when a candidate whom you failed to blackball (even though he is on every short list) gets nominated?

Now as to this "Article II, we cannot trust Alito to control the executive" nonsense -- where in the world does one get the idea that Alito is "known" for his deference to executive authority? This is pure fabrication. The unitary executive argument, as others have noted, is a gross distortion. The unitary executive theory simply means that the President is the Chief Executive; it says nothing about the executive-legislative division of power. It might be relevant to some issues relating to the administrative agencies, but those issues did not come up in a significant way.

Will Alito defer on the question of Presidential power relating to the current (rather deceptively-titled)domestic spying controversy? We do not know. His reference to the Jackson concurrence in the Steel Seizure Case shows he knows the applicable law (no big surprise there). He also stated clearly that the President must operate within the law. What more could he be expected to say, regardless what his views are on the topic, without appearing to commit his vote on a case he will undoubtedly see on the Supreme Court?

Finally, the Steel Seizure Case may be instructive in other ways for the current controversy. There were three Justices on that case who had been appointed by President Truman. They voted in favor of Presidential power by a 2-1 vote. There were six who had been appointed by President Roosevelt. They voted against President Truman's claim of executive power by a 5-1 vote. Maybe hostory tells us that Alito will lean toward the President who appointed him, but that possible leaning would apply just as well to anyone appointed by the President. The more important protection, assuming there is a problem (still a somewhat open question in my mind), is likely to come from the seven members of the Court who were not appointed by this President. If the President has exceeded his appropriate bounds, do we really expect Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer to do nothing? (If the President has truly exceeded his bounds, I suspect we would see a response from Scalia and Thomas as well.) This is a non-issue. Nixon had four appointees on the Court for the tapes case; he still lost 9-0.
1.25.2006 2:29am
minnie:
Evelyn Blaine, great post, as usual!
1.25.2006 2:37am
minnie:
Justin:

The only person who wants JRB on the Court less than Democrats is Bush. JRB is a radical liberterian, and as much as you all try to pretend otherwise, Bush lacks a single liberterian bone in his body.

Well said, and so true. Another person sans a libertarian bone is Alito. Libertarians and authoritarians are oil and water.
1.25.2006 2:41am
Lurker (mail):
1. Alito stated, on a job application, that he did not beleive that there is a constitutional right to an abortion. While Sentors may have suspected that Roberts would vote pro-life, the statement by Alito and his dissent in Casey confirm those suspicions. Any pro-life Senator (or Senator worried about the pro-life vote) could certainly point to this as a distinction between the two nominees.

2. I'm sure that this will be a controversial view on this site, but is it so clear that ideology and legal qualifications are the only two legitimate criteria for Senate confirmation? Federalist Papers No. 76 speaks about the role of the Senate in preventing "the appointment of unfit characters." A plausible reading of that phrase would permit a vote against Alito on the basis that his conduct (i.e., the Vanguard issue) or his perceived insensitivity to "the little guy" in his published opinions reveal a lack of character.
1.25.2006 9:38am
srg (mail):
Although I disagree with them, I think the editorial in The New Republic and the article by Jeffrey Rosen there give the best justifications I've seen for voting for Roberts but against Alito. See tnr.com/
1.25.2006 9:49am
John Thacker (mail):
Well John, think about the illogic of your statement (even assuming your statements about qualification are assumed): Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.

You are stating a claim which I did not make. I was responding to the claim that Myers was withdrawn only under the pressure of the religious right. It was clear after the initial hearings that many Senate Democrats as well as Senate Republicans who are not "religious right," like Sen. Specter, were extremely dubious about it.

One does not have to accept a nominee who is not vetted, but it's become far too clear that the Democrats refused to "vet" any qualified conservative judge. It's ridiculous to pretend that Ginsburg is automatically much more mainstream than Alito simply because the Republicans were willing to vote for Ginsburg on the basis of her qualifications. If Justice Ginsburg changed not at all, but the Republican leadership had suddenly decided to filibuster and reject her, would that suddenly transform her to "out of the mainstream?" Or would it instead merely say something about the Republicans and their tactics?

Judge Alito is simply not that conservative. All the leading lights who have been more forthrightly conservative or shared their opinions were much more loudly blacklisted by Democrats, and their names shared with the press. Sadly for me, while most of the "more conservative" judges seem to be a bit more libertarian in their interpretations, it seems to be libertarian conceptions of the Constitution that the Democrats hate most. All the libertarian-leaning judges who would be concerned about civil liberties were explicitly warned against by the Democrats repeatedly.
1.25.2006 10:22am
John Thacker (mail):
How much different things would have been if Bush had nominated Janice Rogers Brown, a person with the most delicately honed conception of human dignity.

Yes, how much different. For one thing, Sen. Specter would have taken one look at her various speeches and statements and refused to support her. She wouldn't have made it out of the Judiciary Committee with a recommendation, and she would have been filibustered by the Democrats once on the floor of the Senate. She was a judge who the Democrats specifically said that they would filibuster and was absolutely utterly unacceptable to them.
1.25.2006 10:26am
Opus (mail):
It seems that, after forty-some posts, no real reasons to vote against Alito have been offered. Surely, if there be valid objections, someone can readily offer a specific example? Something beyond such rigmarole as "he's outside the mainstream"?
1.25.2006 10:28am
Wombat:

like Senator Feingold, whose support for Roberts cannot be seen as "political"


Actually, Feingold's support could be seen as entirely political, on both the State and National levels. As a Senator from a evenly divided state (Kerry carried Wisconsin in 2004 by approx. 11,000 votes out of 2 million+), you could view his voting for Roberts as
A)Staking out a position in the middle corresponding to the wishes of the population of his state.
B)Positioning himself in 2008 as a "moderate" presidential candidate that just happens to have a historic voting record on the strongest Democratic themes (corruption with McCain/Feingold, voting against Military Force in Iraq, etc.)
If anything, I view Kohl voting in lockstep with Feingold on the two nominees as merely an attempt to hide the moderate positioning Feingold is taking with his votes.
1.25.2006 10:43am
AlexM:
Going back to the question posed on the main page, one principled argument in favor of Roberts and against Alito is that Roberts had made a comment about Roe vs. Wade being "settled law" while Alito has refused to make his position clear.

Personally, I don't think that it's a good argument since Roberts made his comment when he was being considered for a very different kind of job, but it is an argument that I have seen made a number of times.
1.25.2006 11:33am
AllenW (mail):
I'm getting a good giggle out of the folks hinting that if the Dem's take the White House and the Senate in '08 that Republicans should filibuster their court nominees. Shows real depth of conviciton.
On Alito, I don't see the problem with the D's voting en masse against him. Republicans kept saying they wanted an up or down vote. Why should they care whether it's 97-3 or not? Just as a 5-4 Supreme case is nevertheless the law of the land, a justice confirmed 51-49 still gets to go commando under the robe. If it's divided votes now and forever more, I won't lose a wink of sleep.
1.25.2006 11:42am
JunkYardLawDog (mail):
Bork and later Thomas WERE precedent. Just for the democrats however. Republicans continued to behave in a more fair and constitutionally adult manner, hence Breyer and Ginsburg. Maybe the Republicans did this because they are just basically nicer and less idealogue and demogogic than the democrats. Maybe they did it because they are more innocent and naive in their thinking.

Hopefully, the republicans have now learned the folly of expecting foam spitting, rabid, the ends justify the means democrats, to be lead by the Republican's fair minded example on Breyer and Ginsburg.

Putting Alito on the court only moves the court back to where it was before Ginsburg. The news media is all a flitter with stories of Alito moving the court to the right (which he better damn well do), but forget the court was previously moved substantially to the left by Ginsburg in for White. Don't get me started on the whole Souter effect. Talk about somebody who lied his way into a nomination and onto the court.

Compared to Presidential election results, the court is still plus two votes for the liberal side because of the Souter effect. Souter should have been a plus 1 for conservatives and instead turned out to be a plus 1 for liberals. That's a 2 vote swing in a manner of speaking. So after Alito, we still need to replace one liberal with a conservative just to get the court to where it should have been based upon presidential election results in 1991 or 1992.

The Republican party base will demand that the Alito precedent be followed and more by Republicans in the future. Harriet Miers showed exactly what these judicial nominations mean to the base. Its the principal reason we ignore so many other non-conservative things about President Bush's past policies. When it looked like we were going to get screwed again, "Soutered" one might say, with Harriet Miers, the phone calls and emails to the Republicans, threats of cut off of all future money contributions, and to vote for a democrat if necessary to punish those participating in such a betrayal were heard loud and clear.

We aren't going to tolerate any more Souters, and we will never while in the majority support replacing a White with a Ginsburg ever again. The only thing that could stop us, are the few RINO's that desperately need to be replaced (with democrats if necessary).

Says the "Dog"
1.25.2006 11:51am
John Thacker (mail):
Just as a 5-4 Supreme case is nevertheless the law of the land, a justice confirmed 51-49 still gets to go commando under the robe. If it's divided votes now and forever more, I won't lose a wink of sleep.

Well, it is a problem when the Senate is controlled by the opposition party, yes? Strict party line votes would be bad for the country. Actually, I think most agree on that. The disagreement comes in where the blame lies for those sort of things. ("Your candidates are extreme!" "Your behavior is extreme and unfair!")
1.25.2006 12:11pm
DaveK (mail):
In addition to what others have said, even if Alito and Roberts were absolute clones of each other, the fact that Alito is poised to replace O'Connor, and Roberts replaced Rehnquist, is still of some importance.

I suspect that Roberts' confirmation vote would have been closer to party-line if Rehnquist had not passed away and he had replaced O'Connor.

Will Alito set a precedent? Maybe yes, maybe no--but the answer will depend on political expediency. How Senators--of either party--approach a nomination is a matter of the day's political winds, not a matter of stare decisis.
1.25.2006 12:13pm
AlexM:

In addition to what others have said, even if Alito and Roberts were absolute clones of each other, the fact that Alito is poised to replace O'Connor, and Roberts replaced Rehnquist, is still of some importance.


This argument was made somewhat frequently before and during the hearings, but I am not sure that it can be described as a principled argument. Is the principle at stake here a non-partisan desire to see the SC's ideological composition remain unchanged? If so, would Senate Democrats make the same argument if the Supreme Court were about to be moved to the left?
1.25.2006 12:24pm
farmer56 (mail):
Ian

"mainstream"

The people define the "mainstream". The people did that with a pole taken every 2 years on the first Tuesday following the first Monday of November on even numbered years.
1.25.2006 12:30pm
Broncos:

...I am not sure that it can be described as a principled argument. Is the principle at stake here a non-partisan desire to see the SC's ideological composition remain unchanged?


The argument that a "party-line vote" is conclusive evidence of unprincipled Senatorial voting is more of a rhetorical gambit than a persuasive philosophical position. (As is an argument about keeping the same balance.)

The fact that liberals and conservatives can have principled ideological disagreements with each other (i.e. not solely to perpetuate power) illuminates the fact that a Senator can make a principled choice to exclude a nominee from our nation's most powerful court. The President's choice to nominate someone who will probably shift the court to the right is no more (or less) principled than a Senator's choice to exclude a nominee who would probably shift the court to the right.

From the point of view of a representative democracy, why shouldn't liberal and conservative Senators and Presidents be forced to decide which principles are worth placing off-limits, and which are subject to strategic compromise?
1.25.2006 12:51pm
durfort:
Only in the insane world of Ralph Neas can Steven Breyer, much less Ruth Bader Ginsburg be considered more mainstream than John Roberts and Sam Alito. Indeed,if the decision were left to the American people, I'd put up Ginsburg's greatest hits with those of Edith Jones and take my chances.

Orrin Hatch and the Republicans realized that Bill Clinton was elected and conceeded that he had a right to appoint very liberal result-oriented justices so long as they were qualified and not utterly dranged radicals like Bruce Babbit. Such decency is utterly foreign to the donks.

Blaming Bush for the degeneracy of the process if indescribably absurd. The fact is that the Democrats in a colossal abuse of power have for over 5 years saught to overturn the results of two elections. The Republicans have patiently worked to build a Senate majority through the Democratic process, yet have not mustered the spine to prevent the Democrats from perpetuating their abuses.

While there are legitimate questions as to the legality of certain aspects of the NSA program to monitor Al Queda, suggesting that the actions in question may even begin to approximate an impeachable offence is indicative of he halucinatory hatred that has gripped so many in this country.
1.25.2006 12:58pm
durfort:
Great post Dog.

It is the case, however, that if the nominee were Maureen Mahoney, ther would have been much gnashing of teeth but she would have been confirmed with pretty much the unanimous support of Republican caucas. It was Miers utter lack of the most minimal qualifications for the job that doomed her nomination. As has been noted, Harry Reid's suggesting her speaks volumes as to his
"integrity" and enthusiasm for degrading the Court.
1.25.2006 1:10pm
Mucci:
Prof. Stone at Chicago Law School has a post on why he supported Roberts but no longer supports Alito.

http://uchicagolaw.typepad.com/
1.25.2006 1:13pm
Thorley Winston (mail) (www):
It is the case, however, that if the nominee were Maureen Mahoney, ther would have been much gnashing of teeth but she would have been confirmed with pretty much the unanimous support of Republican caucas. It was Miers utter lack of the most minimal qualifications for the job that doomed her nomination. As has been noted, Harry Reid's suggesting her speaks volumes as to his
"integrity" and enthusiasm for degrading the Court.


Good point. As someone who tried to encourage calm and spent time reigning in some of the more outrageous anti-Miers screeds, I have to agree that the bulk of the criticisms of Meirs on the political Right* were that (a) there was a perception that she was not qualified or that there were far more qualified people passed over for her instead and (b) the perception that she was a "crony" of the President.

Even if one disagrees with either of these two arguments, trying to weed out candidates who are either unqualified, cronies, or both is IMO to be exactly the reason why judicial nominees have to go through the Senate and the reason that Senator Hatch advised President Clinton against trying to nominate Bruce Babbitt.

* There simply is no truth to the idea that the Right or the "religious right" attacked her for her ideological views (what little we knew or thought we knew of them). If anything, her religious views were frequently cited as a plus by the likes of Pat Robertson and James Dobson who both strongly supported the nominee.

** Also to weed out candidates that are morally corrupt like Abe Fortias. AFAIK no one made any such allegations about Harriet Miers.
1.25.2006 1:25pm
AWH:
In the end, it doesn't matter whether or not Ginsburg or Alito are mainstream or not. They are the people the respective Presidents decided to nominate. They were both well accomplished lawyers with the capability to be qualified Supreme Court Justices.

The difference is that the Democrats have decided to obstruct and deny rather than advise and consent in the Senate. If they want to turn this into a continual political struggle, I think the Republicans should oblige them. It isn't likely that the Democrats will have enough of a majority anytime in the near future to get someone as liberal as Ginsburg through the committee, much less through the Senate - that's assuming that they win a Presidential election and have the right to make the nomination. Nor is it likely that the votors of red states will turn out Senators who vote against Ginsburg type nominees.

--Alan...
1.25.2006 1:27pm
Justin (mail):
durfort, following your line of reasoning:

John Roberts is not a deranged conservative.
Samuel Alito is a deranged conservative.

Note to other posters: This is solely for the point of showing the absurdity of durfort's argument.
1.25.2006 1:31pm
Cold Warrior:
The only "principled" distinction I can think of:

Alito has a somewhat more extensive and clear record of deference to Executive Branch decisionmaking. This is perhaps odd, since one would think Roberts would've dealt with more such (and more such hot button) issues on the DC Circuit as opposed to Alito in Newark. I think this is particularly evident in Alito immigration law decisions (which, by the way, I like). Roberts simply doesn't have such a clear record of deference to the Executive Branch. This is also evident in Alito's "unitary Executive" memos, questioning the propriety of the "independence" of federal commissions.

But that's the only principled distinction I can think of, and it's fair to say that while some Senators have made noises about it (particularly with respect to the Global War on Terror/GWOT), it certainly isn't the reason most Democrats are opposing Alito even though they supported Roberts.
1.25.2006 2:09pm
durfort:
Justin,

Both are eninantely mainstream. Drawing distinctions based on their testimony is at best counting angels on the head of a pin. Alito is so definatively out of the mainstream that he is the 3rd Circuit judge most cited by the Supreme Court. FWIW.
1.25.2006 2:32pm
Justin (mail):
durfort, as soon as you get appointed sole arbiter of who is mainstream and who is deranged, you'll have something that approaches a valid argument.
1.25.2006 3:05pm
Thorley Winston (mail) (www):
Alito is so definatively out of the mainstream that he is the 3rd Circuit judge most cited by the Supreme Court. FWIW.


Assuming that this is true, durfort would seem to have the better argument.
1.25.2006 3:29pm
Justin (mail):
Thorley, not by any stretch of the imagination. Kozinski and Reinhardt are probably the two most oft cited judges by the Supreme Court on the 9th Circuit, for obvious reasons.
1.25.2006 4:03pm
WB:
No one doubts Alito's aptitude.
Few doubt his integrity.

The only thing left is the legitimacy of his views of the Constitution. If one thinks that there is sufficient evidence to show that Alito has a view of separation of powers that is wrongly skewed toward deference to the executive (signing statements on par with legislative intent, etc.), then that--I think--is the beginning of a principled reason to vote against Alito.

The case is simply weaker on this front w/r/t Roberts.

Malchow isn't really saying anything of substance, and to claim that a "gentlemen's agreement" has been broken is to presume the conclusion. What's the substance and scope of this "agreement?" Party-line votes "set a precedent" to the extent that future Congressmen refer to them as justification for something they wouldn't otherwise do. In response to the "Ginsburg precedent" and the "Breyer precedent," the Dems have responded that "this is different." The only precedent that has been set is that judicial confirmation is now an ugly partisan issue that is more in the foreground now than it was in the past.

Seriously, imagine that the Dems take the White House and Congress in 2008. President Sheehan appoints a new Justice to the Supreme Court. The GOP threatens to filibuster/otherwise obstruct the Justice.

GOP: The Justice is out of the mainstream
Dems: No she isn't. And you owe us. We let you confirm Roberts and Alito
GOP: But you all voted against Alito for no good reason
Dems: But we let them go to a vote
GOP: That's because you had to. You filibustered in Bush's first term and paid for it in 2004 when we took out Daschle and a few others. You weren't being "gentlemanly" at all.
Dems: But half of us voted for Roberts
GOP: Again, because you had to. You didn't lay a glove on him in confirmation hearings, a better candidate isn't conceivable, and to vote against Roberts would have made you look unreasonable.
Dems: But we cooperated during the Alito hearings and didn't delay the vote. You can't do that now.
GOP: You cooperated then because it was in your interest. Years of filibustering Estrada, Boyle, etc. proved to be a Pyrrhic victory and you just calculated that you'd lose even more seats in Congress if you did something stupid. As long as we can pitch our obstruction of your Justice to our voters, we'll do it.

Or, alternatively, imagine that the Dems take the presidency, but not Congress

GOP: We will reject Judge Reinhardt if his candidacy even makes it to the Senate floor
Dems: You can't do that! We didn't filibuster Roberts or Alito!
GOP: A straigh up-or-down vote is different from a filibuster, and that's all we demanded for any of Bush II's judges.
Dems: But he's clearly smart enough to do the job, and his creative disrespect for precedent means that he'll be better suited for the Supreme Court than the Ninth Circuit.
GOP: What does that have to do with anything?
Dems: President gets who she wants, within reason. That's what you said 3 years ago. And that's essentially what the 14 Senators said when they forged that compromise
GOP: This is different. We still control the house. What about the Ginsburg/Breyer "precedent"?
Dems: That's not a precedent. First, it's just the way things turned out. Second, Clinton appointed mostly moderate Justices.
GOP: It is too a precedent. Clinton appointed moderates because if he did otherwise, they wouldn't have been confirmed. If the President and the Senate are from different parties, they should confer and reach a result that's mutually acceptable. That's more or less the definition of "advise and consent."

Ad nauseum.

My point is that any "gentleman's agreements" must be reduced to writing like the 14-senator compromise. Otherwise, the strong do what they can and the weak do what they must. That is the lesson of the confirmation battles.
1.25.2006 5:13pm
WB:
Also, when they count the number of citations to Judge Reinhardt's opinions, do they include cases like this?


The Ninth Cert decided X case. Citation to Reinhardt opinion. We granted cert to resolve Y question. Because we hold Z, we therefore reverse.
1.25.2006 5:15pm
minnie:
The people define the "mainstream". The people did that with a pole taken every 2 years on the first Tuesday following the first Monday of November on even numbered years.

Gosh, that poor guy. Maybe on odd numbered years they'll take an Iranian instead.
1.25.2006 8:32pm
volokh watcher (mail):
The Republicans in the Senate since Bush took office have been a rubberstamp.

11 Democrats broke party discipline and voted to confirm Thomas.

Republicans have not broken discipline on any Bush nominee.

Who's running the show in the Senate?
1.25.2006 9:56pm
Robert Schwartz (mail):
I say its unprincipled, and that my side wins by forfeit.
1.25.2006 10:49pm
Katherine (mail):
At the hearings, Alito was repeatedly ask whether the commander in chief power gave the president the power to secretly authorize felonies. He said it was a hard question that he couldn't speculate on, and maybe nonjusticiable too. The only reassurances he could give were:

1) a statement that the president was not above the law--meaningless when the question is whether it's lawful for the President to violate statutes &whether things like FISA and the anti-torture statute are constitutional.
2) Say he would follow Youngstown--whose holding he then proceeded to misstate.

The death penalty stuff was bad too, as were some of his old opinions. But that was the dealbreaker. Claims of unlimited executive power in wars that will have no end are not things I take lightly. If a bunch of self-described libertarians find that incomprehensible and unprincipled--well, what can I say.
1.25.2006 10:53pm
Thorley Winston (mail) (www):
11 Democrats broke party discipline and voted to confirm Thomas.


How many Republicans "broke party discipline" and voted to confirm Ginsberg and Breyer?
1.25.2006 11:54pm
Buck Turgidson (mail):
I am never surprised at the depth of "libruhl"-bashing on VC anymore. There is simply no limit to how low people can sink in order to justify their ideology. But some arguments—if I can have the liberty to refer to them as such—deserve a thrashing. To wit, Robert Schwartz wrote,

I claim a forfeit. There are no principled reasons to vote against Alito.

Of course, it has become the sine qua none of the conservative argument to claim that there is no argument in opposition. So, by default, "the good guys" win, right?
It is quite clear that the Senate Dems, for the most part, have dropped the ball in the committee. Schumer and Feingold notwithstanding, the questioning was timid and limpid. And going after Alito on the Rove v. Wade issue is simply beating a dead horse—that's not where his evil lies.

Alito has repeatedly and openly admitted that he would say absolutely anything to get a job. So either he fabricated his own views when applying for the jobs in Reagan administration, or he's fibbing now. Aside from the simple view that his behavior is unethical for someone who is aspiring to be on the Supreme Court, there is a deeper problem. Alito has no principles. And if he does, he's so ashamed of them that he feels obligated to lie about them. This is what we want on the Court?
Alito is not a "maintream conservative". I can agree with that. But the reason for this has nothing to do with his lack of adherence to the traditional conservative positions. Quite to the contrary, his lack of ideology arises from being unprincipled rather than intellectually consistent. He has his masters and he desires to serve them. There is no conservative butt big enough that Alito would not wipe with his nose.
As for Alito's being a "process conservaitve", someone should review the judicial history of the Third Reich. The German courts were full of "process conservatives" who rubber stamped any heinous edict that came their way. The man has no soul, pure and simple. The role of Senate advice and consent is precisely to weed out the robotic nitwits who are incapable of overcoming their knee-jerk reactions in favor of the strong simply because "process" demands it.

And the one thing I simply cannot comprehend is how any pol can possibly refer to this guy as "intelligent". He's a paragon of intellectul mediocrity. His written opinions prove it. If anyone kept track of the judicial success (the fraction of opinions that eventually wound up being upheld or final), Alito would be at the bottom of the barrel. There are few judges, if any, who have been in the minority or overturned more often than Sam Alito. There is a reason why he resided in the same court longer than any other judge—he's simply incapable of doing anything else. He's been singing praises to life-term appointments since the day he got the job. What many people don't seem to understand is that an educated person is not always intelligent, and vice versa. Alito clearly has the educational credentials, but his intellectual resume leaves a lot to be desired. Contrast this with Roberts who, despite clearly being a silver-spooner, has demonstrated his intellectual ability in spades.
1.26.2006 1:22am
Buck Turgidson (mail):
I am never surprised at the depth of "libruhl"-bashing on VC anymore. There is simply no limit to how low people can sink in order to justify their ideology. But some arguments—if I can have the liberty to refer to them as such—deserve a thrashing. To wit, Robert Schwartz wrote,

I claim a forfeit. There are no principled reasons to vote against Alito.

Of course, it has become the sine qua none of the conservative argument to claim that there is no argument in opposition. So, by default, "the good guys" win, right?
It is quite clear that the Senate Dems, for the most part, have dropped the ball in the committee. Schumer and Feingold notwithstanding, the questioning was timid and limpid. And going after Alito on the Rove v. Wade issue is simply beating a dead horse—that's not where his evil lies.

Alito has repeatedly and openly admitted that he would say absolutely anything to get a job. So either he fabricated his own views when applying for the jobs in Reagan administration, or he's fibbing now. Aside from the simple view that his behavior is unethical for someone who is aspiring to be on the Supreme Court, there is a deeper problem. Alito has no principles. And if he does, he's so ashamed of them that he feels obligated to lie about them. This is what we want on the Court?
Alito is not a "maintream conservative". I can agree with that. But the reason for this has nothing to do with his lack of adherence to the traditional conservative positions. Quite to the contrary, his lack of ideology arises from being unprincipled rather than intellectually consistent. He has his masters and he desires to serve them. There is no conservative butt big enough that Alito would not wipe with his nose.
As for Alito's being a "process conservaitve", someone should review the judicial history of the Third Reich. The German courts were full of "process conservatives" who rubber stamped any heinous edict that came their way. The man has no soul, pure and simple. The role of Senate advice and consent is precisely to weed out the robotic nitwits who are incapable of overcoming their knee-jerk reactions in favor of the strong simply because "process" demands it.

And the one thing I simply cannot comprehend is how any pol can possibly refer to this guy as "intelligent". He's a paragon of intellectul mediocrity. His written opinions prove it. If anyone kept track of the judicial success (the fraction of opinions that eventually wound up being upheld or final), Alito would be at the bottom of the barrel. There are few judges, if any, who have been in the minority or overturned more often than Sam Alito. There is a reason why he resided in the same court longer than any other judge—he's simply incapable of doing anything else. He's been singing praises to life-term appointments since the day he got the job. What many people don't seem to understand is that an educated person is not always intelligent, and vice versa. Alito clearly has the educational credentials, but his intellectual resume leaves a lot to be desired. Contrast this with Roberts who, despite clearly being a silver-spooner, has demonstrated his intellectual ability in spades.
1.26.2006 1:22am
Dales (mail) (www):
like Senator Feingold, whose support for Roberts cannot be seen as "political"


Your claim is false. I have viewed Senator Feingold's support for Roberts as being political from the get-go.
1.26.2006 7:01am
Dales (mail) (www):
By nominating Judge Alito to the Court, President Bush has invited all future Democratic Presidents to nominate Justices who are exactly as offensive to the right as Judge Alito is to the left.


Stipulating to your premise (for the sake of argument), with their impending near-party line vote, the Democrats will have invited all future Republican Senate caucuses to vote against any Democrat's nominee to the SCOTUS. Further, by the left finding a perfectly mainstream judge like Alito "offensive", the left has invited the right to view any nominee to the left of, say, Breyer to be "offensive."

And if we get a filibuster, the Democrats will have invited the Republicans to block pretty much any Democratic nominee on the basis of ideology---- and the Democrats have very little hope of getting a filibuster-proof majority in the Senate during the rest of our lifetimes.
1.26.2006 7:09am
Mr. Lee:
Buck Turgidson:

As for Alito's being a "process conservaitve", someone should review the judicial history of the Third Reich. The German courts were full of "process conservatives" who rubber stamped any heinous edict that came their way.


Per Godwin's Law, you lose the argument. Though I'm willing to forego an automatic win for another fan of Dr. Strangelove.

I agree, Buck, that Dems are beating a dead horse with Roe v. Wade. They can't defeat the nominee on those grounds.

However, your further assertion that Judge Alito will say and do anything to get a job seems a little farfetched. It sounds like the malicious version of the observation made about John Roberts - that is, that he seemed to be preparing for this job his whole life. But because Alito isn't the personality Roberts is, the argument has evolved into its current form.

I tend to think that without a bottom-line message about Alito, Dems have given up. They need to put up a fight to keep the activist base happy (much as Republicans would in the reverse position; and I don't see the parallels to Ginsburg or Breyer because, like it or not, the political atmosphere has changed in the past 10 years) but I think they realized from the start that they would fight a losing battle against him. I could be very wrong on that, and I welcome reasoned debate.
1.26.2006 10:20am
farmer56 (mail):
Minnie

I defined 'mainstream' Your being snarky (or, incoherent) is not helpful. You define 'mainstream' I wont hold my breath.
1.26.2006 3:18pm
farmer56 (mail):
Buck, Where to start?

How about, just, one of your points.

Use your standard. Doest the name Robert Bork come to mind?

How 'bout you come up with a judge that has a higher percentage of being upheld by the supremes?
1.26.2006 5:25pm
minnie:
Buck Turgidson has made the principled argument against Alito, and made it brilliantly. And he has accurately stated why the same argument does not apply to Roberts.

Unfortunately, the Democrats and the special interest groups were either not bright enough to see it, or they just don't care that much about who has a soul and who doesn't. The "issues" become the sole focus, and everyone is too politically correct to point out the defects in the man himself, even if they noticed them, which most apparently didn't.

Farmer, if a feeble joke rises to the level of "snarky", then I plead guilty. I was just making a pun on the "pole" who was taken on even numbered years.
1.29.2006 6:55am