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WSJ and NY Times on Alito:

Excerpted from the WSJ yesterday (I can't tell whether it is available for free on opinion journal or through my WSJ subscription):

The Roberts-Alito Court Thank you, Ted Kennedy and Ralph Neas.

Thursday, January 26, 2006 12:01 a.m. EST

With at least 52 Senators already on record in support, it's clear that--short of some smear ex machina--liberal Democrats can't stop Samuel Alito from being confirmed to a seat on the Supreme Court. So it's a good moment to consider what this says about our politics and what it means for the Court as it enters a new era.

One conclusion is that the confirmation of both Chief Justice John Roberts and Judge Alito marks the most important domestic success for President Bush since his 2003 tax cuts. These look like legacy picks. Despite the Harriet Miers misstep, Mr. Bush has now fulfilled one of his campaign promises. And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles.

In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.

The Roberts-Alito Court also represents a notable, and greatly satisfying, rebuke for the legal left and its "borking" strategy. They have long thought of the courts as their personal legislature, and they have shown they will do and say anything to keep control of it. But this time they lost, and on their own ideological terms.

Senator Chuck Schumer declared in 2001 that he wanted to turn judicial confirmations into battles over "ideology." The New York Democrat succeeded in doing so, but he ended up losing in a self-knockout. One reason Democrats couldn't defeat Chief Justice Roberts or Judge Alito, despite near party-line opposition, is that their filibuster strategy had made judges a top-line election issue in both 2002 and 2004.

The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority. The Democrats who remain in red states--five of whom are up for re-election in November--saw all this and had no appetite for a repeat in 2006. The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.

In contrast to the WSJ's evident glee, the NY Times is "frightened" of Judge Alito and is calling for a filibuster, "Senators in Need of a Spine":

But portraying the Alito nomination as just another volley in the culture wars vastly underestimates its significance. The judge's record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else. He has expressed little enthusiasm for restrictions on presidential power and has espoused the peculiar argument that a president's intent in signing a bill is just as important as the intent of Congress in writing it. This would be worrisome at any time, but it takes on far more significance now, when the Bush administration seems determined to use the cover of the "war on terror" and presidential privilege to ignore every restraint, from the Constitution to Congressional demands for information.

***

Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

Brian G (mail) (www):
Why thank Ralph Neas? He has about as much political influence as I do. Zilch.
1.27.2006 4:02pm
Commentation:
The "more" tag can be useful.
1.27.2006 4:02pm
mike (mail):
"And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles." - WSJ

It's funny because 50% of America and a majority of legal scholars think the exact opposite is true and that these 2 appointments will take us farther away from a Constitutional interpretation.
1.27.2006 4:20pm
nyejm (mail) (www):

[H]e is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances . . . and has espoused the peculiar argument that a president's intent in signing a bill is just as important as the intent of Congress in writing it.


So, to recap, the other branches checking the Executive is important, but the Executive checking the other branches is "peculiar." Got it.
1.27.2006 4:24pm
recapper (mail):
Nyejm,

Close but not quite. The Executive checking the other branches is peculiar right now, but may be essential after the next election. Check back with the NYT from time to time to see where that stands. (Remember that the NYT slammed filibusters not too long ago, but now thinks they're swell.)
1.27.2006 4:34pm
danny (mail) (www):
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1.27.2006 4:40pm
Rodger Lodger (mail):
The Democrats (and the Republicans) do not want judges, they want software. In that case, the winner should be the more politically popular party, and that's the GOP. Shumer had the right idea at the wrong season. Check out Ann Coulter's "joke" about Justice Stevens at cnn.com.
1.27.2006 4:49pm
Kovarsky (mail):
i'm getting increasingly frustrated by a fundamental mathematical error in the thinking with respect to alito and the filibuster. to explain my point, i'm going to assume the posture of a liberal opposed to the appointment of more "conservative" (cringe at the label) judges.

everyone keeps saying that alito is even "more" important because he replaces the swing vote, justice o'connor (SDO). presumably that is because the median vote is the most important. well, if the median voter is the most important, people should be comparing the court with o'connor as the median with a court that has kennedy as the median. measuring the court's delta as the difference between alito and o'connor doesn't make sense, because alito wouldn't be the new median voter.

of course the appointment does increase the likelihood that the NEXT appointment might result in a more exaggerated shift to the right in the median vote, and my crude explanation assumes the median voter is the median voter on all issues, but those concerns are really secondary.

why use a filibuster and have the republicans into the nuclear option where the only real impact your feeling is the difference between oconnor and kennedy? why not wait until a stevens replacement, where the shift in the court's median is much more dramatic - from kennedy to roberts?

in sum, i think wasting the filibuster - irrespective of its prospects for short term political success - is a strategy premised in part on a horrible, horrible mathematical oversight.
1.27.2006 4:52pm
stealthlawprof (mail) (www):
Kovarsky --

Your mathematical analysis of the situation is correct and should not be difficult to understand. However, if the Senate Democrats could understand simple concepts and acknowledge that which is correct, we would not be having this discussion.
1.27.2006 5:14pm
volokh watcher (mail):
Todd said: "the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles."

Todd, what founding principles are you referring to?

The ones espoused by the dissent in Gonzales v. Oregon? Or those in Lochner?
Or would it be those that compelled the Supreme Court to give a "liberal" interpretation to the Bill of Rights for the reasons explained in Gouled v. United States, 255 U.S. 298, 303-304 (1921), when the Court said at a time *EARL WARREN WAS A 30 YEAR-OLD DEPUTY D.A.*:

"It has been repeatedly decided that these Amendments [the 4th and 5th] should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers."

I know, I know. G-- v. O-- was purportedly a case of statutory construction. But the dissent chose to expand executive authority at the expense of the states . . . and, for that matter, Congress. That doesn't sound very consistent with the "founding principles."

And Lochner is no better than Roe.

And the very idea of generously reading the Bill of Rights would be, well, anathma in this day and age of Commander-in-Chief powers trumping all others.

I don't see either Roberts or Alito restoring "founding principles" -- without further definition by Todd.
1.27.2006 5:26pm
farmer56 (mail):
Kovarsky

Of course the people decide the mainstream. Please feel free to offer a different deffinition. But my deffinition, incluludes the 'people' us low lifes.

the mainstream gets defined every 2 years by a somewhat large poll, taken on the first Tuesday following the 1st Monday of November on even numbered years. Guess what? The winners of those polls 'define' "mainstream" its a bitch, but, its is the truth.
1.27.2006 5:28pm
Kent Scheidegger (mail) (www):
Mike, what is your source for your "50% of America" figure? The Gallup Poll on Tuesday reported 54% aye, 30% nay, 16% duh. Looks like you are 20% off.

Since the "majority of legal scholars" are not in favor of courts following the real Constitution in the first place, I would consider them a contrarian indicator.
1.27.2006 5:37pm
Kovarsky (mail):
Farmer56,

Can you please elaborate on what you mean. Specifically, where did I offer a definition of mainstream and what was the definition I offered?

Thanks,
K
1.27.2006 5:38pm
Beerslurpy (mail) (www):
Watcher and mike, I think the "founding princples" they were talking about were the general understanding that the federal government is one of limited and clearly enumerated powers. Current Commerce Clause jurisprudence flies in the face of a limited US govt and is a twisting of the text of the constition.

Another "founding principle" is that the text of the constitution (and of the law) must be interpreted in a simple and straightforward manner. For if the plain meaning of the text is interpreted away, how can legislature correct this? If you interpret "the sky is blue" to mean "the sky is red" what text can possibly compel the courts to rule "the sky is blue."

Similarly:
-if one interprets the 2nd amendment to not confer an individual right upon the people, what possible wording could confer such a right?
-if one interprets "interstate commerce" to mean "all things, whether interstate, commercial or neither" what possible wording will restore the original limited meaning?
-if one interprets the 4th amendment to mean "anything convenient for police officers in stopping crime" what wording can we employ to restore the original meaning?

The point I am trying to make is that the Constition (and indeed all laws) consists of text. We must defer to the text of the laws or we are not deferring to the laws. A judiciary unbounded by the text of the constition is just as dangerous as an unbounded president or congress. The law is not immutable, but the judiciary is not the branch of government empowered to change it. Change comes to the law by enacting changes to the text, not radical and creative changes to the interpretation.
1.27.2006 5:54pm
TMC (mail):
"Chief Justice John Roberts... has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment." Huh?? Anybody have any idea what they are referring to?
1.27.2006 6:02pm
Kovarsky (mail):
TMC

Probably the Oregon case.
1.27.2006 6:03pm
mike (mail):
Beerslurply, I'm very familiar with conservative originalist legal theory (and textualism) and both pretend like they are the only legal theories that stick to the Constitution's principles. I'm saying most people don't agree with those theories or that proposition.

"Another "founding principle" is that the text of the constitution (and of the law) must be interpreted in a simple and straightforward manner. For if the plain meaning of the text is interpreted away, how can legislature correct this? If you interpret "the sky is blue" to mean "the sky is red" what text can possibly compel the courts to rule "the sky is blue."" - beerslurpy

Ah yes the fundamental classical textualist proposition - that there is only one law and that with enough work and thought, every good judge should come to the same conclusion about what the same piece of text means. Hah! The reality is that the law is very nuanced and can be interpreted reasonably in many ways.




ON a subnote, why is everyone pretending like this is some sort of victory for the Federalist Society? Alito is a strong proponent of less restrictions on executive power. In some ways he is a successor of Washington, Hamilton, and Adams - a stronge federal government and strong presidency at the expense of Congress and States' rights (the opposite of Jefferson).
1.27.2006 6:16pm
Gordo:
I'm surprised Senators didn't ask Alito to pledge to overturn INS v. Chadha. That was as much a brake on legislative power as anything President Bush has done.
1.27.2006 6:58pm
Per Son:
I was just reading that Madison was nothing at all close to a textualist until Hamilton started pushing for the Bank. Then, and only then, did Madison abandon his beliefs expressed in The Federalist about Constitutional interpretation (specifically the Necesary and proper Clause) and argue strict textualism.

Interesting . . . it is no different than today. That is, policy guides interpretive philosophy. I'll be fair, and point out that while I disagree with Thomas most of the time, he is very principled and sticks to one philosophy. Scalia, on the otherhand, is as ends-oriented as can be.
1.27.2006 7:00pm
Beerslurpy (mail) (www):
Wait a second, you havent actually come up with a means of resolving this fundamental problem. Nuances are one thing, interpreting words to mean the opposite of what they say essentially consists of IGNORING the text of the law. You claim there are other schools of interpretation, but you dont actually show one that permits justices to ignore the text of the law and not produce the bad results I gave as examples. It isnt about "keeping with the constitution's principles" because the constitution doent embody vague principles. The constitution IS law. Its principles are very clearly embodied in its text. Much of the power of the constitution is lost if tyrannical executive branches, progressive justices or overeager legislators can simply disregard the words it contains. Separating the power and intent of the constitution from its text is completely impossible.

Interstate commerce up till Wickard v Filburn always meant things that were both interstate and commercial. It was often assumed (correctly IMO) that it was a power granted by congress to deny it to the states. During the articles of confederation, the states enacted many laws regarding interstate commerce and it made a mess of things. So instead congress was tasked with making uniform laws on the subject. This wasnt intended to allow congress to regulate entire classes of activity that merely included interstate commerce, nor was it meant to grant congress authority to regulate things that merely affected interstate commerce. Under a textual interpretation doctrine, the constitution does not visit these two areas so we must assume that the constitution does not actually grant such authority.

Under the reigning doctrine of constitutional interpretation I refer to as the "results-oriented make shit up doctrine," interstate commerce means whatever 5 justices on the supreme court feel like. Neither the text of the commerce clause nor prior rulings by the supreme court lend any real light to determining whether or not congress properly enacted a given statute. In light of Raich I could never have predicted the outcome of Oregon v Gonzales. Same justices separated by a few months on practically the same issue. Insane.

The current way of doing things is capricious and inconsistent. These are not characteristics I normally associate with a rule of law. What is the point of stare decisis if the justices change their minds every few weeks? Better to actually defer to the text of the constitution and let other people be in charge of changing it.
1.27.2006 8:25pm
mike (mail):
""results-oriented make shit up doctrine,"" - beerslurply

Beerslurpy, please stop pretending like only liberal justices have a "results-oriented make shit up doctrine." Conservative justices like Scalia and Thomas do exactly the same thing. They only abide by their states' rights principles when it suits their political ends. They claim they are for states' rights and then they go around voting to overturn Oregon's assisted suicide law or California's medicinal marijuna law based on commerce clause grounds. PLEASE! Talk about a "results-oriented make shit up doctrine." Their philsophies sound great on paper but they make as much shit up if not more than liberal justices.
1.27.2006 9:48pm
Bezuhov (mail):
"Beerslurply, I'm very familiar with conservative originalist legal theory (and textualism) and both pretend like they are the only legal theories that stick to the Constitution's principles. I'm saying most people don't agree with those theories or that proposition."

Actually, no. Thankfully the majority of your fellow citizens have not become lost in a maze of sophist obfuscation as you apparently have. Yet. There is hope.

"Beerslurpy, please stop pretending like only liberal justices have a "results-oriented make shit up doctrine." Conservative justices like Scalia and Thomas do exactly the same thing."

The perennial "I know you are, but what an I?" defense. Brilliant! The word "liberal" appears nowhere in any of Beerslurpy's posts. The only pretense here is in your responses.
1.27.2006 10:48pm
Beerslurpy (mail) (www):
Nice try. This isnt about liberal or conservative justices. This is about judicial philosphies.

I am not arguing "liberal justices are bad because only they do X" I am arguing that "doing X is bad." Ignoring the text of the constitution or of the laws is bad regardless of who does it. It was bad when Scalia did it in Raich. Just as bad as the 5 other justices who made up the Raich majority.

Liberal justices have been the greater offenders, if only because results-oriented conservatives have been more fond of textualism and originalism. However, I propose that all justices should adhere to textualism and originalism REGARDLESS of the outcome. Changing laws to produce desireable outcomes is the domain of legislatures, not the judiciary.

If adhering to the text and original intent of the constitution produces outcomes that most americans dont approve of, then a supermajority can amend the constitution so that it produces outcomes they like. But how many states do you imagine would approve of a post-Wickard re-wording of the Commerce Clause?
1.27.2006 10:57pm
Wintermute (www):
Back in the days of big-L Libertarianism, we understood what "statism" is. While I appreciate and even look forward to Alito's votes for true federalism, I fear his statism.

Federalism is such a contradictory term anyway, associated in the early days of the republic with a strong central government but in latter days with states' rights. Statism is the philosophy of dominance of the tyranny of the majority over the idea of natural rights.

Statists? Rehnquist (my sister was a pal of his daughter Janet at UVA), Scalia, and now Alito. The disappointments? Breyer, and to a lesser extent Ginsburg. The interesting and principled wild card? Thomas.

The American people are not special anymore; they do not know our amazing political history, but are careless consumers of pop culture. People get the leadership they deserve. I am glad I am not immortal.
1.28.2006 12:22am
Beerslurpy (mail) (www):

The American people are not special anymore; they do not know our amazing political history, but are careless consumers of pop culture. People get the leadership they deserve.

I'm not totally sure that Alito and Roberts will be big on government authority, but I wouldnt put money against it.

The essential problem is that there arent throngs of people demanding limited government and the right to make choices and take responsibility for their lives. Everyone wants to have their ass wiped and to have their will imposed upon their neighbors. We live in an era of busybodies and petty tyrants. At some level, we are going to have a government that reflects these urges. I would prefer that such tendencies manifest themselves at the town or homeowners association level, mostly because it would mean less travel for me to escape it. When these attitudes manifest themselves at the state or federal level, it becomes much harder without becoming an ex-at.

I wish there were some mechanism by which society could get rid of all the dead weight and stupidity from time to time. Invasion ultimately did it for the romans. Unfortunately there wasnt much empire left afterwards. I have come to the creeping realization that things will probably get worse before they get better, assuming they get better in my lifetime.
1.28.2006 1:22am
Bezuhov (mail):
"The American people are not special anymore; they do not know our amazing political history, but are careless consumers of pop culture. People get the leadership they deserve."

The specialness has never been so much about knowledge as about sheer audacity. The audacity to leave one's mother country behind to chase dreams in a totally foreign land, the audacity to believe that liberty and democracy might endure when everyone knew that of course this was hopeless. Had they been knowledgable by the standards of the time they wouldn't have been here, or being, they would have been monarchists like every other respectable person in the world.

As long as the waves of immigrants come, without enough sense to know better, reports of our death will be premature. And, Wintermute, you don't know you're not immortal. Yet. ;-)
1.28.2006 4:12am
Zywicki (mail):
Volokh Watcher:
That's a quote from the Wall Street Journal, not my words.
-TZ
1.28.2006 7:28am
Kovarsky (mail):
Beerslurpy,


In light of Raich I could never have predicted the outcome of Oregon v Gonzales. Same justices separated by a few months on practically the same issue. Insane.


Raich is a commerce clause case.

Oregon was an admin case.
1.28.2006 10:59am
Beerslurpy (mail) (www):
So Oregon can determine what a "valid medical use" is but California can't? Oh right, because marijuana consists of interstate commerce, even when it doesnt participate in either commerce or interstate activity.

Behold! The swing vote speaks!

The specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically authorized under state law.

Can this be the same court that found nearly the same thing to be a constititonal exercise of congress's authority 2 months ago? Executive action taken (FDA Scheduling) under the CSA could override state law, but suddenly it cant! Magnificent!


The CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision.

"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together." §903.

Where was this interpretation of the text hiding in 2005?

This sophistry has no place on the high court.
1.28.2006 5:31pm
Beerslurpy (mail) (www):
And I was quoting from Kennedy's opinion, obiously.
1.28.2006 5:33pm
Kovarsky (mail):
BeerS,

I was just pointing out that Oregon was an admin case. Only the dissent reached the commerce clause issue, because the majority found the regulation unconstitutional under auer/chevron/meade.

My point was just that if you are going to make a point about the justices' disingenuousness, your referent should be the admin cases, not the commerce clause ones.

Cheers,
K
1.28.2006 6:49pm
Beerslurpy (mail) (www):
Referring to Oregon as a pure statuatory interpretation case is disingenious because interpreting the statute in the way the majority did implicitly assumes that the underlying principles addressed in Raich are now very differently applied. That was the point I tried to raise in quoting the majority opinion.

The most damning criticism of their stated approach is that the distinction they draw between Raich and Oregon is that the intent of the CSA was to regulate illicit drugs. This supposed intent is found nowhere in the controlled substances act, which (as correctly observed in Raich) is an omnibus regulation of virtually all chemicals which have some relation to medicine, in addition to many that do not. The intent, as clearly noted in Raich, was to prevent all "misuses" of controlled substances, regardless of whether they inhabit schedule 1 or schedule 5.

Since Raich clearly places the ball in the fedgov's court and the CSA clearly gives the attorney general the authority he is claiming, the distinction drawn in Oregon is meaningless UNLESS you assume that new boundaries have been drawn, which (as the dissent notes) HAS NOT BEEN EXPLICTLY DONE.
1.28.2006 7:50pm
Just an Observer:
Could someone -- especially someone who favors President Bush's expansive view of exclusive executive war powers -- explain to me what evidence there is that Alito supports it? I know that is the Democratic party line, and I suspect that some Bush supporters wishfully think Alito and Roberts are their natural allies. But I just don't see objective support for the hypothesis.

I am interested both in respect to the general issue of executive power (basically the John Yoo theory espoused by the Bush/Cheney neoconservatives), and the specific controversy over NSA surveillance.

My own prediction is that if these issues were squarely presented to the Supreme Court, neither new justice likely would vote the President's way.
1.28.2006 7:52pm
Kovarsky (mail):
Beerslurpy,

While I think there is something to your instincts, and I hardly want to appear to be a Raich supporter, I think the "intent" about which the opinions speak is slightly different.

I think the Oregon "intent" issue involves whether Congress intended to incorporate state definitions of a statutory term. In other words, the Court read the statute not as saying that state law applies of its own force, but rather only by force of federal law that incorporated state law definitions of the statutory term.

This distinction between the source of content and the source of authority is important because wheras in Oregon the issue was whether Congress intended to delegate to the AG the authority to usurp state law as a source of content, wheras Raich was about the authority of congress to usurp that state authority in the first place.

As a side note, I'd argue that - aside from the the oral argument in the cross burning case - Raich is Thomas's high point on the bench. I think it did more to distance himself from Scalia than any other decision.

JaO,

I'm not a Bush/Cheney person, but I agree with you wholeheartedly. I don't see anything in the confirmation hearings that would lead me to believe that they would with the admin on the executive power stuff. I know Alito affirmed his belief in the "unitary executive" theory, but explained that as he understood it, that theory referred only to the notion that within the executive branch, the president has the ultimate say-so. He expressly noted that he didn't subscribe to the notion that the power itself was particularly broad.

Not that anybody's going to have standing to get the issue there, though.

Boy, the neocons took it on the chin this week, both here and in the middle east.
1.28.2006 10:16pm