Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 31, 2005
LAW: Alito's Way

At 8 a.m. this morning, President Bush is scheduled to nominate a successor to Justice Sandra Day O'Connor for the third time (bear in mind that John Roberts was initially tapped to replace Justice O'Connor), and it will, in fact, be Judge Alito of the Third Circuit. As I've said, Judge Alito isn't necessarily my first choice, but he's unquestionably qualified, with a wealth of experience (bio here), including 15 years as a federal appeals judge and 13 with the Department of Justice, first as a trial-level prosecutor for four years in New Jersey, then in DC with the Solicitor General's office and as a deputy assistant Attorney General during the Reagan years (1981-87), then as US Attorney for New Jersey from 1987 to 1990. He's a fine choice and a guy who shows every sign that he'll serve with distinction and, like John Roberts, can be expected to exceed the existing standards for Supreme Court nominees in terms of his accomplishments and brainpower.

Harry Reid is promising a fight. One popular caricature of Alito is the monicker "Scalito," hung on him by some journalists, but I gather he's really not as similar to Antonin Scalia as conservatives would like or liberals would fear; we'll learn more in the days to come, but it does seem that the nickname plays off of his ethnicity and journalistic laziness rather than any genuine similarity in temperament, style, or declared philosophy.

More Alito links here, here, here, here, and here.

UPDATE: Welcome visitors! Look around the site, this is just the tip of the iceberg of posts on the Alito nomination.

Posted by Baseball Crank at 7:20 AM | Law 2005 | Comments (32) | TrackBack (1)
Comments

Bush didn't consult with the Senate on this pick; all deals are now off. Filibuster time.

Posted by: AstrosFan at October 31, 2005 10:25 AM

Gimme a break. This is Bush's third nomination in three months. Alito's name has been out there, and if Reid et al wanted to make their views on him known, they had plenty of chances in their prior consultations.

Posted by: The Crank at October 31, 2005 10:29 AM

Right or wrong, I think they're gonna battle here. We could see a Summer '14-level escalation here: Bush withdraws Miers, Dems sabre rattle, Bush tabs Alito, Dems rattle more, GOP circles the wagons around Alito, Dems filibuster, GOP goes nuclear. We could be staring at a potential Constitutional Crisis by Christmas!

Personally, based on my "pox on both their houses" sensibilities, as well as my disgust at the non-stop spending by the Federal government, I'd like to see Congress shut down for a while.

Posted by: Mike at October 31, 2005 10:44 AM

Mike,

I have to disagree. A Dem filibuster followed by the Republican's voting for a internal senate rules change does not add up to a Constitutional crisis. Separately, I don't think that many Dem's would vote to maintain the filibuster. There are probably a couple honorable ones and then you have those up for reelection who would have to explain why they refuse to do their job and vote yes or no on the nominee.

Posted by: LargeBill at October 31, 2005 11:18 AM

Well, I agree it would be nice if a fight over judges stopped them from spending our money . . . as LargeBill notes, where's the "constitutional crisis" - there's nothing in the constitution about filibusters.

The first hurdle, before any "nuclear option" even gets on the table, is getting 41 Senators to agree to filibuster Alito. The justification can't be a generalized claim that Alito is an extremist, given that he was unanimously confirmed in 1990. Nor is there an argument that he's unqualified. Instead, 41 Dems will have to argue that something in his decisions since then makes him "extreme" in a way that Roberts was not. That's gonna be hard, esp. for Senators from states that voted heavily for Bush in 2004 knowing full well that Bush promised Scalia/Thomas-type judges, that Bush is pro-life, and that Bush opposed same-sex marriage.

George Mitchell on Fox this morning was noting that they didn't filibuster Clarence Thomas even with the votes to do so.

Posted by: The Crank at October 31, 2005 11:28 AM

I agree re use of the word "Constitutional." Couldn't think of a more appropriate word when I wrote it, so just got lazy. I guess "Congressional Protocol & Procedure Battle" doesn't have the same ring as "Consitutional Crisis." Nonetheless, if an across-the-aisle bicker-fest escalates into a threatened shut-down, we may colloquially say the crisis has taken on Constitutional proportions -- it ain't Article ONE for nothing.

As for the second point, you're probably right. But politics is a strange game, depending on subtle swings in power and the perception of that power. Hypothetically, if the GOP really is on the ropes, it very well might be in the Dems interest to throw the haymaker right NOW. Ethically, I reject that, but I find the whole political game somewhat inconsistent with true governance. To me, at least, the distinction between a great politician and a great statesman is important. Clinton or Bush, for instance, may be the equals of FDR and Lincoln in the first category. But the second?

Politically, the Dems' job is to kick the GOP's ass. And the GOP's job is to do the same to the Dems. I fear that looking out for the country is a distant number two. So, based on my (admittedly cynical) opinion, I don't expect a crisis, but I'd hardly be surprised.

Posted by: Mike at October 31, 2005 12:01 PM

I didn't see that Bush consulted on the pick, nor did I read you to say it actually had occurred, Crank. Seems to me like you don't think one is ever necessary, which may be true, but that AIN'T the deal that was struck to avoid filibuster.

I think the point is to have a personal conversation with the opposition to avoid making a bad decision that hurts the country by dividing it. There are a lot of "names out there", and it is specifically about a particular name before they are named to ensure that the nation is not divided if it can be avoided, and if there can be a consensus pick. And it is not just Reid but Specter that was slapped by this.

But, alas, Bush is in trouble, so he's going the red meat way out of it, which means trouble for us all.

Posted by: AstrosFan at October 31, 2005 12:32 PM

Astrosfan,

I'll cut ya slack for being so silly and chalk it up to still being upset about the sweep by Chicago. When the position opened and again when Rehnquist passed on Bush consulted with the Dems. That doesn't mean he lets them make the pick. If there was a Dem majority in the senate then they may have a case to whine about consultation. But being in the minority they have no standing in the matter. Plus, Bush is finally realizing that the left is going to slander whomever he names so it doesn't matter.

Posted by: LargeBill at October 31, 2005 1:06 PM

What deal did Bush make to avoid a filibuster?
Judges are not in their spot to unite or divide the country. Their job is to apply the law through the prism of the Constitution.

Posted by: rbj at October 31, 2005 1:06 PM

He consulted and they agreed on Miers as a consensus pick. Now that Bush wants to pick someone else, the process starts over. It is not about selecting the pick for him, it is about working together to find one that all can agree on, as the Senate has a role in this. They clearly did this on Miers.

And BUSH is in a position to unite or divide, and he has chosen to divide with this selection (I did not say it was a judge's job, for it is clearly not...change your handle to strawman, why don't you). He promised to unite, and we can list that with all of his other failures in this administration. New tone? Not hardly.

And I am quite clear in my team's loss...all games were close, and I got to see Bagwell and Biggio bat in the World Series...winning isn't everything.

Posted by: AstrosFan at October 31, 2005 1:27 PM

Astro,

He showed up in DC ready to set a new tone and the libs have done nothing but reject his overtures. If anything Bush went too far in trying to accomodate the minority party. He actually let your reprobate Kennedy basically write the NCLB crap and forced the Republicans to approve it. What did it get him? Kennedy has been just as vicious and bitter towards this administration. Kennedy's treatment of Janice Brown was terrible. Heck, Kennedy made the same claims about liberal Souter that he made about Bork just because Souter was nominated by a Republican (Bush 41). The real issue is special interest money so controls the purse strings that they feel they have to act like fools in order to appease those their masters. Some like Feinstein, Boxer, Kennedy, and their ilk wouldn't be happy with any justice Bush nominated unless the nominee was an abortionist. Don't kid yourself for a minute, if Miers had not been scuttled by the right for being less qualified than other choices then Kennedy and friends would have attacked her for her pro-life views.

Posted by: LargeBill at October 31, 2005 2:23 PM

He consulted and they agreed on Miers as a consensus pick.

Bush did tell the Senate of his pick, otherwise Reid would not have counseled Bush against it. Therefore, he consulted the senate. His job is over. He is under no obligation to make sure his pick is acceptable BEFORE the vote. Otherwise, why have the vote at all?

If the senate doesn't like Alito, they can vote against him. The voting IS the consultation, if you want to be technical about it.

TV (Harry)

Posted by: Inspector Callahan at October 31, 2005 4:32 PM

A post by RBJ says it all. i remember after the verdict in the Rodney King case years ago, when I guess we couldn't get along, a commentator on a liberal Black radio station complained that juries were supposed to represent the conscience of the community. Stupid fool him. I thought they were supposed to determine guilt or innocence based on facts presented to them. And I say that being a moderate liberal.

The problem I have with Alito is the one I have with Scalia, and the same with William O. Douglas and Steven Breyer. None of them ever applied the law, but used their intellect, bright ones all, to advance their own personal points of view without deciding what the Constitution really means by it.

Since the law ultimately is what those nine people in black robes say it is, I really would prefer nine justices who , when hearing the facts, make a determination, and none of us would have any clue how each would vote.

Posted by: Daryl Rosenblatt at October 31, 2005 4:37 PM

Certainly Bush COULD nominate someone without consulting with the Senate first, but failing to do so makes the Gang of 14 deal over, and Bush did it. He did not consult after Miers. By doing so he does it at his own risk of filibuster. All bets are now officially off.

And the idea that the Dems didn't let him set a new tone, that's called leadership. You don't set a new tone by picking the cabinet he picked and continues to pick, by picking the court nominees he's picked and continues to pick, and by trying to privatize social security and Nordquist the federal government. You don't do it by going to war against a country that did not attack us, but telling the UN and Europe to stick it, by letting Ken Lay be "influential" in energy policy, and by blaming everything on the Clinton adminstration. You don't set a tone by outing a CIA agent to trash her husband, or by threatening every fundraiser in town for retribution if they (gasp) raise money for Democratic Candidates.

NCLB?? C'mon, another unfunded mandate that even the state governments are suing to keep from enforcing. You can blame your own party for the NCLB being bad law...it was never meant to work because republicans do not thing the federal government should be in education to begin with.

Give me a break.

Posted by: AstrosFan at October 31, 2005 5:34 PM

"Certainly Bush COULD nominate someone without consulting with the Senate first, but failing to do so makes the Gang of 14 deal over, and Bush did it. He did not consult after Miers. By doing so he does it at his own risk of filibuster. All bets are now officially off"

That sounds like an argument a petulent child would make. Can't you argue against Alito on the merits or do you have to resort to "not fair, you didn't do it the way we demanded" nonsense.

Posted by: rbj at October 31, 2005 6:06 PM

Way to keep the argument from being personal, rbj, calling an argument one of a petulant child. You said I was saying Bush made the agreement, I never said that. That would be an argument a child would make, one that could not yet read.

Alito should not be on the court for the reason that he is outside of the mainstream of judicial thought. He would set stare decisis back years by reversing it based on his political philosophy. He would vote to overturn Congressional actions at the pace of Thomas and Scalia, which I would argue is the essence of judicial activism. There are a lot of reasons to oppose him on the merits, both political and legal.

Posted by: AstrosFan at October 31, 2005 7:22 PM

Actually it is a petulant argument, and repetitive at that, which makes it even more childish.

Do you have some basis for saying Bush didn't consult with senators prior to this nomination or are you simply assuming and asserting that as fact? You are aware that simply consulting with them is not the same as giving them his constitutional appointment authority, correct? And I must say if they didn't know he was appointing Alito, it certainly is amazing how quickly they came out with prepared press releases.

Although he is not required to do so Bush has talked to the Dems about these appointments, even to the point of accepting lists of people they recommended. Fine if he wants to do that, and its been done that way before, but he doesn't have to do it.

If Dems want to filibuster Alito they are certainly capable of trying it. My guess is they won't be able to get the 41 votes necessary to even force the confrontation though. Alito is clearly qualified - there's not a reasonable justification for that action.

Posted by: Dwilkers at October 31, 2005 7:53 PM

Just out of curiosity, do you have any evidence of Judge Alito's views regarding the principle of stare decisis?

And since when did liberals decide to make a fetish of stare decisis, anyway? It's certainly wholly incompatible with a "living constitution" to place a high normative value on stare decisis. It's difficult to enunciate a standard for an ironclad rule of stare decisis that would allow for the decision in Brown v. Board of Ed, which overturned a 58-year-old precedent around which enormous institutions and bodies of law had grown. And it's not like decisions like Roper v. Simmons, Lawrence v. Texas, and Garcia v. SAMTA are high watermarks of respect for precedent. What rule of stare decisis permits all of those decisions while making the rethinking of Roe unthinkable?

Posted by: The Crank at October 31, 2005 8:03 PM

Want some supporting evidence they won't filibuster? My guess is the only thing Dems would feel they could take to their supporters as a hook on which to hang a filibuster would be abortion. Unfortunately the country as a whole is overwhelmingly opposed to their positions (88% support alternative couseling, 78% support a waiting period, 73% support parental consent, 72% support spousal notification, 70% support a late term abortion ban).

MATTHEWS: So the Democrats are the pro-choice party, period?

Check out this interview between Howard Dean and Blitzer from yesterday (via NRO):

DEAN: The government…

MATTHEWS: The Democrats, your party, is the pro-choice party.

DEAN: No, my party respects everybody’s views, but my party firmly believes that the government should stay out of people’s personal lives.

MATTHEWS: But you’re a pro-choice party, are you not? You sound like you’re against them for being pro-life. Are you pro-choice?

DEAN: I’m not against people for being pro-life. I actually was the first chairman who met for a long, for a long time, who met with the pro-life Democrats…

MATTHEWS: This is a complicated thing for people. The people believe the Republican party because of its record supports the pro-life position. Does your party support the pro-choice position?

DEAN: The position we support is, a woman has a right to make, and a family has a right to make up their own mind about their health care without government interference.

MATTHEWS: That’s pro-choice.

DEAN: , A woman and a family have a right to make up their own minds about their health care without government interference. That’s our position.

MATTHEWS: Why do you hesitate to use the phrase “pro-choice”?

DEAN: Because I think it’s often misused. If you’re pro-choice it implies you’re not pro-life — that’s not true. There are a lot of pro-life Democrats. We respect them, but we believe the government should…

MATTHEWS: Do you believe in abortion rights?

DEAN: I believe the government should stay out of personal, of the personal lives of families and women. They should stay out of our lives. That’s what I believe.

MATTHEWS: I find it interesting that you have hesitated to say what the party has always stood for, which is the pro-choice position…

DEAN: The party believes the government does not belong in making personal decisions.

MATTHEWS: Okay, I’m learning things here about a hesitancy I didn’t know about before.

Clearly someone at the DNC has taken the time to sit down with Howie and beat the polling numbers into his thick skull. As the result even Howard Dean, patient-0 of moonbatitis, has figured out the Dems are wrong on abortion electorlly and thus he won't even say the words.

The Dems are not going to filibuster a SCOTUS nominee when that filibuster would force them to argue that abortion on demand as it exists in this country today is very important to an elctorate that doesn't agree.

Even if it were true that these nominees would allow any substantial regulation of abortion or change in abortion law, which I think is unlikely in any case.

Posted by: Dwilkers at November 1, 2005 7:39 AM

Interesting. I think you've picked up on something very important. Maybe the Dems are beginning the process of conceding the issue on the national level.

Open question to the opponents of Roe v. Wade out there (and I don't mean those only opposed to its hideous legal reasoning, I mean opposed to the "rule" it allows): If (a) the Roe/Casey regime is overturned in any meaningful way, and (b) you live in NY, NJ, California, etc., will you be satisfied, or will you then want to see a new 30 year battle begin -- ratification of a Constitutional Amendment banning abortion on the national level? The truth, please.

Posted by: Mike at November 1, 2005 8:53 AM

I don't fit your qualifiers.

However what I think you might see - at most - if the court were a bit more conservative, is some regulation around the edges. Maybe even so far as abortion being fairly easy to get in the first trimester, hard to get in the second, and nearly impossible to get in the third (yes, I know the trimester thing was dropped, I'm speaking in generalities).

Whether that would satisfy the religious right...meh, I doubt it. I think it would take a huge amount of energy out of the issue though.

In fact - here's the irony - I think it would put the issue on terms much more favorable to Dems.

Posted by: Dwilkers at November 1, 2005 9:27 AM

The regulation/trimming you describe is pretty much what we have in the post-Casey world. Though if you can follow Sandra D's whole Undue Burden standard to it's logical (?) conclusions, I'd like to borrow for brain for a day or two.

I agree another trimming would calm the fires for a bit. But two things in that scenario don't much add up for me: not much left to trim, and my suspicion that the culmination of a passionate 32 year fight would only calm things for a while. The intoxication of a victory that huge will lead to further tilting of the lances, I fear. I.e., The Amendment Fight.

Posted by: Mike at November 1, 2005 9:50 AM

Why so many arguments against speaking with Congress, specifically the Senate BEFORE choosing a nominee in anything? My copy of the constitution says the President must seek the ADVICE and CONSENT of the Senate.

I also feel that anytime the Senate does not like a nominee, and holds up confirmation, it is they who are in violation. I remember when Jesse Helms held up many Clinton judicial appointments, when he wanted soem stuff against the UN. I thought then, as I do now, they violated their oath. Give your advice, unbidden or not, grant or do not grant your consent, but never bottle it up. You are simply violating your oath of office then.

Posted by: Daryl Rosenblatt at November 1, 2005 10:29 AM

He is certainly no Scalia. In at least two opinions, Doe v. Groody and Carhart v. Thomas, he has indulged in wanton activism and disregard for basic rules for interpreting legal writings that would give Scalia hives.

Posted by: Geek, Esq. at November 1, 2005 10:29 AM

Make that Barnhart v. Thomas.

SCOTUS opinion, Scalia J.

Posted by: Geek, Esq. at November 1, 2005 10:38 AM

Mike,

I'll answer your question honestly. If Roe v. Wade were over turned, initially states and local government would need figure out what their current laws are on the subject. I'd expect some areas would pass new laws. Long term, I could see an amendment being necessary to fix the situation. I could live with an amendment since the Constitution has specific language which addresses amendments. The decision in Roe has no basis in the Constitution. To fix this stain on our collective conscience attitudes need to be changed. Slavery was ended in the 1860's. However, people were not immediately in complete agreement that it was immoral. Today, people can't believe it wasn't obvious to everyone back then. I can only hope that in time people realize killing little kids is immoral and look back in disbelief at our portion of history in the same way.

Posted by: LargeBill at November 1, 2005 11:20 AM

So, you'll agree then, that the "reasoned" argument presented by anti-choice conservatives (i.e., overturning Roe will merely send it to the states; abortion won't be made illegal) is something of a red-herring? In other words, those "shrill liberals" and "pro-abortion nuts" who accuse anti-Roe, pro-lifers of seeking a return to the days when abortion was universally illegal aren't entirely "shrill" or "nuts," now are they?

You see, I'm willing to respect the limits and extents of federalism and say, "Ok, you think abortion is wrong, you can ban it in your state." But what many of my liberal friends fear may be true: that all the Right's talk of federalism & states' rights will go out the window once it removes those laws and principles it finds distasteful.

I don't mean to sound disrepsectful of your views or to attack your opinions on abortion (with which I obviously disagree). Just noting what, to me, seems inconsistent.

Posted by: Mike at November 1, 2005 11:41 AM

The anti-Roe coalition consists broadly of three groups: those who think abortion should be banned, those who think it should be left to the states, and those who simply think the judiciary needs to stop reading things into the Constitution that aren't there. There's overlap in these groups, but not everyone agrees on everything. For most of us, the goal is to get rid of Roe, send it back to the states, and see where we go from there.

Even the most ardent pro-lifer admits that if you overturned Roe, you'd need to change public opinion very substantially before you'd get a Human Life Amendment. So, we are right: overturning Roe won't get us there. Not everyone who would now support overturning Roe would go there. And the question would remain susceptible to popular accountability until and unless you could get the broad consensus needed to amend the constitution.

Posted by: The Crank at November 1, 2005 12:22 PM

Yet how do you reconcile opinion one (make it illegal) and opinion two (let the states decide)? The modern right includes both arguments in its ideology, yet there is a very possible contradiction brewing here. What if New York and California just won't see the light, and insist on continuing to "kill babies"? Does the Right just jettison states' rights?

I understand that overturning Roe AND a respect for the amendment system are both consistent with "Constitutionalism." But I suspect the goal is the illegality of abortion . . . by any means. And the overturning of Roe will therefore not be the promised end of the war. I fear it will, instead, be a new beginning.

Posted by: Mike at November 1, 2005 12:35 PM

Mike,

Of course the goal is the illegality of abortion. The Civil War wasn't fought to overturn the Dred Scott case. I think we all agree that change of mindsets, opinions, attitudes will take some time. As a society we didn't become immoral overnight and we won't improve overnight. However, opinion on the practice of infanticide has been changing oddly enough with the help of technology. In 1973 if a child was born more than a couple weeks premature it had little chance of survival. Now doctors and nurses are able to save children born extremely premature. Additionally, ultrasounds showing a moving child make it clearer to people that it isn't glob of cells but rather a child.

Posted by: LargeBill at November 1, 2005 3:15 PM

Fair enough. I hope not to see your goal reached, but that's not my concern here.

I'd like to see folks admit they like anti-Roe judges, not because of any particular jurisprudential philosophy, but because the nomination of that judge is the first step towards a desired end. And I respect you, LargeBill, for stating as much.

I admit I don't like anti-Roe judges because I'm opposed to any steps in that direction. That being said, I'll acknowledge Alito is qualified and I believe he's deserving of confirmation for that reason.

I just hope those in your camp who've used the "states' rights" argument so pursuasively (and pervasively) for the last 30 years like the taste of their own medicine when certain states opt to keep abortion legal. As their citizens wish. Or will we need a second Civil War?

Posted by: Mike at November 1, 2005 3:37 PM

Mike,

I don't believe I've ever couched the argument in terms of "states rights." Legalistically, the technical issues is a matter of whether it is a legislative or judicial perogative. Instead of "states rights" I consider it essentially as a matter of human rights and basic decency.

Posted by: LargeBill at November 1, 2005 5:51 PM
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