The Anti-Miers
By Pejman Yousefzadeh Posted in The Courts — Comments (28) / Email this page » / Leave a comment »
Judge Samuel Alito is everything that Harriet Miers is not. He brings extensive judicial experience--the most of any Supreme Court nominee in nearly 70 years--to the table. He has a clearly developed sense and theory of jurisprudence and Constitutional interpretation. Both Alito and Miers are intelligent but Alito is steeped in the work and skill sets that a Supreme Court Justice needs to bring to his/her work. He is an outstanding nominee and conservatives who were dismayed and outraged over the Miers nomination are and should be delighted over the Alito nomination in equal proportion.
Of course, it is clear that a fight will be waged over this nomination. This fight should be welcomed. For too long, we have obsessed over finding the perfect stealth nominee and putting off a serious and comprehensive national debate over judicial philosophy. The Roberts confirmation went exceedingly well and avoided much of these conflicts but they cannot be avoided forever. Even in the Bork confirmation process, conservatives pulled their punches--trying to emphasize, as Ethan Bronner wrote, that Bork was a middle-of-the-roader; a talking point that somehow made it acceptable and fashionable to label conservatives as a barbarian subset not worthy of recognition or respect. (It is notable, though not surprising, that this morning on National Public Radio, Legal Affairs Correspondent Nina Totenberg labeled Alito as "extremely, extremely conservative!" and pronounced the words with a hateful vigor akin to what the ancient Romans may have said about Hannibal himself.) The good news--as Patterico notes--is that any attempt to filibuster Alito may be met with the exercise of the constitutional option/nuclear option/sanity option/whatever-you-want-to-call-it-option. Republicans should not shy away from that portion of the fight either. There is no reason to engage in a party line opposition or filibuster of Samuel Alito merely because of a difference in judicial philosophy. President Bush made clear in two campaigns that he would nominate judges in the mold of Scalia and Thomas. Like it or not, two electoral victories allow him that right. And there had better be a far more respectable reason to oppose an extremely well-qualified and intelligent judicial nominee than a disagreement over ideology. After all, Ruth Bader Ginsburg and Stephen Breyer got on the Court with significant Republican support, despite ideological differences. Is Judge Alito not worthy of the same deference?
Incidentally, some may be tempted to start a drinking game for every time you hear or read about the nickname "Scalito" or for every time you hear or read a misrepresentation of Judge Alito's decision in Planned Parenthood v. Casey. Of course, there is a strong possibility that with this drinking game will come a national cirrhosis epidemic, so perhaps it's not the best of ideas.
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putting off a serious and comprehensive national debate over judicial philosophy.
Do you honestly think this will happen? I put the odds at about 0%.
Why does my tax money go to Dem spin radio? Anyway, it matters not what NPR, moveon, Kennedy, schumer, (this list could be very very very very looonnnnggg) say, its what the DeWines, Liebermans, Warners say.
I would like to hear anything anyone has about any Gang of 14 Liberals' statements
Heh.
We had a shot and blew it. Well, the Gang of 14 blew it. I don't think there is any chance of putting it back on the table, based on a 'spine count' of Republican Senators...
To count the number of Republican Senators with a spine. Hope I'm wrong.
I found this linked on The Corner and I think it's a great idea. I've already called to donate and I encourage everyone else to do the same.
To paraphrase Groucho, if your against it, I'm
for it. And if there has to a brawl,
lets roll!
a Democrat filibuster coming from numerous senators, it means they have already cleared it with the gang.
As a independent conservative, I find that Judge Alito's nomination may be of a true conservative rather than an Republican ideologue. The Republican party is no longer conservative and the use of the term as synonomous with Republican is now inappropriate. In point of fact, both parties serve the interests of large organizations rather than the individual american people and the conservative movement.
up to and including the constitutional option if necessary.
different words than "conservative" meaning the same thing in her mind, but I doubt the radio censors would approve.
But hey, if Totenberg (could that really mean Death Mountain in German?) is against Alito and shivers at the thought, I assume we're on the right track.
-TS
Yes, I suspect most of the left will be hammering with the Casey decision, but I don't think that's the biggest hammer in the left's toolbox against Alito. Instead, I think it's his dissension in Roe v Groody.
The frame is ugly, and its defense relies on subtlety and narrow nuance - always the weak side.
"Judge Alito said a cavity search of a 10 year old girl warrant was legitimate despite officers not having a warrant for the search." And still hammering the ugly side - "The request to search others was included in the request for warrant but DENIED in the actual warrant, but they searched her anyway."
Now the full facts make it a bit trickier. For example, the request wasn't to search a 10 year old girl but "other occupants of the residence." And this wasn't specifically denied but rather while the request had this the actual warrant had only the primary occupant - John Doe - listed. And this was all in regard to a drug bust. Nonetheless, the two framing sentences above are fully accurate, and if the Democrats choose to hammer on that case it's going to resonate in a lot of places besides the left. Which in turn will make some of the fence-sitters (or RINOs if that's your definition) facing re-election just a tiny bit uncomfortable.
Is Alito unconfirmable? Dunno. Is he a shoo-in? Thanks to this one case I suspect it's not as easy as you all would like.
(Bias statement: Yes, I'm not part of your camp. I think of myself as a moderate liberal - you'd be surprised at how often I agree with the right, but there are some points I consider absolutely unacceptable.)
I have no idea why the right is so thrilled with Alito and the left is so against him. The issue of spousal notification is hardly a strong anti-abortion position. The way I see it so far the choices of Alito and Roberts moves the court to the left. I don't see either of these guys overturning Roe vs. Wade. I plan to research his decisions but my initial impression is that, as a liberal who supports abortion, assisten suicide, and personal liberty, this guy doesn't yet scare me.
What am I missing?
I haven't done enough homework on Scalito (have actually heard that three times on the news) to comment on the case you mention. I have great confidence that liberals will try and trash this nominee though. I just want to contend with your moderate liberal tag. Ditch the moderate label. Just call yourself liberal and proud! It makes it sound like all plain old liberals are radical. (Hint - sarc.)
Nina Totenberg is a canker on the body of legal journalism. She is so thoroughly contemptible as a human being that she actually makes me feel warm and fuzzy towards Linda Greenhouse.
You can't really hate Nina Totenberg that much. She has such wonderful, clipped diction and such a juicy way of exposing the truth behind legal decisions and precedents that law schools across the country vie to have her be a commencement speaker. I mean, if the Dean of the law school I used to work for didn't personally know Nina Totenberg, and she didn't speak at their graduation, who knows what would have happened to the city I live in?
One thing that should encourage all of us is that although Totenberg doesn't have a degree in ...well, anything, as far as I can tell... she is enough of an authority on legal matters to be the Legal Affairs Correspondent for National Public Radio. What matters is that she's a woman devoted to the right causes. That's like, super-duper important, a kind of super-duper precedent.
If Nina were a man, people would question her credentials and qualifications. But she looks good in her makeup and she sounds good on the radio, and women in law schools (especially female law deans) just Lurrrrrrrrrrrrrve her. She makes a lot of money for those appearances, by the way. The only person we could have had accept for the commencement that would have cost more money was Mary Robinson.
It's a girl thahng.
What I think of Nina Totenberg? I think they should just start her almost daily segments on NPR with the following little disclaimer:
"Hi! I'm Nina Totenberg, Master of the Obvious."
We won't be held back by nattering nabobs of negativism. Alito is too uplifting.
Things that I ever heard plop out of Nina's mouth was her understanding of "judicial activism" in an interview with the Washington Post's Terry Neal, in which she opined, in her hopelessly neither-here-nor-there opacity, that "judicial activism" was a matter simply of point of view: essentially that liberals viewed Conservatives as judicial activists and the reverse was also true, so the term was basically meaningless. Thanks Nina!
She really didn't have much to say about Originalism beyond the fact that really, it's a hopless muddle because she actually didn't want to offend all her liberal friends by not calling conservatives activists too.
She's such an empty vessel on the law, it's astonishing to me that she's survived this long as the NPR correspondent. Maybe they should replace her with David Corn -- at least Corn has a degree in something or other. Actually, Dershowitz would be a better choice, and he'd at least have something interesting to say.
He couldn't possibly do a worse job than that insufferably condescending ditz. Though I honestly don't see what's preventing these unimaginative, reflesively liberal bureaucratic hacks from hiring someone like Stuart Taylor Jr., Jonathan Turley, or even Herb I. London, if they're feeling particularly crazy.
Here. This is an excerpt from Totenberg's hopelessly muddled and deliberately obfuscatory thinking on the matter:
NT: "There's an REM song, "It's the End of the World as We Know It.." -- and that's what O'Connor's retirement means...
...
TN: "I've been covering Bush for a long time. I covered the Bush campaign for the Washington Post um, starting in the summer of '99, and we tried to sort of 'nail him down' on the issue of litmus tests, and what he expected in terms of a Supreme Court justice, he's always said that he won't have a litmus test on things like abortion. He's said that he's looking for...uh, strict constructionist judges. What does that mean?
NT: A "strict constructionist" is, or an activist judge, is -- in the eye of the beholder. [Big smiles on her face, shaking her head] -- and, uh, it's, it's a term that politicians use, to say what their nominee, or their candidate, is not. And what the other guy's candidate is. The people they are activist judges, the people that they want are strict constructionists.
The interview is here.
She's the seventh talking head on the page, and what she sais there is patently false, and she knows it.
In contrast, you can also listen to Robert Bork's view of what a "strict constructionist" is and why there is a difference that doesn't have anything to do with political party here. It's not a political matter, although it sometimes emerges in that way -- it's a fundamental difference in the interpretation of the Constitution. Totenberg deliberately tries to make that distinction meaningless in that interview and reveals exactly where her partisan sympathies lie.
The supposition that Roe will be preserved-regardless of Bush's appointments to the SC-rests upon the assumption that Kennedy is a firm pro-Roe vote. I've got news for you smug liberals; HE ISN'T!
He's a conservative. A dithering, vacillating conservative, who is subject to the flattery of leftist elites, but a conservative nonetheless. When he has to deal with four principled conservatives, Thomas, Scalia, Alito, and CJ Roberts breathing down his neck, he'll dump that foreign law gibberish so fast that it'll make David Souter's eyes pop out of his head.
No more Bakke-or any quotas, timetables, or set-asides predicated upon Bakke-no more Kelo, and-God willing-the sunset of Roe.
That's what this nomination means.
He has already overturned a ban on partial birth abortions. So if he upheald a right of a woman to get a partial birth abortion, what makes you think he's going to overturn abortion?
But - hey - if the right wants to support a pro-choice nominee that's cool with me.
I have felt the same way.
At least Greenhouse has a working knowledge of the law, and can discuss it rationally without whining or carping.
On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.
Alito argued that the Pennsylvania law's restrictions should have been upheld, saying "the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."
The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito's underlying dissent and said he agreed with his reasoning.
to point out that mentioning the recent unpleasantness is no way to build a united front around the Alito nomination. Keep in mind that many conservative bloggers were not on the same side in that unfortunate debate. I am 100% in favor of Alito, and I hope that we can rally the whole conservative blogosphere to that cause, not just one faction of it.
Totenberg is as a vivid illustration as any of why affirmative action is such a insidious, pernicious policy. It destroys the basis for meritocratic achievement. It diminishes not only its alleged beneficiaries, but the rest of us as well. No one in his or her right mind can honestly say that Totenberg would be in the position she is, were it not for her sex, an immutable genetic characteristic. If the liberal do-gooders at NPR had an ounce of integrity they would fire her immediately, apologize to their listenership for inflicting her infuriating vapidity and shallow analysis upon the rest of us, and hire someone who wasn't so incomprehensibly stupid and manifestly unqualified for the position, e.g. Jeffrey Rosen, or Sol Wachtler.
There are only so many times you can use the word "conservative" in the same sentence when describing John Roberts or Samuel Alito. Same goes for the modifiers like "extremely."
"The extremely conservative, conservative Samuel Alito has been known for his extreme conservative ideology.....blah blah blah."
Nina needs a new word that is equivalent to the word "conservative" with four "extremelys" before it. "Extremo-conservative-isimo" or something. She really takes all the meaning out of the word itself.
Nina, Nina, Nina.......