Monday, January 09, 2006

Thoughts on Scalito



Samuel "Scalito" Alito's Senate Confirmation Hearings began today in a predictable fashion. Both Donkeys and Elephants unleashed their talking points almost flawlessly. Read the story below the fold:



GOP:
Alito has exceptional record of serving the public.
Alito is qualified for the position.
Alito has an unquestioned character and integrity.
Alito is a FAIR and IMPARTIAL judge.


Ok, Alito has a nice resume, but why don't Republicans talk about his judicial philosophy? Why don't they mention his view on the issues most important to Americans?

Perhaps the left has some answers. Michael at AmericaBlog has some interesting thoughts, which mirror what I was going to say. Since he beat me to it, he gets the credit for writing this insightful piece:

The far right wants us to believe that Supreme Court nominee Alito is similar to Ruth Bader Ginsburg. Even though everyone knew Ginsburg was a liberal, she was passed by a vast majority in the Senate. They are both in the mainstream of judicial philosophy, the far right says. So Alito deserves the same treatment because he's "qualified."


The wingnuts must be crazy to make a comparison like this! As for Ginsburg:

Ginsburg IS in the mainstream of judicial philosophy, even though she's clearly a strong liberal. But she never pretended to be anything else. And everything on Ginsburg's resume was something she was proud of. Every group she belonged to, every organization she worked for, every position she staked out on the issues of the day and every promise she made reflected who Ruth Bader Ginsburg was, what she stood for and what she believed in.


Great, but what really separates Ginsburg from Scalito is this:

Did she insist you shouldn't read anything into her work for the ACLU? Of course not; she was proud of that work. Did she insist you shouldn't read anything into her activism over the years, her push for equality among the sexes? Don't be absurd. Did she break her word on solemn pledges made before the Senate? Never.


Unfortunately, the same can't be said about Scalito:

Nothing could be further from the truth for Alito. He is apparently ashamed of everything he's ever done. Alito boasted on an application for promotion in the Reagan administration about belonging to the racist, Neanderthal-ish Concerned Alumni For Princeton. Now he pretends he can't remember ever belonging to them at all.

Alito said he wanted to become a lawyer because he was so distraught about Supreme Court rulings that led to "one person, one vote," a cornerstone of our modern democracy. Now, he says we should ignore his consistent, persistent attacks on affirmative action.

Alito also cannily helped to devise the incremental approach to dismantling Roe v Wade that has been the very tactic the far right has used. Now Alito says to ignore all that.

Alito has repeatedly proven he believes the president is more like an emperor -- someone who deserves almost unlimited deference from the Supreme Court, especially during a time of war.

Finally, Alito pledged to the Senate that he would recuse himself under certain situations as a federal judge. He repeatedly broke that pledge. His excuses vary: he forgot, the computers shouldn't have assigned him those cases in the first place, he never HAD to recuse himself, and finally he never promised he would recuse himself forever. The reasons change, but the fact remains: Alito gave his word and then he broke it. He can't be trusted.


Why should this gentleman be a Supreme Court Justice if he hides his past. Proponents of Scalito boast about his intellectual record, citing cases in which his opinions truly stood out. Furthermore, only a brief synopsis of his work is generally given without mention of his judicial philosophy. Of course, Michael's piece aims to discredit the proposed similarities between him and Ginsburg. Nevertheless, one can conclude that Scalito may be hiding too much for him to comfortably be confirmed.

Which brings me to these questions: Why aren't conservatives open about their beliefs? Why must they hide their true feelings?

I suggest you be proud of your beliefs! If overturning Roe v. Wade is your goal, just say so. Admit that you wish to deny homosexuals their right to marriage. Admit that you would like to blur the line between church and state. Admit that you would love nothing better than to privatize everything and destroy government. Most importantly, for the time being, please admit that your beloved Sam Alito is just like you! He's a judge with an agenda. The least he could do is be honest about it!

17 comments:

Osgiliath said...

I fail to see how Alito and Ginsburg are all that different, aside from the fact that Alito is actually responding to questions that the Dems are using to try to trip him into saying something stupid. IIRC Ginsburg wouldn't respond to most questions regarding her judicial philosophy.

The only question before the Senate is this: Is Samuel Alito qualified to sit on the Supreme Court? That is the only question they need to answer - Not - How does he feel about Roe V. Wade, affirmative action, etc.

The Republicans were able to set aside their problems with Ginsburg and approve a qualified person to sit on the court (even though I feel shes an abomination, and I wouldn't have voted for her), why do I get the feeling the Democrats will be unable to do the same thing?

The GOP points you mentioned are the only ones that mattered. If they weren't Ginsburg would never have been confirmed. Democrats need to stop trying to rewrite the rules in the Senate just because they lost the majority. They losat the majority, work to reclaim it, in the meantime they need to stop acting like whiny spoiled brats.

BigNewsDay said...

Wasn't Harriet Miers qualified? Why did the wingnuts attack her so badly?

BlackLabelAxe said...

Harriet Miers was a very bad joke, and I'm glad that he didn't let her get Senate confirmation. He ended up picking a great judge for his real nomination, but he nearly fumbled the last of my faith in him with the Miers nomination.

BlackLabelAxe said...

Osgiliath is thinking the exact same thing I am. The only job of the Senate is to confirm that the President brought a qualified judge before them. The answer to that is YES, and to threaten a filibuster is absolutely childish.

Repubs did their jobs as Senators when Clinton selected Ginsberg. They may have hated her uber-liberal, socially-progressive ideology as I myself do, but she is qualified to be a judge and therefore she was confirmed with no hissy-fits or pouting.

I'm sorry, but Nancy Pelosi, Al Gore, Howard Dean, or Harry Reid do not get to choose the next justice. We know exactly what Bush thinks about Roe vs. Wade, and we elected him anyways to a position where he could choose Supreme Court Justices. They can spin, cry, stomp their feet, whine, and invite sympathy on cable news, but they are wasting time as Alito is highly qualified for the job he's been selected for.

Overturning Roe vs. Wade will not make abortion illegal anyways, so none of this fanfare even matters.

BigNewsDay said...

I've heard the conservatives say that Miers was a joke, but I've never heard any of them back up that claim, or even say why she wasn't qualified. Didn't she deserve an up-or-down vote?

BlackLabelAxe said...

She wasn't qualified because beyond the fact that she did not attend an internationally respected school of law, she has never been a judge, and the highest position she ever held was the comissioner of the Texas Lottery.

I, as many others do, feel that Bush had made up his mind that his nominee would be a woman, and Miers was the only one that he knew that was ideologically similar to himself. Once he found out that independant voters, and any Republicans "right" of Governor Arnold Schwartzenegger rejected Miers, he had to go back and find the judge that was best for the job be it male, female, left, or right.

Maybe Miers would have been a good judge, maybe not. We don't know, because she's never been a judge, and she's never mixed it up with the big dogs in high-profile court cases. Most people have some faith in the President, but not THAT much.

Lefty Metalhead said...

Like BigNewsDay asked, why didn't Harriet Myers get an up or down vote? The answer is simple: she didn't measure up to wingnut standards!

Osgiliath and BlackLabelAxe, I understand where you're coming from, and I AGREE! The Senate's only job is to inquire about Alito's qualifications. However, neither of you clearly define what "qualifications" actually are. According to us on the left, being "qualified" isn't solely based on legal experience. It is also based on impartiality and honesty. Furthermore, a judge shouldn't have an agenda, something that Alito hints that he has.

Why is he so vociferous about his non-agenda stance? At the same time, why did he say today that the Constitution was designed to grant the Executive the largest share of power? Obviously, Alito sees things through Bush-friendly eyes.

It is the Senate's job to look for a nominee's qualifications, and that is what the Democrats are doing. A qualified nominee doesn't have an agenda. We have yet to see Alito prove otherwise. Therefore, a filibuster isn't childish.

The GOP in the Ginsburg days weren't the same as the wingnuts currently in power. These guys are radical-right theocrats who wish to dissolve any hint of liberalism. These guys would have filibustered Ginsburg the first fucking day of the hearings (if possible) if she were nominated today. Let's be realistic here. Alito is no saint. He's nominated because he plans to do what Bush and the radical right want.

Osgiliath said...

bignews - I can't speak for everyone, but I was against Miers for three primary reasons 1) Her law degree was from a small backwater school 2) She had never argued before a court before and 3) The whole thing smacked of cronyism to the worst degree. The first two speak to her qualifications, the last is my personal opinion.

Lefty

Many of the Senate in office today also voted for Ginsberg, your theory doesn't really hold up. As to qualifications, legal qualifications are the only ones that matter for this job. A good judge is able to seperate personal belief from the law. From what I've read of Alitos past decisions, he seems to be a good judge, his dissents are based on law, not personal opinion. I'm not sure what else can reasonably be expected of the guy.

From the way the confirmation hearings are shaping up the Dems need to be careful unless they want to look as shrill and ignorant of the law as they did with Roberts. Of course with a fellow who was expelled from Harvard for cheating leading the way, I'll be surprised if they don't make themselves look like complete asses.

Lefty Metalhead said...

Many of the Senate in office today also voted for Ginsberg, your theory doesn't really hold up.

What theory? The only argument I made, rather poorly I admit, is that the Republican Party is different today than it was then. Perhaps many of the same Republicans still hold office, but the general PLATFORM of the GOP is different. Gingrich had the "Contract with America", while today's GOP leadership have the "contract with big business".

As to qualifications, legal qualifications are the only ones that matter for this job. A good judge is able to seperate personal belief from the law. From what I've read of Alitos past decisions, he seems to be a good judge, his dissents are based on law, not personal opinion. I'm not sure what else can reasonably be expected of the guy.

Legal qualifications? According to the Constitution, one need not be legally qualified to be a SCOTUS justice. It doesn't even specify citizenship or age.

Dissents based on law? What about his dissents asking for abortion to be outlawed, or be phased-out over a period of time. In fact, he says that abortion is not protected by the Constitution. How do we know he will respect precedent? I'm not sure he'll be able to put his personal conservative views aside and put precedent first, if the issue were to come up.

I'm only using abortion as an example. He has also suggested that the Executive has great Constitutional power, similar to the illegal spying Bush has been doing. As far as I'm concerned, the President is the Commander-in-Chief, Chief Ambassador, can make executive orders, and nominate judges. So much for literal interpretations of the Constitution, huh?

You know what the worst thing about Alito is? His strong admiration, and similar judicial philosophy, to Robert Bork! He wants abortion banned, and he thinks the President is KING!

I won't say anything explicitly until the hearings are over, but by the way Borkalito is being slammed, I may well support a filibuster! Nuclear option? We'll see what public opinion has to say THEN.

Osgiliath said...

Gingrich had the "Contract with America",

You are of course referring to what the Dems referred to as the ‘Contract on America’.

while today's GOP leadership have the "contract with big business".

This is different from the Democrats how?

Dissents based on law? What about his dissents asking for abortion to be outlawed, or be phased-out over a period of time. In fact, he says that abortion is not protected by the Constitution. How do we know he will respect precedent? I'm not sure he'll be able to put his personal conservative views aside and put precedent first, if the issue were to come up.

A couple of questions for you on this one 1) Where does the constitution provide the right for abortion? I’ve looked it over a couple of times and the word abortion never appears. 2) Precedents are overturned all the time – look at Dred Scott. Based on your opposition to overturning Roe v Wade, wouldn’t it be reasonable for me to surmise that you feel that Dred Scott should still be law and a recognized precedent? Precedents don’t mean a whole lot when looking at constitutional law.

He has also suggested that the Executive has great Constitutional power, similar to the illegal spying Bush has been doing.

I got this quote from the BBC

“On the issue of presidential powers, he said he agreed with a statement by Justice O'Connor that a state of war "is not a blank cheque for the president when it comes to the rights of the nation's citizens".”

How does this amount to him supporting Bush as king? As for the ‘illegal’ spying Bush used, from what I gather, it skirts the edges of legality, but it appears to fall on the right side of the law.

You know what the worst thing about Alito is? His strong admiration, and similar judicial philosophy, to Robert Bork! He wants abortion banned, and he thinks the President is KING!

Overturning Roe V Wade will not ‘ban abortion’, sounds like you’ve been listening to the nutjobs over at Kos or DU again. And honestly, what was wrong with Robert Bork? Was it that he rented ‘Ruthless People’? Or that he held an originalist view of the Constitution? Oh I know, it was the fact that Biden said he would vote against Bork before the confirmation hearings even began!!

I won't say anything explicitly until the hearings are over, but by the way Borkalito is being slammed, I may well support a filibuster! Nuclear option? We'll see what public opinion has to say THEN.

Why are you so stunned at the treatment that Alito has received? The Dems have done this with every Republican nominee to the Supreme court save for Anthony Kennedy. If the Dems do filibuster, expect to become the minority party for a generation.

Lefty Metalhead said...

Where does the constitution provide the right for abortion? I’ve looked it over a couple of times and the word abortion never appears. 2) Precedents are overturned all the time – look at Dred Scott. Based on your opposition to overturning Roe v Wade, wouldn’t it be reasonable for me to surmise that you feel that Dred Scott should still be law and a recognized precedent? Precedents don’t mean a whole lot when looking at constitutional law.

Abortion isn't mentioned in the Constitution, I'll grant you that. However, Roe v Wade, which grants women the right to choose, is based on the Right to Privacy, best exemplified in Griswold v Connecticut. The right to privacy isn't exactly enumerated either, but the 9th Amendment allows for such privacy to be granted. Most importantly, the right to privacy is strongest in the 4th amendment. Read the Constitution again more carefully.

Ok, precedents are overturned frequently. I'll give you that one too. And I'll even grant you that overturning precedents has benefitted our nation. However, the questioning of Alito should provide information on whether he shares the wingnut agenda to overturn Roe v Wade. So much for the activist judges claim, huh?

I see how you can make the conclusion about the Dred Scott case, and that is my fault for not being all too clear. However, this somewhat contradicts your earlier claim about abortion. You said that abortion isn't in the Constitution, therefore, it isn't protected. There is nothing about women's right to vote, civil rights, or even anything about patents of modern electronics in the Constitution. Would you go as far as to say that these entities aren't protected?

Overturning Roe won't ban abortion. You're right, but it will no longer guarantee such a right to women. Therefore, in many states, women won't be able to decide what to do with their bodies, even if they're raped! While many women may suffer through these traumatic events, the citizens of Wingnuttia will be basking in the glory of having things just like they want it, with no regard for others' beliefs.

Clearly, there is a sharp ideological difference here. You are clearly against abortion. I am against the PRACTICE, but for the choice. However, this is a different debate. Perhaps my point here is that we are on different sides of the debate, and it will be difficult for us to agree since there is so much compelling evidence on both sides. What I will say, however, is that it is ALWAYS a pleasure to debate with you guys (except for that little assumption that I'm regurgitating Dkos talking points). Everytime we have a debate like this, I'm glad I brought you guys on board!

Let us continue...

BlackLabelAxe said...

Lefty,

Thanks for the kind words, I learn so much from reading you and BND's perspective on issues. I live in Kennesaw, Georgia, so there's almost nobody around here to argue with unless I go down to Atlanta.

Thanks also for mentioning Newt Gingrich in a positive manner, I feel like he's one of the best leaders our country had in the past decade. He was my Congressional Representative (6th-GA), and he's very active in our community today by promoting local history and education. He's donated money to build museums, and regularly makes TV appearances on Fox News. He should, but he can't run for president because he's got major (personal) skeletons in the closet.

I'll spill my personal beleifs, for what it's worth on abortion. I feel that 3rd trimester abortions, and partial-birth abortions are absolutely cruel and murderous, but in the first trimester I don't think the morality can supercede medical necessity. I just don't see why any woman would go more than 3 months knowing that she's going to abort to continue to carry. The longer you wait, the bigger the problem gets (literally). If you're raped, get a morning after pill. If you can't do that, even first trimester abortions are infinitely easier than late-term ones anyways. I don't like the government at all, really, so of course I don't like them telling a doctor how to take care of a patient, but at the same time why the hell would you kill a baby just a month from being born when it's old enough to be delivered artificially and survive when you could have taken care of it months ago when it's just a very small outpatient procedure? All I'm saying is that common sense and responsibility would replace over 90% of this nonsense.

Alito is proving that he is of sound logic, respects precedents but is not limited to them, and has come from a very distinguished background. To me, that's what a judge needs to be qualified. Lefty, you are absolutely correct that the GOP cannot complain about activist judges if they want Roe overturned, but I am getting incredibly bored of hearing him answer questions about abortion. What about Eminent Domain?

Osgiliath said...

Abortion isn't mentioned in the Constitution, I'll grant you that. However, Roe v Wade, which grants women the right to choose, is based on the Right to Privacy, best exemplified in Griswold v Connecticut. The right to privacy isn't exactly enumerated either, but the 9th Amendment allows for such privacy to be granted. Most importantly, the right to privacy is strongest in the 4th amendment. Read the Constitution again more carefully.

The 9th Amendment reads as follows: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th Amendment was designed to prevent the prior Amendments from being rewritten, while the 4th covers unreasonable search and seizures. I’ve read differing opinions on what these Amendments mean, most of which read as justification for passing a law or repealing a law that one did not like. The one that is key for me is the 10th Amendment which states that rights not specifically enumerated in the Constitution will be left to the legislative and legal process of each state, Roe V Wade overturned established state law.

Ok, precedents are overturned frequently. I'll give you that one too. And I'll even grant you that overturning precedents has benefited our nation. However, the questioning of Alito should provide information on whether he shares the wingnut agenda to overturn Roe v Wade. So much for the activist judges claim, huh?

Alito should answer no questions of this nature and the Democrats should rejoice that Ginsburg was able to create the framework for how all future Supreme Court nominees would respond to such questioning, unless you all feel that there should be a double-standard?

Further, overturning bad or poorly ruled law is not being an activist judge. In my mind an activist judge invents new law out of thin air; see Dred Scott or Roe V Wade for examples.

You said that abortion isn't in the Constitution, therefore, it isn't protected. There is nothing about women's right to vote (19th Amendment), civil rights (15th Amendment), or even anything about patents of modern electronics in the Constitution. Would you go as far as to say that these entities aren't protected?

Womens rights are enumerated in the 19th Amendment, civil rights in the 15th. Patents are not a right and are not covered by the Constitution. Nobody has a ‘right’ for a patent.

Therefore, in many states, women won't be able to decide what to do with their bodies, even if they're raped!

That’s up to the legislative process in each individual state. I’d honestly be stunned if all states didn’t vote to allow abortion in cases of rape or when medically necessary. But, that’s another argument and unrelated to whether or not Roe V Wade is good law or whether or not Alito should answer question pertaining to it.

Clearly, there is a sharp ideological difference here. You are clearly against abortion. I am against the PRACTICE, but for the choice.

I am not against abortion, I am against Roe V Wade. It was a poorly judged decision and needs to be overturned.

Lefty Metalhead said...

Womens rights are enumerated in the 19th Amendment, civil rights in the 15th. Patents are not a right and are not covered by the Constitution. Nobody has a ‘right’ for a patent.

You missed my point here. These amendments, pulled out of "thin air" bu activist judges, didn't exist in the original text. My point was that if it weren't for these activist judges who didn't give the Constitution a literal interpretation, we wouldn't have these rights. As for the patent stuff, you missed me there too. I was merely trying to illustrate how the Constitution doesn't mention anything explicitly, yet we find many laws/statutes to be Constitutional.

Strict constructionism is the biggest load of bullshit! Literal interpretations don't exist. As for the 9th and 10th amendments, which one do we follow? There could be a contradiction. Under the 9th amendment, we can conclude that we have rights that aren't listed in the Constitution (it wasn't meant to safeguard the other amendments from being rewritten), yet the 10th says that local governments are responsible. Then comes into question the Equal Protection clause. Can women be equal if they're forced to bear children?

Aside from Constitutional law, what is to happen if Roe is overturned? Is it better for women to resort to have illegal abortions in some guy's basement in adverse conditions? Will it be ok for many women to suffer immensely because their state doesn't give them the choice of doing what is best suited for them? All of these implications will exist, all because wingnuts are too busy trying to govern peoples' personal lives? Putting such barriers and hardships onto a woman is a violation of equal protection.

I agree, BLAxe. Abortion is a gruesome procedure. I wish it didn't exist. However, our values don't necessarily reflect other people's. And since abortion is such a gruesome practice, shouldn't we makes sure it is safe for women to get if they so choose?

So abortions are outlawed if Roe is overturned, what will stop women from getting abortions? I know federal funding is a part of this, but like Justice Ginsburg said: the federal government can't give money to pregnant women having the child and deny the same money to a pregnant woman who decides it is in the best interest to abort.

Many women say that they would never get an abortion. Nevertheless, they contend that they know women's issues. They know what a woman thinks, and therefore, they support choice. Unfortunately, the male wingnuts don't get this shit. You have Pat Robertson calling for assasinations, deaths in the SCOTUS and for gays, and natural disasters for opponent cities of intelligent design, but he wants to SAVE THE BABIES! What fucking hypocrisy.

BigNewsDay said...

Great points Lefty! Axe, I agree that late-term abortions are bullshit, and that if a woman is to have an abortion, it should be performed within the first few months of the pregnancy. I have little respect for women who use abortion as a form of birth control (I classify this as women who get several abortions with little to no remorse), but I do understand that mistakes do happen and women should have the rights to make the decision.

Even though I don't agree with late term abortions, I strongly believe that it is never to late to abort Pat Robertson!

Osgiliath said...

You missed my point here. These amendments, pulled out of "thin air" by activist judges, didn't exist in the original text.

True, they weren’t in the original Constitution; they were culled from other sources, one of which is the Declaration of Independence. Since this document was one of many that helped found the U.S it is pertinent when considering law. I doubt that you’ll find anything about abortion or patents being a right in any of those documents however.

As for the patent stuff, you missed me there too. I was merely trying to illustrate how the Constitution doesn't mention anything explicitly, yet we find many laws/statutes to be Constitutional.

If we find something to be Constitutional it doesn’t mean that it is written into the Constitution. Patents law is generally held up as constitutional because they do not improperly infringe on any of the rights found in the Constitution.

Strict constructionism is the biggest load of bullshit! Literal interpretations don't exist. As for the 9th and 10th amendments, which one do we follow?

I fail to see how they contradict one another. The 9th says that if a right is not mentioned in the Constitution doesn’t mean it doesn’t exist, the 10th states that when this is the case it is up to the state to decide on the proper course of action. Also, seeing as how this document is the framework for our code of laws, we follow all of the Constitution.

Aside from Constitutional law, what is to happen if Roe is overturned?

I would suggest that the people of each state decide that at the ballot box.

Is it better for women to resort to have illegal abortions in some guy's basement in adverse conditions?

No it’s not, but then I’m not against abortion, just poor rulings.

Will it be ok for many women to suffer immensely because their state doesn't give them the choice of doing what is best suited for them? All of these implications will exist, all because wingnuts are too busy trying to govern peoples' personal lives?

You dislike the Kos reference, please stop referring to everyone who disagrees with you as a wingnut. As to whether or not it is OK for women to suffer immensely, you do realize that abortions hurt (immensely – about as much as giving birth from what I’ve been told). Why is one form of suffering better than the other? Isn’t it better to bring healthy children into the world rather than systematically killing them?


Putting such barriers and hardships onto a woman is a violation of equal protection.

No, it’s not, The equal protection clause is designed to ensure that the laws of a state treat an individual in the same manner as others in similar conditions and circumstances. Since men and women are different, the equal protection clause would not apply. By using your logic, I could argue that current abortion law is illegal because it grants one class of person a ‘right’ that I do not currently enjoy. Of course, the argument is complete and utter bullshit, but there you have it.

radical middle said...

"So, Scott, you said that, or the president said, repeatedly, that Harriet Miers was the best person for the job. So does that mean that Alito is sloppy seconds, or what?"

--CBS News Correspondent John Roberts to White House Press Secretary Scott McClellan at an October 31 press conference