October 31, 2005

My First Three Thoughts on the Alito Nomination

First, it could have been worse (Luttig, Garza, Jones ...). And as you keep reading about Judge Alito in the weeks to come, keep that in mind. Sure, that's scary (hell, terrifying) and probably hard for some of my leftist buddies to imagine, but that's just how far to the Right the Republican base has moved.

Secondly, before you start decrying his actions in case X or case Y based on a link you read or a story you hear, I strongly urge you to look into the matter yourself. I've already seen a number of inaccuracies in the discussion of the Pennsylvania law that was at issue in Casey.

On this point, I strongly urge you to read Julian Sanchez here.

UPDATE: And Ann Althouse has this, which seems relevant, on his FMLA decision.

Finally, it appears that in many areas Alito is a minimalist when it comes to what the government has authority to do. That might mean you can practice your religion more openly under his understanding of the law - including in "official" settings. And you can own machine guns. And businesses can do what they like. And you can say what you want. But discrimation protections (and other government imposed protections) are more suspect in the Alito-world. [All of these comments are, of course, very, very broad generalizations]. Still, there are some government actions that he appears to feel are legal, and his Casey opinion and the strip searching of that little girl are sure to get attention.

That's all I have to say about it for today. If Binky or Baltar want to post on it, or comment here - fire away.

Posted by armand at October 31, 2005 01:08 PM | TrackBack | Posted to Law and the Courts


Much as I would like to, I have other fish to fry. I was assembling a list of links, but Jill's contains many of them.

More, and mostly not policy analyst types:

Echidnr of the snakes, Majikthise, Ol Cranky, Kevin Drum, Liberal Avenger, Atrios on record of judicial activism, more on judicial activism, Atrios on talking points, hell just scroll down until you get to All Your Uterus Are Belong To Your Husband, Billmon, Americablog is very fired up, via ObWi a link roundup, and last but not least, The Rude One.

Posted by: binky at October 31, 2005 06:41 PM | PERMALINK

OK, so, sorry for misspelling Echidne, and forgetting Norbizness and Steve Gilliard inviting trolls but at least read the photo caption. Needless to say, Kerr has more to say, with a provocative bit from Lindgren and the obligatory Kos.

Other than that, go search yourself. :)

Posted by: binky at October 31, 2005 07:40 PM | PERMALINK

Nice link roundup.

I'm leaning towards "no". He may be smart, driven, intelligent and may even pat puppies on the head, but there is enough weirdness in his decisions to make me nervous.

Anyone know how he feels about executive branch power?

Posted by: baltar at October 31, 2005 07:58 PM | PERMALINK

Perhaps you'd define "weirdness." So far, I think his positions make a lot of sense, internally (which of course, is not to say I agree with them).

I would also note that Rutgers law prof Chen and others seem to think Alito is a true judicial conservative and would not "roll back" a half-century of precedent, notwithstanding his possible disagreement with its analytic underpinnings. See the links I posted here.

People seem to have so much trouble understanding that a Justice who truly understands and believes in the system also recognizes that merely holding a belief provides no basis for imposing it as a matter of law (ironically, this is the very language of the right's asserted attitude toward the judiciary). Alito voted for spousal notification, yes, but also insisted in all cases that there be a judicial by-pass and exceptions for the health of the mother across the board; he also voted to invalidate New Jersey's partial-birth abortion ban, notwithstanding that his faith dictated otherwise. Indeed, his decision in Casey ran counter to his faith; a more strident, militant, or insolent judge would have dissented just because he can (see, e.g., the Fourth and Ninth Circuits).

Even Scalia, who clearly is more radical in analytic framework and approach than Alito (note one liberal clerk's adamant insistence that Alito is not an originalist, and no one would know better than his clerks), has made clear that he elevates the law above his own faith vis-a-vis the death penalty, and with regard to abortion does not couch his position in his faith but in his reading of the constitution, suspect though it may be.

Finally, in case nobody noticed, we've got a wingnut in the White House and a Republican majority in the Senate where the wingnuts are calling the shots as well. Absent a skeleton in his closet, we're going to lose on any nominee that enjoys the support of the Republican base whether we like it or not.

But if being tied up, cornered and reeling leads to us only being hit with these two punches, I think we'll be okay, especially insofar as I find it highly unlikely that either Roberts or Alito would vote to overturn Roe outright (and almost inconceivable that both would, and even if they did Roe would still enjoy a 5-4 vote). I don't think there's a shred of evidence to the contrary, mouthy old Italian moms notwithstanding.

Posted by: moon at November 1, 2005 11:01 AM | PERMALINK

Pardon me if I am not reassured by the fact that Alito doesn't have a consistently awful record on issues of concern to women's reproduction. A mixed bag does not a free pass make.

Likewise, the judicial by-pass does little - in my view - to seriously distance his position from the worst possible interpretation of Casey. I have yet to see a reasonable explanation why married women are required to notify husbands, but unmarried women are not required to notify the fathers of their fetuses. Why does a married man have authority over his wife that an unmarried man does not? I'm not arguing that either should, by the way.

On a similar note, the notification seems to put married women on equal grounds with minors who must notify parents for an abortion. What's with that? I don't see a strong respect for the autonomy of women here.

Finally, Nitpicker has a nice dissection of the undue harm issue, as well as an important point about the judiciary vs the mainstream. That is a rant I have been on many times ("checks and balances people!").

Posted by: binky at November 1, 2005 11:50 AM | PERMALINK

You didn't answer my important question: how does he feel about executive branch power?

I am concenred about Roe, but I don't want to get completely focused on it. I have much greater concerns about the "imperial presidency" (and civil rights, but the two are tied) than religion in schools.

Posted by: baltar at November 1, 2005 11:54 AM | PERMALINK

Two posts from Jill at Feministe (and NYU Law). One refers to Cass Sunstein's op-ed, and the other dissects Alito's position on FMLA and machine guns.

Digby and (via) Stealth Badger.

Posted by: binky at November 1, 2005 11:59 AM | PERMALINK

Wow. Loads of links! I can't wait to get to them. But I want to first dive into the Roe issue and ask 2 basic questions (and I ask them in all seriousness).

1) Is Roe really that important any more, in a practical sense, given the restrictions that are already allowed on abortion and the dearth of abortion providers in much of the country? And I don't necessarily mean is the right to abortion still important as a practical matter, it is, but how important is Roe in protecting that?

2) Why does everyone continually assert that AMK will continue to uphold Roe until he's carried off in a casket? Yes, he has voted to uphold it in the past, but justices do change their minds - and from his interviews and lectures I think it appears he's become increasingly uncomfortable with the Court's abortion rulings over time. I think it's really hard to be sure of a vote count on this matter.

Posted by: Armand at November 1, 2005 12:20 PM | PERMALINK

And definitely read Scott Lemieux. He has two new posts up today. I have such a poli sci crush on Lawyers, Guns and Money.

Posted by: binky at November 1, 2005 01:36 PM | PERMALINK

Executive power: Dunno yet, which is why I'm not commenting.

Roe's importance: Overruling Roe, ostensibly, would be tantamount to taking the legs out from most of its analytic progeny. I remember making a similar point regarding Roe's antecedent, Griswold. Hence, it's not just abortion, but potentiall sodomy, euthanasia, and who knows what else that will shudder with the impact.

AMK's Roe vote: I've got more faith that he will continue to uphold Roe, in the underlying privacy principles of which he has couched so many of his most cherished recent opinions, than I do that either Roberts or Alito will vote to reverse it. I can't state any of these with absolute certainty, but relatively speaking that's how I perceive things.

Spousal notification: Binky, would you want your husband to have a significant surgical procedure without telling you? It's important to recognize that notification is not control. Furthermore, Alito's point, that this opinion would probably affect about 1% of women, is a strong argument in favor of deferring to the legislature absent a showing that a mere notification requirement would constitute an undue burden. Casey doesn't obviate the legitimacy of any burden, but an undue one. If courts can so micromanage abortion that the legislature can't touch it in any way, shape, or form -- that is, can't burden it at all -- then the right starts sounding correct that courts are acting as superlegislatures. As you said, "checks and balances." While you might want a stronger Court than others, I don't think you want it managing health care, traditionally a matter for the states, from top to bottom in every area.

Spousal notification II: If the law required minors to inform their parents and spouses to inform their other spouses of their intent to have abortions, that hardly makes the proposition that under the law wives are as children an a fortiori case, and it's absurd and inflammatory to say so without any explanation why. It's got a nice ring to it, and somewhere therein lies an interesting 400 word column, but without support beyond the coincidence of certain surface similarities it's ultimately hollow. Parental notification (with bypass, of course) sounds in large part in the guardianship responsibilities of a parent: if a minor can elect to have a surgical procedure performed without parental knowledge, that undermines the whole nature of the parent / guardian relationship, not to mention putting physicians in a very uncomfortable position with regard to liability issue. Spousal notification, however, is a consequence of an historic fact that I have trouble arguing against: that within the context of marriage, while a woman should ultimately have the last word on what's going to be done to / with her body, a husband ought to be in on reproductive decisionmaking.

I like to think that I won't marry unless I'm with someone who wouldn't do something like that without talking to me, but for most people marriage is more than a mere contract. I have trouble seeing any more harm in spousal notification requirements (especially when they in effect are hollow, insofar as women need merely certify without exposure to perjury that they so consulted) than I do in the alternative (again, of course, assuming an effective bypass mechanism).

"A mixed bag does not a free pass make." Alito's not even close to my pie in the sky choice, and I sympathize, but we're very deep into lesser-of-two-evils territory in the current political climate. My point was, realistically, this might be pretty close to lucking out. Consecutive Hard-core judicial conservatives (as opposed to ideological movement conservatives, which is really what Bush's base wants) are a hell of a lot better than movement conservative activists with little or no respect for precedent like Scalia and Thomas. If Bush had gotten two more on the Court in that vein -- and only PACs assert that Alito is such a judge (and only based on specious case analyses, tainted by the fund-raising spectacle this floor war will enable) -- then I'd be scared for Roe, the imperial presidency, and just about everything else the Court manages.

As is, I'm not hyperventilating is all I'm saying, which is a slightly better condition than I might have imagined, presented a year ago with the prospect of consecutive appointments issuing from this administration.

Posted by: moon at November 1, 2005 01:45 PM | PERMALINK

Binky, would you want your husband to have a significant surgical procedure without telling you

I do not want the law to command him that he mustn't.

a consequence of an historic fact that I have trouble arguing against: that within the context of marriage, while a woman should ultimately have the last word on what's going to be done to / with her body, a husband ought to be in on reproductive decisionmaking.

Which historically was based on two assumptions: women as property and women as wards of their husbands/guardians Which is why allowing such a thing to slip by is infuriating to women who consider themselves adult people too, and no longer the equivalent of minors who can't make decisions for themselves (or vote).

I like to think that I won't marry unless I'm with someone who wouldn't do something like that without talking to me, but for most people marriage is more than a mere contract. I have trouble seeing any more harm in spousal notification requirements (especially when they in effect are hollow, insofar as women need merely certify without exposure to perjury that they so consulted) than I do in the alternative (again, of course, assuming an effective bypass mechanism).

It is precisely because you, and people of good will like you, have trouble seeing that proponents of women's autonomy get so frustrated. Can you not see that the people with the kind of "good" relationships you define aren't the ones who would bear the brunt of the negative effects? Try to put yourself in the shoes of the other side, and imagine the reasons why you wouldn't tell your husband about a pregnancy. "“Homicide is a leading cause of pregnancy-associated injury deaths,” Jeani Chang and colleagues wrote in the latest issue of the American Journal of Public Health." Especially for black women.

Moon, I know you know a lot about the law, and I know very little. Sometimes, however, I think that you should read more history, especially women's history.

ps to Baltar: Majikthise talks about something potentially related to your police powers concerns.

Posted by: binky at November 1, 2005 02:03 PM | PERMALINK

Baltar, Scott Lemieux is on the job for you again:

Alito's dissent really is a remarkable piece of work. According to Alito, a search that goes beyond the clear scope of the warrant without exigent circumstances is constitutional, as long as a judge can think up some ex post facto rationale and attribute it without evidence to the judge who issued the warrant. If we are to take this seriously, then the Fourth Amendment's requirement that warrants have information "particularly describing the place to be searched, and the persons or things to be seized" might as well be removed from the Constitution altogether. The police could have asked for authorization for a strip-search, or they could have asked for a broader warrant. They didn't do that, and consequently their search was illegal. Alito's straining to uphold the constitutionality of the provides valuable information about how he's likely to interpret the Fourth Amendment, and other civil liberties, if he is confirmed.

Posted by: binky at November 1, 2005 05:05 PM | PERMALINK

Try to put yourself in the shoes of the other side, and imagine the reasons why you wouldn't tell your husband about a pregnancy.

That's what the judicial bypass is for, and why its existence in any such regime is viewed as necessary to many proponents of notifications schemes.

Sometimes, however, I think that you should read more history, especially women's history.

I haven't the temerity to challenge the brute truth of this assertion. But a propos this discussion, I think my knowledge is more than adequate to inform my convictions. I won't repeat my reasoning, as I have on this site many times, for being pro-abortion (as distinct from pro-choice). But pragmatically (and it is in pragmatic concerns that I couch my support for widespread access to abortion), with lying a tangible option under existing notification schemes and a judicial bypass as an alternative for those women who more scrupulously follow the law, I think there are bigger fish to fry here.

I fear that abortion is a tarbaby for the left; the right is all too happy to watch us spend all of our energy here rather than elsewhere.

My support or lack thereof for Alito, in light of my sense that Roe writ large is safer than most people seem to think, hinges on what I can glean about his positions on the commerce clause, federalism, executive power, genetic research, information privacy, corpoate mis- and malfeasance, and so on, which affect all Americans (and in some sense many of the citizens of other nations) rather than a tiny subset of the abortion-seeking women in America (not only is it restricted, as Alito noted in his Casey dissent, to some small subset of the married women who then comprised 5% of women seeking abortions, but its further diminished in that such schemes are not present in every state, and I suspect are absent from the law of most of the more populous states; indeed, his 1% of women seeking abortion estimate might in fact be inflated). Bigger fish to fry.

Thanks for the links on executive power and the Fourth Amendment.

Posted by: moon at November 1, 2005 06:27 PM | PERMALINK

In the shoes department, try reading this post about notification.

Getting permission from a judge still means that someone else has control over a woman's body and her decision. The judge has the power to grant something to her that she does not, as an adult human being, have on her own. Why is it diferent if the authority figure giving her permission is a judge, instead of a member of congress or her husband? No one should be subject to such control.

Again, read Jill the source of the link above, and a very nice post on its own.

Posted by: binky at November 1, 2005 06:42 PM | PERMALINK

If Doe v. Groody (the Fourth Amendment case to which Alito dissented) turns into a big issue, I'll try to explain myself at greater length.

Suffice it to say, at least for now, that I think Lemieux either didn't bother to read, or is intentionally distorting, the Supreme Cout's holding in Groh v. Ramirez (U.S. 2004) (Stevens, J.), which lies at the heart of Alito's departure from the panel in Doe. (In the same vein, I'm disappointed that Majikthise spun Alito's dissent as "lone;" the case was before a panel of three, and if there had been a second dissent the majority opinion wouldn't have prevailed in its current form in the first place. It's a mere redundancy, but it's more insidious than that. It's spin. I'm so sick of both sides' bullshit.)

It will take time for me to comfortably state a position on the case, but I see in this echoes of the ballyhoo'd "french fry case" to which Roberts famously dissented. Bad facts make bad law, lawyers and judges are fond of saying, but sometimes good (or at least established) law leads to bad results. Courts of last resort have the option, in such cases, of departing from prior precedent but intermediate appellate couts lack that prerogative.

A single reading of each leaves me confident in saying that Alito read Groh more persuasively, more faithfully, than did the panel majority in Doe. That doesn't make Groh a good or a bad case, in my view, but that wasn't for the Third Circuit Court of Appeals to consider. The majority played looser in its application of that case than did Alito in distinguishing it.

Furthermore, any discussion of Doe that doesn't acknowledge that the case concerned police officer qualified immunity, to obviate which one must show more than incidental or unknowing misconduct, is insufficient on its face. Qualified immunity implicates entirely separate concerns than a suppression hearing concerning the same evidence secured in the same way. To not note this is to leave out a crucial piece of the puzzle; a warrant sufficiently deficient to result in suppression of the evidence secured under its ambit is not sufficient to obviate qualified immunity; indeed, the inquiries differ enough that it might not be a necessary condition, either (although necessary is more likely than sufficient).

As it stands, I have no reason to believe Alito is terribly draconian with regard to the Fourth Amendment. I'm simply not convinced he was wrong in that case. I'm not convinced he's right, but where I'm equivocal I refuse to sound an alarm. In 350 cases, there ought to be more obviously bothersome opinions than that.

Posted by: moon at November 1, 2005 07:12 PM | PERMALINK

Thanks for digging through all that. One thing I have learned through this court process (which I was too young and undereducated or busy to appreciate for earlier nominations) is how differently political science people and lawyer/judge people think about this stuff. We must drive you as crazy as you make us. :)

Posted by: binky at November 1, 2005 07:27 PM | PERMALINK

Check out Amp.

And I cannot recommend Bitch PhD highly enough. She pored through more cases and has a nice summary and analysis. Check out item number 9 on Alito's view of the difference between fetus and person.

Posted by: binky at November 2, 2005 09:06 AM | PERMALINK

At Amp, find this call and response:

I don't believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions.

The claim that men have no say is not only mistaken, it belittles men's agency.

One largely maintaining that "say" is a pre-coital matter is exposing him or herself to more generalized objections to abortion writ large. Furthermore, this plainly does not respond to the argument with a specific mind toward the marital context. And the rest of the stuff is similarly evasive.

I've never maintained that I would require such notification. I've merely suggested that a judge of good will, even a pro-choice judge, acting faithfully on his mandatory presumption of constitutionality of a given legislative enactment reasonably could conclude that a spousal notification provision does not offend the test under which Alito was writing at the time of Casey. This makes him neither saint, nor demon. It doesn't call into question his integrity, or reveal some deep-seated revanchist chauvinism. It's a perfectly defensible legal position to maintain. Reasonable minds may differ, but, as in the Fourth Amendment case above, that's not enough for me to see him as some sort of incipient oppressor.

And yes, you all drive me crazy. Actually creating law for 300 million people, or some sizeable subset, is for even like-minded people a font of endless disagreement. I don't know of any law that doesn't screw someone at the periphery. The law of unintended consequences, or of inescapable ones, prevails. One merely hopes to minimize the harm, and generalize fairly. It's harder than it looks.

Posted by: moon at November 2, 2005 09:41 AM | PERMALINK

But I hope you realize Moon, that the history to which I referred above involved a long struggle against laws that enshrined women's place as subservient, as property, and as wards equivalent to children. The successful (at least particlally, if ongoing) fight again such laws to gain for women the rights of the other adult humans has made us wary of retrenchment. And while you may find no ill intent in Alito (I am alarmed as his characterization of the differentiation of "fetus" and "person" as "unfortunate") I almost am less concerned about his intent, and more concerned about the practical political iimplications of what he would write and decide as a judge should he be on the court, in the majority opinion. Whether he intends them to or not, as you suggest, there are certainly hordes of wingnuts who are salivating at the chance to have him on the court because they think the record of his rulings will give them something to work with to achieve their agenda. So, he might not be an incipient oppressor, but his rulings are such that they benefit the political agenda of the real deal.

Posted by: binky at November 2, 2005 09:56 AM | PERMALINK

As to the Bitch PhD list that Binky cites above - I am of course, not an attorney, or a specialist in Con Law, but from my reading of related decisions and issues over the last 10 years or so (and as both Binky and Moon are well aware, I read such things intently and frequently) the complaints listed in points 1, 2, 3, 6 and 8 might not really amount to much, as Alito's actions seem quite fitting with Supreme Court precedent at the time he was writing these opinions (and it's very important in examining these things to keep precise dates in mind). It's no great shock that leftist critics of the nomination wouldn't be happy with him if he is, by the rules of our system, simply upholding what the right-wing Rehnquist Court demands he uphold.

And it might be worth noting that the judge (a liberal) who wrote the majority in the decision that Alito dissented from that's brought up in point 6 has spoken very highly of Judge Alito.

Now I still find some of this troubling and I want to look more deeply into points 4, 5, 9 and 10. But it seems unreasonable to blame an appeallate Court judge for upholding the law. Or, at the least, on some of these points he doesn't strike me as a right-wing activist. It's simply the fact that the Court is already a very conservative Court by these standards.

Posted by: Armand at November 2, 2005 10:01 AM | PERMALINK

I would agree that there is a difference in criticizing decisions that uphold the law and criticism of the freer domain of dissent and personal writing. I would argue, by the way, if one believes that law to be unfair, is certainly part of the democratic process. And I fail to see how that point 9 of Bitch PhD has anything to do with upholding the law as it exists.

Posted by: binky at November 2, 2005 10:19 AM | PERMALINK

And I noted that I found point 9 troubling. :)

Posted by: Armand at November 2, 2005 10:37 AM | PERMALINK

Regarding Dr. B's point 4, that's the Doe case I discussed, supra. After sleeping on it, I'm satisfied with my understanding of the case. Parsing further would only yield a clearer sense of how I might have argued the case or ruled, which, as I noted above, is beside the point since it's sufficient for me that Alito take reasonable positions under binding law at the time of his decision.

With regard to point 5, I've printed out a copy of that decision (Saxe v. State College Area School District) and intend to look it over at my earliest convenience. I'll probably be hijacking this thread over to MOP, where I'll take up a few cases and offer a more substantive discussion of Alito than I heretofore have, probably indexed to Dr. B's list which seems to provide a concise laundry list of progressive objections to the nomination.

In connection with point 9, I'm sure it won't take me long to find the case, but I find it irritating that neither Dr. B. nor the Twin Cities newspaper article she cites bother to mention the case caption or provide a link to the relevant decision. [It's Alexander v. Whitman -- for some reason it's not coming up on Findlaw, or I'd furnish a link.] Because I think she got Doe wrong enough to call into question her analyses, I don't take what she wrote or appropriated from the newspaper article at face value. (And consider this my silent, ineffectual protest against anyone who would write about judge's decisions without even bothering to name the case in question. I understand specific citations have no place in press aimed at laypeople, but the casename wouldn't kill anyone.)

As for 10, I think I've already said what I will say. I'm not thrilled by the decision, but I don't see in it evidence of the coming apocalypse.

By the way, a propos earlier points about pissing each other off, imagine if I tried to tell you what a number of poli sci studies meant. I'd probably come off as ridiculous. I might be able to take a broader, more general view of a political scientist's work, but that's very different than sitting down and parsing intensive statistical studies and formalized conclusions drawn therefrom.

Being extraordinarily smart can't always surrogate for time and formal education, especially in technical fields (and law is that, however sloppy it sometimes seems). I'm reminded of Michael Jordan: most NBA players would have been embarrassments on a baseball field. He was such a phenomenal athlete that he managed to bat .220 at A-ball for an entire season -- this is even more impressive than it might at first seem, but it still didn't get him to the majors, or to AA even.

More at MOP soon.

Posted by: moon at November 2, 2005 11:04 AM | PERMALINK

Moon - Relating to Doe v. Groody and the Groh decision ... so you are arguing that Alito's dissent which allowed the strip searching of both a grown woman and a young child fits with the reasoning of a 5-4 Supreme Court decision in which the majority was composed of Stevens, O'Connor, Ginsburg, Breyer and Souter? Wow. And GW Bush's Secretary of Homeland Security wrote the opinion that Alito dissented from? Huh - is there such a thing as a liberal jurist any more? Or are they as dead as Frank Murphy?

Posted by: Armand at November 2, 2005 11:05 AM | PERMALINK

No, I'm arguing that Chertoff played sloppily in applying Groh, in which the warrant was materially different than that in Doe, and that Alito's dissent which found Groh non-dispositive in its holding, and persuasive for a contrary ruling derived from dictum in that case, was actually far more clear and persuasive based on what I read as the governing standard.

The point is this: Groh's block of liberal justices denied qualified immunity under the facts of that case, but acknowledged that under a variation of those facts qualified immunity had in the past been upheld by the Court. Alito merely found the latter condition more on-point to the Doe circumstances than the more egregious and blatantly wrong conduct at issue in Groh. And in that I think he was reasonable, and quite possibly correct.

The United States Supreme Court to the contrary, in the rank and file intermediate federal and state courts, you'd be surprised how often judges rule contrary to their party affiliation or perceived inclinations. It's called honest judging, and most judges do it every day. That's part of why the whole activist judge thing is so f*&king infuriating: SCOTUS, while of course terribly consequential, is, in its stark polarization, not terribly reflective of the bench nationwide. And the general ignorance of that fact is playing right into the right's judiciary-baiting bullshit, which disserves our polity on so many levels by effectively hamstringing one third of our government's design.

Posted by: moon at November 2, 2005 11:20 AM | PERMALINK

In answer to my own question about executive power, we get Norman Ornstein, from the American Enterprise Institute (which is about as right-wing as it gets):

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."

When a guy from AEI throws red flags in the air, that's something to worry about.

(Update: Broken link fixed)

Posted by: baltar at November 2, 2005 12:01 PM | PERMALINK

Looks interesting, and I'll include that tonight if I can when I write a longer post. But here's my question: how does Alito's opinion under the Commerce Clause, however dubiously defended, address the matter of "executive power?" (Btw, your link to Ornstein doesn't seem to work.)

Posted by: moon at November 2, 2005 12:09 PM | PERMALINK

It't not just the commerce clause: it's the idea that Alito has always worked for the Executive, and gives it more deference than the Constitution (and the founders) want it to have. In other words, carve away at Congressional powers to augment the powers of the Executive. Thats Not Good.

Posted by: baltar at November 2, 2005 12:17 PM | PERMALINK

Perhaps I'm being obtuse, and perhaps it's because I haven't yet read the machine gun case, but I don't see how diverting power to the executive is an a fortiori consequence of restricting congressional power under the Commerce Clause. Even if the authority in question were effectively zero-sum -- itself, a tendentious proposition -- any such restrictions could just as easily benefit the judiciary or the states as it might the executive. I'm still not clear, then, on how you're finding cause for worry (as a function of separation of powers) in a case reading the Commerce Clause restrictively.

In any case, I intend to read the machine gun case shortly, and I hope that in my other research I'll be able to glean more about his approach to the contours and breadth of executive power. Instinctively, I suspect his immigration opinions will be more revealing in this regard, but perhaps there will be even more revealing opinions out there.

Posted by: moon at November 2, 2005 02:17 PM | PERMALINK

Interesting poll just off of CNN (tv, not web):

The majority of Americans think that if they knew for sure Judge Alito would vote to overturn Roe, they would NOT want him confirmed.

Posted by: binky at November 2, 2005 04:07 PM | PERMALINK

Is that surprising? Poll after poll shows that a significant majority of Americans believe abortion should be available to one extent or another in excess of the minimal rape and health-of-the-mother situations (as to which the majority is presumably overwhelming).

It is nice, however, to hear that the MSM is citing facts in direct refutation to the far right's specious claims about the values of "mainstream Americans."

Posted by: moon at November 2, 2005 04:37 PM | PERMALINK

Actually that was just in case Morris was lurking. ;)

Posted by: binky at November 2, 2005 04:53 PM | PERMALINK

Tangential, but interesting: Drum on notification.

Posted by: binky at November 3, 2005 11:05 PM | PERMALINK
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