Tuesday, November 01, 2005

Scalitovision 2005, Part 1

So apparently there's only one big news item today. Forget Syria's obstruction of the investigation into the murder of Rafik Hariri. Forget the evil that is Wal-Mart. Forget more U.S. deaths in Iraq. Forget the violent unrest in Rwanda and the Congo. Forget the continuing political turmoil in Germany. Forget avian flu.

It's now all Alito all the time.

So let me begin a new series at The Reaction:

Scalitovision 2005

Yes, as you all know by now, now that it's late Monday evening and the Steelers have just taken a 17-10 lead over the Ravens (Steelers fanaticism is perhaps the only thing RedState.org's Mike Krempasky and I have in common), Bush today nominated Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to be Sandra Day O'Connor's replacement on the Supreme Court -- for his bio, click on his name.

(Trivia question: What does the 'A' stand for? Answer at end of post.)

Here's how the Post put it:

President Bush nominated [Alito] to the Supreme Court yesterday, rallying his estranged Republican base back to his side and triggering a torrent of liberal attacks that could foreshadow a bruising ideological showdown over the future of the judiciary.

In effect relaunching the nomination four days after Harriet Miers withdrew under fire, Bush selected a long-standing New Jersey judge with an extensive record of conservative rulings on abortion, federalism, discrimination and religion in public spaces. If confirmed to replace retiring Justice Sandra Day O'Connor, the swing vote in recent years, Alito seems likely to shift the court to the right.

The conventional wisdom: "If confirmed to replace retiring [O'Connor], the swing vote in recent years, Alito seems likely to shift the court to the right." Which is precisely why conservatives have "rejoiced at the selection" and why liberals have "accused Bush of bowing to the most extreme elements of his party".

There's a reason this is the story of the day and why it'll be with us for a long time. Get ready for an immense, and intense, political battle over Alito's nomination.

Fairly or not, let's do what others are doing and call him "Scalito" -- or Little Scalia, at least in our post titles. Why? See Law.com for an explanation.

Hence Scalitovision -- with this the first of presumably many entries in the series.


Before heading off into the blogosphere, let's look at what Slate has said:

Back in July, a round-up of the Supreme Court "shortlist" described Alito, otherwise known as "Little Nino" (just how "little" is he?), as "especially filibuster-prone". Why? Abortion, of course. (He's, uh, against it.)

Today, Emily Bazelon contrasted Alito and O'Connor on -- what else? -- abortion. Specifically, what troubles Bazelon (and, one presumes, liberals generally -- and it certainly troubles me) is Alito's "partial dissent" in Planned Parenthood v. Casey (1991), a case that ultimately upheld "the core of Roe v. Wade" but that "also upheld Pennsylvania's 24-hour waiting period, its informed-consent requirement, and its rule that women had to hear all about the growth and development of their fetuses." The problem, if you see it as a problem (which I do) is that Alito's "partial dissent" involved arguing for "spousal notification" (i.e., a married woman must notify her husband before having an abortion). Rehnquist, Scalia, Thomas, and White sided with Alito. O'Connor, Souter, Kennedy, Stevens, and Blackmun (the author of Roe) united against them in support of O'Connor's "undue burden test".

Also today, Dahlia Lithwick is much harsher: "In the true spirit of Halloween, a month of vicious attacks from the right has been papered over, and this nomination is dressed up as if the last one never occurred... So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades."

No wonder liberals are up in arms... and ready for a fight.

But so are conservatives, united once again, as John Dickerson informs us: "Finally, the battle everyone has been waiting for... Now, with the nomination of Samuel Alito, both parties can revert to type."

More from the MSM (not that Slate's really the MSM) in future Scalitovisions.


I won't do a full round-up of blogospheric reaction to the Alito nomination tonight. There's just too much out there, and I'd rather take some time to sift through the more worthwhile posts from across the spectrum.

For a quick recap, see The Debate at the Post.

I'll have a lot on this story. Keep coming back for more.

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  • Michael,

    I'm not at all a Con-law expert, but it seems to me you slightly misrepresent Alito's position on Casey there -- no biggie, but imprecise and somewhat misleading in that it appears to imply that Alito was in favor of spousal notification.

    The law required spousal notification in ordinary cases but provided a comprehensive list of situations in which the spousal notification requirement was waived. Alito strongly hinted that he thought the law was a bad idea, but concluded that once you set aside the women who qualified for the rather wide-ranging exceptions, the women who remained subject to the requirement were not facing an undue burden under O'Connor's standards...as best as he could understand them, and nobody in the world wants to make a living trying to make sense out of an O'Connor opinion. Therefore, despite his dark mutterings about whether the law was a good law or not, he felt that it was a Constitutional law given such guidance as the Supreme Court had seen fit to provide.

    The Supreme Court did subsequently go against Alito, but then the Supreme Court has the ability to change its mind and go against its own precedent, and Rehnquist (if I'm not mistaken) pointed out that the Court actually was changing the prior standard that O'Connor had appeared to establish in the precedents available to Alito. There's no real way to know whether the Court (other than Rehnquist) agreed that Alito had faithfully applied O'Connor's original formulation (the only relevant issue), since the Court abandoned that earlier formulation and tried again. Furthermore, the plurality in Casey absolutely refused -- explicitly refused -- to accept that "notification" and "consent" could be distinguished, which is certainly a very questionable assertion indeed and one with which reasonable persons could and do disagree; the whole thing about how this law would "give to a man the kind of dominion over his wife that parents exercise over their children" is material much more suitable for a demagogic campaign speech than for a sober judicial opinion. Nor does it do justice to the law as written, as opposed to the more convenient straw-man law the plurality changed it into by their stubborn and unjustified refusal to accept that "notification" and "consent" are two quite different things. If you remove from consideration the persons eligible for exemption under the statute the plurality's hyperbolic concern about how the requirement would establish "impose a substantial obstacle" is in my mind highly dubious indeed.

    To me this hardly seems grounds for being too upset with Alito; unless you think that Alito should have anticipated the dishonest gamesmanship to which the plurality resorted in order to arrive at their desired result. On the other hand, the tedious lengths that Alito had to go to in what was clearly an honest attempt to extract usable principles from O'Connor's reasoning (very loosely so called) certainly do show why you don't want another wooly-headed, muddy-writing Sandra Day O'Connor on the Court. A Supreme Court whose opinions are vague, imprecise and mutually self-contradictory, is a Supreme Court that does a really crappy job of providing guidance to lower courts.

    By Blogger Ken Pierce, at 5:19 PM  

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