Tuesday, November 01, 2005

Scalitovision 2005, Part 2

Scalitovision 2005, Part 1 is here.

See SCOTUSblog's initial response here.

The Times has a good backgrounder on Alito here.

At The Moderate Voice, Joe Gandelman weighs in here, Jack Grant here.


Alright, let's look at some reaction from the blogosphere, specifically from the right (broadly speaking):

Behold, conservatives are happy again (even as liberals worry about Casey).

Professor Bainbridge (who just linked to me here): "I think it's a great choice. Alito is everything Harriet Miers was not..." McConnell was his first choice, but "this is a solid pick that should unite the base behind it".

Outside the Beltway: "So far, this looks like a home run pick."

Confirm Them calls it "an excellent selection".

Ann Althouse calls Alito "a stronger nominee than Roberts".

NRO: "Conservatives will have little reason to complain; in fact, they ought to be enthused."

Michelle Malkin: "This is a nominee the Right can get behind." She's also got a substantial round-up.

Captain's Quarters: "Now Bush has nominated a jurist with a solid track record and a reputation for a scholarly and consistent approach to Constitutional issues... In this nomination, Bush may have hit the home run we wanted with the first nomination." Still, Alito may not quite be the activist some on the right would like to see on the Court; indeed, he may have a "libertarian streak" to him.

Power Line: "We're about to get the fight over Constitutional principles that conservatives have looked forward to for years." Yes, but liberals are ready for it, too.

Don Surber has a round-up, plus this: "Good job, George."

Alexandra at All Things Beautiful has a better round-up.

The Political Teen posts on a conference call of conservative bloggers with RNC Chairman Ken Mehlman. And here's Michelle Malkin on the same.

Underneath Their Robes has some insider stuff.

PoliPundit looks at the votes: "With the vice president’s tie-breaking vote, confirmation is almost certainly assured." What do they say about not counting your chickens?


Hard to believe the right was so divided just last week. It's like Miers never happened. How will Democrats respond?


On the left, The Rude Pundit is, well, rude. Too rude, in my view. I'm not sure he advances the anti-Alito case one bit. In fact, I know he doesn't. Such rhetoric may appeal to the far left, but extremism of the left is just as ugly as extremism of the right, and I would rather our political discourse were slightly more civilized. If you want to oppose (or even attack) Alito, fine. Go for it. But don't resort to facile name-calling. (Shakespeare's Sister calls him a "retrograde reprobate," which is at least less offensive. I do understand the anger, however.)

Besides, there's some really good stuff out there:

The Heretik, as usual, has a great round-up with a distinctive voice.

MyDD has some links.

AMERICAblog says it's "war".

Pam Spaulding at Pandagon: "If there was any doubt, particularly among the moderates in his party, where this President turns to when he's got his tail between his legs, there isn't now." Yup. (Jedmunds weighs in here.)

Magpie at Pacific Views: "Dubya's nomination of Alito is obviously a response to the continuing political problems faced by the White House. The prez has decided that what he needs to do is firm up his base and — hopefully — unite Republicans around a nominee that they all can support, unlike the situation with the disastrous nomination of Harriet Miers."

The Next Hurrah: "The choice likely will widen a rift between Bush and the rest of the country. Alito's competence won't be an issue, but his judicial philosophy will. Down in the polls, desperate to both rally his base and change the subject, Alito will do both. He will also be the subject of intense opposition from the Democrats." Yes, this does seem to have a lot to do with Bush's "weakness," but I'm not sure Democrats will remain united long enough to challenge the nomination past the SJC.

Armando at Daily Kos claims that the right got its "Wingnut," a nominee "to the RIGHT of Scalia and Thomas". We'll see about that.

Liberal Oasis: "What's Samuel Alito's trademark? Hostility to equality."

Avedon Carol at The Sideshow: "The Republicans are going to try to pretend this guy is not an extremist, but he really is, you know. We knew this was going to happen, didn't we, boys and girls?"

Digby at Hullaballoo: "Alito is for Bush as Oxycontin is for Limbaugh. Alito is intended to ease the pain of Fitzgerald's indictments and continuing investigation by changing the subject... I'm NOT saying ignore Alito. What I'm saying is DON'T LET BUSH CHANGE THE SUBJECT." Agreed.

Firedoglake, responding to Alito on Casey: "Why is it that Republicans preach non-stop about making government smaller and the thing they most want to do is stick their noses directly into the most personal part of our lives?" Good blog, good question.

See also The Left Coaster (though I'm less worried about a Catholic Court than is my friend Steve Soto -- another good post here), Echidne of the Snakes, The Mahablog, TalkLeft, Majikthise, Billmon, and Ezra Klain at Tapped.

For reference, here's SaveTheCourt.org from People for the American Way: "President Bush put the demands of his far-right political base above Americans’ constitutional rights and legal protections by nominating federal appeals court Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O’Connor."

In an excellent post, NewDonkey.com looks for "a reasonably objective Democratic voice".

I'll have much more liberal reaction to the Alito nomination in future Scalitovisions.


Justin Gardner at Donklephant:

Rejoicing from the right.

Screams of heresy from the left.

And in the middle... it’s anybody’s guess.


Food for thought (from some of the smarter conservatives out there):

Captain Ed at Captain's Quarters predicts that Alito will be confirmed 65-35. Hence no filibuster and no nuclear option. Sounds about right to me, though it could be more like 62-38 if abortion remains the key issue.

Eugene Volokh at the quasi-eponymous The Volokh Conspiracy disagrees with Dahlia Lithwick's charge at Slate that Alito has offered "an explicit [promise] to reverse" Roe: "Judge Alito was applying the 'undue burden' test -- a test that would strike down pre-viability abortion bans, but that would uphold some not very well-defined set of regulations that fall short of bans -- to determine the constitutionality of a spousal notification requirement, a requirement that was indeed quite short of a ban. He read 'undue burden' narrowly; the Court read it more broadly." It's a very good point, I must admit, though I do think liberals and other pro-choicers have cause for concern.

Elsewhere, TVC tackles the subject of Alito and "the nature of modern conservatism".

NRO's The Corner looks at Alito and abortion (beyond Casey): "If media outlets are going to report on the Casey opinion, they need to review all of Alito's opinions that relate to the abortion issue. What they show, in toto, is a careful jurist committed to the rule of law, not a 'pro-life' judge or a 'pro-choice' judge."

Ann Althouse discusses Alito's view of the Family and Medical Leave Act in Chittister v. Department of Community and Economic Development. (On the center-left, Angry Bear discusses the case here.) Much of the focus will be on abortion and other hot-button issues, but let's not forget that there's more to Alito's record than Casey -- for better and for worse.

More to come.

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  • I haven't read this anywhere, and I don't follow politics as much as I should... but, doesn't it look like the Mier's offering was intended as a sacrifice to get all the opposition to dump their firey payload on her, then she'd conveniently withdraw and the neo-cons would offer up Alito whom they really wanted to begin with?

    The figured with support low for Bush they wouldn't be able to get an Alito nomination to sail through.. so they offer up someone ridiculous, overtake the media with opposition, then when all the opposition is exhausted, offer up their "real" choice?

    Seems like their plan worked beautifully... hell, it might have even been Miers' idea.

    By Blogger skiphunt, at 9:59 AM  

  • Frankly, as much as I dislike the loony conservatives, I end up hating the loony left more. I don't see the partisan blogosphere as providing much enlightenment on this. The left, as usual, goes off the deep end. They seem to go out of their way to alienate people that might be inclined to be sympathetic. But if the lefty bloggers are upset about this nominee, then, by god, go out and win some damn elections.

    Most people are in between and couldn't care less about the petty wrangling.

    I would certainly prefer a more moderate candidate, but I suspect that Roe v. Wade is not in as much trouble as people think even if Alito is confirmed. I think the Court ultimately tracks public opinion and don't think public opinion, despite what the right thinks, wants to ban abortion outright. If Alito is confirmed,however, it will be interesting to see if any red states outlaw abortion entirely, which would be the quickest and most efficient way of getting a definitive overrule of Roe.

    I suspect that, as is usually the case with the Supreme Court, there will be a lot of Sturm and Drang, but that the apocalypse won't happen.

    By Anonymous Anonymous, at 5:15 PM  

  • I suspect you're right, Marc. In fact, I think Alito is far less conservative than many of the left imagine him to be. Don't get me wrong. He's conservative. Very. But he's no Scalia, and he's certainly no activist bent on overturning everything in sight (see C. Thomas). Plus, all the focus right now is on Casey, but it's not at all clear that Alito would vote to overturn Roe. Sure, he favours restrictions on abortion -- but many Americans do.

    It's funny how the right has jumped right back in line. I haven't been able to find any dissent. There is some serious criticism on the left and in the center, but what I've found is a lot of hyperbole from the liberal blogosphere. And that's unfortunate. Yes, these "lefty bloggers" should go out and help win elections (we'll see how they react when a Democratic president nominates a mainline liberal to the Court), but they should also, I think, try to remain civilized and criticize Alito on the merits. It's fine not to like him. I don't much like him (though I may end up supporting his confirmation -- we'll see). But at least go after his record, what he's actually said and done. Instead, he's being turned into a caricature by those who don't want to talk substance.

    By Blogger Michael J.W. Stickings, at 8:43 PM  

  • Skiphunt, several weeks ago, I think, the Anchoress called the Miers nomination an internal rope-a-dope aimed at forcing spineless Republican Senators to stand and fight for the President's real nominee. I'm convinced enough to believe that Alito was the President's first choice before the Republican Senate begged him to go stealthy, but not to the point of thinking the whole Miers nomination was a feint from start to finish.

    Michael, don't make the mistake many bitter pro-Miers folks have made of seeing the Miers controversy as a sign of real division on the conservative side. There is a division, but the main division is between the conservative movement as a whole, which has always wanted somebody like Alito (though many of them considered Miers an acceptable substitute), and the Republican Senate, which has grown increasingly comfortable and increasingly cut off from its base and increasingly unwilling to imperil its own privileges and comfort for the sake of the peons -- excuse me, the base. Conservative disenchantment with the Republican Congress in general and with the Republican Senate in particular looms as a major problem for the Republican Party; it is a recurrent theme in the major conservative blogs. (Consider, as just one example, the typical Republican Congressman's hostility to the Porkbusters project.)

    The Miers nomination was, I think, an attempt by Bush to broker a compromise between his base and the Senate Republicans. Alito (or Jones or Brown or any other of the judicial superstars groomed over the years for this day) is the kind of candidate Bush, Miers, and every conservative in the country except Republican Senators wanted all along. And I'd say the Senate now knows better than to try to wimp out a second time.

    "Yes, but liberals are ready for [the fight], too." And they're going to lose. The talent level is simply not there on the Democratic side. That's not because the Democratic side is composed of Democrats; it's because the Democratic side is composed of Senators. When a celebrity is accused of a crime, he picks the finest lawyers available in the country, and then they go up against whatever local yokel happens to be the prosecutor in the district where the crime was committed, and the mismatch isn't even funny. In the same way, to take judges who have gone through the careful farm-system preparation that the Republicans have built over the past twenty years, absolutely and constantly culled for brilliance, temperament and mastery of the law, and to match them up against Senators chosen through the back-scratching, fund-raising, good-ol'-boy demagogue process of Senatorial elections...it's just not fair. Democratic Senators were dying for a shot at Miers because, as Ann Coulter caustically put it, "the only two people who would have derived any benefit from the hearings are Joe Biden, who would finally look like a constitutional scholar, and Harriet Miers, who might have learned something about the Constitution from him." Now that Biden has to go back up against the first string, the battle's over before it starts. If top-flight liberal jurisprudists were allowed to sub in for the Senators, you guys would have a chance; but a Senator against a genuinely first-rate jurist is like me against Sugar Ray Leonard. The Democratic Senators looked monumentally stupid matched up against Roberts and I don't expect them to do any better against Alito.

    Finally, Marc, the Court does ultimately track public opinion, and I agree entirely that the public does not want to implement the extreme right's dream of banning abortion outright -- but it also doesn't like the extreme leftist position embedded in Roe v. Wade. Overturning Roe v. Wade is not a question of banning abortion outright; it is only a question of handing the issue back to the people so that a workable compromise (or series of state-by-state compromises) can be arrived at through the democratic process. Which I believe is where it should have been left in the first place.

    By Blogger Ken Pierce, at 4:42 PM  

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