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Post by kmc on Oct 31, 2005 17:26:28 GMT -5
To answer Chrisfan's question, he certainly seems professionaly qualified. Whether or not his views are in the best interest of Americans is obviously the point of contention. Let the mudslinging begin.
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Post by Kensterberg on Oct 31, 2005 18:12:38 GMT -5
It is possible to have a reasoned discussion and debate on Alita's qualifications. He obviously meets the basic credential requirements, but because he has written many decisions, there's some doubt as to his fitness for this position. He has indicated that he disagrees with some of the Supreme's most important decisions of the last half-century, and the reasoning in some of his opinions seems to go against others. So there are legitimate disputes that can be had over whether or not he should be on the high court.
Also, if he has already pre-decided cases that would implicate such important issues as a woman's right to choose, then he has an impermissible bias. In any hearing in the US, the judge must render his verdict on the case before him, not on some hypothetical. One of the reasons that Roberts was able to sail through confirmation was that he didn't say anything that indicated that he brought an unacceptable bias to the Court.
With years of opinions to sift through, I expect that at least some of the Democrats will be able to ask this guy some very tough questions regarding his stance on American jurisprudence. Don't forget that Robert Bork's nomination was killed in the eighties not because of scandelous allegations, but rather because the man's fundemental view on the origin and role of law in our society was (not to put too fine a point on it) NUTS! And Thomas survived quite severe (and credible) allegations of wrong-doing becuase there wassn't a legal reason to derail his nomination.
But for legal geeks, this will be an interesting month or three.
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Post by Kensterberg on Oct 31, 2005 20:20:34 GMT -5
The following is from the Lawyers, Guns and Money blawg, which you can find at lefarkins.blogspot.com/. I would call this an excellent example of legitimate objection to Alito's candidacy. Alito's Casey Dissent I'm working on a longer piece about it, but let me make a couple quick points about Alito's lone dissent in Casey, in which he upheld a law that required women to sign a statement notifying their husbands unless they meant a fairly narrow set of exceptions. This judgment was, of course, subsequently overturned by the Supreme Court, which nullified the notification requirement. While Alito's argument was not a lawless application of the "undue burden" standard (which, at the time had been set out in a couple of O'Connor concurrencies that the 3rd Circuit assumed for complex reasons was at the time the law of the land), it was very strained, and certainly suggests that (at the very least) he would permit a significantly greater power for states to regulate abortion than is currently the case. The core of Alito's argument that the provision does not constitute an "undue burden" is his acceptance of the state's argument that the spousal notification provision would only affect a small percentage of women seeking abortions. This is, first of all, a strange argument on its face. Indeed, precisely what makes these laws (whether spousal or parental notification) so odious is that for all intents and purposes they only apply to women in the worst familial situations; if you have a good relationship with your parent or spouse, you're almost always going to tell them anyway. More importantly, in addition to being illogical it is also wrong as a matter of law. As the plurality opinion noted in Casey: The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo. The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. Yes. And as the plurality opinion demonstrates in exhaustive detail, "[t]he spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle." In addition, the plurality also notes that the state's purported interest in the spousal notification provision is based on anachronistic and patriarchal conceptions of marriage: The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify -- a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. Again, this is absolutely correct, and Alito's acceptance of this state interest as legitimate is troubling to say the least. There's another puzzling part of Alito's dissent. For the most part--a perception confirmed by LG&M's crack unpaid legal research team--is that Alito, while very conservative, is not a careless or unprincipled justice. My arguments against him are philosophical, not based on a claim that he's incompetent or unfit. But this footnote is extremely odd: In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so. Uh, excuse me? Admittedly, he says he's not "taking it into account," although this is disingenuous--why make the argument in a lenghty footnote (and the argument goes on past this excerpt) if you don't think it's relevant? Anyway, this doesn't make a lick of sense--the law's constitutionality should be looked at more generously because women can just get around it of they're willing willfully file illegal false statements? Apparently, Alito likes the fact that the law would only burden women who are honest enough to follow the law; this is just bizarre. But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn't serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it's quite the opposite. What this opinion means in projecting the future is, of course, uncertain. There's currently a kabuki dance going on among conservative blogs who support Alito largely because they want Roe overturned, but on the other hand (knowing how unpopular this would be) note that this dissent is not definitive evidence that we would vote to overturn. And the latter point is strictly accurate; since overturning Roe is not an option he had as a Circuit judge, we don't know for sure. But evaulating how a justice will rule, short of the kind of paper trail that would prevent someone from being nominated in the current context, requires making probabalistic judgments based on the evidene we have. And as his strained, extremely broad reading of the "undue burden" test makes clear, the question is not whether he'll expand the discretion of the states and Congress to regulate abortion; the question is how much. (And given his analysis in the dissent it is virtually certain that with respect to a case on the Court's docket that he will vote to make facial challenges to abortion laws much more difficult.) And it certainly provides troubling evidence that he would be willing to go along with overturning Roe, particularly if the Court uses the death-by-a-thousand cuts method advocated by Rehnquist in Webster. posted by Scott Lemieux at 3:39 PM
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Post by shin on Oct 31, 2005 23:22:57 GMT -5
Gee Shin, maybe instead of voting on him for the Supreme Court, we should be impeaching him from the appeals court ... Meiers kept herself from getting an up or down vote. Her confirmation hearing was set, and she would have gotten a vote. It likely would have been a no vote,andshe likely would have embarassed herself and the president in her confirmation hearings. But she kept herself from getting that up or down vote - not the Senate. If she was just going to embarass herself to begin with, why did he nominate her and why did she accept? Are you sure that's why she resigned? A personal change of heart?
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Post by Mary on Oct 31, 2005 23:42:53 GMT -5
Here's my question for those of you who view the Alito nomination as an "oh no!" ... based on what we know right now (meaning short of any sort of "he left pubic hairs on my diet coke can!" revelations) do you believe there are any legitimate reasons to vote against him right now? I can't specifically answer this question about Alito yet, just because I haven't had a chance to really familiarize myself with his record. However, I do think that ideological extermity can be a legitimate reason not to confirm a judge - Robert Bork is the principle example of such a failed nomination, as Ken mentioned, and with him, there were no scandals or questions about his legal competence. Ruth Bader Ginsburg just isn't particularly extreme - . There is no doubt on my mind that the left equivalent of Bork would never get confirmed (in fact, would never even have a prayer of getting nominated) - you'd be talking about someone who subscribed to a radically progressive theory of constitutional interpretation. No one on the Court does. Now, I think there's a whole lot of obfuscatory nonsense about what judges really do that makes the confirmation process infuriatingly oblique. We all have to collectively pretend that the nominee's personal politics are irrelevant becaue they merely interpret already existing laws and their personal policy preferences are wholly beside the point. The legal realists did their best to tear this idealistic nonsense apart in the early part of the 20th century, but it's still the operating principle behind our confirmation hearings and the way we talk about the judicial branch in official discourse. For example Ken mentioned the fact that it's a strike against Alito if he is already predisposed to rule in a particular fashion on abortion cases, because judges have to decide based on the particular facts of each case as they come to them, and they have to be open-minded enough to really hear out the arguments on each side and weigh them seriously. But really - is there any nominee who would seriously fit this bill?? Before Ginsburg was confirmed, she had already written law review articles about why and how abortion ought to be upheld (she actually suggested equal protection would have been a more solid basis for Roe than substantive due process, but still, everyone knew that she would always vote to uphold Roe - she was never going to seriously consider upholding restrictions on abortion). Someone who has been an appeals court judge for many years is going to have an opinion on all the major, controversial Supreme Court precedents - it's pure mystificatory nonsense for them to pretend otherwise. For me, the strike against Alito wouldn't be that he already has opinions on major issues, but it would concern the content of those opinions. But we can't talk about that stuff directly at confirmation hearings, because it violates our cherished ideals about what judges do, and how law and politics are two entirely separate realms. If Alito is indeed baby Scalia, then yes, I hope the Democrats will mount a serious opposition. I hope they'll filibuster if they have to. That's a big if, of course - I need more information about Alito to make up my mind. M
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Post by rockysigman on Nov 1, 2005 1:20:30 GMT -5
One Scalia is enough (and I only even accept him because he's so fucking hilarious). But as it is, we're already stuck with one and a half Scalias, when Thomas is considered. Do we need two and a half Scalias? That seems like much.
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Post by shin on Nov 1, 2005 1:25:06 GMT -5
I'm curious to know why you need more information. Haven't we gotten to the point that if Bush promotes ANYTHING, it's safe to just reject it on that point alone? Even if Bush says "I love puppies", isn't it therefore safe to suggest that perhaps all puppies in America are infected with a slow releasing zombie plague? You think I'm just being snide, but when you actually think about it...
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Post by chrisfan on Nov 1, 2005 9:25:42 GMT -5
I'm curious to know why you need more information. Haven't we gotten to the point that if Bush promotes ANYTHING, it's safe to just reject it on that point alone? Even if Bush says "I love puppies", isn't it therefore safe to suggest that perhaps all puppies in America are infected with a slow releasing zombie plague? You think I'm just being snide, but when you actually think about it... And here we have the explanation of why I respect the views of people I differ with such as Mary, Ken and Rocky so much, and look at your posts as a source of comedy.
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Post by shin on Nov 1, 2005 15:17:31 GMT -5
The fact that you look at my posts as a source of comedy is why I look at your posts as an example of the lunacy of modern America. But sure, I was wrong. Mea culpa. Allow me to make it up to you by saying something you'll respect, Chrisfan: I'm sure that if Mary finds out more information on Alito, there's a chance she may very well support his nomination.
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Post by chrisfan on Jan 10, 2006 16:30:54 GMT -5
As I've been watching the Alito confirmation hearings, I've been coming up with a list of questions I wish Alito had the chance to ask the Senators questioning him ...
1. In response to the concern some Senators have been raising about the racial and gender breakout of the court if Alito is nominated, I wish he'd ask that table filled with primarily white men who among them is going to give up his seat in order to ensure that there is more than one black person in the Senate.
2. In response to the concern over replacing "the moderate swing seat" on the court with a conservative jurist, I wish that he'd ask Chuck Schumer to give up his seat to a moderate Republican, since he replaced one, and obviously his seat belongs to a moderate Republican.
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Post by shin on Jan 10, 2006 16:38:44 GMT -5
I suppose those are more important questions to ask instead of "Senator, why were you a member of the racist and mysoginist Concerned Alumni for Princeton organization?"
Wait, that was Alito.
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Post by chrisfan on Jan 10, 2006 16:42:42 GMT -5
Good red herring there Shin. Got anymore? How 'bout the strip search of the 10 year old?
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Post by shin on Jan 10, 2006 16:50:20 GMT -5
How do you figure it's a red herring?
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Post by chrisfan on Jan 10, 2006 16:53:17 GMT -5
Well for one, being against affirmative action is not the equivilent of being racist. Two, Alito addressed it yesterday, explaining that he joined because he was against Princeton moving ROTC off the campus. So all in all, I think it's throwing out an issue to make the guy look bad because you don't have much to work with ... much like the Senator's concerns over race and gender make up of the court, or filling an opening with a like-minded judge are red herrings.
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Post by rockysigman on Jan 10, 2006 16:54:03 GMT -5
Is the demographic make up of the Judiciary Committee not a much larger red herring? Considering it has absolutely nothing to do with either the questions their asking, or with Alito's qualifications or anything...
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