Will It Be Sam Alito?:
I've seen some speculation around the blogosphere that Judge Samuel Alito of the Third Circuit may be tapped by President Bush to fill the O'Connor slot, perhaps as early as tomorrow. I know Judge Alito a little bit, and have two quick thoughts. First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. Alito picked up the "Scalito" nickname early on, but while clever it's not accurate. Judge Alito is much more of a process-oriented judicial-restraint type than Scalia. While Alito is well-known for his early dissent in Planned Parenthood v. Casey, generally speaking he hasn't approached the job of appellate judge with an ideological edge. Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.
Related Posts (on one page):
- Quick Thoughts on the Alito Nomination:
- Will It Be Sam Alito?:
Where would you peg him so far as libertarian vs. conservative goes?
How is he on deferring to govt authority?
How is he about federalism?
How is he about RKBA?
Enquiring minds want to know.
-jim from FL
Where would Alito likely stand on Blakely and Booker? The Booker remedy (making the guidelines advisory instead of throwing them out) had only five votes, two of whom were Rehnquist and O'Connor.
Roe may enflame the bases of both political parties, but few, if any, issues will have as much effect on present and future cases than Blakely/Booker. The issue affects almost every single federal criminal case (and every single criminal case in many states) in a very fundamental way.
Outside of a few sentencing geeks (Professor Berman comes to mind), it appears that very few legal commentators understand the earth-shattering significance of Blakely/Booker.
"Has the president learned that he should nominate someone of obvious quality? Or has he decided that he has to continue to bow to the increasingly strident demands of his party's right wing?"
I know everybody already realizes this, but the NYT is disgusting.
does not indicate there are no right-wingers of "obvious quality." Rather, the NYT is wondering what the Bush team thinks is the more important lesson from the Miers debacle: don't nominate unqualified people, or don't piss off your base. (Actually, the real lesson is not to do both at the same time, because then your nominee will have no base of support.)
Ugh. This kind of invective helps no one. They published an opinion. In the opinion section of the paper. That you disagree is pertinent, and I'd love to hear why you thought Democrats didn't support her, or why you thought that the conservative base didn't support her. But calling an opinion "disgusting" simply because it favours one party over another isn't helpful.
For what it's worth, my read was that the conservative base really was uncomfortable with her on abortion and gay marriage, two very big issues for them. It seems coherent and reasonable for that to be a reason for them to oppose her. If I were a strong social conservative, that would be my reason.
Intellectuals on both sides seemed uncomfortable with her lack of qualifications, but qualifications were the only reason why Democrats said they opposed her. The right was more mixed - intellectuals and the base gave a variety of reasons. As a first-order approximation, "conservatives because of philosophy, liberals because of qualifications" is certainly a simplification, but it doesn't sound completely unreasonable to me.
But I'm not a conservative - I'd love to hear your interpretation of the process.
You also leave out the fact that there was substantial opposition to Justice Roberts from most liberal groups, as there will be for every nominee regardless of qualifications. The fact that they happened to be RIGHT this one time does not suddenly make their concern for qualifications honest and heartfelt.
Yes, there were conservatives who opposed her simply because they doubted she'd reverse Roe. (although Dobson supported her... how does THAT compute?) There were also liberals who opposed her out of an honest concern for her qualifications and didn't care about de-railing a Bush nominee.
Yes... your over-simplification is unreasonable. If it came from People from the American Way, I'd call it "spin."
Well, a fight was what I expected before they nominated Miers, I guess it was just delayed a bit.
How is what Andrew posted (and I quoted) unreasonable? There are of course exceptions (e.g., NARAL, iirc, came out against Miers for non-qualifications reasons) but this seems to be the dominant story.
I'm not saying it's not fun, but I can't help but think it's unproductive.
Whether somethng sounds reasonable isn't always or often dispositive of whether it's true.
From a Gallup poll of 516 national adults, aged 18 and older, conducted Oct. 27, 2005, summarized here.
Still, he is fairly conservative.
And he is well-qualified to sit on the Supreme Court.
Batchelder and Jones would be better, though.
As someone already pointed out, the editorial writers of the NYT aren't exactly representative of the paper itself (and it's arguable whether this is even their purpose). Also, I don't think it's splitting hairs to point out the distinction between being a member of the right-wing and being accepted by the right-wing. So the quote you list from the NYT editorial doesn't really say a quality judge can't be a member of the right-wing. Besides, so few judges are blatantly political; I'm not sure how many would of the ones so often labeled "conservative" or even "libertarian" would qualify as "right-wing" in anyone's mind (the whole judges-not-being-political thing...).
"As a first-order approximation, "conservatives because of philosophy, liberals because of qualifications" is certainly a simplification, but it doesn't sound completely unreasonable to me. "
THAT is what is unreasonable.
-She's female.
-She's young
-She's got Roberts-ish personal qualities (apparently)
-She will be proof that a nomination doesn't have to come from the existing federal judiciary, which may be an important point to the Bush team as an anti-elitist measure
-She has no judicial track record to criticize
-Like Roberts in his Romer v. Evans problem with the far right, she will be able to claim that she was working and getting paid to argue Grutter v. Bollinger, and it was her ethical duty to put forward an effective argument
-Affirmative action may be anathema to academic conservatives, but it doesn't resonate like the abortion and gay rights issues with the socially conservative right.
Of course I'm probably wrong. But she seems eminently qualified to me. And the thought that a Supreme Court Justice has to have prior bench experience, most likely prior federal bench experience, is a relatively new and unwelcome development, in my humble opinion.
The best and most effective justice of the last quarter century had no federal bench experience before she joined the Court in 1981.
Can anyone with Lexis or Westlaw or whatever send me Judge Alito's concurring opinion in Rappa v. New Castle County, 18 F.3d 1043, 1072 (3d Cir. 1994)? It's not on the 3rd Circuit site, Villanova's 3rd Circuit archive, Findlaw or anywhere else I can find on the web. I'm doing a piece on Alito and the First Amendment. The e-mail address next to my name above is the one. Thanks so much in advance if anyone can help a blogger out.
And, the religious right, thought Kennedy would be more likely to overturn Roe, because he was a devout catholic.
I woulda picked Silberman.
Btw, I don't think judicial experience should be a requirement; some of the best justices weren't judges before they joined the Court . . . Robert Jackson comes to mind.
dot dot dot:
no Republican who voted for Breyer or Ginsburg could or would vote against a Bush choice
Are you familiar with sens. Chaffee and Snowe? If they see a nominee as too conservative they could well vote against her.
Jacob:
the editorial writers of the NYT aren't exactly representative of the paper itself (and it's arguable whether this is even their purpose)
Well, they're the formal voice of the paper, so they are in fact THE representatives of the paper itself. Though that voice is subject to change at the Ed-in-Chief's or Publisher's whim. It's fair to draw a distinction between the editorial and news functions; the WSJ news and editorial departments seem only vaguely related.
But I'm willing to reconsider. Can someone point me to any work by her that demonstrates her supposed abilities?
Alito obviously has a strong resume and that makes it pretty hard to stop him, given that he is nowhere near as ideological as Bork.
Well, actually someone did, Maureen Mahoney: D.C. litigator made the call on Judge Roberts
Rumor is Mahoney interviewed with the President for the O'Connor spot before Miers was tapped.
Someone should ask Mahoney who will be the next nominee.
In defense of O'Connor:
Her flaw, as you see it, it that she doesn't let some grand constitutional theory interfere with her common sense. Now this might be diastrous if we were talking about William Brennan's common sense, but O'Connor has, in my opinion, an uncommonly large portion of the good kind of common sense in her makeup.
I personally don't think Grutter v. Bollinger was one of her high points but, as the author of "strict scrutiny" in dealing with racial preference programs, she had the right to draw the line and prove to skeptics (such as the idiot law professor who compared her to Bull Conner after Richmond v. Croson came out) that strict scrutiny was not always "fatal in fact."
Her concurrence in McCreary County v. ACLU provides the best summary of why we have the Establishment Clause that I have ever read. I won't quote it again (I've done so before on a previous thread).
Her opinion last term in Jackson v. Birmingham School Board was another classic O'Connor common sense opinion. When dealing with a typically ambiguous statute, why not interpret it in a way that promotes its purpose of gender equality in school athletics, even if that means allowing the coach to sue for retaliation?
As for lack of Constitutional principles, that's a bum rap. The most important contribution O'Connor has made is the revival of the Tenth Amendment and the resurrection of federalism. And if that's not an important constitutional principle, I don't know what is. Her dissent in South Dakota v. Dole, which affirmed the federal government's right to use its purse strings to force states conform to federal policy, is about as principled as anyone can get.
But I'm a liberal on a right-libertarian comment board, so it's not altogether surprising that there are people who disagree with me. And with the liberal opinion section of the NY Times. (In much the same was as the WSJ editorial board often gets knocked around on liberal websites)
But Daniel Chapman's or Matt Barr's posts were so much better than the ad hominem
that I'm not going to debate Daniel or Matt. Just thank them for wiping up the useless and inflammatory spittle of lawbot's post by giving me a real viewpoint from across the aisle. Cheers.
Here's to hoping her federalist sympathies remain long enough on the bench to be the deciding vote for Oregon.
As a "conservative" (though not entirely an "originalist"), I find myself frequently writing dissents. I try to make these dissents as convincing as possible, and some court watchers have declared them to be Scalia-like in their language.
I respect Antonin, and have played squash with him on a few occasions (he beats me, of course) but don't see myself as any kind of ideological child of his.
While this may seem controversial to say in a "conservative" setting, one of the jurists whose opinion I most admire is Oliver Wendell Holmes. While Holmes is frequently thought of as a "liberal," he actually often argued in dissent on an activist court. Whether the court is activist in a conservative or liberal fashion is irrelevant. I abide, at the least, by his signature quote:
"It is the virtue of the common law that it decides the case first, and the principle later."
find out more: samuelalito.blogspot.com
Can we all agree that the person this is hardest for is Sandy O'Connor? Her husband is ill, she only wants to go to Phoenix and care for him, and she is being dragged back to Washington because of forces entirely beyond her control.