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Quick Thoughts on the Alito Nomination:
I'm very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the "Scalito" nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia. Like Roberts, Alito is an institutionalist who spent his career working in government at a very high level (including at the Solicitor General's Office). Like Roberts, Alito is a very likable person. In light of his similarites to Roberts, I expect that Alito will be confirmed without a filibuster.

Related Posts (on one page):

  1. Quick Thoughts on the Alito Nomination:
  2. Will It Be Sam Alito?:
llamasex (mail) (www):
What about his Meese connections, is he anti porn?

I was thinking about it today, I don't smoke weed, don't own any highly sort after land, not a big firebrand speaker, but I do watch an awful large amount of porn. So in a way that's one of my top issues for me.

I know Scalia has said we have to "tolerate" porn, but IIRC he ruled against the ACLU in COPA.
10.31.2005 7:59am
stillers_fan:
Is there anything besides his circuit opinion in Casey that is really going to scare the left? (Not that that wouldn't be enough on its own.)
10.31.2005 8:00am
anonymous coward:
Cannot understand the reasoning in this post. Perhaps moderate Senate Democrats will be charmed by Alito's mellow personality despite his conservatism (esp. as seen in Casey), but whether or not they fillibuster will be pure political calculation. I think the odds favor a fillibuster, though it's very early (and depends on a handful of Senators).
10.31.2005 8:02am
Cornellian (mail):
In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia. Like Roberts, Alito is an institutionalist who spent his career working in government at a very high level (including at the Solicitor General's Office). Like Roberts, Alito is a very likable person.

Not that Scalia isn't likeable...

In light of his similarites to Roberts, I expect that Alito will be confirmed without a filibuster.

I'm not so sure. Assuming he's going to be a vote for wholesale rollback of Roe v. Wade are the Democrats going to regard him as the critical 5th vote?

Personally I don't think that's an issue Democrats should filibuster on since it just makes them look result oriented.
10.31.2005 8:05am
Jam (mail):
"Alito is an institutionalist who spent his career working in government ..."

Oh, joy. Whoopee. Another SCOTUS judge that will enlarge the executive.
10.31.2005 8:25am
aun:
What, exactly, does Alito say in Casey?
10.31.2005 8:26am
Jon non-Volokh (mail):
How will he play with the gang of 14? Well, I suspect. So no filibuster and he's in, unless we learn something untoward during the hearings. Considering how much his name's been on short lists since O'Connor announced, that seems unlikely. I, too, would be more comfortable if we knew he weren't anti-porn, but I don't expect to be comfortable. I'll settle for not being miserable, and so, I think, will the critical 7 Democrats.
10.31.2005 8:29am
David Maquera (mail) (www):
Liberal commentators are already taking Alito's dissent in Casey out of context in a concerted effort to portray him as a threat to Roe v Wade. If the Democrat Senators want a filibuster, then "bring it on!"
10.31.2005 8:30am
AK (mail):
Wow, one of the primary discussion points in the comments of the best legal group blog about a new SCOTUS nominee is whether he's going to take away the stuff you use to beat off.

God, get a grip.

Try to tell me that the internet isn't for wankers. Go ahead and f-ing try.
10.31.2005 9:19am
rico:
AK - awesome comment! Thanks for the early morning laugh . . .

Good point, too.
10.31.2005 9:57am
Medis:
I certainly think he has about the best possible chance of both avoiding a meltdown among social conservatives and a filibuster ... but that is threading a needle these days, and it may not be possible. We shall see.
10.31.2005 9:58am
Zargon (mail):
Wow, one of the primary discussion points in the comments of the best legal group blog about a new SCOTUS nominee is whether he's going to take away the stuff you use to beat off.

God, get a grip.


Wait, are you recommending this course of action because you believe there's a time-limitation on the continuing availability of porn?
10.31.2005 10:02am
JonC:
Cornellian:

Assuming he's going to be a vote for wholesale rollback of Roe v. Wade are the Democrats going to regard him as the critical 5th vote?


Even if Alito were against Roe, he won't be the "critical fifth vote" to overturn it. He may not even be the fourth, depending on how Roberts would vote. Stevens, Breyer, Ginsburg, Souter, and Kennedy form a solid pro-Roe bloc. Stenberg v. Carhart on the other hand, that's another matter.

Re: the likelihood of filibuster, I'm not seeing it, and if it does happen it will fail. Republicans only need two members of the Gang of 14 to break any filibuster, and Lindsay Graham has already said he won't let one against Alito stand. I can't see Mike DeWine, John Warner, or Ben Nelson taking a different position.
10.31.2005 10:03am
Lab:
Alito is a mortal threat to Roe.

Conservatives who claim otherwise are simply dishonest.
10.31.2005 10:05am
Anderson (mail) (www):
Here's a link to the early talking points against Alito.

Liberals like me who aren't knee-jerk opponents of every conservative Bush picks, but who want to be reassured he's not a wacko, would doubtless benefit from refutations of said points. Surely there's some Alitophile at the VC with time on his hands to generate what would surely be a much-linked post?
10.31.2005 10:32am
Observer (mail):
Alito may well vote to overrule Roe. So what? Let's have a debate in the Senate on whether the words "Right to Sexual Privacy" appear anywhere in the Constitution. Let's hear Sens. Schumer - who at least appears to understand the issues - explain why he thinks the Court should write those words into the Constitution. The debate will be valuable for the entire country.
10.31.2005 10:37am
Observer (mail):
Anderson,

If it's some comfort to you, it is highly unlikely that Alito would ever find that the Constitution forbids abortion. The right-wing "wacko" equivalent to Roe v. Wade is the argument that abortion is forbidden by the Consititution because it violates the fetus's right to life. Alito believes, as do most honest lawyers, that the Constitution says nothing at all, one way or the other, about abortion.
10.31.2005 10:40am
Lab:
By all means, let's have a debate in which the GOP comes out claiming Americans don't have a right to privacy.
10.31.2005 10:44am
Robert F. Patterson (mail):
I am not a lawyer, but it seems to me that if the comment, the C. "does not say anything about abrotion," has any significance, it should also be questioned whether the C. says anything about child porn on the internet,etc., etc
10.31.2005 11:09am
Anderson (mail) (www):
If it's some comfort to you, it is highly unlikely that Alito would ever find that the Constitution forbids abortion.
Oh, I'm not so worried about that chestnut. Some of the other cases in the link were (as intended to be) rather odd, like the mom &10-year-old daughter who got strip-searched by officers who had no warrant for either of them. Mike Chertoff, it appears, wrote for the majority that the officers didn't enjoy qualified immunity. Alito's dissent seems strained at best ... anyone care to take a shot?
10.31.2005 11:11am
JoeW:
I'm not a lawyer but after reading the aformentioned case above, it seems that it was Chertoff who was straining for the gnat. The warrant clearly stated that the police could search all persons on the premises. That's what the officers did. This bolsters my support to Alito; he actually uses common sense.
10.31.2005 11:27am
frankcross (mail):
You're not a lawyer but did you even read the case? The warrant itself clearly did not say that the police could search all persons, though an "accompanying affidavit" did, and the issue turned on whether that was incorporated by reference. This strikes me as a pretty close call, though, not a miscarriage of justice.
10.31.2005 11:37am
JoeW:
I did read the case, but clearly misunderstood the distinction between a warrant and accompanying affadavit assuming that, in they eyes of the law, they were to be considered to be a single unit.

That aside, the fourth ammendment protected against "unreasonable searches", this search was entirely reasonable regardless of what the warrant stated.
10.31.2005 11:50am
Bob Flynn (mail):
Great pick! Harmony is once again restored in the legal universe.

Anyone who fillibusters Judge Alito is a fool. The man is: (a) eminently qualified and (b) upstanding character.

He should get 100 votes. He'll likely get only 65-70.
10.31.2005 11:54am
Anderson (mail) (www):
Not so close to me, Frank. I've just read through the case, and it seems clear that someone could've written "see affidavit" where the warrant form required a list of who/what could be searched. But it didn't.

Any rule that police can (1) ask to search EVERYTHING in the affidavit, (2) get restricted by the magistrate to only SOME things, and then (3) search everything anyway, saying "oh, but look at our affidavit!" seems "dangerously close to displacing the critical role of the independent magistrate," like Chertoff wrote.

I would think the civil libertarian types at the VC would be all over this. Maybe a police state is okay, if it's good for big business? General Motors, the country, all that.
10.31.2005 11:55am
TL:
Anderson,
Though you may not be a knee-jerk opposer of all nominations starting with the words "I [President Bush] nominate . . . ," many of the folk reading the blog you linked are. I can't say that I support dividing the country into two Americas [you know the 'sh*tholes,' the Red States, vs. all the rest of intelligent people]. And I also say that I cannot see a Senate fillibuster of Alito. Too qualified, too un-Miers, too much wasted political capital by Dems to get to this point.
10.31.2005 12:08pm
JoeW:
Possibly stupid question for fourth ammendment scholars:

The fourth ammendment has two major clauses; people are protected against unreasonable searches and warrants require probably cause. It seems to me if you do obtain a warrant then it must be based on probable cause but it does not preclude a reasonable search (and/or seizure) under other circumstances. Or does it?
10.31.2005 12:09pm
TL:
Joe,
There are permissible searches without a warrant certainly, and at times even without PC. However, they are few. Police may stop and frisk with reasonable articulable suspicion (less than PC). Anyone can consent to be searched at any time. If something is in plain view, police can look, and if it is outside in public, or abandoned, police may examine. These are probably the most notable exceptions to the Probable Cause requirement.

Exigent circumstances (emergency like seeing a gunman flee) will also always justify a seizure/search, but I would consider PC to always attach to this situation (certainly law enforcement have PC to arrest, or at least investigate alarming or very suspicious behavior).
10.31.2005 12:24pm
Anderson (mail) (www):
TL, I don't think Alito is filibuster material, on what I've seen. I think every Dem should vote against him, but I think the filibuster should be reserved for the wack jobs of the judiciary (like dear old Janice).

JoeW, all I know about criminal procedure I forgot in law school, but I thought the whole point of having to get a warrant is to ensure that the search is reasonable. There are exceptions (like exigent circumstances), but Chertoff considered them in the case I discussed &found none to be applicable.
10.31.2005 12:25pm
Milhouse (www):
Anderson: I thought the whole point of having to get a warrant is to ensure that the search is reasonable.

No. Very much no. Read the 4th Amendment again; it's not so complicated. A warrant issued upon probable cause is required in order to conduct unreasonable searches; hence, for reasonable searches you don't need a warrant, or probable cause.
10.31.2005 12:56pm
Shelby (mail):
Milhouse,

I don't think that's quite right. There are two clauses: one forbidding "unreasonable searches and seizures" ("the right ... shall not be violated"), and one prescribing the requirements for Warrants to issue. A warrant does not permit unreasonable searches. Practically speaking, to get a warrant and conduct a search the officers must demonstrate (usually by affidavit) that it is in fact reasonable. They then must conduct their search in conformance with the warrant, which defines the scope of what is reasonable. (Sometimes something outside the scope of the warrant will turn out to also be subject to search and/or seizure; i.e. things lying in plain sight.)

In the strip-search case, Alito makes a plausible argument that I ultimately find uncompelling. The officers themselves wrote up the warrant as well as the affidavit, and they ran out of room on the face of the warrant to include additional persons to be searched. Alito's interpretation of this is sensible.
10.31.2005 1:14pm
TL:
Shelby,
Agreed. I sincerely doubt that a court has ever blessed a patently unreasonable search as legitimate b/c a warrant obviated the reasonableness requirement. The Court at times has done a bad job in this area. Sometimes Justices including Scalia and Thomas write without ample explanation about the "reasonableness requirement."
10.31.2005 1:40pm
Anderson (mail) (www):
Milhouse is just giving us the kind of "originalist" interpretation of the Fourth Amendment that we can expect from the Alito Court.

[/snark]
10.31.2005 3:06pm
TL:
Are you sure that it is not the Kelo Court to which you refer? The Constitution doesn't say that private property cannot be taken for private use, right? Yet another "originalist" doctrine.

Besides, as mentioned supra, Scalia and Thomas are two of the justices that readily write a reasonableness requirement into their 4th Amendment jurisprudence. The example couldn't be less apposite.
10.31.2005 3:54pm
Anderson (mail) (www):
But at least our constitutional rights will be abridged by a really nice guy.

I feel better already.
10.31.2005 5:31pm