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Alito:

Just got off the phone with someone who knows Alito well, and whose perspective I value. Alito, according to him, is "really nice", with a "reserved" personality. Unlike Scalia, there is nothing acerbic about Alito, and his questioning in oral argument tends to be minimal but penetrating. There is "no way" he will become another Souter, or even Kennedy; Alito is devoted to the idea that the role of the judge is to apply the constitution and law faithfully and without embellishment, and he is very principled in his devotion to this idea. Overall, a "great judge."

And from a post of mine on Saturday:

Via the Supreme Court Nomination Blog, I've come across Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): "There is no categorical 'harassment exception' to the First Amendment's free speech clause.... When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications."

Good to know he takes at least a somewhat Volokhian (and Bernsteinian) view of such issues.

Markusha:
Well, I will probably be in the minority on this blog, but I certainly hope that this nomination is filibustered. While I appreciate Alito's apparently expansive view of the 1st amendment, I am completely at odds with him on most all other issues, from the separation of church and state to consumer rights to abortion to death penalty.
However, probably he will still get confirmed, unfortunately.
10.31.2005 10:13am
frankcross (mail):
It's the spoils of victory, Markusha.
Bush won the election, Republicans have a Senate majority, and Alito is probably close to his optimal pick. Distinctly conservative, yet clearly qualified, not radical, and without apparent personal problems.

I personally doubt he's Scalia/Thomas. More like Roberts except a stronger vote for states' rights than Roberts.
10.31.2005 10:25am
Bobbie:
Well, if he takes a libertarian view of the First Amendment, then at least we know he isn't a principled originalist. I'm sure conservatives will reject him then, even if he would overturn Roe.

There's no place like home. *click* *Clikc* There's . . .
10.31.2005 10:28am
Daniel Chapman (mail):
Out of curiosity, why did you choose the words "I hope this nomination is filibustered" instead of "I hope this nominee is defeated"? While you can certainly have legitimate doubts about a candidate, don't you think filibusters cause enough systemic harm that they shouldn't be encouraged or hoped for?
10.31.2005 10:28am
Markusha:
Daniel,
I certainly would prefer to see this nomination defeated rather than filibustered. However, given that Republicans control 55 seats in the Senate and the relatively small number of "moderate" Republicans, it is unrealistic to expect that this nomination will gather less than 50 votes. Even Bork would probably have had more than 49 votes in this Senate.
I don't particularly like filibusters, but if they are the only way to prevent someone extreme from getting on the SCOTUS, I reluctantly endorse them.
10.31.2005 10:40am
Markusha:
Francross,
I sort of agree with you that it's the spoils of victory. However, they work both ways: Bush gets to nominate whomever he wants, and the Senate gets to decide whether he or she deserve confirmation. Yeah, Republicans have the majority, and that's why ultimately he'll probably be confirmed. But if I were the Senate Democrats, I would do all I could to derail this nomination and if it fails, at least try to educate the American public about the constitutional debate.
I am confident that with the exception of the establishment clause jurisprudence, most of the american public would share the Democrats' view of courts, rather than the Republicans'. I think that most people believe in privacy rights, believe that government has nothing to do in people's bedrooms, that consumer rights should be protected, etc.
10.31.2005 10:46am
Daniel Chapman (mail):
So I guess you're saying that you think the damage that would be done by a filibuster fight is outweighed by the damage that could be done by confirming Alito. I guess that makes sense, but I think I disagree with your balancing.

Oh well. If we're going to have the fight over the filibuster once and for all, at least it's due to a candidate I think I can get behind.

Bring it on, I guess.

Could someone please list some notable Alito opinions that I should read? Casey and Saxe, of course... what else? I'd like to see the opinions that the filibuster crowd will be pointing to as well... if there are any.
10.31.2005 10:50am
WHerndon (mail):
Are we back to arguing about who's an "extremist?" Yikes.

From his comments, Markusha strikes me as particularly "extreme" in his willingness, even if relucant, to see the filibuster used to block a clear majority from approving a Supreme Court nominee.

Ah, whatever. We had this argument before and will have it forever.

I've said it once, I'll say it again. If the Democrats do try to use the filibuster, I will reluctantly (but happily) expect the Republicans to quash the filibuster attempt with the nuclear/constitutional option. And Dems will have no one to blame when they fail.
10.31.2005 10:51am
frankcross (mail):
There's nothing wrong with filibustering USSC nominees. John McGinnis has a good article supporting it. But I think Alito will end up getting sixty votes, barring some surprise.
10.31.2005 10:57am
Markusha:
Well, if the nuclear option is used, Republicans will come to regret it once the Democratic President replaces Scalia and Kennedy. So, I think it will be very short-sighted of them to bring it. If it's brought up and wins, so be it.
10.31.2005 11:00am
Been There, Done That:
Wait a minute...

When Bush nominated Miers, he said she was the most qualified candidate. So we should all be disappointed now that Alito has been picked instead, he must be less qualified in some way.

Paging Prof. Hewitt, white courtesy phone...
10.31.2005 11:08am
Daniel Chapman (mail):
I keep hearing that argument, but how come no one's ever worried that the Democrats will come to "regret" their opening of the filibuster can? Shouldn't they be worried that their tactics will come back to haunt them when they try to replace Scalia and Kennedy? They sure didn't have to worry when replacing White.

Considering the Republicans havn't filibustered anyone yet, (I don't count Fortas, sorry) maybe they don't need to be worried about the "nuclear option" being employed against them in the future. MAYBE they honestly think judicial filibusters are a bad idea, and they have no reason to worry that it will ever be employed against them.

Of course, I'm giving Republicans far more credit than any politician deserves, but you get my point.
10.31.2005 11:09am
Markusha:
Daniel,
Do you know why Republicans did not filibuster Ginsburg or Breyer? It's because a) Clinton really did consult with them (see Orrin Hatch's biography; he suggested both names to Clinton), and b) because they were moderate picks. They are no flaming liberals.
If the nominee was truly moderate, there would have been not even a mention of a filibuster.
Both parties use filibuster in all kinds of context, and judicial filibuster is no different than legislative one. It's a valid debate as to whether we should have filibuster at all; if we decide we don't, let's eliminate it completely. But don't single out Democrats for employing judicial filibuster as some sort of novel tactic which ever-so-noble Republicans never used.
10.31.2005 11:15am
ChrisO (mail):
Some people would prefer a court full of compromise appointees, rather than 4-5 liberals and 4-5 conservatives, and one or two justices always being the deciding vote in cases that implicate ideological issues.
10.31.2005 11:19am
Daniel Chapman (mail):
I made no claims whatsoever as to why the Republicans didn't filibuster Ginsburg or Breyer. I merely pointed out that they didn't. I also didn't use labels like "extremist" and "moderate," which add nothing to the debate. It's all relative.

Yes, I singled out democrats for employing a judicial filibuster. It is a "novel tactic which ever-so-noble Republicans never used." Good phrase, by the way... I think I'll use it again in the future. One of my points was that Republicans probably aren't noble, and they might use it in the future now that Democrats have started it. This argument was meant to refute your point about how Republicans should fear using the "nuclear option" lest it be used against them in the future.

You seem to have completely missed everything I said.
10.31.2005 11:23am
Markusha:
One of the cases demonstrating how far Alito would go in eliminating or watering down 4th amendment protections. Notable, the majority decision rejecting Alito's position was written by a flaming liberal Chertoff (current Homeland Security Secretary).
10.31.2005 11:24am
Markusha:
oops, forgot to post a link :)
http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf
10.31.2005 11:24am
Daniel Chapman (mail):
ChrisO: Yeah, but some people wouldn't. I tend to think the legislature is the place for compromise, not the courts. Perhaps the people who favor judicial compromise would change their minds if the courts could stay out of issues that require compromise.
10.31.2005 11:25am
Markusha:
Daniel,
I think it is you who is missing what I said. My point was that Republicans would have used the filibuster anyway, had Clinton not nominated consensus candidates. It's irrelevant to Republicans whether or not Democrats use a particular legislative tactic; if it is to their advantage, Republicans would use it too. So, Democrats did not open any can of worms.
And my point remains that if the nuclear option is exercised, none of the parties would be able to use it in the future, and Republicans for sure will come to regret it.
10.31.2005 11:29am
JoeW:
Markusha, you wrote: "I am completely at odds with him on most all other issues, from the separation of church and state to consumer rights to abortion to death penalty."

In an attempt to educate myself more about Alito, could you briefly outline what the stance of his written opinions have been in these areas?
10.31.2005 11:30am
J..:
Markusha -- is that the Doe v Groody case? I read that last night. I thought it was pretty fact intensive, not at all radical, and merely a disagreement over a reading of a warrant. The Qualified Immunity reading Alito had seemed reasonable to me (if you first agree that this should be the standarf for QI, which a 3rd circuit judge takes as a given). I don't know, ymmv, I suppose. (For reference, I'm sure I am to the left of even you :-) ).

frankcross: what opinions make you believe Alito will be more "states' rights" oriented than Thomas/Scalia? I've not yet seen a commerce clause opinion of his (and only one footnote, which I mentioned in another thread). His one 11th amendment opinion (the FMLA case) appeared to be rather mainstream, and Scalia/Thomas essentially adopted in in their dissent in Hibbs. Am I missing something (I assume I am)?
10.31.2005 11:37am
Randy R. (mail):
For more an listing of Alito's judician opinions, go to http://media.pfaw.org/stc/AlitoPreliminary.pdf and download the analysis.

If you want to get rid of Roe v. Wade, he's your man, apparently. Also, if you dislike discrmination cases of all sorts, he seems to want to make it impossible for anyone to claim discrimination.
10.31.2005 11:37am
Daniel Chapman (mail):
I'll try to make it very clear... here is the fallacy of your argument:

You argue that Republicans shouldn't employ the "nuclear option" because they should fear a response in kind from the Democrats.

1) This assumes that the Republicans will respond in kind to the Democrats' use of the judicial filibuster, a premise that hasn't been proven.

2) If your argument has merit, why shouldn't the Democrats abandon their use of the judicial filibuster out of fear that the Republicans will respond in kind against THEIR nominees?

Your only possible answer to these arguments would be to say that the Republicans will filibuster anyway, so why shouldn't the Democrats do it now? This is valid, but it pretty much destroys your argument against the "nuclear option."

Understand?
10.31.2005 11:38am
Michael B (mail):
"I don't particularly like filibusters, but if they are the only way to prevent someone extreme from getting on the SCOTUS, I reluctantly endorse them." Markusha

Define "extreme" with reference to specific Alito opinions or other references.

"Well, if the nuclear option is used, Republicans will come to regret it once the Democratic President replaces Scalia and Kennedy. So, I think it will be very short-sighted of them to bring it."

Which querulously assumes pontifical Left/Dems such as Schumer, Kennedy, et al. would, and from a principled pov, not otherwise use the "nuclear" option should it be necessary to use it in this or a similar instance.
10.31.2005 11:39am
JoeW:
Concerning the 4th ammendment case where Alito dissented. Police officers received a warrant to search a residence known to manufacture and/or distribute drugs. The warrant stated that they could search any persons on the premises. This makes perfect sense in the real world; the odds are that someone at a place where drugs are distributed will have drugs on their persons. It's also a practice of drug dealers to use "mules" (unwitting third parties) to hide and/or transport drugs. Thus, in the real world it is beyond reasonable for any people on the premises to be searched. I not only see no fourth ammendment problem; to the contrary, I have serious problems with Chertoff's reasoning, which strains to find such a violation.
10.31.2005 11:41am
Markusha:
JoeW,

Separation of church and state: Alito is at odds' with O'Connor's balancing approach, and would have no problem with overtly religious symbols in public places

Consumer rights: Alito regularly takes pro-business side and limits consumer rights. Pardon for copying and pasting, but here you go:

He tried to make it easier for employers accused of sex discrimination to get the cases thrown out, saying that cases don't automatically deserve to go to trial when employers make excuses for discrimination and plaintiffs cast doubt on them.

Similarly, he tried to protect Marriott Hotels when it was found to discriminate against an African-American employee.

The majority said Alito's "position would immunize an employer ... if the employer's belief that it had selected the 'best' candidate, was the result of conscious racial bias."

He sought the deny our democratically elected Congress the authority to have the Family Medical Leave Act apply to state government employees, arguing that there was no discrimination in employers' sick leave policies.

(That's a view that was overruled by the Supreme Court in an opinion written by Rehnquist. Yes, he's to the Right of Rehnquist.)

It is also known that Alito takes a very hard line with respect to habeas corpus claims by capital defendants. I am not aware of any habeas corpus grant in death case by Alito, although I may be missing it.
10.31.2005 11:43am
J..:
U.S. v. Rybar -- I suppose that is an opinion worth caring about, but that I still don't find particularly out of the mainstream as a reaction to Lopez.
10.31.2005 11:47am
J..:
Markusha -- Seriously, read the opinion of Alito in the 11th Amendment case. Then, if you access to Lexis/West, shepardize the opinion. I think, prior to Hibbs, there were about 4 or so Circuits that held the same thing as Alito. If multiple judges hold the same thing we can say they are wrong, but we can't say they are extreme. (Or, we can, I suppose, but that is not what I would do.)
10.31.2005 11:50am
Markusha:
Daniel,
One more time. My argument is not that Republicans should be against the nuclear option because of their fear of "a response in kind from Democrats." My argument is simply that if the nuclear option is exercised, it removes any pressure on any President to appoint moderate consensus Justices. If any party can simply confirm their nominees on 50/51 votes, why on Earth would they consult with the Opposition?
That's why ideally a threat of filibuster should be preserved because it forces any president to seek a moderate Justice.
You keep misreading my argument and respond to a straw man.
10.31.2005 11:53am
Daniel Chapman (mail):
"Well, if the nuclear option is used, Republicans will come to regret it once the Democratic President replaces Scalia and Kennedy"

I'm sorry... If that's not what you're arguing, then you really need to explain your arguments better. I'm not misreading anything.
10.31.2005 11:54am
nobody (mail):
Three things:

1. David Bernstein writes:

There is "no way" he will become another Souter, or even Kennedy; Alito is devoted to the idea that the role of the judge is to apply the constitution and law faithfully and without embellishment, and he is very principled in his devotion to this idea.


This strikes me as a slur on Justices Kennedy and Souter, both of whom, I'm certain, will tell you that they apply the constitution faithfully, without embellishment, and in a principled fashion. If you have some dispute with these justices, come out and state it. This slamming with code-words is not terribly helpful to the debate.

2. In the four hours since Alito was nominated, I've already read about three or four comments (here and elsewhere) like the one above, that "I personally doubt he's Scalia/Thomas. More like Roberts except a stronger vote for states' rights than Roberts."

How can anyone say that someone is "like Roberts" when we don't know what Roberts is "like"? As far as I know, he hasn't published a single opinion as Chief Justice. His very limited record on a subordinate court of appeals tells us close to nothing about his judicial philosophy and, of course, we learned nothing about such philosophy during his confirmation "hearings."

3. Matt Drudge is trying to manufacture some controversy about anti-Italian bias in the nickname "Scalito." Does anyone see that going anywhere?
10.31.2005 11:56am
Markusha:
JoeW:
Did you read the opinion? :)
The warrant did not state that police can search anyone on the premises; that was the heart of the case. The warrant specifically described one person to be searched; it is the affidavit attached to the warrant that contained language about anyone on the premises. It's the heart of the 4th amendment that warrants should describe "with particularity". If the police can use warrants issued to search one person to instead search everyone located at the premises, the 4th amendment is pretty much gone. I think even Scalia would take issue with Alito's position.
10.31.2005 11:58am
Markusha:
Daniel,
Maybe I am using wrong words, but what is not clear? Republicans will come to regret not having a filibuster on the table when a Democrat appoints Scalia's replacement. It is not the same thing as Republicans should not exercise nuclear option because Democrats will respond in kind.
Again, Republicans will come to regret because there'll be no pressure on Democratic President to appoint a moderate Justice.
I thought I was being clear.
10.31.2005 12:01pm
JoeW:
Markusha, thank you for the summary.

(Wow, actually having to consider the merits of a justice candidate's opinions. What a change.)
10.31.2005 12:03pm
alexandra (mail):

I love the name Scalito, but disappointed if he lacks Scalia's "acerbic" touch to his opinions. Perhaps he will grow once there. Scalito - Scalia.......I think he is compared to Scalia simply because it's somewhat alliterative.

I can only pray Scalito sees all the nonsense behind the seperation of church and state...another revisionist history term that belongs in the trash heap along with the so called right to privacy.
10.31.2005 12:08pm
Daniel Chapman (mail):
You're not being clear. Obviously the Democrats won't have a "nuclear option" to invoke because it's sort of a one-time thing. If that's all you mean, then I guess I agree with you. The Democrats won't invoke the "nuclear option."

Realistically, however, what you're saying is that Republicans shouldn't invoke the "nuclear option" because then Democrats will be able to force a nominee with only 50/51 votes, which is exactly the argument I've been responding to, and which you call a "straw-man argument."

All I'm saying is that it's illogical to argue against the "nuclear option" because it will give validity to future similar actions by the Democrats. The same argument can be used against the judicial filibuster in general, and both arguments ignore political reality.

Let me guess... Straw-man again? It doesn't matter... I'm done wasting Volokh's bandwidth on this point.
10.31.2005 12:08pm
ChrisO (mail):
Yeah, but some people wouldn't. I tend to think the legislature is the place for compromise, not the courts. Perhaps the people who favor judicial compromise would change their minds if the courts could stay out of issues that require compromise.

Is there any reason to want more ideologically extreme justices, other than that you like the results of conservative ideologues being put on the court, as will happen in the short term?
10.31.2005 12:10pm
frankcross (mail):

I think that the Alito Commerce Clause case that could be important is
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997)
10.31.2005 12:15pm
JoeW:
Parsing the last phrase of the fourth ammendment seems to indicate that the "oath or affirmation" must describe the "place to be searched, and the persons or things to be seized." Besides the fact that the fourth ammendment says nothing about searching persons, it seems that no fourth ammendment violation was made. Moreover, the first clause clearly states that a reasonable search can be made. (And are these necessarily linked?)

Yes, the officers should have taken more care in preparing the warrant, but I see no travesty of justice in what they did. To suggest this eviscerates the fourth ammendment is being rather overdramatic.

(Okay, in my naive way I'm baiting here; searches can be made without a warrant so the two clauses are, indeed, separate, the only question being to what degree. [A police office may, say, tackle a man with a gun and search his person.]

Let's put in a twist; say the officers went to the drug dealers house and were searching it when a customer showed up. Would the officers be prohibiting from arresting and/or searching that person based since it would be entirely reasonable?)
10.31.2005 12:19pm
Daniel Chapman (mail):
I don't care about issues. I care about methods of interpretation. I happen to like the "war on drugs" from a policy standpoint, but I was appalled by Raich. I was hoping to see Wickard overturned once and for all since it is a perversion of the Commerce Clause. I would object wholeheartedly to a nominee who argues that Roe should be overturned because an unborn child is a "person" in the legal sense and therefore entitled to a due process right to "life."

The difference between originalism and "living constitutionalism" isn't something that can be compromised away by "moderate" judges. One is right, and one is wrong. If you call that "extremism," then I guess I'm an extremist.
10.31.2005 12:22pm
Markusha:
Daniel,
Yeah, I guess enough about this.

"Obviously the Democrats won't have a "nuclear option" to invoke because it's sort of a one-time thing. If that's all you mean, then I guess I agree with you. The Democrats won't invoke the "nuclear option."


I have no idea what you are trying to say. :) Honestly.
I said as clear as I could that having an option of a filibuster on the table forces Presidents to go with moderate judges. That's why Republicans should be cautious of eliminating filibuster.

But yeah, enough about it.
10.31.2005 12:22pm
ChrisO (mail):
How are reduced regulatory/welfare state and criminalizing more abortions not policy interests? Your 'process' veneer is obvious, and for judicial appointments short-sighted.
10.31.2005 12:36pm
Daniel Chapman (mail):
Was that directed at me? I have no idea how to respond to it if it was, so I'll try to be more clear.

I believe when it comes to the judicial branch, there are absolute answers. If you're looking for a compromise, it should probably be handled in the legislature. This isn't short-sighted. It's short-sighted to give every policy decision to the Courts and trust unelected judges to reach the proper compromise.

Feel free to disagree with me, but be a little more civil about it. You just asked how a person could prefer uncompromising judges without being results-driven. I gave you an answer that is true for me.
10.31.2005 12:49pm
Markusha:
Daniel,
You say that there's a single absolute correct answer in all issues judges face. Would you please explain what would the correct result be, from your perspective in the following cases:
1) Griswold;
2) Lawrence; and
3) Brown v. Board of Education.

Thanks.
10.31.2005 1:09pm
Cornellian (mail):
Unlike Scalia, there is nothing acerbic about Alito, and his questioning in oral argument tends to be minimal but penetrating. There is "no way" he will become another Souter, or even Kennedy; Alito is devoted to the idea that the role of the judge is to apply the constitution and law faithfully and without embellishment, and he is very principled in his devotion to this idea. Overall, a "great judge."


I don't agree with the implication that Souter and Kennedy aren't "devoted to the idea that the role of the judge is to apply the constitution and law faithfully and without embellishment" any less than Scalia, Thomas or, for that matter, Ginsberg.
10.31.2005 1:28pm
WHerndon (mail):
This is like debating what the meaning of "is" is.
Markusha looks at Ginsburg and Breyer and sees two "moderates." I look at them and see two "liberals."

Are they are liberal as Brennan or Marshall or Warren? Maybe not in their role as SC judges, but if that's the case, it may be because of the backlash against 'activist' liberal judges on the courts. Or, perhaps more so, a recognition even among liberals that there is a limit to what they can do as judges. Hence all the teeth-nashing these days among smart liberal legal thinkers about the inadequacy of the Roe decision itself.

Make no mistake. Ginsburg and Breyer were NOT consensus choices. Clinton did not pick them because Republicans liked them (See Stephanopolous' book on the Demss' process). In fact, Clinton's first choice was Mario Cuomo! He was quite unliked by Republicans.

Many Republican groups objected to Ginsburg but recognized her credentials. They may have found Breyer more palatable, but don't think for a moment these are the people conservatives would have named. They are not.

As Daniel pointed out here, Republicans have not used the filibuster on judicial nominees before. This is a Democratic creation.

You are wrong about a lot of things, Markusha, but no more so when you say "Republicans would use it too" in referring to the judicial filibuster. They've had ample opportunity to use it but never did.

You are also quite wrong in arguing that a threat of judicial filibuster is what has historically prevented a president from naming one of his own -- presumingly meaning "idealogical" -- nominees.

The filibuster threat is new. It's never been threatened before like Democrats threaten to use it now. What has prevented presidents from naming hardcore idealogues, for the most part, was fear of a bad public or political reaction. It's the same thing that would prevent a Democratic president from naming a flaming liberal.

In any case, while I am sympathetic to conservative views on the judiciary, I believe all presidents, Democratic and Republican alike, are owed some deference to their picks.I also believe an up-or-down vote should be held in ALL cases, but especially so when the president's own party controls the Senate.

I'd like to think of my approach as a principled one as opposed to obviously expedient approach of Markusha. If the Democrats refrain judicial filibusters, I would expect and demand that Republicans to do the same.

Indeed, I would not support a GOP filibuster of a Democratic choice for the court, even a liberal candidate whose jurisprudence I disliked. Were I a senator, I would take my case in such a situation to the public. Deference to the president does not mean a vote to approve.

It seems that Markusha wants a judge who is "balanced" or "moderate." Well, it's already been asked here, but I'll ask again. What is a balanced or moderate judge?

Someone who consults the Constitution half the time and ignores it the other half? Someone who believes the Constution ought to be followed when he agrees with what it says, but not when he disagrees with it?

More likely, when the president doing the picking is a Republican, it's a conservative who is least likely to make Markusha puke. Nothing balanced or moderate about that.
10.31.2005 2:01pm
Daniel Chapman (mail):
*sniff sniff* smells like bait. I don't think I'll bite. Sorry, but you won't be able to derail this entire thread into another worthless fight over Griswold.
10.31.2005 2:15pm
Hoosier:
nobody--

Anti-Italian bias is a-OK. It can't hurt its purveyors. And anti-Catholic bias is actually recommended if you want intellectual cache.
10.31.2005 3:36pm
nobody (mail):
Hoosier, I'm not sure what you're talking about, but I know that you'll have more intellectual cachet if you spell "cachet" correctly.

Does anyone actually think that any of the (anticipated) (liberal) opposition to Alito's nomination is actually due to Alito's Catholicism or Italian-American-ism?
10.31.2005 3:40pm
flaime:
But I like Kennedy. Not as much as O'Connor, but almost...

I'm hoping that Alito will interpret the Constitution in a way that gives the maximum freedom to the American citizen, while restricting the government in every way he can. False hope, I know, since conservatives have always failed in that respect before, but...
10.31.2005 4:12pm
Hoosier:
nobody--
Thanks for correcting my typing--mighty big of you. And it doesn't surprise me that you're "not sure what (I'm) talking about." That's the problem, I suppose.

But: I have no question that anti-Catholicism plays a role in questions of Supreme Court nominations. (Anit-Italian prejudice is probably a red herring.)

I'd be happy if someone proved me wrong one of these days. But Thomas's Catholicism was raised as an issue when he was nominated: How can he be fair about abortion? . . . blah, blah. This gets forgotten because of the fiasco that those hearings became. Likewise, I heard a spokesperson for NARAL mention Roberts's Catholicism as a concern (on Chris Matthews?--Sorry, I don't remember the specifics.)

But, sure, it's a factor. It hasn't "kept us down," as you can tell by the current make-up of the Court. But ask yourself how many of the current Catholics on the Court were nominated by Democrats. This doesn't mean that Democrats are anti-Catholic. But some of the groups that they depend upon for support don't trust us. You know, we get our orders from the Vat. and all that, so why would they?
10.31.2005 4:53pm
flaime:
As Daniel pointed out here, Republicans have not used the filibuster on judicial nominees before. This is a Democratic creation.


No, the Republicans used anonymous holds. Then, when the Republicans became the majority, they eliminated anonymous holds. Leaving Democrats no option but the fillibuster.
10.31.2005 6:02pm
Shelby (mail):
As I recall there were also some other tricks Republicans used to block judges, though it's been a little while since Democrats controlled both the White House and the Senate, so I forget just how it worked. I think there were also some procedural games involving the Judiciary Committee.

For that reason I've always been skeptical of Republican vehemence against filibusters. On the other hand, I'm no great fan of the filibusters themselves; their use in blocking civil rights legislation, for example, should make people skittish about using them.

I am sympathetic to arguments that judges (and all other nominations) should receive an up-or-down vote, unless withdrawn by the candidate or the executive.
10.31.2005 7:07pm
WHerndon (mail):
Holds were not invented by modern Republicans. Democrats have used holds to, particularly in the Reagan and Bush Sr presidencies, though never for a Supreme Court nominee, from what I can tell. Nor have Republicans used holds vs Democratic nominees to the Supreme Court.

Yes, the GOP eliminated holds, and a good thing too, in my view. Democrats will not be held hostage to holds in the future, either.
10.31.2005 8:26pm
David M. Nieporent (www):
Markusha:
I am confident that with the exception of the establishment clause jurisprudence, most of the american public would share the Democrats' view of courts, rather than the Republicans'. I think that most people believe in privacy rights, believe that government has nothing to do in people's bedrooms, that consumer rights should be protected, etc.
I would suggest that in fact, you're not confident at all of these things; I would suggest that this is either false bravado or self-deception. If you were truly confident of these things, then you wouldn't worry about the courts. If "most people believe in privacy rights," if most people "believe that government has nothing to do in people's bedrooms," etc., then you can win these fights at the ballot box. The only reason one needs to constitutionalize abortion rights, gay rights, etc., is if one is afraid that people won't support them, come election time.
11.1.2005 12:56am
David M. Nieporent (www):
Also,
I said as clear as I could that having an option of a filibuster on the table forces Presidents to go with moderate judges. That's why Republicans should be cautious of eliminating filibuster.


True enough. On the other hand, overuse of the filibuster eliminates any reason for presidents to go with moderate judges. If anyone the president nominates is going to be filibustered, then might as well eliminate it.

The real reason why Republicans should be cautious of eliminating filibusters is because (at least in theory) Republicans are the party of smaller government, and the filibuster, being an obstructionist tactic, is a friend of smaller government. Eliminate the judicial filibuster and that undermines the legislative filibuster.
11.1.2005 1:35am