The Volokh Conspiracy

I think its principled to say that the President gets more deference to replace a conservative stalwart in a way that will not upset many precedents than replacing a swing justice.

I also think its principled to say that because Alito's statements on how he'd act as a justice were untruthful in the eyes of most liberal observers (assuming you're a liberal Senator and agree), you should vote against him. Note also that Roberts's vote in the Gonzales v. Oregon case appeared to directly contrast his own testimony, and a Senator might be more skeptical this time around.

Most importantly, given that between Roberts and Alito the President of the United States admitted to an impeachable offense, and having not resigned, pronounced a new Article II to the Constitution that is literally frightening, and then picked a guy whose most known for his deference to the executive, one would be more than hesitant to vote to confirm Alito.

For there to be a principled reason to vote against any nominee - compared to Roberts or not - there needs to be a material objection to the nominee. With regard to Alito, I can't think of one.

Oh, and I supported Roberts, because at the time I did not realize the importance of the Article II issue, and figured (like Senator Feingold, whose support for Roberts cannot be seen as "political") that the President gets significant leeway in his appointment position. However, he has squandered the presumption by violating his oath to the Constitution of the United States.

Huh?

Three responses

1) Ron is exactly right. Ginsberg and Breyer were not only vetted through the Republican minority, but, according to Orrin Hatch's autobiography, they were actually suggested by Hatch:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

Numerous conservative judges would have been acceptable to the current Democratic minority, including several Bush appointees such as Reena Raggi, Ed Prado, Consuelo Callahan and Allyson Duncan. Bush choose instead to appoint someone who is only acceptable to his right-wing base, so he shouldn't be surprised by the Democratic response.

2) The primary difference between Roberts and Alito is that Roberts was a crapshoot (albeit with loaded dice). His very limited record left some doubt as to what kind of Justice he would be. Alito's long record on the Third Circuit leaves no doubt whatsoever.

3) I agree that the era of easy confirmations may have ended, but we have only Bush to blame for this. Had Bush nominated a mainstream conservative, future Democratic presidents would feel comfortable following President Clinton's lead an nominating moderate liberals who would keep the Court from fluctuating erratically. Given the kind of Justice Bush has prefered, however, Democrats are left with no choice to nominate the most awesomely leftist jurists they can muster, in the hopes that an extreme leftist will provide balance to Bush's extreme rightists.

I think its principled to say that the President gets more deference to replace a conservative stalwart in a way that will not upset many precedents than replacing a swing justice.

Giggle, snort, Byron White -> Ginsburg wasn't changing a swing justice to a liberal stalwart, very funny.

Correct me if I'm wrong, but believe Ginsburg and Breyer were vetted by repubs before nomination. Recall repubs objected to Babbitt and Clinton acceded. Not the case with Roberts nor Alito. Executive poked the dems in the eye with this nomination and this is the consequence.

Yeah, but Babbitt would have been, by all indications, more moderate than Ginsburg. The Repubs objection to Babbitt had to do with qualifications, not ideology. Dems objected to any conservative candidate on the basis of ideology, but didn't care about qualifications. The candidate that was suggested and vetted by the Dems' leader in the Senate, Harry Reid, was the absurdly unqualified one.

I should like to know how many Senate Democrats who find an ideological swing dispositive today found a more significant swing in the other direction perfectly acceptable when the retiree was Byron White.

The ideological composition of the court is a relevant concern for all parties, I think. (Otherwise, why should one understand/respect a President who insists upon the confirmation of his Justice?) Moreover, I'm not sure that it's hypocritical for Democratic (or Republican) Senators to insist upon a "balance" to the court, to the extent that they have the power to do so. (Though this concern is more legitimate, I think, with respect to a judicial nominee than with a nominee to the Executive branch.) The Senate doesn't have to "find another" O'Connor for this strategy to be rational or successful, having the power to exclude a nominee is sufficient.

Senate principles include: do what constituents want, do what contributors want, do what your wife tells you, do what's in your gut, do what the party bosses tell you, do what's right for the country. Another: don't stick your neck out. A no vote is safer than a yes vote. Many, regardless of party of faction, thought Roberts was an improvement over Rehnquist. It's more difficult to see Alito as an improvement over O'Connor, except perhaps to some on the far right. It's possible to vote no as a signal Miers wasn't well treated. While Alito might be a good pick for the Jersey Catholic seat, he's less of a fit for the Western female elected offical seat. (Not that there are "seats", but some senators might think so.) It's not that Alito is evil - he just seems like he might be sort of dull. I'm willing to be proved wrong.

The comments of a layman and non-Lawyer - It would appear that the biggest difference between the two is your belief in abortion. Roberts did not shift the court to the right, and Alito probably will. Using that logic, those who are supported by the alter of unlimited abortion and owe their current position to that belief will be more inclined to vote against Alito. The support of unlimited abortion is extremely principled to some people as was evidenced in the recent hearing for Alito.

The recent revelations of NSA wiretapping and the reach of executive branch powers as articulated in Article II of the Constitution could also give principled individuals a different view of shifting the court to the right as Alito most likely will do. While the legality of the wiretaps is in serious dispute, there is no dispute that it will become a highly contentious battle of principled individuals on both sides before it’s all over.

This actually won't start anything. The Right has been provoked over judges before, and still has behaved responsibly -- giving Dem Presidents their choices. If Ginsburg could be confirmed after Bork was rejected, or after the Clarence Thomas atrocity, then Republicans simply can't be roused on this issue. This is understandable based on the facts that: 1) national Democrats care about judges more than Republicans do, because Democrats are more dependent on the actions of judges to further their agendas; and 2) Republicans are more deferential (and properly so) to the President's Constitutional perrogatives on this topic.

Suppose the "mainstream" of liberal jurisprudence saw grounds to explore a Substantive Due Process right to welfare, and a Democratic president (with a Democratic House and Senate) nominated someone who probably shares this view.

Why would it be unprincipled for a conservative to vote "no" to such a nominee? Why would it be unprincipled for a strategic conservative to agree to put 1 such justice on the court, but not 2?

Ron: So Roberts doesn't believe that the executive branch is led by the president? After all, that's all Alito believes under that title, despite repeated attempts of Democratic senators to confuse that view with the issue of the scope of the executive's powers. Alito's view on this is not exactly outside the mainstream of conservatism. I don't think it's even outside the mainstream of liberalism.

So it would be unprincipled?

While of somewhat recent vintage, this argument strikes me as principled, even if you disagree with it:

Through our history, the Court has had a mixed record in fulfilling this responsibility. [....]

At other moments, however, the Court has performed admirably. [....]

The single most critical factor that distinguishes the decisions in which the Court failed from those in which it succeeded was the character and constitutional philosophy of the Justices serving at the time. Those Justices who abdicated their responsibility and chose blindly to defer to excessive presidential claims approved the pervasive suppression of dissent during World War I, the Japanese internment, and the rampant abuses of McCarthyism. Those who were determined to ask hard questions and to insist that the President and Congress comply with the Constitution gave the nation the steel seizure decision, the Pentagon Papers decision, and the 2004 decision preserving the due process rights of American citizens.

[....]

Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the Justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.

Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate – Republicans and Democrats alike – to deny his confirmation to the Supreme Court of the United States.

Alito is hardly a far right conservative. If President Bush wanted to poke the liberals in the eye he would have appointed the conservative favorite Janice Brown.

I think the Dems behavior is based on their concern about a possible third vacancy. That would change the direction of the court and they are trying to influence that with their current irrational behavior.

But the chance of another Ginsberg getting through the process is now slim unless the Dems win a filibuster proof majority in the Senate. This is especially true after the breaking of the agreement on the date of the vote in the commitee which will come back to haunt them.

The only person who wants JRB on the Court less than Democrats is Bush. JRB is a radical liberterian, and as much as you all try to pretend otherwise, Bush lacks a single liberterian bone in his body.

Well John, think about the illogic of your statement (even assuming your statements about qualification are assumed): Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.

"Numerous conservative judges would have been acceptable to the current Democratic minority,"

Sure, and I am 15 feet tall.

What struck me about the foregoing is that the anti-Alito people upchucked the DNC talking points without advancing the ball.

I claim a forfeit. There are no principled reasons to vote against Alito. All of the reasons set forth related to things like inside baseball (the president didn't consult with me) or supposed policy outcomes of his imputed judgments of cases that have not been presented yet.

Look, I am so far to the right of you people that it would take six days of bushwhacking for the next most right among you to get to me. I think Thomas and Scalia are correct in their judgments most of the time. I hope Alito forms a tight voting block with them, but I have no real idea of how he is going to vote. He could turn out to be just as much of a barking moonbat as David Souter is.

But I see no principled reason why any Senator could vote against him. He is magnificently well qualified, his record is spotless, his colleagues and clerks of all political stripes spoke glowingly of him.

If your only principle is that my side has to win, Alito has to vote for my clients regardless of whether they are right or wrong, then I guess that is why you will vote against him and those are your principles, but not anything a civilized man could recognize as principles.

I believe that the era of 96-3 votes is over. The process is totally political. The democrats must hope that the 2008 election produces not only a Democrat president, but a substantial Democrat majority in the Senate.

I am somewhat stunned that anyone could think that this is a strict party line vote on the part of the Democrats. As a person who passionately supported Thomas, and strongly supported Roberts, I am literally horrified at the thought of Alito being on the SC.

For the best superficial argument against Alito (meaning an argument that would address issues with which those not following the hearings closely but who get most of their information from the media can identify), I would direct one to listen to Sen. Feingold's words of today.

My own opinion is that the real issue was never touched upon by any of the Democrats, or the leftist groups in their knee-jerk and distorted, almost laughable attacks on Alito. To my mind, the issue is that contrary to what was said and re-iterated a thousand times, Alito is not a man of integrity. I read him as a craven opportunist who carefully plotted a lifetime path of acting in a certain fashion to maximize his chances of being nominated to the SC when the time came, but was nevertheless not able to entirely hide his true nature. I think his answers on the Vanguard issue, which is not really an important issue, granted, revealed a Class A liar and an insultingly duplicitous person.

Also, whereas Roberts came across as a cheerful, essentially good hearted person, Alito came across, in my view, as anything but. Any astute person with an open mind would have been insulted by the "gimmick" Alito used during the hearings. Instead of responding to the questions in a truthful, informative manner, yet mindful of the fact that he could not duplicate the Roberts approach of saying that he could not comment on cases to come before the court as the Democratic Senators were clearly not going to buy that this time, he instead resorted to the classic doubletalk approach. Talk, but don't actually say anthing. He carefully crafted and then expertly employed a whole new technique of merely stating what the legal procedures were for deciding any particular issue and what factors a jurist had to take into consideration. I guess whoever said you can fool all of the people some of the time was right, and this was that time, as it appears to have washed. Senator Feingold addressed this point in his speech. But you had to listen to every word of the hearings to fully appreciate the enormous extent to which Alito engaged in doubletalk.

My personal view is that the real issue is the man himself. Maybe he was okay as a judge on the courts on which he served. After all, there isn't a world of discretion there---a judge is supposed to apply the written law in a methodical fashion, and most judges who are not whackos at least attempt to do that.

What was not stressed nearly frequently enough is the immense difference between the Supreme Court and the lower courts. The Supreme Court, in its essence, when the case is not a mundane one but rather has genuine importance to the general public, is about interpreting the Constitution, not merely applying the law. The Rule of Law, when important, controversial cases hit the SC, is almost beside the point. There is a world of difference, as we have seen, in how any two justices, say Ginsberg and Scalia, both of whom were deemed by most Democrats and Republicans to be principled and eminently "qualified", approach that interpretation.

How a SC Justice interprets the Consitution can drastically affect our lives and personal liberties, whereas judges on lower courts can do but limited, and hopefully temporary damage. They can harm a few people greatly, but if their decisions are broad principles to be applied to the population in general, and are clearly disturbing and antithetical to common sense, those cases will ultimately find their way to the Supreme Court.

In my opinion, Samuel Alito has a dark side. I read his questionable dissents, and do not believe it is possible when carefully considering his words in those dissents to avoid that conclusion.

Whether a person wants a conservative/libertarian on the court, as I do, or a liberal judicial activist is one thing. But putting a person on the SC whose concept of human dignity is skewered is another thing, and it is a scary thing.

The case that most convinced me that Samuel Altio is esentially, deep down, deep deep down, a cruel person when he is not trying to further his career by winning over people or to impress his colleagues in the legal community, or his political supporters, is the case about the retarded person who was harrassed by his co-workers. I am at a loss how anyone can read Alito's opinion in that case and not get a case of the shudders. What I call incredibly cruel and sociopathic behavior on the part of the co-workers is to Samuel Alito acceptable, macho-type fun and games, business as usual among those with a certain mind-set and warped sense of life.

Exactly what type of upbringing did Alito person have? I wish I knew a lot more about that.

How much different things would have been if Bush had nominated Janice Rogers Brown, a person with the most delicately honed conception of human dignity.

I believe that many good people who are ill advisedly supporting Alito are going to come to rue that decision in the years ahead.

Evelyn Blaine, great post, as usual!

1. Alito stated, on a job application, that he did not beleive that there is a constitutional right to an abortion. While Sentors may have suspected that Roberts would vote pro-life, the statement by Alito and his dissent in Casey confirm those suspicions. Any pro-life Senator (or Senator worried about the pro-life vote) could certainly point to this as a distinction between the two nominees.

2. I'm sure that this will be a controversial view on this site, but is it so clear that ideology and legal qualifications are the only two legitimate criteria for Senate confirmation? Federalist Papers No. 76 speaks about the role of the Senate in preventing "the appointment of unfit characters." A plausible reading of that phrase would permit a vote against Alito on the basis that his conduct (i.e., the Vanguard issue) or his perceived insensitivity to "the little guy" in his published opinions reveal a lack of character.

Well John, think about the illogic of your statement (even assuming your statements about qualification are assumed): Since Miers was vetted, but not qualified, we must therefore accept a nominee that is not vetted, but qualified. The latter does not follow from the former.

You are stating a claim which I did not make. I was responding to the claim that Myers was withdrawn only under the pressure of the religious right. It was clear after the initial hearings that many Senate Democrats as well as Senate Republicans who are not "religious right," like Sen. Specter, were extremely dubious about it.

One does not have to accept a nominee who is not vetted, but it's become far too clear that the Democrats refused to "vet" any qualified conservative judge. It's ridiculous to pretend that Ginsburg is automatically much more mainstream than Alito simply because the Republicans were willing to vote for Ginsburg on the basis of her qualifications. If Justice Ginsburg changed not at all, but the Republican leadership had suddenly decided to filibuster and reject her, would that suddenly transform her to "out of the mainstream?" Or would it instead merely say something about the Republicans and their tactics?

Judge Alito is simply not that conservative. All the leading lights who have been more forthrightly conservative or shared their opinions were much more loudly blacklisted by Democrats, and their names shared with the press. Sadly for me, while most of the "more conservative" judges seem to be a bit more libertarian in their interpretations, it seems to be libertarian conceptions of the Constitution that the Democrats hate most. All the libertarian-leaning judges who would be concerned about civil liberties were explicitly warned against by the Democrats repeatedly.

It seems that, after forty-some posts, no real reasons to vote against Alito have been offered. Surely, if there be valid objections, someone can readily offer a specific example? Something beyond such rigmarole as "he's outside the mainstream"?

Going back to the question posed on the main page, one principled argument in favor of Roberts and against Alito is that Roberts had made a comment about Roe vs. Wade being "settled law" while Alito has refused to make his position clear.

Personally, I don't think that it's a good argument since Roberts made his comment when he was being considered for a very different kind of job, but it is an argument that I have seen made a number of times.

Bork and later Thomas WERE precedent. Just for the democrats however. Republicans continued to behave in a more fair and constitutionally adult manner, hence Breyer and Ginsburg. Maybe the Republicans did this because they are just basically nicer and less idealogue and demogogic than the democrats. Maybe they did it because they are more innocent and naive in their thinking.

Hopefully, the republicans have now learned the folly of expecting foam spitting, rabid, the ends justify the means democrats, to be lead by the Republican's fair minded example on Breyer and Ginsburg.

Putting Alito on the court only moves the court back to where it was before Ginsburg. The news media is all a flitter with stories of Alito moving the court to the right (which he better damn well do), but forget the court was previously moved substantially to the left by Ginsburg in for White. Don't get me started on the whole Souter effect. Talk about somebody who lied his way into a nomination and onto the court.

Compared to Presidential election results, the court is still plus two votes for the liberal side because of the Souter effect. Souter should have been a plus 1 for conservatives and instead turned out to be a plus 1 for liberals. That's a 2 vote swing in a manner of speaking. So after Alito, we still need to replace one liberal with a conservative just to get the court to where it should have been based upon presidential election results in 1991 or 1992.

The Republican party base will demand that the Alito precedent be followed and more by Republicans in the future. Harriet Miers showed exactly what these judicial nominations mean to the base. Its the principal reason we ignore so many other non-conservative things about President Bush's past policies. When it looked like we were going to get screwed again, "Soutered" one might say, with Harriet Miers, the phone calls and emails to the Republicans, threats of cut off of all future money contributions, and to vote for a democrat if necessary to punish those participating in such a betrayal were heard loud and clear.

We aren't going to tolerate any more Souters, and we will never while in the majority support replacing a White with a Ginsburg ever again. The only thing that could stop us, are the few RINO's that desperately need to be replaced (with democrats if necessary).

Says the "Dog"

In addition to what others have said, even if Alito and Roberts were absolute clones of each other, the fact that Alito is poised to replace O'Connor, and Roberts replaced Rehnquist, is still of some importance.

I suspect that Roberts' confirmation vote would have been closer to party-line if Rehnquist had not passed away and he had replaced O'Connor.

Will Alito set a precedent? Maybe yes, maybe no--but the answer will depend on political expediency. How Senators--of either party--approach a nomination is a matter of the day's political winds, not a matter of stare decisis.

Ian

"mainstream"

The people define the "mainstream". The people did that with a pole taken every 2 years on the first Tuesday following the first Monday of November on even numbered years.

Only in the insane world of Ralph Neas can Steven Breyer, much less Ruth Bader Ginsburg be considered more mainstream than John Roberts and Sam Alito. Indeed,if the decision were left to the American people, I'd put up Ginsburg's greatest hits with those of Edith Jones and take my chances.

Orrin Hatch and the Republicans realized that Bill Clinton was elected and conceeded that he had a right to appoint very liberal result-oriented justices so long as they were qualified and not utterly dranged radicals like Bruce Babbit. Such decency is utterly foreign to the donks.

Blaming Bush for the degeneracy of the process if indescribably absurd. The fact is that the Democrats in a colossal abuse of power have for over 5 years saught to overturn the results of two elections. The Republicans have patiently worked to build a Senate majority through the Democratic process, yet have not mustered the spine to prevent the Democrats from perpetuating their abuses.

While there are legitimate questions as to the legality of certain aspects of the NSA program to monitor Al Queda, suggesting that the actions in question may even begin to approximate an impeachable offence is indicative of he halucinatory hatred that has gripped so many in this country.

Prof. Stone at Chicago Law School has a post on why he supported Roberts but no longer supports Alito.

http://uchicagolaw.typepad.com/

In the end, it doesn't matter whether or not Ginsburg or Alito are mainstream or not. They are the people the respective Presidents decided to nominate. They were both well accomplished lawyers with the capability to be qualified Supreme Court Justices.

The difference is that the Democrats have decided to obstruct and deny rather than advise and consent in the Senate. If they want to turn this into a continual political struggle, I think the Republicans should oblige them. It isn't likely that the Democrats will have enough of a majority anytime in the near future to get someone as liberal as Ginsburg through the committee, much less through the Senate - that's assuming that they win a Presidential election and have the right to make the nomination. Nor is it likely that the votors of red states will turn out Senators who vote against Ginsburg type nominees.

--Alan...

The only "principled" distinction I can think of:

Alito has a somewhat more extensive and clear record of deference to Executive Branch decisionmaking. This is perhaps odd, since one would think Roberts would've dealt with more such (and more such hot button) issues on the DC Circuit as opposed to Alito in Newark. I think this is particularly evident in Alito immigration law decisions (which, by the way, I like). Roberts simply doesn't have such a clear record of deference to the Executive Branch. This is also evident in Alito's "unitary Executive" memos, questioning the propriety of the "independence" of federal commissions.

But that's the only principled distinction I can think of, and it's fair to say that while some Senators have made noises about it (particularly with respect to the Global War on Terror/GWOT), it certainly isn't the reason most Democrats are opposing Alito even though they supported Roberts.

durfort, as soon as you get appointed sole arbiter of who is mainstream and who is deranged, you'll have something that approaches a valid argument.

Thorley, not by any stretch of the imagination. Kozinski and Reinhardt are probably the two most oft cited judges by the Supreme Court on the 9th Circuit, for obvious reasons.

Also, when they count the number of citations to Judge Reinhardt's opinions, do they include cases like this?

The Ninth Cert decided X case. Citation to Reinhardt opinion. We granted cert to resolve Y question. Because we hold Z, we therefore reverse.

The Republicans in the Senate since Bush took office have been a rubberstamp.

11 Democrats broke party discipline and voted to confirm Thomas.

Republicans have not broken discipline on any Bush nominee.

Who's running the show in the Senate?

At the hearings, Alito was repeatedly ask whether the commander in chief power gave the president the power to secretly authorize felonies. He said it was a hard question that he couldn't speculate on, and maybe nonjusticiable too. The only reassurances he could give were:

1) a statement that the president was not above the law--meaningless when the question is whether it's lawful for the President to violate statutes &whether things like FISA and the anti-torture statute are constitutional.
2) Say he would follow Youngstown--whose holding he then proceeded to misstate.

The death penalty stuff was bad too, as were some of his old opinions. But that was the dealbreaker. Claims of unlimited executive power in wars that will have no end are not things I take lightly. If a bunch of self-described libertarians find that incomprehensible and unprincipled--well, what can I say.

I am never surprised at the depth of "libruhl"-bashing on VC anymore. There is simply no limit to how low people can sink in order to justify their ideology. But some arguments—if I can have the liberty to refer to them as such—deserve a thrashing. To wit, Robert Schwartz wrote,

I claim a forfeit. There are no principled reasons to vote against Alito.

Of course, it has become the sine qua none of the conservative argument to claim that there is no argument in opposition. So, by default, "the good guys" win, right?
It is quite clear that the Senate Dems, for the most part, have dropped the ball in the committee. Schumer and Feingold notwithstanding, the questioning was timid and limpid. And going after Alito on the Rove v. Wade issue is simply beating a dead horse—that's not where his evil lies.

Alito has repeatedly and openly admitted that he would say absolutely anything to get a job. So either he fabricated his own views when applying for the jobs in Reagan administration, or he's fibbing now. Aside from the simple view that his behavior is unethical for someone who is aspiring to be on the Supreme Court, there is a deeper problem. Alito has no principles. And if he does, he's so ashamed of them that he feels obligated to lie about them. This is what we want on the Court?
Alito is not a "maintream conservative". I can agree with that. But the reason for this has nothing to do with his lack of adherence to the traditional conservative positions. Quite to the contrary, his lack of ideology arises from being unprincipled rather than intellectually consistent. He has his masters and he desires to serve them. There is no conservative butt big enough that Alito would not wipe with his nose.
As for Alito's being a "process conservaitve", someone should review the judicial history of the Third Reich. The German courts were full of "process conservatives" who rubber stamped any heinous edict that came their way. The man has no soul, pure and simple. The role of Senate advice and consent is precisely to weed out the robotic nitwits who are incapable of overcoming their knee-jerk reactions in favor of the strong simply because "process" demands it.

And the one thing I simply cannot comprehend is how any pol can possibly refer to this guy as "intelligent". He's a paragon of intellectul mediocrity. His written opinions prove it. If anyone kept track of the judicial success (the fraction of opinions that eventually wound up being upheld or final), Alito would be at the bottom of the barrel. There are few judges, if any, who have been in the minority or overturned more often than Sam Alito. There is a reason why he resided in the same court longer than any other judge—he's simply incapable of doing anything else. He's been singing praises to life-term appointments since the day he got the job. What many people don't seem to understand is that an educated person is not always intelligent, and vice versa. Alito clearly has the educational credentials, but his intellectual resume leaves a lot to be desired. Contrast this with Roberts who, despite clearly being a silver-spooner, has demonstrated his intellectual ability in spades.

like Senator Feingold, whose support for Roberts cannot be seen as "political"

Your claim is false. I have viewed Senator Feingold's support for Roberts as being political from the get-go.

Buck Turgidson:

As for Alito's being a "process conservaitve", someone should review the judicial history of the Third Reich. The German courts were full of "process conservatives" who rubber stamped any heinous edict that came their way.

Per Godwin's Law, you lose the argument. Though I'm willing to forego an automatic win for another fan of Dr. Strangelove.

I agree, Buck, that Dems are beating a dead horse with Roe v. Wade. They can't defeat the nominee on those grounds.

However, your further assertion that Judge Alito will say and do anything to get a job seems a little farfetched. It sounds like the malicious version of the observation made about John Roberts - that is, that he seemed to be preparing for this job his whole life. But because Alito isn't the personality Roberts is, the argument has evolved into its current form.

I tend to think that without a bottom-line message about Alito, Dems have given up. They need to put up a fight to keep the activist base happy (much as Republicans would in the reverse position; and I don't see the parallels to Ginsburg or Breyer because, like it or not, the political atmosphere has changed in the past 10 years) but I think they realized from the start that they would fight a losing battle against him. I could be very wrong on that, and I welcome reasoned debate.

Buck, Where to start?

How about, just, one of your points.

Use your standard. Doest the name Robert Bork come to mind?

How 'bout you come up with a judge that has a higher percentage of being upheld by the supremes?