A few thoughts on Alito:
1. Thomas, Scalia, Roberts, and Alito–this Court has become a powerhouse of conservative talent. The intellectual energy in the legal culture is now clearly on “the right” (broadly defined). In my Legal Times column criticizing the Miers nomination I wrote:
Inspired by thinkers such as Scalia, Thomas, Robert Bork, and Richard Posner, and nurtured by groups such as the Federalist Society and the Institute for Justice, the conservative legal movement in America has grown in confidence and competence, building a deep farm team of superbly qualified and talented circuit judges primed for this moment.
The prevailing liberalism of the contemporary legal culture was on the ropes and primed for a knockout — only to have the president let it get off the canvas and survive this round.
In that light, Alito is clearly a big punch.
2. As Orin and others have previously noted, this makes Kennedy the crucial swing vote, even more than previously when he and O’Connor seemed to take turns on this. Given the dubious reasoning that often characterizes Kennedy’s opinions in some of his more results-oriented cases, the presence of four true intellectual heavyweights on the “conservative” wing of the Court may make it harder for him to engage in his trademark flights of fancy, whereas with O’Connor’s presence on the Court it was easier for him to hide as a results-oriented, unprincipled “swing voter.”
3. The “Zywicki Standard”: In my Legal Times column criticizing the Miers nomination I expressed my disappointment with the nomination:
There are two possible ways to think about Supreme Court appointments. One is to appoint those who will simply “vote right” on the Court; the other is to be more far-reaching and to try to change the legal culture.
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President George W. Bush’s nomination of Miers is a clear indication that his goal is merely to change the voting pattern of the Court. One suspects that the best that conservatives can hope is that Miers will consistently “vote right.”
By the Zywicki standard, this nomination looks like a home run. It looks like I can retract my more general criticisms on this point.
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