January 03, 2007

Eminent Domain Insanity Provides a Chance to Review Kelo

A private citizen wants to develop on his own property but because part of it is inside a "redevelopment zone", the land owner must either pay extortion money to a developer or have his city take the land. If that doesn't sound un-American enough, a Federal Court then ruled that the citizen has no recourse.

It used to be that buying in a neighborhood which wasn't so great but which had potential to improve provided a real, if risky, investment opportunity. The risk was like that of any other investment: the situation might not improve as expected and the asset would therefore not increase in value. Following Kelo, we now have a much more insidious risk: The better the likelihood that the neighborhood will improve, the greater the chances the government will steal your land.

This is the insane situation that the unconscionable Kelo decision has put all Americans in, and we can only hope that the Supreme Court will use the opportunity in the case of Bart Didden versus Port Chester, NY to clarify what they said in Kelo. By "clarify" I mean we must hope that Justice Anthony Kennedy, the clear villain on the Court in that case, reconsiders his prior disastrous vote with the Courts "liberals". It simply can not be that a man's home is his castle unless a government can make more money by giving it to someone else.

July 01, 2006

The Supreme Court Term That Was

Over at OpinionJournal, James Taranto takes a look at the Supreme Court term that was. Chief Justice Roberts has said that he struggles for unanimity or near unanimity on the court, yet in many key decisions at the end of this term the court was fractured, with as many as six separate opinions on key cases such as Texas redistricting, Vermont's campaign-finance limits and Hamdan v. Rumsfeld.

Can Roberts's judicial minimalism -- his adage is "if it's not necessary to decide more . . . it is necessary not to decide more" -- accomplish anything? Taranto notes that minimalism can lead to a lack of clear guidance for lower courts and the public in general. Better, perhaps, to set out bright-line tests, as is Justice Scalia's wont. And since the court is still fractured among liberal, conservative and swing justices, none are about to lay down arms for the sake of unanimity.

In the end, Taranto figures things won't improve until conservatives get "maybe another new justice or two."

June 29, 2006

Hamdan Roundup


The Supreme Court just announced a 5-3 decision against the Bush adminstration in the Hamdan case. Right now, all the major papers are carrying the AP story from Gina Holland.

Here is the version from Reuters. And another from CNN.

UPDATE: Marty Lederman at SCOTUSblog: "The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling."

UPDATE: Seems like Andy McCarthy's "pre-mortem" was on the money.

UPDATE: The Washington Post has now updated its page with a story by William Branigin calling the decision a "stunning rebuke to the Bush administration."

UPDATE: CNN has video of Jeffrey Toobin, Bob Franken on the decision.

UPDATE: Text of Hamdan decision in pdf format here.

UPDATE: Reuters - Ruling Won't Affect Guantanamo Inmates

UPDATE: From the Court's majority opinon, which included Stevens, Souter, Ginsburg, Breyer, and Kennedy:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power toproceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by . . . the law of war may be tried by military commissions."

UPDATE: From Scalia's dissent:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

UPDATE: From Thomas's dissent:

Under either the correct, flexible approach to evaluating the adequacy of Hamdan's charge, or under the plurality's new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. The charging section of the indictment alleges both that Hamdan "willfully and knowingly joined an enterprise of persons who shared a common criminal purpose," App. to Pet. for Cert. 65a, and that he "conspired and agreed with [al Qaeda] to commit . . . offenses triable by military commission," ibid.7

The common law of war establishes that Hamdan's willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is "to support violent attacks against property and nationals (both military and civilian) of the United States." Id., at 64a; 344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he "believed that Usama bin Laden and his associates were involved in the attacks on the U. S. Embassies in Kenya and Tazania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001." App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan's military commission.

UPDATE: From Alito's dissent:

The holding of the Court, as I understand it, rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try "offenders or offenses" that "by statute or by the law of war may be tried by" sucha commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by "the law of war"; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner's trial because the commission before which he would be tried is not "a regularly constituted court," Third Geneva Convention, Art. 3, ¶1(d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. I disagree with this holding because petitioner's commission is "a regularly constituted court."

UPDATE: Joint statement by Sens. Graham & Kyl:

"We are disappointed with the Supreme Court's decision. However, we believe the problems cited by the Court can and should be fixed.

"It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions.

"In his opinion, Justice Breyer set forth the path to a solution of this problem. He wrote, 'Nothing prevents the president from returning to Congress to seek the authority he believes necessary.'

"We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."

UPDATE: Senator Russ Feingold statement:

The Supreme Court's decision concerning military commissions at Guantanamo Bay is a major rebuke to an Administration that has too often disregarded the rule of law. It is a testament to our system of government that the Supreme Court has stood up against this overreaching by the executive branch.

UPDATE: Senator Cornyn statement:

"This is a blockbuster decision, and it will take some time to determine the consequences of what the Court said today. But they've opened the door to a legislative remedy, and as Congress plays a key role in this debate, we'll work with the administration to reach a solution.

"We're not talking about simple criminals--these detainees include the most violent terrorists in the world. And let's not forget who we're talking about in this particular case: Hamdan was captured in Afghanistan and is charged with delivering weapons and ammunition to al Qaeda, providing logistical support to bin Laden's bodyguards and participating in weapons training.

"The Court does not call into question the U.S. government's power to detain terrorists while hostilities continue. This is critically important because we can't allow terrorists to simply return home and restart their war plans. Guantanamo will remain open so long as it is in the national security interests of the United States."

UPDATE: Bush to work with Congress over court concerns

June 28, 2006

Court Upholds Most of Texas Redistricting Map - Mark Davis

As the Supreme Court gives a virtually complete thumbs-up to the Texas redistricting plan sired by Tom DeLay, some of the reaction has contained moments of thorough nonsense.

First among these is the notion that DeLay was involved in some Republican "power grab." If so, it was a grab only in the way that one would grab one's own property from the hands of a thief. As redistricting was undertaken, the Texas congressional delegation featured 17 Democrats and 15 Republicans, an abomination in a state as red as Texas. (I would similarly scoff if a liberal enclave like Massachusetts had a majority of Republican members of Congress).

The legislature failed to redistrict right after the 2000 census, leading judges to do it instead. The state Constitution calls for lawmakers, not judges, to draw districts, so the legislature tackled it again in 2003, arriving at a plan that made Democrats apoplectic because it stood to strip them of more than a half-dozen seats in Congress, a development an objective observer would call a return to a delegation reflective of the electorate.

But in the hands of analysts to whom anything Republicans do is bad, and anything Tom DeLay does is worse, this thoroughly proper development is couched in the most sinister of terms.

The only portion of Texas redistricting that snagged on the high court was Republican Henry Bonilla's 23rd district. Somehow the loss of some of the Hispanics there struck the justices as a denial of "minority voting rights," whatever those are.

Is there such a thing as a racial constituency's right to the likelihood of a congressman of a certain race or party? Even before that debate starts, one must dispense with the shallow analysis that a heavily Hispanic district must be a Democrat district. Rep. Bonilla, a popular Republican who stood ready to run for Kay Bailey Hutchison's U.S. Senate seat if she had run for Governor, garnered nearly 70 percent in the 2004 vote in a vast district nestled along the Mexican border.

The days when minority constituencies can be pigeonholed are dwindling. The Supreme Court seems to be behind the learning curve on that development.

- Mark Davis
Host of The Mark Davis Radio Show

June 27, 2006

Vermont Commentary Roundup

Just to add to the excellent post by Ross Kaminsky earlier, here's a roundup of commentary on the Vermont campaign-finance case (in which the Supreme Court struck down the state's limits on campaign spending and campaign contributions):

Allison Hayward: Offers an amusing (and informative) Randall v. Sorrell roadmap.

Allison Hayward (yes, again): Offers an attack on the idea of "balancing" an individual's right to free speech against other state interests, even when the balance occasionally comes out in favor of free speech, as in yesterday's Vermont decision. ("Speech or associational activity can be restricted by the government consistent with the First Amendment if the authorities have a good enough reason. So the Court balances.")

Bob Bauer: The anti-campaign-finance-regulation progressive election lawyer weighs in with an analysis of the decision, complete with a diagram of all the ideological contortions Justice Breyer had to go through along the way. Expect more from him Tuesday morning.

Adam Bonin: Sumarizes things for the crowd over at Daily Kos. An interesting discussion in the comments thread as to the legitimacy and usefulness of campaign-finance regulation in general. (I remain of the mind that there's a Left-Right coalition to be formed against campaign-finance "reform." The problem is there's an Incumbent-Incumbent coalition perpetuating it now.)

Eugene Volokh: Takes up the ever-vexing question of whether money is indeed speech.

Rick Hasen: The campaign-finance-regulation supporter offers a nice summary of what will happen next: battles across the country over whether particular local regulations are constitutional.

Rick Hasen (yes, yes, yes, again): Follows up with an argument that while the Supreme Court has upheld contribution limits for now, this decision could be the beginning of the end for campaign-finance "reform" (he doesn't use the scare quotes) in general and the beginning of the beginning of the long-hoped-for (among conservatives) dismantling of the awful Buckley decision that started this whole mess.

By the way, everyone, Happy Clean Money Day!!!

June 26, 2006

Is Free Speech Making a Comeback? - Ross Kaminsky

In a decision released today in the case of Randall et al v. Sorrell et al, a divided Supreme Court invalidated Vermont's strictest-in-the-nation campaign finance laws.

The Vermont laws included some provisions which exceeded restrictions in many other states, including (quoting from the Court's decision):

1) "A political party and all of its affiliates together abide by exactly the same low $200 to $400 contribution limits", a provision the Court found to violate the right to associate in a political party,

2) "The Act excludes uncompensated volunteer services from its "contribution" definition, (but) does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities." This makes it difficult to use volunteers, again violating right of association.

3) The Vermont law's limits were not indexed for inflation, meaning "that limits already suspiciously low will almost inevitably become too low over time."

By a 6-3 vote (the 3 being Stevens, Souter, and Ginsburg), the Court reversed lower courts' decisions which allowed Vermont's political speech gag rule and sent the cases back to the Second Circuit Court of Appeals for reconsideration. The Supreme Court's ruling reaffirms the Buckley decisions prohibition on states limiting candidates' spending.

The first major campaign finance case is the well-known Buckley v Valeo. In the decision in the current case, there is a fascinating and not-so-subtle argument about Buckley among the justices who agreed that the Vermont law was unconstitional.

The generally spineless Justice Breyer made a point of arguing that Stare Decisis (essentially respect for precedent) caused him to believe "subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles." Justices Scalia and Thomas retort with "Buckley v. Valeo provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment."

Not everyone has seen the light of freedom however. From the opinion of the liberal Justice Stevens: "I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it. I have not reached this conclusion lightly." In other words, not only does Stevens think contribution limits are OK, but he also thinks the Buckley decision should have allowed expenditure limits. Justices Ginsburg and Souter are lost as usual. Luckily Stevens and Ginsburg are the most likely judges to retire next.

In any case, there is a clear indication here that further challenges to campaign finance would be met by a Court which is more interested in protecting the First Amendment than we've seen in a long time. Indeed, in his concurrence in today's judgment, Justice Kennedy simply concurred in the judgment rather than participating in a big debate, reminding us that he disagreed with the Court's ruling in the original challenge to McCain-Feingold (also called "BCRA") in McConnell v. Federal Election Commission. Kennedy (who will forever in my mind be the villain from the Kelo case) made arguments in his concurrence which bear repeating:

The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens.

Today's decision upholding these laws purports simply to follow Buckley v. Valeo and to abide by stare decisis...; but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech.

A few examples show how BCRA reorders speech rights and codifies the Government's own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot's 1996 efforts to build the Reform Party. BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests. BCRA escalates Congress' discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit.

To the majority, all this is not only valid under the First Amendment but also is part of Congress' "steady improvement of the national election laws." Ante, at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit:

"This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations.

Today's ruling is the first major crack in the wall which government has built between citizens and politics (to protect incumbents, primarily) in the past 30 years. There are at least 3 Justices who obviously want to overturn most campaign finance law and one who is open to overturning at least expenditure limits. I would also expect Justices Roberts and Alito to be open to hearing arguments which tend in the direction of weakening campaign finance laws as violating our First Amendment rights. I hope that citizens in other states bring such challenges.

When the Founders wrote the First Amendment protecting freedom of speech, it was primarily political speech which they were thinking of. What would Jefferson say if he learned that political speech has become the least protected type of speech in our great Republic? It is some combination of tragic, embarrassing, and dangerous that we have let politicians muzzle us by claiming they are preventing corruption when all they are really doing is preventing competition.

May 10, 2006

The ABA Ratings: Arbitrary or Corrupt?

Powerline's John Hinderaker points out the ridiculous and partisan downgrade of Brett Kavanaugh's rating by the ABA from "well-qualified" to "qualified."

No explanation, of course, as to what Kavanaugh has done since last year to cause six committee members to change their ratings.

Kavanaugh was interviewed on behalf of the ABA by a divorce lawyer named Marna S. Tucker, who then testified before the Senate Judiciary Committee on behalf of the ABA. The Washington Times has more on Ms. Tucker:

Ms. Tucker has donated more than $10,000 to Democratic candidates and causes, according to Federal Election Commission records at, a Web site that tracks campaign contributions. She has never given to Republicans, according to the site.

The Washington Post described her as a "prominent liberal" in 1991 and the following year noted her friendship with Hillary Rodham Clinton, now a Democratic senator from New York.

Ms. Tucker also is a founding member and board director of the National Women's Law Center, an organization committed to abortion rights and other liberal causes.

It's easy to see why the ABA chose her to represent the organization's views before the Judiciary Committee.

FOX News' Charles Krauthammer was more direct on Special Report's panel discussion:

I think the ABA, the American Bar Association, is what's on trial here.

They changed the way they assessed him, from essentially an A to a B, over one year. Now, Kavanaugh didn't change in one year. He didn't lose his legal reasoning over one year. He didn't have shrinkage of his neurons over that one year. It's the ABA that changed.

So, how do you get a different rating a year after you had an A rating last year? And the answer is, either the ratings are arbitrary, or they're corrupt. They're arbitrary if, as the ABA is saying, you had a different committee and you might have had different people, in which case how can you -- you trust any of its judgments?

But it's corrupt if there was a change in the mood on that committee, and people, with the president's ratings down and more hostility to the administration, decided to go after this candidate, and decide to do endless questioning of people who knew him.

If you do endless questioning of people who know you or me, you're going to end up with a finite number of people who are going to be negative on you. And they -- they cite these negative reports. They -- they leak them to the press, and, presto, a downgrading of his assessment.

It's a corrupt process. And I wish that the administration had stuck with its promise of abandoning it years ago.

Krauthammer is exactly right, the administration made a mistake in citing the ABA ratings for earlier nominees. They should have stuck with their initial plan to do away with the ABA as part of the process.

April 26, 2006

The Coordinated Attack on Scalia

As Ronald Cass wrote three weeks ago on RealClearPolitics, expect to hear the call for Justice Scalia to recuse himself to continue as liberals try and find ways to silence the conservative justice:

The game now is to find a way of making it seem that Scalia's personal life and conduct commit him to positions on important legal issues in a way that interferes with his ability to decide matters impartially - not because Scalia has in fact done so and not because his accusers care about impartiality. Instead, the game matters because Scalia is the leading voice for a set of legal propositions that run counter to the political, social, and constitutional agenda of the dominant voices in almost every major element of America's Speaking elites.

That is why Justice Scalia's comings and goings, his associations, his speeches, all have become the focus of media attention. It is not simply his Catholicism that is an issue. It is anything he says and does that can be grist for a demand that he step aside from a case where his participation would matter.....

It reflects a dedicated effort to make him a news item in hopes of disqualifying him from deciding, or limiting his influence on, those very issues.

Today New York Times editorial board member Adam Cohen chips in his little part to keep the liberal tap-tap-tap against Scalia going:

Justice Antonin Scalia has gone too far -- and he keeps on doing it.

He made national headlines recently for making a gesture that may or may not be obscene. If it wasn't obscene, it was certainly coarse and undignified.

He recently called those who disagree with his unconventional views of the Constitution "idiots."

His public statements often make him sound more like a political partisan than a judge. He is particularly bad on the subject of Bush v. Gore, the decision that put President Bush in the White House, a low point in the Supreme Court's history that Justice Scalia should not be pulling down any lower.

Worst of all, Justice Scalia refuses to abide by the basic principles of recusal, the law that forbids judges from hearing cases in which they are not impartial, or will not be viewed as impartial. A few weeks ago, he took part in a case involving the rights of detainees after making inflammatory statements that seriously called his fairness into question.

As Cass says, these are not one-off comments, but part of an overall liberal strategy to diminish Scalia's influence and ratchet up public pressure for him to recuse himself from cases where they fear Scalia's conservative vote. Cohen continues with his screed against Scalia, which at its core is all about Scalia's conservative judicial philosophy and not his out of court "actions." Does one really believe that if Scalia held the same judicial philosophy as William Brennan or Ruth Bader Ginsburg we would be hearing these complaints from Cohen? I don't think so.

Cohen stoops even lower with a veiled hint that Scalia is suffering some sort of aging related mental infirmity when he writes:

The rate of Justice Scalia's disturbing words and deeds is increasing -- now, it seems, he can be counted on to embarrass the court publicly roughly every few weeks. There is debate among court-watchers about why this is happening.

A little later Cohen suggests that some of the motivation for Scalia's "actions" that he finds so offensive might be in response to not getting the Chief Justice nod or a changing PR strategy, but I still read the earlier paragraph as laying the seeds for a "Scalia is Losing It" attack.

Finally, Cohen proposes a new recusal process where "an alternating panel of three justices" would vote on recusal motions. It is interesting how in the last 50 years while the Supreme Court has had a liberal or split bench, the recusal issue never came up. But now that judicial conservatives are close to a majority on the court, suddenly we get ideas about how three justices should be able to vote certain justices off cases.

Expect the liberal attacks on Scalia to continue. This is not an isolated article, it is a deliberate strategy by the left.

March 30, 2006

Gesturegate Continues

scalia.jpg Looks like I was a bit premature yesterday in declaring "case closed" on gesturegate. Peter Smith, the photographer who snapped the pic of Scalia for The Pilot says "It's inaccurate and deceptive of him [Scalia] to say there was no vulgarity in the moment." Smith also says Scalia accompanied the gesture by saying "Vaffanculo!", which is apparently an Italian expletive that is pretty darn close to what Dick Cheney told Pat Leahy to do to himself in the Senate last year.

If Scalia got caught making an off-color gesture while trying to be funny, fine - though he probably shouldn't have publicly chastised the reporter, even if her coverage was ridiculously over the top. I still find all of this fuss to be amusing, though if you read the column Ron Cass wrote for RCP this morning you'll see there's more to the media's obsession with Scalia than just fun and games.

March 29, 2006

Don't Mess With Scalia

Welcome to Part III of our look at the Boston Herald brouhaha over the allegedly "obscene" gesture made by Justice Scalia (For backstory see Part I and Part II).

In today's episode, poor Herald reporter Laurel J. Sweet discovers what it's like to be publicly taken to task by a Supreme Court Justice who swims in the deep end of the IQ pool:

To The Editor:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture - inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming "gotcha" star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consitsted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said "That's Sicilian," and explained its meaning - which was that I could not care less.

[Scalia goes on to quote at length from a book by Luigi Barzini, The Italians, explaining the origins of the gesture.]

How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: "'That's Sicilian,' the Italian jurist said, interpreting for the 'Soprano's' Challenged." From watching too many episodes of the Soprano's, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an "Italian jurist." (I am, by the way, an American jurist.)

Antonin Scalia

Case closed.

March 28, 2006

Scalia's Salute

I have to admit this is a bit silly. Yesterday I posted an item on the report by Laurel Sweet of the Boston Herald that Supreme Court Justice Scalia had made an "obscene" gesture to reporters (flicking his hand under his chin) outside the Cathedral of the Holy Cross on Sunday. Today, reader CM emails to say that Margery Eagan of the Boston Herald writes in her subscriber-only column today she can't find any Italians to back up the charge that the gesture Scalia used was "obscene."

Nevertheless, the Herald carries a follow up story by Ms. Sweet today gauging reaction to Scalia's "off-color 'Sicilian' salute" which borders on the comical:

"He's got a reputation as being a cantankerous guy," said Andrew Perlman, who teaches legal ethics and professional responsibility at Suffolk University Law School.

Still, said Perlman, the indiscretion by Scalia, who can be judge for life if he minds his Ps and Qs, doesn't rise "to the level of questioning his ability to do his job."

Thank God we got that straightened out. Surely the Boston Herald can find more burning questions for their reporters to probe, no?

March 27, 2006

Scalia's Sicilian Message

Boston Herald reporter Laurel J. Sweet tut-tuts about "conduct unbecoming a 20-year veteran of the country's highest court," though I suspect this little incident will only make Scalia's supporters like him even more:

Minutes after receiving the Eucharist at a special Mass for lawyers and politicians at Cathedral of the Holy Cross, U.S. Supreme Court Justice Antonin Scalia had a special blessing of his own for those who question his impartiality when it comes to matters of church and state.

"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs.

"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.

"It's none of their business," continued Scalia, who was the keynote speaker at yesterday's Catholic Lawyers' Guild luncheon. "This is my spiritual life. I shall lead it the way I like."

March 13, 2006

A Tiger on The Court

A profile of Associate Justice Sam Alito's days at Princeton in the new issue of the university's alumni magazine. Eat your heart out, Joe Biden.

January 27, 2006

Reid: "Not Enough Votes to Support a Filibuster"

From Reuters:

WASHINGTON (Reuters) - Senate Minority Leader Harry Reid said on Friday he and fellow Democrats lack the votes to block President George W. Bush's nomination of conservative appeals judge Samuel Alito to the U.S. Supreme Court.

"Everyone knows there is not enough votes to support a filibuster," Reid said, referring to the procedural roadblock that some Democrats said should be used to put off a vote on Alito.....

Democratic Sens. John Kerry and Edward Kennedy, both of Massachusetts, publicly pushed for a filibuster on Thursday, drawing scorn and ridicule from Republicans and opposition from some of their own colleagues.

Kerry, who unsuccessfully challenged Bush for the White House in 2004, made his pitch for a filibuster while overseas for a world economic forum.

"I think it was a historic day yesterday," said White House spokesman Scott McClellan. "It was the first ever call for a filibuster from the slopes of Davos, Switzerland....

January 26, 2006

A Lesson From Alito

Senator Tim Johnson came out earlier today saying he will vote to confirm Alito, making him the second Democrat to publicly support confirmation.

The NY Times' opinion page knows Alito's confirmation is a done deal as well, but that doesn't stop them from taking one final pathetic swing:

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

On a related note, John Nichols writes in The Capital Times that Russ Feingold's vote against Alito is of special significance:

Simply put, if Alito is unacceptable to Feingold, then he should be unacceptable to a good many other senators including moderate Republicans with whom Feingold has worked closely on campaign finance reform and a host of other issues over the years, such as Olympia Snowe and Susan Collins of Maine and Lincoln Chafee of Rhode Island.

Why give this special status to Feingold? Because, since his arrival in the Senate in 1993, he has distinguished himself by his consistent if often controversial approach to presidential nominations. [snip]

The fact that Alito is the first high court nominee to fail to meet the Feingold standard is significant. And, as the senator explained to the committee Tuesday, it was not a close call.

I think Nichols has a point: Feingold's vote does deserve a bit of extra consideration precisely because he has demonstrated independence in the past voting for people like John Ashcroft and John Roberts.

But Nichols' column really helps illuminate what a strategic blunder it was for 22 Democrats to vote against John Roberts.  There was simply no legitimate or tactical reason to vote against such a reasonable, well-qualified nominee other than to appease the left-wing interest groups. 

I'm not saying that if all 44 Democrats had voted for Roberts it would have necessarily changed the outcome with the Alito, but Democrats would have a more credible case to make to the public against Alito if they hadn't reacted to Roberts with such knee-jerk partisanship.

Salazar: Clarence Thomas "An Abomination"

More from "moderate" Democrat Ken Salazar:

Salazar was asked whether he would have filibustered any of the current Supreme Court justices. He replied that he hadn't subjected any of them to the kind of in-depth analysis he did with Alito. Then he continued:

"There are members of the U.S. Supreme Court that I very much disagree with. Clarence Thomas, for example, I think is an abomination when you contrast him to the leadership and principles of someone like Thurgood Marshall. I've been in front of the court and I know the justices."

Just so we're perfectly clear as to the sentiment Senator Salazar is adding to the public discourse, the definition of an "abomination" is "a person who is loathsome or disgusting."

January 25, 2006

The Moment of Truth

Floor debate on Sam Alito begins today. As of right now, Alito has the public support of 50 Republicans and 1 Democrat: Senator Ben Nelson of Nebraska. Twenty-three Democrats plus Jim Jeffords remain publicly undecided as well as 5 Republicans:  Lamar Alexander, Lincoln Chafee, Susan Collins, Olympia Snowe, and Ted Stevens. 

Leon at RedState has the skinny on how things will proceed:

The scuttlebutt at this juncture is that Frist will open up the floor for debate on Alito immediately, and pretty much allow the Democrats to bloviate about Vanguard uninterrupted. He will even hold the floor of the Senate open overnight, if the Democrats are so inclined to debate. However, first thing Thursday morning, there will be a cloture vote, and if it fails, the sparks will fly postehaste. Bush has called upon Frist to have Alito seated before the SOTU, and Frist intends to see it done.

Democrats have all but conceded Alito's nomination and a filibuster seems almost completely out of the question. This is all about delivering a moral victory to the base in the short term (Harry Reid: ''I think it sends a message to the American people that this guy is not King George, he's President George'') and then hoping to parlay Alito's rulings this year into an election issue in November:

Jonathan Turley, professor of law at George Washington University Law School and an outspoken opponent of Alito, said Alito’s hard-right stance — specifically on abortion and presidential power — would remind voters in November of his confirmation, making him “the political gift that keeps on giving” for Democrats.

The obvious problem with this strategy is that Democrats have tried their best to make the SCOTUS an issue in past elections but it simply hasn't worked. Republicans, on the other hand, keep winning elections with the federal judiciary as one of their animating principles. Maybe the addition of Justice Alito changes this equation, maybe it doesn't. The best bet for Democrats this election year is not going to be producing more demagoguery of Alito, but producing new ideas.

January 23, 2006

The NYT's Last Gasp on Alito

Leave it to The New York Times. Having watched Senate Democrats miss the opportunity to damage Alito in the hearings and fail miserably in mobilizing public opinion against him, Gail Collins & Co. play what looks to be one final card in the SCOTUS game today by trying to browbeat Senators into supporting a filibuster:

The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.

Take a step back and think about the irony here.  Last March The New York Times editorialized (Times Select) in support of the Democrats' unprecedented filibustering of 10 of Bush's federal appellate nominees  - a move, by the way, which required the paper to repudiate its decade-earlier call to abolish the filibuster altogether when Republicans were in the minority under Bill Clinton. 

Support for those filibusters led to a crisis that eventually resulted in The Gang of 14, a compromise that by almost all accounts is seen to have worked out poorly for the Democrats. In addition to letting through some of the nominees most objectionable to the left like Priscilla Owen and Janice Rogers Brown, The Gang of 14 agreement obliterated the standard of "extraordinary circumstances" and left Democrats even more hamstrung to deal with SCOTUS nominees of the caliber and quality of Roberts and Alito.

In other words, Democrats are finally paying the price for having used the filibuster so excessively and injudiciously during the Bush administration. A former Judiciary Committee counsel for the Democrats put it bluntly

"We shot our wad. We filibustered 10 guys, and at the end of the day the worst got on anyway. If we had not used the filibuster and pissed off the Republicans over the past four years, if it was seriously being entertained for the first time [against Alito], we might have succeeded."

January 20, 2006

Will the Dems Filibuster After Last Week's Debacle?

Last week at the start of the Alito hearings I suggested a filibuster was a very real possibility and figured that if the Democrats really wanted to give themselves a shot at beating Alito they were going to need to come out swinging and produce a few errors on Alito’s part. 

Instead of Alito being the one to stumble, however, Senate Democrats were the ones who came off looking less than stellar, punctuated by Alito’s wife breaking down when Senator Graham came to the defense of her husband’s honor. By the end of the week it looked like Alito was home free.

However, as this week comes to a close there are whiffs that maybe a filibuster attempt isn’t dead after all. Many of the liberal blogs are picking up an intensity on the Alito nomination that wasn’t evident last week. One of the biggest, Daily Kos, is keeping a daily whip count on the nomination, gleefully chalking up the growing number of Democratic 'no' votes.

Today’s Chicago Sun Times reports Sen. Durbin, the Senate’s number two Democrat, will vote against Alito, which is no surprise given he voted against Roberts.  However, Durbin explicitly says they have not ruled out a filibuster.

Durbin said so many other senators intensely oppose Alito that they may have enough votes to sustain a filibuster against the conservative jurist…… He said he won't know until Tuesday if there are enough strong opponents to filibuster Alito's nomination……A week ago, I would have told you it's not likely to happen. As of [Wednesday], I just can't rule it out. I was surprised by the intensity of feeling of some of my colleagues. It's a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators ... are willing to stand and fight.

This shocks me. And it leads me to believe that had Alito made a few gaffes or had Senate Democrats delivered a better performance last week, we would almost definitely be staring at a filibuster.

We’ll see what next week brings.

Taking People's Homes

Last night on Hannity and Colmes (video, transcript) they did a story on a woman in upstate New York who is going to lose her home of 50 years so that the Seneca Nation of Indians can expand their casino operations. The report was very disturbing because there is just something that is profoundly un-American when the government can “legally” come and take your home under the power of eminent domain, to expand a casino.

In the aftermath of the Court’s 5-4 Kelo decision these type of eminent domain stories are going to fester with the public as long as city and state governments continue to press their “right” to take private land for “economic development.” Unfortunately, both Rehnquist and O’Connor were in the dissent on Kelo vs. New London, so the additions of Roberts and Alito is unlikely to change much given the five in the majority on Kelo are still on the court.

These type of eminent domain cases animate libertarian conservatives, and many progressives as well, because 9 times out of 10 the individuals who are getting their property taken from them are poor or middle class folks who don’t have the money or the connections to stop it. It is one thing when we are talking about legitimate uses of eminent domain to build roads, sewers, or airports. But casinos and office parks hardly fall in that category.  

Is Salazar A Moderate?

Vince Carroll, editorial page editor of the Rocky Mountain News, wrote on Tuesday:

If Sen. Ken Salazar is a political moderate, as he is typically portrayed, he'll vote to confirm Samuel Alito to the Supreme Court.

Guess not: Salazar Voting Against Alito

January 18, 2006

Nelson Comes Out

Did Ben Nelson officially snuff out Dem hopes of filibustering Sam Alito once and for all by announcing support for his nomination yesterday

I have decided to vote in favor of Judge Samuel Alito to serve as the 110th Justice of the United States Supreme Court. I came to this decision after careful consideration of his impeccable judicial credentials, the American Bar Association's strong recommendation and his pledge that he would not bring a political agenda to the Court.

The chances of Alito being filibustered decreased in direct proportion to the amount of time  Joe Biden, Ted Kennedy,  Charles Schumer, et al . spent on television during the hearings last week, finally bottoming out somewhere close to zero when Mrs. Alito broke down in tears at the end of day three.

January 16, 2006

Protecting the Little Guys

Bob Herbert (Times Select) says we need "enlightened" judges to protect the little guy:

Mr. Alito is on his way toward confirmation. He will probably vote to reverse Roe v. Wade. He will not be a champion of voting rights for minorities, or a bulwark against racial and gender discrimination. If his record is any indication, and we have very little else to go on, he will almost always side with the powerful interests, whether in government or the great corporations, against the little guy.

Sam Alito is the kind of guy who, rather than lend a helping hand, would slam the trap door on less-privileged individuals seeking opportunities similar to those he enjoyed. [snip]

The great post-World War II advances in civil rights and civil liberties, and the protection of ordinary citizens against the depredations of the rich and powerful, would never have happened without the courageous efforts of the enlightened justices who served on the Supreme Court in that era. They would surely never have happened with the likes of Alito, Thomas and Scalia making the important calls.

It will take many years to reverse this dismal tide. You might keep that in mind the next time you're considering whether to vote - or for whom to vote - in a presidential election.

This is the same shtick we got from Senator Kennedy last week and also from Senator Kohl, who suggested that judges need to "apply a more expansive, imaginative view of the Constitution" to protect the "little guy" and to right historic wrongs.

One of the many problems with this argument is that the sort of "enlightened" judicial activism Herbert praises can often lead to bad law with terrible results for the "little guy" -  as we saw recently with the Kelo decision. Indeed, the "expansive, imaginative view of the Constitution" preferred by liberals led directly to Roe v. Wade - a law that some would say denies basic protections to the littlest and most vulnerable among us.

January 12, 2006

How Many Dems Could Be Confirmed?

After watching the wife of the nominee break down into tears yesterday evening at the treatment being given to her husband by Senate Democrats, it seems fair to ask: how many Democrats sitting on the Judiciary Committee could be confirmed using their own standards? How many of them could withstand the same sort of exhaustive examination and distortion of their own careers and records that's now being given to Sam Alito's?

The answer, just off the top of my head and without resorting to extensive research or digging through trash, is not very many:

Not Ted Kennedy: for obvious reasons.

Not Joe Biden: he has a plagiarism problem.

Not Dianne Feinstein: she's had a Guatemalan houskeeper issue, was fined $190,000 in 1992 for failing to properly report $3.5 million in campaign expenditures, and her husband runs a company that scored a $600 million Iraq war contract in 2003. Imagine what the Dems would do with this last one.

Not Charles Schumer: two of the people under his employ at the DSCC are currently being investigated for illegally obtaining Michael Steele's credit report last year. In 1983, Schumer narrowly escaped indictment for misusing state funds in his 1980 Congressional race.  The U.S. Attorney in the case, Raymond J. Dearie, actually recommended that Schumer be indicted, but the Reagan Justice Department turned down the request citing "lack of jurisdiction."

Not Dick Durbin: he would never get around his pro-life past. Durbin is on the record in the 1980's saying that he "believed that Roe v. Wade was incorrectly decided" and that "the right to an abortion is not guaranteed in the U.S. Constitution."

That leaves Pat Leahy, Herb Kohl, and Russ Feingold as the only Democrats on the Judiciary Committee who - at least at first glance - might possibly be able to survive one of their own confirmation hearings. Three out of eight. That's it.

It makes what the Democrats are trying to do to Samuel Alito all that much more distasteful and highlights how partisan and out of control the whole process has become.

UPDATE:  We're down to two. I missed Pat Leahy's 1987 resignation as Vice Chairman of the Senate Intelligence Committee for leaking classified information to a reporter.

RCP's John McIntyre on the Hugh Hewitt Show

I was on Hugh Hewitt's show last evening. Here is a little excerpt:

Hewitt: Today at the Volokh Conspiracy, which is a very middle of the road website, they're making comparisons to Joe McCarthy, and the Army McCarthy hearings. Appropriate?

McIntyre: Well, I don't think it rises to that degree, but the point is well taken. And Mrs. Alito's sort of breakdown at the end of the day punctuates the point, and drives home, just to the average person out there, that the Democrats, they've crossed a line. I mean, it's either...step up and say I'm voting against this guy, because he's too conservative. But don't try to turn him into a racist and a bigot and a mean-spirited, evil person, when everybody knows...I mean, they say it on live television in the hearings, and then they go back to the interviews and the cameras, and say well, well, well, we know he's not a bigot.

Hewitt: Have the Democrats sort of set 2006 politics in stone today?

McIntyre: Well, I think the Democrats are falling into a similar trap that they fell in 2004. And their whole premise in 2004 was that the country had rejected President Bush. And they just had to put up anybody, and the country was going to vote Bush out. And I think now their thinking is that between Abramoff and Iraq, and what they perceive to be as these egregious violations in the NSA wiretaps, they don't have to do anything, offer any proposals, any concrete plan of their own. They can just sit back and people are going to go out and vote against Republicans. And I think you see the president now, here in the last couple of days, he isn't going to let that happen.

Hewitt: Yup.

McIntyre: I mean, they're going to be on the attack. They're going to be aggressive. President Bush knows that a lot of his legacy depends on these elections, and what he leaves, as opposed to President Clinton, who got elected in 1992, and eight years later, the Democratic Party was a lot worse, in all statehouses, and both the House and the Senate. It's the opposite with President Bush. He gained seats in '02, gained seats in '04. And I think the Democrats, they all talk to each other, and they think everybody is enraged by what's going on in the Bush administration, and they lose track of the fact that average people in the country actually like what the Bush administration is doing in trying to protect them.

RadioBlogger has the entire transcript.

January 11, 2006

Kennedy and Specter Go At It In Hearings

An otherwise boring first session this morning was broken when Senator Kennedy demanded that the committee go into executive session to vote on whether to subpoena certain records relating to the organization CAP (Concerned Alumni of Princeton).This exchange between Kennedy and Specter followed:

KENNEDY: And I want to do that at an appropriate time. I’d move that the committee go into executive session for the purpose of voting on the issuancing of -- the sole purpose for issuing the subpoena of those records.
SPECTER: Well, we’ll consider that, Senator Kennedy. There are many, many requests which are coming to me and many quarters. And, quite candidly, I view the request -- if it’s really a matter of importance, you and I see each other all the time and you have never mentioned it to me.
And I do not ascribe a great deal of weight -- we actually didn’t get a letter, but...
KENNEDY: You did get a letter. Are you saying...
SPECTER: Well, now wait a minute; you don’t know what I got. I’m about to...
KENNEDY: Yes I do, Senator, since I sent it.
SPECTER: Well, the sender does not necessarily know what the recipient gets, Senator Kennedy. You are not in a position to say what I receive.
If you’ll bear with me for one minute.
KENNEDY: But I am in a position to say what I sent to you on December 22.
SPECTER: You’re in a position to tell me what you sent.
KENNEDY: I renew my request, Senator. And if I’m going to be denied, then I’d appeal the decision of the chair.
I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination.
This nominee has indicated he has no objection to seeing us these issues. We’ve gone over the questions and we are entitled to get that kind of information. And if you’re going to rule it out of order, I want to have a vote on that here on our committee.
SPECTER: Well, don’t be premature, Senator Kennedy. I’m not about to make a ruling on this state of the record.
I hope you won’t mind if I consider it, and I hope you won’t mind if I give you the specifics that there was no letter which I received.
I take umbrage at your telling me what I received. I don’t mind your telling me what you mailed. But there’s a big difference between what’s mailed and what’s received. And you know that.
We’re going to move on now.
Senator Grassley...
KENNEDY: Mr. Chairman, I’d appeal the ruling of the chair on this.
SPECTER: There has been no ruling of the chair, Senator Kennedy.
KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.
And if I’m going to be denied that, I’d want to give notice to the chair that you’re going to hear it again and again and again and we’re going to have votes of this committee again and again and again until we have a resolution.
I think it’s...
SPECTER: Well, Senator Kennedy, I’m not concerned about your threats to have votes again, again and again. And I’m the chairman of this committee and I have heard your request and I will consider it.
And I’m not going to have you run this committee and decide when we’re going to go into executive session.
We are in the middle of a round of hearings. This is the first time you have personally called it to my attention, and this is the first time that I have focused on it. And I will consider in due course.


Best Line of the Morning

Michael Goodwin in the New York Daily News has a hard hitting column this morning on the Alito hearings. His analysis isn't too different from the news analysis in the New York Times, essentially saying the Dems are striking out so far on the hearings.

The whole column is worth reading, but he has a great line at the end aimed squarely at Sen. Ted Kennedy that is priceless:

Still, that didn't stop Kennedy from putting on another shameless performance. He huffed and puffed about how Alito had not initially recused himself from a case involving a mutual fund company where he owned shares, as though an innocent young woman drowned.


Are Dems Saving the Filibuster for Stevens?

A reader emails:

The Dems are in a quandary. Their base wants a filibuster of course, but there is no way it's going to fly with Alito. I believe they can't risk getting nuked, because then if something were to happen to JPS or RBG they'd be up a creek. I believe they have to bluster as much as possible, but at the end of the day they need to save the filibuster in case one of the court's liberals ends up getting replaced by Bush. It might not work even then (at least I sure hope not), but that's how I feel they are going to hedge their bets.

JPS and RBG are John Paul Stevens and Ruth Bader Ginsberg, the most liberal members of the court and also the next two most likely vacancies. The email makes a good point, and maybe the Democrats are thinking ahead to what may happen if the Stevens or Ginsberg seats would open up.

But I suspect Gonzalez is a heavy favorite for Bush's next pick, if he gets one, and I don't know that a Gonzalez for Stevens or Ginsberg swap is an easier filibuster than Alito for O'Connor. The bottom line is any filibuster for a Supreme Court nominee on ideological grounds is almost impossible with the nuclear option lurking in the background and only 45 seats. The Democrats' best bet to hedge against a Stevens or Ginsberg vacancy pre-2009 is to pick up some Senate seats in '06.

Are Senate Democrats Giving Alito a Pass?

I admit to being a little perplexed by the Democrats performance after two days of hearings. Fred Barnes on FOX News made the observation that on the Democratic side it looks like only Chuck Schumer came to play. If the political game, put in the most basic terms, is that Republicans want to see Alito get confirmed and Democrats want to see him blocked or defeated, after two days the Democrats are losing......badly. Liberal activists hoping that Democrats on the Judiciary Committee were going to score some points on Alito have to be profoundly disappointed going into day 3 of the hearings. Adam Liptak and Adam Nagourney’s news analysis for the New York Times paints the picture pretty well:

If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.

Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito's default impulse frequently seemed to be to try to give a direct response to the senators' often rambling questions.

Failing that, he offered what he presented as clarifications of earlier statements or writing, sanded of any rough edges, or said he simply could not recall details about some past chapter of his life that had raised concern among senators. Only in one exchange did he appear rattled, refusing to give a direct answer when Senator Charles E. Schumer of New York asked him if he still held a view, expressed in 1985, that there was no constitutional right to abortion.

For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question.

Barring a change of tactics that would have to come soon, it looks like Democrats are giving Alito a pass. I still wouldn’t rule out the possibility of a filibuster, but one would think that if the Democrats' plan was to filibuster, they would be making a more aggressive attempt to paint Alito as out of the mainstream with the hope of peeling away a few moderate Republicans and stiffening the spines of conservative Democrats.

What is interesting is when you look at the liberal blogs and what they are talking about, the energy is clearly not on Alito, and that should tell you a lot. I think the left-wing blogosphere is coalescing around the idea Bush and the Republicans are toast based on Abramoff, Iraq and the President’s spying on the American people. They correctly have determined that Alito is a losing battle for them and they are moving on. And I wonder if that is what we are seeing with Senate Democrats as well.

January 10, 2006

Notes From Inside The Hearing Room

Earlier today I had occasion to speak with Ronald Cass, president of Cass & Associates and former Dean of the Boston University Law School. He's been observing the Alito hearings from inside the hearing room, so here are a couple of observations worth passing along:

Cass said there is a noticeable difference in the tone of the Alito hearings vs. the Roberts hearings just a few months ago.  With Roberts there was a sense of excitement - the Hilll hadn't seen a Supreme Court nomination hearing in some eleven years before taking up the Roberts nomination last year - and also more of a legitimately open minded atmosphere before the committee.

Cass said the Alito hearings, on other hand, are total "trench warfare." Votes for both sides were already "in the can" before the gavel came down and there is a distinctly strategic feel to both yesterday's opening statements and today's initial round of questioning. This is about positioning and point scoring, with Republicans working to protect Alito and Democrats spending much of their time characterizing (or, more accurately, mischaracterizing) Alito's record rather than questioning him about specifics or about his judicial philosophy.

As to what lies ahead, Cass thinks the issue of Vanguard was effectively neutralized by Senator Hatch and will probably go away, as will the subject of CAP (Concerned Alumni of Princeton) which he described as a "non-issue." Cass says the focus of the hearings will remain on executive power and abortion and that Alito has done a good job of handling both - so far.

Why Alito Is Less Vulnerable Than Bork or Thomas

Reader John J. Vecchione emails to explain:

Another reason Alito isn't as vulnerable as Bork and Thomas were many years ago, besides the make-up of the Senate, is the education of the public that has gone on in every Presidential campaign since 1988 on the judge issue, and recently even in Senate battles. Win or lose the Republicans have clearly stated 1) a philosophy of judging (originalism or textualism) that preserves democracy; 2) repeated the message that many decisions the public dislikes were not required by the Constitution, but only by an out-of-touch judicial elite and 3) that the judiciary has become out of control.  The Democrats have countered only by saying the Republicans want "separate but equal" which nobody believes.  Even Clinton did not formulate a judicial philosophy understood by the public.

In the old days a large majority of Americans believed the courts when they said the Constitution, by its terms or history, required no prayer in school, abortion on demand or the flag burning license.  They might not like these things but the inclination was to defer to the law.  That deference is gone and part of the reason is the education of the public by Republican presidential and Senate campaigns, the Federalist Society, talk radio and yes, cable t.v.  Levin's 'Men in Black' was a best seller.  That would have been inconceivable in 1980.  Finally, the Republicans have put Scalia and Thomas on the bench and the world did not end.  This makes the frothing of the left seem silly.

Democrats lose on the issue of judicial control of society.  They have not effectively countered originalism/textualism which is intuitively attractive to Americans who wouldn't want the contracts they enter interpreted the way liberals interpret the Constitution.  If the Constitution requires odd things Americans don't understand, like the electoral college, they will shrug and accept it as part of our legal patrimony.  If, however, it does not require things they don't understand, like the elimination of God from the public square, and yet Courts impose them, the side of the debate trying to explain why that should be so, suffers.  That has occurred over the 20 years since Bork which is why Alito fights from higher, firmer ground than did Bork, the Goldwater of the judiciary!

Alito Hearings: A Wink and A Smile

A great finish to Brian McGuire's story today in the NY Sun on yesterday's hearings:

Some people who have been briefed on Judge Alito's mock hearing sessions have expressed concerns about his tendency to grow defensive.

But yesterday, he showed little sign of that. And at one point, when Mr. Kennedy described his record as "disturbing," Judge Alito's wife, Martha-Ann, winked at a friend nearby and smiled.

Can Alito Be Derailed?

Today will give a much better sense than yesterday of the impending answer to that question.  Democrats will be ready to take their best shot at Alito right from the start of the hearings this morning, and they will press him aggressively all day long.

Right now the conventional wisdom is that this is Alito's vote to lose.  Adam Nagourney writes in The New York Times this morning that, "Republicans and some Democrats expressed little doubt that Judge Alito would survive even a withering interrogation and be confirmed."

In the Washington Post, Dan Balz tries to explain why the Alito nomination hasn't lived up to the expectations of activists - at least so far:

But on this nomination, as with Roberts's, there has been a clear disconnect between the zeal of activists and the detachment of the general public. Tim Hibbits, an Oregon-based pollster, said the Alito nomination falls low on the public's list of priorities. "With the exception of highly energized base voters, it's not something that's engaged people," he said. [snip]

Because of the implications of President Bush's clear desire to move the court in a more conservative direction, many activists have predicted a clash this year akin to those that occurred over the nominations of Robert H. Bork and Clarence Thomas -- Bork's heavily freighted in ideology and Thomas's overwhelmed by accusations of sexual harassment.

It has not happened. One reason may be because the public considers these nominees differently than do the ideologues or both sides, looking at experience and demeanor more than at ideology. Or it may be because Alito's nomination has been overshadowed by more compelling issues, such as Iraq, the cost of home heating oil and natural gas or lobbyist Jack Abramoff's plea bargain. Whatever the reason, the public has been slow to engage.

Balz goes on to cite the recent Washington Post poll results showing 76% of Republicans, 40% of Democrats and 47% of Independents currently supporting Alito's confirmation (53% support overall).

These numbers don't preclude Democrats launching a filibuster, but they certainly make it more difficult to justify to the public. Blocking a nominee with less than majority support would be much easier and carry much less risk, which is why the Democrats' main goal over the next couple of days is to try and drive Alito's negative ratings through the roof. (This isn't going to be accomplished by a discussion of obscure Constitutional issues but by personal attacks, hence the totally fabricated smear by Ted Kennedy yesterday about Alito being a racist.)

The odds of a filibuster will rise or fall based on the success Democrats have in tarnishing Alito today, and that, in turn, will depend to a large degree on how Alito handles himself. As Andrew Kohut said in the Balz article, " "You're going to have to really get some significant news out of these hearings to move the needle in a negative way."

Democrats are well aware of this, which is why today's session will be crucial to determining whether a filibuster is in the offing. Most think it is unlikely Democrats will get enough of what they need from these hearings to justify the unprecedented step of blocking a Supreme Court nominee with majority support. Then again, as John suggested yesterday, Democrats may be inclined to move ahead anyway and force the GOP to try and invoke the nuclear option or risk demoralizing their left-wing base at the beginning of an important election year.

January 09, 2006

Alito Hearings: Lesson 2, Day 1

Here's a helpful comparison of basic judicial philosophies. First, consider this comment today by Senator Kennedy:

In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.... To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

Now this from Judge Alito's opening remarks:

And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States.

Notice the difference? Kennedy makes no mention of the rule of law. In his opening remarks, Kennedy repeatedly referenced the phrase "equal justice," but clearly in Kennedy's liberal worldview the concept of "equal justice" has less to do with impartially following the letter of the law than with "getting a fair shake." Kennedy is not concerned with the quality or the soundness of Alito's legal rulings, only the outcomes. That's the textbook definition of judicial activism.

Video Links From Alito Hearings

Video links from the first day of Judiciary Committee Hearings:

Alito  | Specter | Leahy | Sessions | Kennedy | Kyl | Schumer | Graham | Feinstein | Cornyn | Biden | Brownback | Durbin

Alito Hearings: Lesson 1, Day 1

It's a peculiarity of the modern day confirmation hearing process that Senators start by awarding themselves each 10 minutes worth of utterly meaningless bloviation. I could only stand it for just over two hours.  It's almost as hard to sit through the banal praise for Alito by Republican committee members as it is to listen to Democrat after Democrat prattle on sanctimoniously about their "deep," "grave," and "profound" concerns regarding constitutional rights sure to be eroded by the potential confirmation of a knuckle-dragger like Alito.

Next time can't we just skip ahead to Phase Two, where the Senatorial bloviating is occasionally interrupted by a question or two designed to elicit some response from the nominee? Better yet, if we wanted to streamline the process as effectively as possible there's an easier solution: pull the plug on the tv cameras. I'm not sure Charles Schumer goes anywhere these days unless there is a television camera present.

Poll: Alito Has Twice As Many Backers as Detractors

Survey USA has a brand new poll out on the Alito nomination.

On the day confirmation hearings begin for Samuel Alito to Associate Justice of the U.S. Supreme Court, Alito has twice as many backers as detractors, according to a poll of 1,200 adults nationwide conducted by SurveyUSA for its media clients around the country. 30% of USA adults go into the hearings certain that Alito is qualified to serve on the High Court. 14% of adults go into the hearings certain that Alito is not qualified to serve on the High Court. 36% of Americans, the largest group, are waiting to hear from Alito this week before making up their minds.

50% of Americans predict Alito will be confirmed on a full vote of the U.S. Senate (compare with 33% to 47% who said the same about Harriett Miers in 26 consecutive days of SurveyUSA tracking polling. Miers tracking data here). 15% of Americans today say Alito will make it to a full vote before the Senate, but will then be rejected by the full Senate (compare with 20% to 28% who said the same about Miers). 9% today say Alito will not make it to a full vote before the Senate (compare with 12% to 19% who said the same about Miers).

Further in the poll, only 11% report to have heard about the "Concerned Alumni of Princeton." In light of the Drudge Report's exclusive this weekend alluding to a planned Democratic attack that will focus on Alito's membership in this group it will be interesting to see how much that number changes in the next two weeks.

Russert Nails Schumer

Yesterday on Meet the Press Tim Russert nailed the major weakness for the Democrats when it comes to defeating Alito:

MR. RUSSERT: But here’s the situation, as many people see it. When Ruth Bader Ginsburg was put forward by Bill Clinton, she had been general counsel for the ACLU. Steven Breyer has worked for Ted Kennedy, and yet they were overwhelmingly confirmed because they had competence and temperament, as you say. And even though they had a more liberal, judicial philosophy than many members of the Senate, it was a Democratic president who had the right to make that nomination. If, in fact, Republicans supported Ginsburg and Breyer, why shouldn’t Democrats support Alito, who has been rated well qualified, the gold standard of the ABA, and whose philosophy may be conservative, but is no more conservative than Ginsburg and Breyer were liberal?

SEN. SCHUMER: Well, that’s the $64,000 question. If Alito is within the judicial mainstream, as everyone conceded that Breyer and Ginsburg were—most people didn’t think Breyer was much of a liberal. They thought he was a moderate. If he is within the mainstream, even if he’s a conservative, he will be approved. Some people may vote against him, because they say “He’s not my philosophy,” but there will be no attempt to block him.

For Schumer and the Democrats to not come off as complete hypocrites they have to make a credible argument that Alito is considerably further out of the mainstream than former ACLU general counsel Ruth Bader Ginsburg. That may fly with Schumer, the NY Times and many in the elite media but it won’t wash with the country at large.

If I had to debate who is closer to the ideological center of the country, Alito or Ginsburg, I’d rather be arguing for Alito than Ginsberg. But that is at least a debatable point where reasonable people can disagree. The proposition that Samuel Alito is a raving extremist and Ruth Bader Ginsburg is a moderate, centrist is laughable. Objective and fair-minded people should be able to acknowledge what is implicit in Russert’s question – Alito is a qualified conservative and Ginsburg is a qualified liberal.

Even after the Bork and Thomas drummings Republicans still had respect for the 200 years of  constitutional precedent that Presidents have the right to appoint qualified people of their choosing. As Russert stated, both of President Clinton’s nominees were overwhelming confirmed. But we are in a different time and we have a different minority party and there is no way Sam Alito is going to be treated as well.

Because in the minds of many of the Democratic Senators, Alito is truly an extremist who must be opposed at all costs, even though it's much closer to the truth that Schumer and many of his colleagues are the ones who are more ideologically out of the mainstream.

Hear Schumer Speak!

Here's the text of the opening remarks to be given today at the Alito hearings by Senator Charles Schumer (all emphasis in the original):

Judge Alito, welcome to you, Mrs. Alito and your two children.  I join my colleagues in congratulating you on your nomination to the position of Associate Justice of the United States Supreme Court.

If confirmed, you will be one of nine people who collectively hold power over everyone who lives in this country.  You will define our freedom; you will affect our security; you will shape our law.

You will determine, on some days, where we pray and how we vote; you will define, on other days, when life begins and what our schools may teach; and you will decide, from time to time, who shall live and who shall die.

 The decisions are final, and appeals impossible.

That is the awesome responsibility and power of a Supreme Court Justice.  It is, therefore, only appropriate that everyone who aspires to that office bear a heavy burden when they come before the Senate and the American people to prove that they are worthy.

But while every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high.

First, because you have been named to replace Justice Sandra Day O’Connor, the pivotal swing vote on a divided Court; second, because you have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, because your record of opinions and statements on a number of critical Constitutional questions seems quite extreme.


Continue reading "Hear Schumer Speak!" »

Democrats Should Filibuster

In my column today I suggest that it might make sense for the Democrats to filibuster Alito even though Republicans probably would detonate the so-called nuclear option and change the Senate rules paving the way for Alito to be confirmed.

November 23, 2005

Quote of the Day

"Miers was a disappointment, not a betrayal.... There are no waves left. It dropped in the water and the water is still. The movement is happy." - Grover Norquist

November 14, 2005

Schumer On Alito

Statement from Senator Chuck Schumer on the new reports of Alito's views on Roe:

One thing is clear – because Judge Alito so firmly and specifically stated his personal and legal opinion about a very controversial issue, he has an obligation to answer tough questions from the Committee about whether his views have changed and whether he would advance a particular ideological position that is contrary to decades of legal precedent.  Past nominees have said they could not discuss these issues for fear of creating a perception of bias.  Here, unfortunately, the memo itself creates the perception of bias and it will be crucial for this nominee to address the issue head on.

The filibuster train is on the tracks..... 

The Coming Alito Filibuster?

Ever since Miers withdrew and the President promptly nominated Judge Alito I felt the likelihood for a filibuster was rather high, given that the Democrats were in a mood to fight and the only way they could really fight, would be to filibuster.

I will concede that after Alito's first meetings with Senators on the Hill, and then Senator Biden's comment last week on ABC's "This Week" that Democrats should commit to a vote, one had to figure that the filibuster odds were getting rather small.

However, yesterday's editorial in the New York Times and the Democratic Chairman's appearance on Meet the Press reaffirms my belief that a serious filibuster attempt is at least a 50-50 bet. From the Times editorial:

Judge Samuel Alito has been working hard to win over moderate Democratic senators. But just as it would be irresponsible to reject his nomination to the Supreme Court without giving him a full hearing, it is unwise to embrace it - or rule out the possibility of a filibuster - until more is known.

The Alito nomination is a defining moment for the country, and for the Democratic Party. Given the sharp divisions on the court, the next justice could decide the scope of reproductive freedom, civil rights and civil liberties, and environmental and workplace protections that Americans will live with for years. Although many questions remain to be answered, there is reason to believe that Judge Alito could do significant damage to values Democrats have long stood for.

Conservative Republicans demonstrated that they have a clear idea of what they want for the Supreme Court. They proved that once again with their insurrection against Harriet Miers. Now Democratic senators have to show their supporters that they are no less willing to fight for their vision.......

The Alito nomination comes at a critical moment for the Democratic Party. With President Bush's poll numbers plummeting, Democrats are finding a new optimism about their chances in 2006 and 2008. But to capitalize on the Republicans' weakness, the party needs to show that it has an alternative vision for the country. As the Democrats refine their message for next year's elections, the first thing they need to be able to say to the American people is that they did not sit by idly while the far right took over the Supreme Court and began dismantling fundamental rights and freedoms.

And then Howard Dean on Meet the Press:

MR. RUSSERT:  The Supreme Court...
DR. DEAN:  Yes.
MR. RUSSERT:  ...the president has nominated Sam Alito to the Supreme Court. Should the Democrats in the Senate--there's only 45 of them, but if they stayed together as a block...
DR. DEAN:  Right.
MR. RUSSERT:  ...they could filibuster and prevent Judge Alito from going to the Supreme Court.  Should they?
DR. DEAN:  I must say I rarely read editorials and I rarely agree with the ones I read.  But The New York Times ran an editorial today which I think is very instructive for the Democratic Party.  This could be a defining moment. Judge Alito is a hard-working man, a good family man, but his opinions are well outside the mainstream of American public opinion.  He condones a strip-search of a 10-year-old when the police had no such warrant or indication to do so.  He condoned the crafting of an all-white jury to hear a black defendant's case by a prosecutor.  He condoned the states not having to listen to the Family Medical Leave Act.  He condoned government interference in private family matters and family decision- making.  This is well outside the mainstream of where Americans are.  I think the Democrats are going to have to think long and hard as the hearings progress about whether we should support him.  There's some grave questions about him, and I do hope that they will stick together.

This morning it seems pretty clear to me where the NY Times and the Chairman of the Democratic Party are heading in regards to an Alito filibuster.

Interestingly, I think the determining factor on whether there will be a filibuster is the President's Job Approval. If Bush continues to get beat up and his poll numbers stay in the 30's or fall lower, I suspect the Democrats might have the political wisdom to just let the President stew in his world of hurt and not provide an opportunity to get the conservative base energized with a filibuster.

However, if the President's counterattack on the war begins to staunch the bleeding and his poll numbers stabilize and get back over 40%, I don't know that the liberal base will allow for the Democrats to just sit back and let Alito get on the court without a serious fight. That means a filibuster.

Given that I feel the President's poll numbers are in the process of bottoming (Rasmussen has shown a four-point bounce over the last week {Late Update: today's Rasmussen dropped 3 pts}) I think the odds of a serious filibuster attempt are very real. The delay in the hearings until January will provide more than enough time for the Democrats to craft a strategy and begin the public process of "questioning" whether Alito should take O'Connor's swing seat.

Yesterday was a clear warning to the White House and the Senate GOP. They would be well advised to take notice.

November 03, 2005

Salazar on Alito

On FOX & Friends this morning Sen. Ken Salazar (D-Co), a member of the "Gang of 14" sounded very hostile to the Alito nomination, and when responding to a question about a filibuster and extraordinary circumstances said:

It may not even be that Judge Alito has the 51 votes to be confirmed.

This is not going to be Roberts-lite with Alito getting 65-70 "yes" votes.

November 01, 2005

Frist Draws Line In The Sand

More firm rhetoric on the confirmation of Judge Alito from Majority Leader Bill Frist:

"President Bush got it right when he called Judge Alito the most experienced nominee in 70 years.
He is – to say the least – unquestionably qualified to serve on our nation’s highest court.
A devoted husband and proud father, he has a brilliant legal mind … a passionate voice.
And let me assure you, Judge Alito WILL get a fair hearing, and a fair up-or-down vote on the floor of the United States Senate. 
We have but one constitutional obligation before us …to provide advice and consent.
Our job is to assess the merits of this nominee through the prism of ability, not ideology.  
Bottom line … the nominee may have changed, but the guiding principle remains the same:
Fair and civil Hearing. Fair Vote.
Obstruction will not be tolerated.
As Majority Leader, I look forward to bringing Judge Alito’s nomination to the Senate floor for a fair up-or-down vote soon." (all emphasis in the original)

More From The Gang

Building off my previous post about Senator DeWine, here's a brief round up of reactions from members of the Gang of 14:

GOP Members 
John McCain:  Alito a "thorough, experienced, capable and principled jurist and lawyer."

Susan Collins: "I need to get a better sense of his respect for precedent and his judicial philosophy. I don't have that yet. At this point, it's far too early for me to reach a judgment based on what is in some ways one of the most important factors that I consider, which is judicial philosophy."

Lindsey Graham“I do not believe a filibuster attempt (against Alito) based on ideology will be successful.”

John Warner: Alito "has an impressive record of legal accomplishments in his career and has been confirmed twice by the Senate. I will participate with others in reviewing his entire record fairly and objectively." Also said, "There is a potential for the Gang of 14 to perform a pivotal -- if not decisive -- role."

Lincoln Chafee: "I'd say, yes, there's no doubt" that Alito would push the court to the right "on women's reproductive freedom, based on his record."  More Chafee: "it's early", "I anticipate a bruising battle ahead" resulting in a "razor-thin vote."

Olympia Snowe: "I will evaluate Judge Alito based on his lengthy record, including all of his opinions, scholarship, judicial methodology and philosophy." Here's a bit more on Snowe's predicament from the Portsmouth Herald:

The decision on Alito’s nomination will weigh more heavily on Snowe, who is up for reelection in November, 2006 and could face a ‘damned if you do, damned if you don’t’ choice.

Longtime Republican stalwart and York attorney John Campbell said she could face a fight from her own party.

"She’s just asking for a primary contest if she was to" buck the party over Alito’s nomination. She has to be thinking about that right now," said Campbell, who has long been a power broker in Maine Republican politics and counts among his friends George H.W. Bush. He feels it would be a "political mistake" for either senator to oppose Alito.

Maiman said if Snowe does vote with her party, despite Alito’s pro-abortion record, she will face a fight in the general election from the Democrats.

"If the Democratic strategy is to oppose Alito strongly and if the issue is abortion and if Snowe isn’t also against Alito on this, then it gives the Democrats a big issue in running against her next year. It could be the first and maybe only issue in which Snowe could be in trouble with the electorate."

Democratic Members
Ben Nelson: "As I said with the nomination of Judge (John) Roberts and with Harriet Miers, I am looking forward to the confirmation process and looking forward to learning more about Judge Samuel Alito. Judge Alito needs to have a fair and thorough hearing, and we should withhold judgment until that process unfolds."

Robert Byrd: "If confirmed, Judge Alito will likely serve a lifetime appointment. The stakes are too high for a rush to judgment. In the coming days, I look forward to learning more about Judge Alito, his judicial philosophy, and his temperament."

Mary Landrieu: "As I have said before, Justice (Sandra Day) O'Connor should be succeeded by a justice who, like her, will inspire our nation and embody the fundamental American values of freedom, equality and fairness -- someone who will put the principles of law ahead of partisan ideology. Judge Alito's career of accomplishment speaks to his experience, but also raises questions as to whether he meets this standard and possesses the qualities necessary for a member of the nation's highest court."

Mark Pryor: "It does seem that he [Alito] might be more of a divisive nomination than what we saw with (Chief) Justice (John) Roberts. I'm not sure this is the type of nomination that brings the country together."

Joe Lieberman:  Connecticut Post reports: Sen. Joe Lieberman, D-Conn., held back, saying he did not know enough about Alito to say whether he would support him.

Daniel Inouye: says he will keep and open mind and hopes Alito is "forthright and cooperative" with the Judiciary Committee.

Ken Salazar:  "The manner in which the President handled this nomination is disappointing. He did not consult with the Senate about this nominee. It remains to be seen whether Judge Alito will satisfactorily fill the mainstream position being vacated by Justice Sandra Day O'Connor."  More  on Salazar from the Rocky Mountain News:

From fellow Democrats, Salazar "got a lot of opposition in the state to the Roberts vote," said Pat Waak, chair of the Colorado Democratic Party. "I felt he sort of made an agreement with the voters: 'I'm going to go ahead with this one, but I'm going to be a lot tougher on the next one.' "

UPDATE: He's not part of The Gang, but this transcript from Arlen Specter's press conference last evening is important "tea leaf" reading as well (via Polipundit

DeWine Will Go Nuclear If Necessary

From today's Cleveland Plain Dealer (reg req):

DeWine, who will meet with Alito this morning, said President Bush's nominee appears to be "well within the mainstream of conservative judges." [snip]

"From everything I know about him, I can't think that anyone would believe that his nomination constitutes 'extraordinary circumstances' that would lead them to filibuster him," DeWine said.

"This is not that type nomination at all. And if a filibuster was attempted, I would certainly oppose that and if it came to that, vote to change the rules of the Senate to stop that type of filibuster." (emphasis added)

October 31, 2005

Barone: Dems Won't Muster Filibuster

From the always enlightening Barone Blog:

My guess is that the left Democrats are not going to be able to get the 41 votes they need for a filibuster. Sens. Ben Nelson of Nebraska and Kent Conrad of North Dakota, both up for re-election next year in solidly Republican states, voted for Roberts. So did Byron Dorgan of North Dakota and Max Baucus of Montana. They're not likely filibusterers. Bill Nelson of Florida, up for re-election next year, would take some political risks by opposing him. That's five—enough to defeat a filibuster right there. When you add to that the senators listed above from states with large numbers of Italian-Americans, many of whom in my judgment will be lukewarm at best about joining a filibuster, you can see why I think Schumer and company will not get up the head of steam they need.

I think whether Barone turns out to be right or not depends on the first forty-eight to seventy-two hours of the life of this nomination. If the Dems can get even a little bit of traction on Alito early it will feed a sense of confidence and momentum on the part of the Schumer-Kennedy-Durbin crowd that could influence other members of the caucus. The Democrats feel Bush is weak and I suspect the red-staters up for re-election fear a confrontation with this president over a conservative judicial pick far less today than they did even six weeks ago.

Democrats who were eager to strike early and get the upper hand on Alito have to be lamenting this politically tone deaf hatchet job that backfired. If the public relations battle over this nomination is to be won or lost in the first few news cycles, the anti-Alito forces got routed today.

Expect a Filibuster Attempt

The last 4 days have not been kind to the Democrats. Thursday morning I wrote:

The Miers withdrawal sets the stage for a dramatic Bush comeback....

And then on Friday, "Fitzmas" turned into a complete bust for all the conspiracy theorists on the Left. David Brooks summed it up perfectly on Meet the Press:

What people want to know, is there a dark, malevolent conspiracy in the middle of the White House? Is there a cancer on the presidency, to use John Dean's phrase.  And I think what Fitzgerald showed, you know, he was in there for 22 months.  He had full cooperation from everybody.  And what he found was no criminal conspiracy to out a covert agent.  He indicted one person of perjury, which is serious.  But the White House has to be breathing a sigh of relief, and the American people have to know that the wave of hysteria, the wave of paranoia, the wave of charges and allegations about Karl Rove and everybody else so far is unsupported by the facts.  So what we have is a serious indictment of a senior government official, but we do not have a cancer on the presidency. 

Now, that's not what many in the press and of course what the Democrats want to hear, but the average Joe American out there knows Brooks is way closer to the truth than the conspiracy spinsters on the Left.

So that is the backdrop coming into this morning when President Bush uncorked Judge Alito. The New Republic's Jeffrey Rosen wrote this about Judge Alito in November last year:

Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade. What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling...... 

Their (the Democrats) best hope lies in a principled conservative judge as opposed to an activist eager to undermine Congress's power in the name of the Constitution in Exile. By this measure, Alito, Brown, Clement, or Garza may be worth a Senate fight.

Given that the Right essentially vetoed Harriet Miers, who was a much better bet to end up like O'Connor or Souter, as compared to Alito, who given his 15 year judicial record, is almost a guarantee to line up with Scalia and Thomas, there is no question that the Left will demand a full scale war. The problem is the Democrats simply don't have the votes to defeat Alito outright or the votes to prevent the detonation of the nuclear option if they were to attempt a filibuster.

Like I said, though you might not know it from the MSM coverage, it has been a very good four days for President Bush.

PFAW Ready To Rumble

Here is the title of the People For the American Way press release on Alito: "PFAW will wage massive national effort to defeat nominee who would dramatically shift balance of Court."

There has been a lot of happy talk this morning about how Alito will be able to win Democratic votes because he was unanimously confirmed by the Senate in 1990, blah, blah, blah. I'm not buying it. The liberal special interest groups are going to wage massive war on Alito and they're going to demand absolute purity from the Democratic caucus when it comes time to vote.

Remember, once upon a time Scalia was unanimously confirmed by the Senate, too. Despite being universally acknowledged as one of the best and brightest (if not THE best and brightest) legal minds of the era, how many votes would Scalia win from Democrats if Bush nominated him today?

More on Alito

Great post from Mark Levin at Bench Memos:

I have known Judge Alito for two decades. We served together in the Meese Justice Department, where he worked in the Solicitor General's Office and was considered the sharpest of Charles Fried's assistants. He is every bit as smart and personable as Chief Justice John Roberts. He is an expert on constitutional law. And he obviously has a longer judicial record, so his judicial philosophy is well-known. Judge Alito is soft-spoken. He is his own man (efforts in the media this morning to paint him as "Scalia-lite" or "Scalito" are intended to fire-up the leftwing base). If he is not qualified to serve on the Supreme Court, then no conservative is qualified.

Schumer Speaks

Statement from Senator Charles Schumer (D-NY):

It is sad that the President felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O’Connor, who would unify us.

This controversial nominee, who would make the Court less diverse and far more conservative, will get very careful scrutiny from the Senate and from the American people.


Scalito It Is

It's Scalito.  100% guaranteed to send Ralph Neas and Nan Aron into cardiac arrest and to put the  Senate Dems on a war footing.  The main focus, of course, will be Alito's dissent in the abortion rights case Planned Parenthood v. Casey. Patterico has already done the analysis on it, and you can read it (in part) for yourself here.

For more on Alito, see this recent US News profile and this more dated look from We've set up an Alito resource page with bio information and links to notable opinions.

Now quickly to the politics. You can expect almost every Dem to oppose Alito.  But as I've written before, the nomination really comes down to a Republican Gang of Four:  McCain, Graham, Warner, and DeWine. The GOP can (and probably will) lose the usual "moderate" suspects in Chafee, Collins, and Snowe.  They can afford to lose up to two more Senators and still have 50 votes, which would allow Cheney to come down and cast the tie-breaker (something that would drive the Dems even more insane). 

So Bush has to have at least two of the Republican Gang of Four supporting Alito, and that's assuming there are no other random defections in the GOP ranks (like, say, Voinovich). Yesterday Graham made some aggressive noise that a filibuster would not be tolerated, and McCain has made similar sounding statements recently which would suggest this nomination is going to be in decent shape when all the dust settles. And there will be a lot of dust.

Obviously, the other key player in this drama is Arlen Specter.  He's pro-choice but has ties to the NJ-born, long-time 3rd Circuit Court of Appeals judge. It's hard to imagine Specter won't support Alito, and his blessing will provide additional cover for members of the GOP caucus who might start feeling uncomfortable when the liberal attack machine revs up and portrays Alito as a right wing monster. Specter also has control over the process, which is no small thing.  In other words, it's time for Specter to earn that Judiciary Committee chairmanship and to return the favor to the White House for backing him over Pat Toomey in the 2004 PA Senate primary.

October 27, 2005

The Beginning of the Bush Comeback

The Miers withdrawal sets the stage for a dramatic Bush comeback, irrespective of whatever Fitzgerald may or may not do.

Miers Withdraws

The Krauthammer strategy reaches a successful conclusion:

Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president's ability to receive candid counsel," Bush said. "Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her."

One interpretation of the Miers withdrawal is that the President realized (or was informed by GOP Senators) that she didn't have a chance of being confirmed. A more speculative interpretation of the timing of the withdrawal is that the President knows there are indictments coming down tomorrow and needs to have his base support consolidated.  He can use news of a new appointment to deflect attention from any possible bad news from the Fitzgerald investigation.

Indictments or not, expect Bush to nominate someone who will immediately set off a firestorm from liberal special interest groups and provoke a major battle on the hill that will get his administration off the defensive.

October 24, 2005

Krauthammer Gets Results!

Talk about your fast track.  On Friday Charles Krauthammer suggested a document request/denial exit strategy for the Miers nomination.  Sunday Senator Brownback was on FOX  reiterating a call to see documents from Miers' time in the White House. This morning the Los Angeles Times ' Maura Reynolds wrote about the outlines of the document request/denial strategy taking shape, and this afternoon President Bush declared that he's not going to waive executive privilege on the Miers documents. "That would breach very important confidentiality," President Bush said, "and it's a red line I'm not willing to cross."

So it appears we're on the verge of an impasse. Maybe in his next column Krauthammer can suggest who the White House should nominate to replace Miers. 

October 22, 2005

Miers Nomination Hangs In the Balance

This morning's Washington Times: "Insiders see hint of Miers pullout." Ralph Z. Hallow and Charles Hurt report the White House is quietly making phone calls gathering advice about an exit strategy. The White House denies making such calls. The last five paragraphs of the article are particularly interesting:

     Deputy Chief of Staff Karl Rove no longer appears to fill the role as chief political strategist in the White House, a role he has filled from the start of the first Bush term. Mr. Rove's clear leadership hand went missing some time ago, Republican insiders say, when speculation grew that he might face indictment in the CIA leak investigation led by special prosecutor Patrick Fitzgerald.
    The eruption of conservative disapproval over the choice of Miss Miers surprised the president and others in the White House but not Mr. Rove, the insiders say. They say he has shown, in most instances, a keen sensitivity to the complex concerns of various interests on the political right that, until the Miers nomination, had been pretty much in lock step with Mr. Bush, even when they privately disagreed with him.
    Republican insiders said the choice of Miss Miers, who has had no judicial experience, over a list of sitting judges with records of having written opinions on constitutional matters and who are conservative in their political views, probably was made by Chief of Staff Andrew H. Card Jr.
    Some White House aides privately acknowledge astonishment at the administration's response.
    "Who would have believed the wheels would be coming off this early in the second term, and with our own people firing at us?" a White House aide confided yesterday.

I have a great deal of respect for Karl Rove, but it doesn't take a particularly high political IQ to recognize that the Miers nomination was a train wreck waiting to happen. There may be "complex concerns of various interests on the political right" on some issues, but this wasn't one of them. If there wasn't a single other person inside the White House with access to the president who could see this, then the Bush administration is in much bigger trouble than anyone can imagine.

October 10, 2005

Either Way, It's A Crap Shoot

John Fund inadvertently makes the case in favor of Harriet Miers this morning by pointing out that conservatives have been burned on SCOTUS appointments by every Republican president since Eisenhower.

Presumably, all these nominations were made with the best of intentions; namely to seat qualified conservative-leaning justices on the court with the intention of either maintaining its balance or shifting it to the right. Yet conservatives got Blackmun from Nixon, Kennedy & O'Connor from Reagan, and Souter from Bush 41.

The point, of course, is that the nomination of a Supreme Court Justice is inherently a crap shoot. Miers may not be a movement conservative, but she could easily end up being another reliably conservative vote on the Court similar to Rehnquist or White. And John Roberts, the nominee conservatives just bent over backward to defend based on little more than intellectual pedigree and indefatigable charm, could just as easily turn out to be another Anthony Kennedy. Or it could be the reverse. There are no guarantees.

Does that mean the court needs a crony? No. But don't be misled by breathless recitations of Federalist No. 76. Only a fool would claim that Miers has "no other merit" to her nomination besides being a friend of Bush. Miers has a record of accomplishment and it's now up to her to demonstrate and defend her record and her views in front of the Judiciary Committee and the country. That's exactly how it should be.

The reason the Miers nomination was a bad one, in my opinion, is because it needlessly split the Republican base in two. Bush made the entire process (and by default the prospect of enacting the rest of his agenda) much more difficult than it had to be, and his presidency may suffer as a result.

In the end it may work out that Bush did conservatives a favor by eschewing another traditional pick like Roberts in favor of someone with practical experience and someone with whose character he had personal knowledge. But that, as they say, is something we won't know until we know.

In the meantime, the Republican base is in turmoil and Democrats can stand back and watch with glee, gather their breath and come up with a strategy to deal with Miers when she enters the Judiciary Committee hearings.

October 05, 2005

The Ultimate Trojan Horse?

She's polite. Shy. Smart. Modest. Hard-working. Goes to church. Helps the poor. She immediately won the praise of the leader of the Democrats in the Senate. And yet she may end up making Justices Scalia and Thomas look like a couple of card carrying lefties.

I'm exaggerating for effect, of course, but the point is that despite the dramatic tearing of flesh that has gone on in some conservative quarters over the last 48 hours, the indications are that Bush has chosen someone who is extremely culturally conservative. Based on what little we know at this point, he's also chosen someone who favors the Patriot Act, wider presidential authority and an aggressive national security posture.

I understand the disappointment on the right. Conservatives wanted a first-rate legal and ideological gladiator to go do battle with liberals in the Senate. Instead, Bush gave them the Church Lady.

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