Monday, January 09, 2006
The Basic Case Against Alito
I have nothing very novel or surprising to say about the Alito nomination. But on the eve of his hearings it may be useful to summarize the essential case against him.
"If he is unwilling firmly and forthrightly to declare his independence from the ideologies and executive authorities he has served his entire career, the Democrats should try to keep him off the Court by filibuster."
A court-packing fight every time there is a Supreme Court vacancy? With whoever has the most votes wins? What does this do the institution of the Supreme Court? It has no imperium. Its orders are obeyed because people in power think they should be obeyed. If it becomes just another extension of the ruling group in power ... did Andrew Jackson actually say "John Marshall made his ruling [over the Seminole wars]. Now let him enforce it."
Perhaps Justices should be chosen only based on their legal credentials, character and integrity and no inquiry should be allowed at all on their politics. (I refuse to say judicial philosophy. It is a political viewpoint.) As a second question, should Justices be at the mercy of politicians who are not fit to carry their briefcases when it comes to legal ability, character and integrity? I listened to the opening statements today? The opponents of Judge Alito talked about recent headlines. Can we say "Abramoff" when it comes to them?
Please just acknowledge (or dispute) two things for your readers:
First, the strip search case in no way turned on the nature of the search (the strip or no-strip nature of it) but on the reasonableness (or not) of the officers' interpretation of the scope of the warrant, thus making attempts like yours which highlight the purported "strip search" more about sensationalism than the truth, and about grossly distorting what Alito himself wrote in the case.
Second, that when you say in the Family Medical Leave Act case that the Supreme Court decided "this case" the other way, the reason that you have not named both of the cases is that you are not telling the truth. To wit, the case the Supreme Court decided did not upset the outcome in Alito's case, and they were two different cases. In fact, Alito's case remains good law, despite what the Supremes wrote in the case you claim was "this case."
If I am wrong about this, you will enjoy edifying me and your readers, who might have taken Chittister and Hibbs to be different cases, which your post leaves, um, unclear. If your memory fails you, you might look here for an accurate presentation:
Or you could repeat what you have already written about "this case."
If I am correct that you are writing about two different cases as if they were one, please answer this: what grade should a law student writing about this as you have receive?
"Polls say that around 70 per cent of the public does not want Roe v. Wade, the decision conferring a constitutional right to abortion, overruled"
I'm a politically pro-choice dem., but I can't STAND this sort of reasoning. Essentially, he's saying that anyone who dares think Roe was bad constitutional law is unfit to be a Supreme Court justice. Why? Because if the public at large deems a right popular, it must be located, and preserved at all costs, inside the Constitution. I'm no law professor, but if the Constitution's meaning always depended on popular sentiment, our Country would like quite different today.
Wow, I can not believe that Yale Law profs are essentially all falling into line on this one. First Ackerman is true to his form as the biggest partisan hack on the left, and now Robert Gordon.
Look, most Americans disagree with a whole host of things believed by Ginsburg and Breyer. Why don't you look at polls about the Kelo decision, for example. But, Republicans essentially did not oppose them for the bench, even though they were the ones who controlled the Senate. Ginsburg and Breyer are considerably more "radical" than Alito is.
Look at what you are proposing. Do you understand that if your advice is heeded, then the next time a Democratic president proposes a liberal nominee, the same standards will apply. I'm sure that we can dig up some choice quotes from whatever nominee you guys put up (likely someone who has been a law prof) that would make your side look bad, vain, stupid, communist, etc. How shortsighted can you be? And how shortsighted could Jack Balkin be for giving you a forum for your inanity.
While I'm at it, your views on the Warren Court, the New Deal Court, etc. is in your perspective. Yes, sure, Wickard allowed for lots of wonderful warm and fuzzy results like puppies and candy-canes handed out to all children on Kwanzaa. But the flip side is that these decisions essentially eviscerated Americans' freedom to maintain their livelihoods. Wickard basically defies logic to say that interstate commerce does not have to be interstate or commerce. Its descendant, Raich, essentially gives Congress unlimited power to regulate anything it wants.
Yeah, Robert Gordon: enemy of cancer patients everywhere. Robert Gordon: wants people with terminal brain cancer to suffer. Does that feel good? I doubt it. But that's basically how you've been arguing about Roberts and Alito.
the strip search case in no way turned on the nature of the search (the strip or no-strip nature of it) but on the reasonableness (or not) of the officers' interpretation of the scope of the warrant, thus making attempts like yours which highlight the purported "strip search" more about sensationalism than the truth, and about grossly distorting what Alito himself wrote in the case. - T. More
I am not as familiar as I should be with the actual opinions on the case, but it stands to reason that, since the Constitutional standard is that searches must be reasonable and/or warranted, the issue is not just whether the officers interpreted the scope of the warrant correctly but also whether or not it was, in fact, reasonable to strip search the girl.
Presumably, if the officers did not strip search the girl, it would have been a more reasonable search and it would (1) be more likely justified in spite of the more limitted scope of the warrant and (2) the judge issuing the warrant would have been more likely to consider that the warrant had the same scope as the affidavit if the affidavit was only suggesting that all occupants be non-stripped searched over being strip-searched.
Remember, the issue in this case was that the warrant requested did not have the same scope as the affidavit filed in support of the request. Strip searching a minor is inherently more obtrusive than if it were not a strip search nor a minor, so obviously greater justification would be required for such a search to be reasonable. Presumably, then, the judge issuing the warrant might not have objected to including additional searches not mentioned in the warrant request but under the scope of the supporting affidavit so long as it didn't involve strip searching minors -- for which, one would hope, the judge would have required a higher standard of cause to allow.
So that it was a strip search of a minor is not irrelevent or mere sensationalism but does strike right at the heart of the issue. For instance, the Bush admin claims their wiretaps are under the scope of the 4th ammendment 'cause even though they are not warranted, they are "reasonable". But who decides what is reasonable and how? If Alito thinks that strip searching a minor is a reasonable thing to do without the police first requesting a warrant to specifically do exactly that (rather than trying to sneak it in under the affidavit), that says something very concerning about what Alito will find to be a reasonable search whenever he ends up ruling on Bush admin wiretaps, now, don't it? To some degree I don't care whether Alito found the search unfortunate or whether he was hoping to win the support of pedophiles everywhere -- the fact of the matter is that he found this particular search to be a reasonable extention of the warrant even though one would hope that such a request on the actual warrant application would have raised a red flag to the warrant issuing judge of "do you have enough cause to strip search a minor?".
Would Justice Alito decide, for example, that it is reasonable to further investigate and possibly detain, due to "probable cause" anybody who used the word "bomb" in a call to a foreign country even though they might be talking about the failure of the latest Hollywood flick to play in Peoria?
The nature of the search is precisely what determined whether it was reasonable -- it's not grandstanding to point that out.
if the Constitution's meaning always depended on popular sentiment, our Country would like quite different today. - Former 3rd Circuit Clerk
As a liberal who often finds Republicans, especially on social matters, to be courting with wanting a tyranny of the majority, I couldn't agree more with you.
But I think the point the post's author is trying to make with this statistic is not that a right should or should not exist because of what the majority thinks but rather that the reason why reactionary ideological justices have had to keep their beliefs on the down-low while liberal judges could get away with being open about their beliefs (which many point out is kinda unfair when you think about it) is that, contrary to what social conservatives may claim about a "silent majority" in fact the majority of people are, in spite of both identifying themselves and voting otherwise, actually rather liberal even on social issues. If reactionaries, especially reactionary judges, were to be as open about their real agendas as certain liberals have been, they would fail to get the support needed to win elections, confirmations, etc. -- so they still feel the need to speak in code, as it were.
Wasn't Casey (referenced above) as "an abortion case that would have allowed a state to restrict abortion rights by requiring a woman to notify her husband first - an issue that, on appeal, the Supreme Court decided the other way, 6 to 3" actually 5 to 4? (Scalia, Thomas, Rehnquist, and White dissenting).
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