Monday, October 31, 2005
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Open Alito thread
Feel free to comment here on President Bush's nomination of Sam Alito to the Supreme Court.
[Well, what's your take?--ed. I don't know anything at all about Alito. That said, my legal bellwether is the Volokh Conspiracy's Orin Kerr, and he seems pretty pleased with the choice. After reading this David Bernstein post, however, one wonders how the KKK will react.]
UPDATE: Julian Sanchez has a post up at Hit & Run that deconstructs some of the ThinkProgress/Center for American Progress/Daily Kos criticisms of Alito.
I don't have a comment on Alito and his record, as I am not familiar with it in any detail and it is a lengthy one.
However, a prominent theme in the coming confirmation battle is likely to be: to what extent is Alito more conservative than John Roberts?
Unless there is a pretty strong answer to that question, Democrats will find it difficult to justify party-line disapproval of this nomination, let alone a filibuster against it. And as critical to interest groups on both sides as the abortion issue is, I really doubt that opposition based on that alone will stand.posted by: Zathras on 10.31.05 at 11:13 AM [permalink]
The reason Roberts was able to get through easily
Alito, on the other hand, has more than a decade on
Oops, should have previewed: the right-wing base
Alito fills the Court's most pressing need - an experienced federal prosecutor with several years major league time in criminal justice administration as U.S. Attorney for a major federal judicial district (in New Jersey).
The Supreme Court is a major disaster area here, to the point where ALL the judges on a federal circuit court of appeals signed a petition last year asking the Supremes to clarify a major Supreme Court decision on crimnal sentencing. On the grounds that the Supreme's opinion was "incomprehensible".
That is the absolute, Number One, most DAMNING thing I've ever heard anyone say about the professional competence of the United States Supreme Court. And it was said, I repeat, by ALL the judges of a federal appellate court.
The Supremes can do more damage faster in criminal law than anywhere else, and have repeatedly shown themselves to be clueless concerning the real world effects of their rulings.
We desperately need a new justice with substantial experience in criminal justice administration. Alito has that.
He appears to be well qualified in general, and conservative in judicial philosophy.
But I'll settle for him being well qualified and having major criminal justice experience. Alito's being conservative is just icing on the cake.posted by: Tom Holsinger on 10.31.05 at 11:13 AM [permalink]
Tom Holsinger makes a good point. The Supreme Court hears dozens of cases each term, many of which have major real-world consequences and only a tiny fraction of which involve the hot-button issues around which major organize interest groups organize their fundraising. The current Court-inspired confusion over sentencing guidelines is certainly one example of an issue a Court nominee should be asked about in detail.
A note of caution here, though: Harriet Miers may not have been a strong nominee for the Court, but she was not done any favors by a White House badly organized to manage a confirmation fight. If there are good points in favor of Alito's confirmation, they will not make themselves. I find myself wondering if this nomination was announced now more to push Fitzgerald/Libby/Cheney off the front pages for a day than for any other reason. If the White House isn't prepared to support Alito any better than it was to support Miers there could be real trouble ahead.posted by: Zathras on 10.31.05 at 11:13 AM [permalink]
If there are good points in favor of Alito's confirmation, they will not make themselves.
Gotta disagree with Z. here. The White House has been comfortably lazy because they've been able to rely on the right's usual pundits to make their points for them.
Miers is the exception that proves the rule. First you heard the crickets chirping, and it went downhill from there.
Alito is back on form: the NRO/Weekly Standard/etc. crowd will be all over what a godlike judge he is, and the White House will be able to sit back and let the smart people handle it.posted by: Anderson on 10.31.05 at 11:13 AM [permalink]
I do think that shredding the right to abortion will be good in the long run for Democrats. The country is growing increasingly nauseated with what Bush & the Re'thug'licans are stuffing down its throat: war, body bags, lies, declining incomes, cronyism, incompetence, indictments... Sooner or later, barf day will come.posted by: camille roy on 10.31.05 at 11:13 AM [permalink]
Camille, I agree with your first sentence at least. The country as a whole wants for abortion to be "legal, but...". Getting rid of Roe v. Wade sends abortion right back into the hands of legislators. Once that happens, I think the Dems have an easier time making their base accept a compromise (which is not much more restrictive than the current status quo) than the Republicans do.
I really hope we do see Roe v. Wade overruled - bad for my party, but good for the country.
posted by: Hunter McDaniel on 10.31.05 at 11:13 AM [permalink]
Julian Sanchez is normally an idiot, but his talking points against the talking points are pretty good. If that's all the Dems got, and they can be dismissed that easily, their case is pretty weak. (Note that the DNC is pointing to the ThinkProgress post; TP is from Hillary crony John Podesta.)
Hopefully Alito isn't a Bush crony or tied to the Bush family in some way.
The Catholic Church favors open borders and promotes massive illegal immigration, so hopefully Alito is independent of that portion of their ideology. (Don't even think about it: I can say that).posted by: Illegal immigration news on 10.31.05 at 11:13 AM [permalink]
Wow Dan. It doesn't bother you that Catholics and men are already statistically overrepresented on the court and this would exacerbate the inequity. I guess you have no problem with a bunch of men deciding what women can do with our bodies. Glad to know where you stand.posted by: Deb on 10.31.05 at 11:13 AM [permalink]
Edith Jones for SCOTUS!posted by: Hei Lun Chan on 10.31.05 at 11:13 AM [permalink]
At this point, I think the acronym should be SCROTUS.posted by: Deb on 10.31.05 at 11:13 AM [permalink]
Alito, on the other hand, has more than a decade on the bench, including some truly bizarre and alarming opinions - e.g. if you truly and consciously believe that blacks are inferior, then it's ok to use that as an argument for not hiring them, because you're just trying to get what you believe are the best people.
Just to be clear, Alito never came close to saying anything in the same time zone as the above, nor was it the issue in the case.
What actually happened, without the bizarre PfAWesqe spin, was that a woman filed a suit for racial discrimination. Under established precedent, discrimination suits require several steps. First, the plaintiff has to make out a prima facie case -- that he or she is the member of a protected group, and that he or she suffered some adverse job action. Then, the defendant must provide a non-discriminatory reason for the action. Then, the plaintiff must show that this was a pretext, rather than the real reason.
The plaintiff, a black woman, wasn't given a promotion. The defendants argued that the other person got the job because they thought she was more qualified, and showed substantial evidence of that.
The plaintiff argued that because the defendant didn't follow its procedures to the letter, this could be sufficient to prove that the "more qualified" claim was a pretext. The majority agreed. Alito disagreed, pointing out that companies rarely follow every procedure every time they make a decision, and that the majority decision would turn federal courts into employee handbook monitors. Alito pointed out that there was substantial evidence to support the defendants' claim that they thought the other person was more qualified.
The majority's rebuttal was that maybe the defendants only thought the plaintiff was less qualified was because they were racist -- but for obvious reasons didn't point to any evidence for that (because there wasn't any) -- and that Alito's approach would allow them to get away with that.
Alito didn't say anything about it being okay to use arguments about racial inferiority for not hiring someone.posted by: David Nieporent on 10.31.05 at 11:13 AM [permalink]
Wow Dan. It doesn't bother you that Catholics and men are already statistically overrepresented on the court and this would exacerbate the inequity. I guess you have no problem with a bunch of men deciding what women can do with our bodies. Glad to know where you stand.
The Supreme Court does not "decid[e] what women can do with [their] bodies." It decides what the constitution says.
There's no "inequity" in "statistical overrepresentation." Or do you want to kick off some Jews, too?posted by: David Nieporent on 10.31.05 at 11:13 AM [permalink]
While I sympathize with David Nieporent's point about group representation on the Court -- in any group with just nine members someone is bound to be underrepresented -- one lone woman out of nine is a pretty poor showing in this day and age.
As I suggested yesterday on the Chequerboard, a good way to address this would be for Justice Stevens to retire, and for President Bush to choose from among many fully qualified women candidates to replace him on the Court. Stevens is 85, and has served on the Court since the Age of Disco. He's had his turn -- not that the Constitution requires retirement before a Justice reaches the point of physical breakdown, but it doesn't require any Justice to serve until he keels over either.posted by: Zathras on 10.31.05 at 11:13 AM [permalink]
While I would love for Bush to appoint more women to the court the main female frontrunners on his list had already been objected to (never recieved an up or down vote) by the Dems. If he had nominated either of them it would have been seen as truly picking a filibuster fight.posted by: gfbook on 10.31.05 at 11:13 AM [permalink]
I'm a trial court research attorney. I review at least twenty (20) opposed summary judgment motions a year in employment cases involving wrongful termination, discrimination and harassment a year. Most of those motions are decided on procedural issues not reaching the merits, but it doesn't take much to create triable disputes of material fact.
I haven't read the federal decision involving Alito you mention but, if it involved a summary judgment motion as opposed to trial, it is quite possible that the majority was correct and Alito was wrong. Summary judgment is different from trial. Plaintiffs can get to trial with less evidence than they need to win at trial. In the case you mention, the employer could have put on a perfectly good reason for not complying with the rules in their employee handbook, but also convinced the jury that he was lying like a skunk.
That is why, if this Alito case involved a summary judgment motion as opposed to trial, the majority could have been right. Alito's dissent, however, can't be read as meaning anything one way or the other in terms of bias. Too much else could have been going on. I'd have to see the whole record. IMO non-lawyers (especially journalists) are simply not capable of accurately reporting or commenting on technical legal issues of this sort without a lot of effort. I've never seen any journalists who aren't lawyers put in such effort.
And for the absolute most fun employment case I've ever read, here's the naughty nurses one.
A male nurse at a Modesto, California, hospital sued for wrongful termination based on gender discrimination. He said that he had been singled out for termination for sexual harassment due to being one of the few male nurses, while none of the female nurses had been terminated though they had perpetrated far worse sexual harassment, including of patients, than he had.
Among other things, female nurses would lift up the sheets on anesthetized male patients and, if they saw anything interesting, would call all their friends to come look.
The hospital admitted this had been a practice, but also said that it had told all the nurses they were naughty and to stop that, which they did. It said the plaintiff had been terminated for playing grab-ass games with the female nurses after being told to stop. I.e., he was fired for not obeying orders to cease unprofessional licentious behavior.
The clerical staff in my court attended that trial during their breaks.posted by: Tom Holsinger on 10.31.05 at 11:13 AM [permalink]
For those interested in a bunch of reflections on Alito from law profs, surf over to Prawfs. A bunch of the contributors have weighed in. My initial sense is that Alito is more likely to be a Roberts type than a Thomas type. As dear old Spinoza would say, Caute!posted by: Dan Markel on 10.31.05 at 11:13 AM [permalink]
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