Sheridan: Con-Law

ALITO PROFILE

See below for a profile of Justice Samuel A. Alito, Jr., appearing in the Newark Star-Ledger:

THE CASCADE

That rumbling, lurching feeling is the nuclear aircraft carrier "America" lurching to the right as the Ed Meese, Spencer Abrams team reaps the fruits of a quarter-century of effort dedicated to placing dedicated conservatives in positions of influence in Washington.  Abrams founded the Federalist Society, the organization of choice for careerists on the right to move up the federal ladder from clerking for a Supreme Court justice to working in the president's law office, called the Office of Legal Counsel of the Justice Department.  They tell him whether its okay to authorize the use of torture, indefinite detention, extraordinary rendition, and the like, as part of his war powers, allegedly inherent to the presidency.  Query that.

The American Right fought a lot harder in Florida, in 2000, than did Al Gore.  When the Supreme Court, by a 5:4 vote, with the late Chief Justice William H. Rehnquist leading the charge, handed the presidency to George W. Bush because time was running out and why not hand it to their guy instead of the opposition, the cascade of unforeseen events broke through the dam.  After Bush v. Gore, l'deluge.

Following the 9-11-01 attack by Al Qaeda on the World Trade Center in New York, Pres. Bush, who was foundering, directionless, as president, proclaimed himself a "war president," with all rights and privileges appertaining thereunto inuring to him.  The war was on a real but amorphous enemy that trained in Afghanistan, which we attacked, to our credit.  We also attacked Iraq, to get rid of Saddam Hussein, which I also think was right and proper on a number of levels.  Sure, I was taken in by Sec'y of State Colin Powell's claim that he saw the evidence and it was good, that Saddam had WMD, which it wasn't and he didn't.  But I figured that Saddam was refusing to play ball with the international community, of which we are top dog at the moment, and it's the only international community we have, so...the rest was inevitable.

But then the Chief Justice died, and Roberts, his former law clerk, filled the vacancy.  Earlier, Sandra Day O'Connor had announced her retirement, effective with her replacement being confirmed, which happened this morning, with the full Senate vote (58:42) on Samuel A. Alito, following the threat, which failed to materialize, of a Democratic led filibuster headed by Massachusetts senators Kennedy and Kerry.

During the Alito confirmation hearings before the Senate Judiciary Committee, colleagues and former law clerks attested that in his decision-making, Sam Alito followed the law and did not make it.  Well, that was his job.

Now his job is different.  Now he's supposed to follow precedent if he thinks it still important to do so for the good of the country and the 300 million or so residents, and rising, but he's also supposed to discard or work around precedent when he thinks it important for the country to get rid of inconvenient vestiges of past attitude.

This make him a law-maker, not a law-follower, as he's been until now.

That's what it means to be confirmed to the Supreme Court.  You get to write the rules of the great game of life in this country for the rest of us.  That's why the nominations are so controversial.  Only nine people at a time get to be the rule-writers.  They can tell the president he's wrong, and the Congress that it's wrong.  Also the States.  For life, on good behavior.

That's a lotta power for the Gang of Five, as it only takes five votes to turn the ship from the course it's been on.

Women's rights?  Up for grabs.

Presidential power?  Up for grabs.

Minority rights?  Up for grabs.

Congressional power?  Up for grabs.

Voting rights?  Up for grabs.

Criminal justice?  Don't make me laugh.

Justice O'Connor, as conservative as she has been, may seem to be as liberal, to the Right, at Justice David Souter is viewed, compared to the Roberts-Alito axis that I expect to see.  I don't know which of them is further to the right, but I'm not sure how much difference it will make, whether Tweedle-Dee or Tweedle-Dum is at the helm, while Justices Scalia, Thomas, make up the next reliable two-some.  Scratch Stevens, Breyer, Souter, and Ginsburg, who make up the so-called liberal wing, although we haven't had liberals in Washington since Nixon was run out of town, Jimmie Carter came in, the victim of the Iran Hostage crisis, and the Reagan Revolution began, in which blue collar and hard-hat Democrats decided they were Republicans.

That leaves one person left as the Swing Vote:  Anthony M. Kennedy.  Deeply conservative with a libertarian streak.  He voted to uphold the abortion right in Casey and recognized, in Lawrence, that gays were human beings entitled to equal protection of law, just as is carved in stone on the lintel of the Supreme Court Building.

My guess?  Kennedy rules.  He'll preserve the civil rights gains of the 1960 for minorities, women, and gays.

Y'wanna see a fight?  Just wait until Stevens, Ginsburg or Breyer decides to retire.  Then you'll see a Donnybrook.

REPUBLICANS AGAINST ALITO

Why would a Republican vote against the confirmation of Samuel Alito, a product of the Right?

Sen. Lincoln Chafee will tell you why Alito is too conservative for his taste, here.

Chafee thinks that Alito will hand the president a blank check to eavesdrop on citizens while searching for terrorists, contra the Fourth Amendment, will cut back on the powers of Congress under the Commerce Clause of Art. III, Sec. 8, and will kill a woman's right to decide whether to carry a pregnancy to term and become a mother, or not.

WILL NOT RESTRAIN PRESIDENT, THEREFORE DENY CONFIRMATION: STONE

In our system, once confirmed, a Supreme Court justice serves for life, provided good behavior, and the proviso doesn't include bad decision-making, we think, at least.  Impeachment depends on votes in the Senate, so impeachability depends on whether you  have the votes or not.

As a result, if you have a candidate whose attitude is bad for the country, you have only one shot at keeping him off the Court, by doing all you can to see he's not confirmed.

See this interesting item  posted to the Faculty Blog by Geoffrey Stone, a law professor at the U. of Chicago Law School, who has written an excellent book on the First Amendment  entitled Perilous Times, Free Speech in Wartime (Norton, 2005).

The gist is that Alito may well-qualified, but he has shown that he has no inclination to rein in the president if he doesn't want reining in, which they never do, alas.  Thus we cannot afford to take a chance with him, and if we don't block Alito's nomination now, we'll regret it later.  Other'n that, dangerous Alito is probably, like, a really nice guy?

The post and comments appears below:

KENNEDY ON ALITO

Sen. Ted Kennedy (D-Mass) has been the holdover voice of '40s, '50s, and '60s Liberalism in this country during the 30+ years that he's been in the Senate. As a member of the Senate Judiciary Committee he votes on nominees to the federal courts, including the Supreme Court.  In 1986 he helped sink the Bork nomination (as in Robert Bork, who got 'borked,' as we now say of nominees whose extreme views derail their candidacy).   

In the Bork affair, Kennedy pointedly stated that "In Robert Bork's America there will be..." and he listed such things as a return to back street (unsanitary) abortions by incompetent abortionists (that used to be a dirty word. Now it can be heroic, depending on point of view), and a return to segregated schools.

In this Washington Post article, we see Sen. Kennedy doing his level best to bork Alito, this time not by saying that "In Samuel Alito's America there will be..." a list of horrors.  No, he simply provides a list of horrors already committed by Judge Alito, suggesting that Alito is just getting warmed up, wait until he gets on the High Court and really gets rarin.'

Who does Alito remind me of?

When I was in college (late '50s, early '60s) there was such a thing as the Young Americans for Freedom (YAF), or Yaffers, for short.  They contradicted Churchill's observation to the effect that it's normal to be liberal when young and conservative when old.  These kids were upside down, conservative when young and God only knows what when they got older, but probably not liberal.  They seemed pretty out of step.

Alito strikes me as being a smart, legally trained, Yaffer, sufficiently credentialed and connected to kiss enough Republican ass to get himself a job in the Reagan Administration, which he then rides to a a position in the Solicitor-General's office under Charles Fried and then to the U.S. 3rd Circuit Court of Appeal.  And now here, to rule over us.

Obviously I should have given the Yaffers a lot more respect.

THE JUDICIAL FIFTH

Nominee Alito has undergone his first full day of questioning before the Senate Judiciary Committee.  It's considered an unfair question to ask how he'd rule on a matter that might come before him either on the 3rd Circuit, where he sits, or on the Big Court to which he aspires.  But it can get tiresome having to respond to each question by saying that.  So responding is called "taking the judicial fifth," as in Fifth Amendment.

Alito has a good variant when asked how he'd rule on anything controversial.  He says that in order to answer that question, he'd have to go through the normal judicial process which involves reading the record, the briefs, hearing the arguments of both sides, and then reflecting on it and doing further research if necessary. 

Seems like a good answer to me.  It helps avoid giving opinions on all sorts of controversial hypotheticals w/o knowing all the facts and arguments.  It DOES take a great deal of thought to consider, for example, what the extent of presidential power in an emergency is, and whether expressly or impliedly, granted or withheld authority under Justice Robert Jackson's concurrence in Youngstown, or whether that even applies, as opposed, say, to a president who asserts that he has power to do anything, anywhere, anytime if the national interest requires because that's what it means to be president and the Constitution gives him power to do this when other branches won't or can't.  His Big Blank Check argument, in other words, rejected in Youngstown and Hamdi, not to mention the Pentagon Papers case.

Call Alito's defense the Judicial Fifth-and-a-Half.

Oh, yes, he doesn't do advisory opinions, either, or get into political questions, or those where the question fails to establish standing or justiciability.  He's as well protected against answering inconvenient questions as is the Court, but that doesn't stop us from watching the dance with interest because at the end, he gets confirmed, whereafter his answers count.

Bottom line?  You can't expect a Supreme Court nominee to answer anything interesting or of substance during questioning before the SJC.

BORING!

I'm having trouble getting interested enough in the Alito nomination to spend any time in front of the tube watching the hearings.  I caught his opening statement on the news last evening.  No man is above the law [good, that means the president who nominated him], and no man is beneath the law either [also good, for that means the sort of folks I'm sometimes privileged to represent].

Why the problem with watching Alito?  It's not him.  He's a very fine man.  A little more conservative than me, perhaps, but still a fine man.  As are Scalia and Thomas.  Fine people, it's just that their knees don't seem to bend when they walk.  Scalia says he wants to vomit when he hears people talking about a living Constitution that somehow evolves.  He sees it more as a script that we have to follow, with little, if any, room for improvising, or improving on what the bards wrote in 1787. 

If only matters were so simple.  Sometimes the improv has been helpful to a lot of people (Griswold) and sometimes it hasn't (Dred Scott).  The conservative Originalists prefer that we amend the constitution.  The last amendment took 200 years.  People don't usually want to wait for 200 years to effect some needed change.  So we look to the Court.  When neither Congress nor the president would lift a finger to emancipate blacks from the ravages of Jim Crow, the Warren Court did.  It shouldn't have done so, say the conservative Originalists, because, apparently, it upsets their abstract theory as to how the Constitution should be interpreted.  Millions of people can continue to be victimized in the service of a controversial reading of the Constitution that serves only to entrench the old way of doing business and prevent needed change in the face of Congressional and presidential intransigence.

When Alito is confirmed, and barring the finding of something terrible that is not likely to exist, he, along with new Chief Justice Roberts, and the other conservative justices, such as Scalia and Thomas, will represent a bloc of four.  Justice Anthony M. Kennedy has also been reasonably conservative.  He may be the "fifth" vote needed to decide a case that is otherwise evenly split between the Conservative Four and the Less Conservatvive Four, consisting of John Paul Stevens, 84, Douglas Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Will Alito and Roberts turn the clock back to the bad old days in the fields of race relations, protections for the criminally accused, relations between the branches, between the states and the federal government, and First Amendment protection?

While I don't expect that they would have favored a lot decisions they no doubt saw as "liberal" when decided, I doubt that they feel that they can change the course of the river upstream of them.

What they can do is to slow down the rate of turn of the river to the left, or in certain channels.  But the river as a whole is bigger than any of them, no matter how influential any of them may grow.

Democrats like to portray Republican nominees as "outside the mainstream."  Metaphors are nice for trying to get located in a discussion, but they're not always much better than that.  Republicans counter that the Democrats always say that, which they do.  Maybe all Republican candidates seem outside the mainstream to Democrats.  They probably do.

When Warren Burger was appointed by Pres. Nixon to succeed the retiring Chief Justice Earl Warren, he was expected to lead the charge to undo all the 'damage' wreaked by Warren.  Burger failed.  The expectation is known as "the revolution that wasn't." 

My guess:  Alito and Roberts are too smart to think that they can turn back the clock, reverse the course of the river, even if they wanted to.

The Court has to get along, as much as pull the country along.  The Warren Court pulled the country along and significant parts of it did not wish to go:  the South, for instance, putting up 'massive resistance' to the outfall from Brown v. Board (1954) on public integration; or the North, with its 'white flight' to the suburbs to avoid white kids having to go to school with black kids.  Whites say this is not the result of racism, but of class and behavior; they don't want their kids having to put up with what they see as unruly behavior and lack of interest in learning on the part of blacks or, in California and elsewhere, Mexicans.

And so it goes.

It's hard to imagine the Supreme Court solving any of our problems.  They can act to avoid making matters worse.  Let's hope they do so and we'll take the rest from there, thanks.

They can take care, however, to reign in the reigning president.  He's wielding his sceptre a mite too heavily these days, don't you think?