Web Round Up

Here's CNN's report on the Supreme Court 8-0 decision that the 1970 RICO Act and the Hobbs Act cannot be used to used to ban pro-life demonstrations. This ends a legal battle that's been going on for two decades.

Meanwhile former Playmate Anna Nicole Smith apparently met a "sympathetic audience" this morning when her cases came before SCOTUS.

In a decision written by Clarence Thomas the Court threw out a lawsuit accusing ChevronTexaco and Shell of price fixing.

Meanwhile, over at The Volokh Conspiracy, guest blogger Greg Sisk has some interesting posts on the religious liberty in the courts and traditionalists Christians. It seems at least some empirical studies go against convential wisdom. Here's Sisk:

"The enduring legal myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for unconventional religious practices, expression, or values from the courts. According to the conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon our empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without support, at least in the modern era and in the lower federal courts. In fact, counter to popular belief, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, appear to be the ones that today enter the courthouse doors at a disadvantage."

Media Research Center reviews Newsweek's biased "Reality Check for Roe" piece written in part by leftist journalist Evan Thomas.

Update: Angry Left Angry at Itself

Left-wing blogger Jane Hamsher is mad as hell as she’s not going to take it anymore! Who is she mad at? Well, principally she’s mad at NARAL, Planned Parenthood and Joe Lieberman. For what? Apparently, for not getting nasty enough during the Alito confirmation battle. She calls for people to stop sending money to NARAL and Planned Parenthood and to support liberal Ned Lamont in his primary fight against Lieberman (who voted against Alito, but not for an unprecedented filibuster).

Jeez! How much do you have to smear a nominee, distort his record and threaten your allies before you get the respect of the Angry Left?

NOW, however, receives Ms. Hamsher’s praise for its willingness to attack anyone who would not do anything, no matter how underhanded or destructive, to stop a duly elected Republican president and Republican-controlled Senate from appointing constitutionalist judges as they had promised to do in the last election.

At her angriest, Ms. Hamsher becomes a parody of herself, as when she pleas for NARAL and Planned Parenthood members to cut off funding to their national organizations:

“Don't give them any more money for their fancy vases and swank offices and expensive lunches with the GOP forced childbirth lobby. Give your money to true pro-choice candidates for the US Senate like Ned Lamont who will take a stand when the time comes, and it will come. Give 'til it hurts. Then give some more.”

Fancy vases?

Supreme Chaos

Today at the Heritage Foundation, I had the pleasure of hearing retired Judge Charles Pickering speak about his new book, "Supreme Chaos: The Politics of Judicial Confirmation and the Culture War" (reviewed here). Having had his nomination to the Fifth Circuit blocked in the Judiciary Committee, then filibustered on the Senate floor, Judge Pickering has a unique perspective to share, and I thoroughly enjoyed his talk (archived here). Judge Pickering could not include all his thoughts on the judicial wars in "Supreme Chaos” – because Stroud & Hall wanted to publish the book while the Alito confirmation battle was still ongoing – so we can look forward to another book by Pickering later this year. That book will focus on his confirmation battle and his proposed solutions to the problems discussed in "Supreme Chaos.”

Judicial Activism Defined

Conservatives have long decried the "judicial activism" practiced by liberal jurists. Recently, however, liberals have started using the term to describe decisions they don't like, such as some of the Rehnquist Court's federalism decisions. While this imitation is actually a positive sign – as I explained in an NRO piece last fall – it is important that we not allow the definition of "judicial activism" to be so distorted that it no longer serves to identify the ill we are trying to eradicate, namely judges who put their personal views above the rule of law. Thanks to Roger Clegg for clarifying the definition in a Q&A he wrote for CFJ.

Inside the Hearings

My interview with Rachel Brand, Assistant Attorney General for the Office of Legal Policy, on preparing Justice Samuel Alito and Chief Justice John Roberts for their Senate confirmation hearings:

http://www.taemag.com/issues/articleID.18998/article_detail.asp

Debating the Alito Factor

Best of the Web (BW) at the Wall Street Journal's OpinionJournal.com takes issue with my thesis, in a recent op-ed, that "by choosing to side with [liberal anti-Alito] groups to the bitter end, moderate Democrats have ensured that this failure will also haunt them at the polls." BW's "guess is that Alito opposition won't end up costing most Democrats much at the polls."

While BW is correct that "the three Democrats up for re-election in November who are from the reddest states (Robert Byrd, Kent Conrad and Ben Nelson) all voted for Alito," most of the moderate Democrats voted against Alito. And Senate Democrats' filibuster attempt and nearly unanimous anti-Alito vote reinforces the public perception that the party is in bed with ultra-liberal activists, a perception that affects all Democratic senators.

BW also argues that "while it's true that Democrats, especially Tom Daschle, paid a price in 2004 for Daschle's filibuster strategy, they did so in substantial part because that strategy was successful, leaving them vulnerable to charges of obstructionism." But I believe that the harm to Democrats from Daschle's filibuster strategy came as much, or more, from the public's perception that it was the Democrats, rather than Bush's judicial nominees, who were out of the mainstream. And that perception is even stronger post-Alito than it was in 2004.

Note that Michael Crowley of the liberal New Republic reported Friday that Senate Democrats themselves fear damage at the polls from their handling of Alito's nomination:

"In a closed-door meeting of Senate Democrats last Wednesday, Kerry and Kennedy made a vigorous plea for a filibuster. But they were challenged by Harry Reid and by no less a Bush nominee-basher than Chuck Schumer of New York, who, as chairman of the Democratic Senatorial Campaign Committee, is responsible for overseeing the party's 2006 Senate races. Schumer understood, as did Reid and many other Democrats, that the Alito nomination had already put vulnerable Democratic incumbents and candidates from red states in an awkward position--pulled between pro-Bush voters and the demands of liberal interest groups, activists, and bloggers. Forcing those Democrats to choose sides on yet another vote would only heighten their agony."

Alito Drifting to the Left?

Is Justice Alito drifting to the Left already? I must admit the thought entered my mind after Alito sided with the Court's liberal bloc today, leaving a last-minute stay of execution in effect for an inmate claiming that lethal injection – a method of execution specifically designed to be more humane – is cruel and unusual punishment.

Of course, one vote proves nothing. But I ask the question as a sobering reminder that it will be years before we know if Justices Alito and Roberts will suffer from the leftward drift phenomena that afflicted Justices O'Connor, Kennedy, etc. I have no doubt that Alito and Roberts have a strong commitment to a constitutionalist judicial philosophy, but when you're in the glare of the spotlights and your only reviewers are the media and law professors, the pull towards the left is awfully strong as well.