Thoughts on the Thornburgh Memo

Wendy Long and Matthew Franck do a good job analyzing the 1985 memo to then-Solicitor General Charles Fried concerning the Thornburgh and Diamond abortion cases. However, let me add this: There is nothing in Samuel Alito's record that tells us with any certainty that he would vote to overrule Roe v. Wade as a Supreme Court justice.

One must remember that in 1990, then-NOW President Molly Yard claimed that the “almost Neanderthal” David Souter imperiled “women’s lives." In his opening remarks at Souter's confirmation hearing Senator Ted Kennedy decried the fact that during Souter's tenure as New Hampshire's state attornery general he "referred to abortion as the 'killing of unborn children' and opposed the repeal of an unconstitutional [New Hampshire] abortion statute." Just as worrisome for Senator Kennedy was that as a New Hampshire Supreme Court judge Souter "wrote a dissenting opinion arguing that the meaning of the State constitution should be confined to the specific intent of those who drafted it in the 18th century." In 1992, Justice Souter co-authored the lead opinion in the case that reaffirmed Roe.

In 1975 the country was warned by the Woman's Legal Defense Fund that Justice Stevens would show “blatant insensitivity to discrimination against women” on the Supreme Court if confirmed. Seventeen years later he voted with Souter in Casey.

This is not to say that we here at CFJ think that Judge Alito is another Souter or Stevens. Our firm belief is that he will be an excellent constitutionalist Supreme Court justice. However, it is a little ridiculous to claim to know that Judge Alito would overrule Roe, especially given his respect for stare decisis.

C-SPAN to air today's oral arguments in Ayotte v. Planned Parenthood

According to their website, www.cspan.org, the sound recording of oral arguments will be available there at 12:15 this afternoon. This will be the first oral argument made publicly available since John Roberts was confirmed to the court.

The link to the lower court's decision is here.

The Left's Declining Spirits

Three weeks ago, Nan Aron of the Alliance For Justice (AFJ) was confident "we will win this nomination battle." Now she says, a bit defensively, "I do think it's winnable." What happened in the interim? On November 17, AFJ and its allies launched "an advertising and grassroots campaign targeting the Supreme Court nomination of Judge Samuel Alito." Aron's declining confidence is one more piece of evidence that the results of that campaign have been discouraging for the Left. I believe CFJ's response to the campaign – including TV and radio ads and a report analyzing Alito's record – deserves some of the credit for neutralizing the attack.

"Rebuffed, rebuked and rejected"

Well, it looks like more bad news for PFAW, Alliance for Justice and the rest of the Angry Left coalition that has spent the last month attempting to distort Judge Alito's record. Apparently, even liberal Senate Democrats are becoming increasingly sick and tired of their smear and intimidation tactics.
Note to Messrs. Neas and Henderson and Ms. Aron: When even Barack Obama thinks you're being "knee-jerk" and "unfair," you've got serious credibility issues.

A Thanksgiving Tale

When Eliot Mincberg, legal director of People for the American Way, says that Judge Alito's record demonstrates that he is "very solicitous when it comes to protecting the right of an individual to practice his religion, but not so solicitous of the right of people to be free of government-supported religion," perhaps he has C.H. v. Oliva (2000) in mind. The case involved an elementary school’s Thanksgiving display, for which the school invited its students to make posters depicting the things for which they were thankful. One student wanted to contribute a poster expressing his thanks for Jesus Christ, but the school barred him from doing so. Dissenting in the case, Alito described the schools’ action as “quintessential viewpoint discrimination . . . proscribed by the First Amendment.” Is that what Mincberg has in mind when he implies that Alito is overly solicitous of the right to religious expression? And does Mincberg believe that the poster in question, surrounded by secular posters, would have constituted “government-supported religion?”

Senator from Delaware and "one-person, one-vote"

According to this AP story, today on Fox News Sunday Senator Biden said he was deeply troubled by Alito's questioning the legitimacy of the Warren Court's "one-person, one-vote" ruling. What's so delicious is Biden's being from one of the smallest states and representing constituents who have far greater influence in the senate than justified by their puny numbers. Like every state, Delaware has two votes in the Senate, even though its population is only 807,000, while California has only two votes and a population of 35,116,000. A Delaware voter has three and a half times more votes in the Senate than the average American, and 43-times more votes than someone in California. The obvious solution for Biden, who apparently values one-person, one-vote so greatly, is to resign his seat (or remain but refuse to vote) since Delaware's size doesn't merit even a single Senate seat.

PFAW Strikes Again

In its relentless campaign to paint Judge Alito as outside the mainstream, People For the American Way is harping anew on his 1985 Justice Department job application. This time, PFAW's focus is on Alito's mention of his membership in the conservative Concerned Alumni of Princeton (CAP). In a press release yesterday, PFAW President Ralph Neas attempts to stir alarm about Alito's "membership in an organization known for its fervent hostility to the inclusion of women and minorities at Princeton." What Neas is referring to – sans the rhetoric – is that some of CAP's leadership made comments in the 1970's and early 80's critical of coeducation and affirmative action in admissions.

Neas is grasping for straws here for several reasons. First, it is not at all clear that these comments represented official positions of CAP. Second, membership in a group does not mean that one agrees with all of its positions. Third, Alito's personal (and decades old) views on coeducation, affirmative action, or any other issue are irrelevant to what kind of Justice he will be.

Fourth, the views that Neas is attacking are hardly outside the mainstream. For example, a solid majority of Americans oppose affirmative action in admissions. And, in the 1970's, when coeducation was brand new in the Ivy League, many people questioned the resulting loss of tradition. In fact, today, many people across the political spectrum defend the value of women's colleges. I don't suppose PFAW would consider Hillary Clinton too radical to be on the Supreme Court because she continues to be associated with her alma mater Wellesley, which excludes men to this day.

The CFJ ad on Alito

I'm just joining the conversation about the new CFJ television ad, but I think it's extremely effective at reframing the left's claim that Alito is "out of the mainstream." By reminding the public what Alito's critics mean when they say "mainstream" -- removing God from the Pledge of Allegiance, redefining marriage, protecting partial birth abortion at every stage of pregnancy, and ensuring pornography access on public library computers used by children, CFJ inoculates viewers from their ridiculous complaints about Alito being unacceptable.

Round-Up

• Fortune magazine analyzes whether Judge Alito really is pro-business. Basically, they concluded it all depends on the issue. A Conservative judicial philosophy doesn't necessarily mean it is automatically a pro-business philosophy according to Fortune magazine.
• Denver Post reports Sen. Salazar has some concerns over Judge Alito after meeting with him. The article also says, "Salazar said he did not know yet whether he would vote to confirm Alito. But he also said he did not at this point foresee participating in a filibuster to block the nomination. " Kathryn Jean Lopez also discusses Sen. Salazar on Bench memos. Washington Times also has an article on Sen. Salazar and judicial filibusters.
• CFJ gets some attention in an AP article about the recent television advertisements to air over Thanksgiving. For a link to the actual ad see Curt's entry below.
• In case you missed it, Sen. Allard said on CBS 4 Denver that he will support Judge Alito barring any unforeseen problems.
• Michnews.com reports Judge Alito receiving support from African-American leaders.

CFJ's New Ad

Ann Althouse misunderstands the point of the Committee For Justice's new ad. Its intent is not to promise "outcomes that would please social conservatives" if Judge Alito is confirmed. To the contrary, the ad drives home the importance of putting restrained judges like Alito on the Court, by pointing out the type of outcome-oriented decisions that result when Alito's critics get their way.

Update: I note that the esteemed Ramesh Ponnuru seconds the view that Ann Althouse is "misinterpreting the ad."

Third Branch Conference Responds to the Left's Distortions

Statement of the Third Branch Conference:

"The Left has taken to attack Judge Alito by distorting the facts of a case involving the probable cause strip search of a child in the course of a police action in a drug raid case, where children are misused by adults every day.

This abuse of a neuralgic and very graphic event to attack Judge Alito comes from the same people who defend child pornography, simulated child pornography, and oppose library bans on child pornography. They would do better to first remove the speck from their own eye, or in their twisted case, remove the offending eye altogether."

- Manuel Miranda, former nominations counsel to Leader Frist and to the Senate Judiciary Committee, is chairman of the TBC, a coalition of over 150 grasstop leaders.

Round-Up

• Human Events online has an interesting defense of Judge Alito from some of his former liberal law clerks. The article goes on to describe some of his liberal clerks and the deep admiration they have for Judge Alito.
• According to a WSJ online, Judge Alito takes a different approach from Justice Scalia and Thomas, but through his respect for precedent Judge Alito can still write conservative judicial opinions that follow a strict-constitutionalist interpretation of the Constitution.
• Here the Democrats go again, trying to "bork" another well-qualified nominee to the Supreme Court. According to a Massachusetts paper, the Lowell Sun Online, Sen. Kennedy (D-MA) tries to draw a parallel between Judge Alito and Judge Bork where there is no parallel.
• Here we go again, the Democrats are signaling Judge Alito will have a harder time being confirmed than Chief Justice Roberts according to the Mercury News.
• Reuters reports that Sen. Frist is ready to prohibit the filibuster if Democrats try to prevent an up or down vote on Judge Alito.
• Ed Whelan provides an analysis of Judge Alito and Justice Ginsburg entitled Alito vs. Ginsburg on the NRO website.
• Ed Whelan writes an article on NRO called Kennedy vs. Alito by proxy, which defends Judge Alito against some accusations of poor judicial ethics involving Vanguard Mutual Funds.

Feinstein gives Alito a pass.

(From today's press availabiltiy after Judge Alito's courtesy call.)

REPORTER: Did you ask the judge about the job application issue with his comments about abortion?

SEN. FEINSTEIN: Yes, i did.

REPORTER: and…

SEN. FEINSTEIN: And what he told me was this: he said, First of all, it was different then. He said I was an advocate seeking a job, it was a political job, and that was 1985. I'm now a judge, you know, I've been on the circuit court for 15 years, and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law. And I believe he was very sincere in what he said. And he talked about Roe in particular, about having had many views. Didn't use the word "well settled," but did use the word stare decisis. I agree with one thing. We talked about labels, and I don't really think he can be labeled in that sense. He is an independent thinker. He thinks for himself. He's got clearly a very good mind. And as I said to him, that the real part of this that matters is what you say on the record that's transcribed and becomes fact or record for all time. And that of course will begin on January the 9th.

Pro-choicers against Roe.

A good list of pro-choice criticism of Roe v. Wade is at Tim Carney’s blog.

Round-up

• According to the NYT, a liberal coalition of activists are preparing a national television ad campaign that moves beyound simply abortion but will attack Judge Alito on a number of issues including police searches, and employment discrimination.
  
• Also in an a NYT article, Democrats are raising issues over a document Judge Alito wrote during 1985 while applying for a promotion in the Reagan administration. Democrats claim it raises issues about his supposed "extreme right wing ideological bent" on abortion, but Republicans argue that it only shows that Judge Alito can put aside his personal beliefs and base his decisions on the law.
  
• Charles Hurt in an op-ed in the Washington Times provides readers with a strong defense of Alito's adherence to federalism, and conservative ideals. He even cites a few things from an Alito essay that show his disapproval of judicial activism.
• Newshouse new services has an article expressing how Alito is a friend of practitioners of their faith.
• The Hill reports that some Senate Republicans will use the Alito hearings as a way to discuss the War on Terrorism and the President's war powers, while Democrats will continue to try and argue that Congressional Republicans have shown no oversight of the President during the war.
• George F. Will in Newsweek examines three examples of Judge Alito's rulings on the Third Circuit involving free speech. Will concludes that, "good intentions do not trump the Constitution." Score one for free speech if Alito is confirmed to the Supreme Court.
  

Can’t Please Everyone

It’s hard being a mainstream judicial nominee like Sam Alito. You can’t please everyone and wind up getting attacked from both the right and left. As I note below, the Left is whining about Alito's 20 year old statement that "the Constitution does not protect a right to an abortion". And now a pro-life group is complaining that, despite that statement, Alito is still very much of an unknown when it comes to whether he would vote to overturn Roe v. Wade. True, it is unknown how Alito would vote on abortion rights and many other issues. But isn’t an open mind exactly what we want from a judicial nominee??

Ginsburg Standard is No Fallacy

In today Washington Post, Ruth Marcus's "Ginsburg Fallacy" attempts to knock down the argument that Democrats owe the President the same deference on Judge Alito that Republicans showed to the clearly left-leaning Ruth Bader Ginsburg. But Marcus unwittingly provides support for the argument that Senate Democrats have no sound reason to oppose Alito on abortion grounds. Marcus concedes that Ginsburg at least "flirted" with some pretty nutty ideas – abolition of Mother's and Father's Days, co-ed prisons, a constitutional right to prostitution and polygamy – 20 years before her nomination to the High Court. But, Marcus argues, Ginsburg "had a much more recent body of work – her dozen years as an appeals court judge – that belied any notion that she was a raging lefty."

Fast forward to 2005. The Left is screaming about Alito's statement – also 20 years ago – that "the Constitution does not protect a right to an abortion". That view, while controversial, is well within the mainstream and is shared by prominent liberals. It is not even remotely comparable to Ginsburg's nutty positions 20 years before her nomination. Most importantly, Alito has the same "much more recent body of work . . . as an appeals court judge" that belies any notion that he is a raging pro-lifer. In fact, as the Christian Science Monitor (11/2/05) reported, "of the four abortion cases in which he participated as an appeals court judge, he voted on the pro-choice side in all but one." In short, if it was wrong to oppose Ginsburg on ideological grounds, it is certainly wrong to oppose Alito based on anything we know about his views on abortion.

First Amendment.

George Will has a good analysis of Judge Alito's First Amendment jurisprudence in the latest Newsweek.

Dean's distortions.

On yesterday’s “Meet the Press,” DNC Chairman Howard Dean made two misleading or outright false statement regarding judicial confirmations:

DEAN: “The Republicans wouldn't even give Harriet Miers a right to an up or down case. How dare they make a case for an up or down vote on Judge Alito.”

REALITY: “A … bogus argument among liberals is that Miers’s withdrawal makes it impossible to argue the nominee should be given an up-or-down vote. The GOP case is that judicial filibusters are wrong; that’s very different in principle from suggesting that no nominee should withdraw or be withdrawn to avoid humiliating defeat.” --Editorial, The Hill, 11/1/05.

DEAN: “They [Republicans] stonewalled hundreds of judicial appointees that Bill Clinton made. Hundreds of them that never came up. They wouldn't even take them up.”

REALITY: First, “hundreds” of Clinton nominees were not blocked. Even Senate Democrats generally refer to a number in the 60s. The inflated number comes from double and triple counting the same nominees held over from one Congress to the next.

Nonetheless, Clinton had 377 of his nominees confirmed—five short of the all-time record. Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McRae Lewis, Jorge Rangel, Enrique Moreno, James Beatty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.

Of the nominees left dangling from Clinton’s two terms, most did not get through the Judiciary Committee due to a specific cause: late nomination, problems with home-state senators, incomplete paperwork, or they were impeachable, meaning they had behavioral issues in their pasts that rendered them unacceptable. In many of these latter cases, the Clinton White House privately agreed with the decision not to move forward.

When the Senate adjourned for the last time under President Clinton, there were 41 nominations dangling and 67 judicial vacancies. Overall, that is a good record.

By comparison, during the first President Bush’s single term, Democrats were more aggressive with committee procedures. After creating 85 new judgeships in 1990, the majority Democrats slowed down the confirmation process to purposely keep them open. After the Clarence Thomas confirmation fight, Democrats temporarily stopped the confirmation process entirely. Though a deal was reached to restart the process, the Democrats were able to keep many outstanding nominees off the bench, including Terry Boyle for the 4th Circuit, Frederica Moreno for the 11th Circuit, Lillian Bevier for the 4th Circuit, and John Roberts for the D.C. Circuit.

In all, at the end of the first President Bush’s term, 54 nominees did not get confirmed and we were left with 97 judicial vacancies.

If Clinton's two terms are added together, the number left dangling is around 60 — a figure Democrats cite regularly — or an average of about 30 per term, compared to 54 for the single term of the first President Bush.

Balance When it Suits Them

Regarding today's NY Times op-ed noted by Arad, one might ask if the Democratic senators fretting over Alito's potential to upset the "balance of the Court" also rue the dramatic shift in the Court's ideology engineered by FDR. That's the shift, starting in 1937, that removed the constitutional roadblocks to New Deal legislation and ushered in seven decades and counting of big government. Something tells me the answer is no, Democratic senators have no problem with the destruction of the Court's pre-1937 balance.

Round Up

• Fox News poll says Judge Alito is seen as qualified to sit on the Supreme Court.
• NY Times op-ed section has a piece exposing the flaws in the argument about "balance" on the SCOTUS. The "balance" argument is extremely flawed because its entirely arbitrary. How does one decide what the balance is and how to maintain it?
• NY Post reports in a rather small article that Schumer thinks Alito may be within the judicial "mainstream." Washington Times also has a similar article, but adds that Sen. Conrad also enjoyed his meeting with Alito and will not support a filibuster of the nominee unless some "bombshell" appears during the confirmation.



• AP reports that the lawyer who argued Roe, Sarah Weddington, will probably not support the nomination of Judge Alito to the Supreme Court.



• Boston Globe has an article about privacy and the constitution. The reporter concludes the article with the words, "Griswold was wrongly decided, and its effects still poison American law and politics. But no Supreme Court nominee is prepared to say so. The last one who tried was Robert Bork."
• Human Events reports on how out of control the Supreme Court confirmation process is and why liberals are trying to use old smear tactics as a way to stop Alito's ascension to the Court. Human Events also reports on Machine Gun Sammy's gun-shy supporters.
• East Oregonian reports that Sen. Smith expects to support Judge Alito's nomination to the Supreme Court.
• LJworld.com reports on Sen. Brownback's meeting with Judge Alito.

Contest to Aid Senate Democrats

Some of Judge Alito’s most fervent critics apparently fear that he is such a strong nominee that even the collective wisdom of Senate Democrats won’t be enough to come up with sounds reasons to vote against him. But help is on the way from Law Students Against Alito. As OpinionJournal.com notes, the group is sponsoring a contest to compile the “Top 10 Reasons Samuel Alito Is Wrong For America.” The results will be sent to the Senate Judiciary Committee (and, of course, the media).

Another explanation for this contest is that its sponsors believe that the average law student is brighter than the average Senate Democrat. But I am witholding judgment on the accuracy of that belief until I see the results of the contest.

Rocky Mountain Rebuttal on Rybar

As you probably have already seen, various left-wing groups have been distorting Judge Alito's dissent in the US v. Rybar case and claiming that he "favors legal machine guns." Vincent Carroll of Rocky Mountain News explains why that is a lie.

Ballot Initiatives

The results of Tuesday's ballot initiatives in California (SF voters approve gun ban, while state voters reject parental notification) should help to blunt the scare tactics of Judge Alito's opponents. His opponents point to Alito's dissents in Planned Parenthood v. Casey and United States v. Rybar as evidence that Alito's confirmation will lead to an America in which machine gun toting thugs run wild and abortion is unavailable or severely restricted.

But yesterday's election results should remind us that Alito's dissents were only about the federal government's appropriate role, under the Constitution, in the regulation of abortion and gun control. Regardless of where the Supreme Court ultimately comes down on the constitutional issues, voters – as well as state and local legislators – will have the final say on the fate of abortion and gun control in their states and communities.

Wishful Thinking

Apparently Nan Aron of the Alliance for Justice hasn't been checking the odds over at tradesports.com. Today's Washington Post reports that Aron is confident "We will win this nomination battle." But the conventional wisdom, as reflected at tradesports.com, the nation's leading futures market for current events, says that Judge Alito has a nearly 90% chance of being confirmed. The tradesports CV also says he'll get about 65 votes in the Senate.

Gang of 14 update

Senator Lieberman says his meeting with Alito today was "encouraging" and that he found Alito to be an "impressive person."

That brings Alito's "soft approval" among the Gang of 14 to five (McCain, Snow, Collins, Pryor, Nelson). "Strong approval" remains at two (Graham and DeWine).

Daily Round-Up

• The NY Times reports on the interesting history between Judge Alito and Sen. Specter (R-PA). Specter admits that the hearings will put him in a difficult position between his pro-choice constituents and the President and Senate Republicans.
• Bruce Fein's commentary in the Washington Times suggests that the tide is turning in constitutional law and that the originalist thought that started with Ronald Reagan has not yet peaked yet and Judge Alito will only add to its growing strength.
• An "No Nukes" on NRO's website discusses the damage a Democratic filibuster would do to Democratic nominees in the future but also the confirmation process as a whole. We would no longer have well-qualified candidates, but rather stealth candidates with no track record.
• Human Events asks: Will Alito overturn Roe?
  
• Findlaw commentary explores the "Catholic" and "Protestant" interpretations of the constitution.
  
• James Taranto of OpinionJournal talks about spousal notification.
  

John Rosenberg on PFAW

People for the American Way objects to one of Judge Alito's concurrences in a case involving alleged racial discrimination in the selection of a grand jury. John Rosenberg deftly shows why PFAW has no leg to stand on.

Post Roe?

James Taranto considers the law and society post Roe v. Wade.

On Chadwick

Some on the Right (or perhaps troublemakers from elsewhere) have been circulating criticism lately of Judge Alito's decision in the Chadwick case. One critic went so far as to liken Chadwick to Kelo v. New London, claiming, "The idea that a judge can jail someone without a criminal charge and without a trial for more than a DECADE has legal reformers horrified."

Third Branch Conference chairman Manuel Miranda has responded:

"I have now read the case on civil contempt. I am curious what is desired to be reformed here. Whatever it is, it was not for the Third Circuit and Judge Alito to do.

"If anything, the District Court's ruling under appeal was an activist decision without sound basis. Judge Alito's decision is well presented and compelling. The facts were determined by the Pennsylvania courts, Chadwick had remedies in Pennsylvania courts, upon review the federal precedents were clear. Chadwick was found by Pennsylvania courts to be able to pay his wife, he fled jurisdiction and then was held in contempt in a state law proceeding. He was lucky to get a federal court involved let alone to ignore federal precedents.

"He should seek relief with the legislature, and get a better lawyer. Or just pay what the Pennsylvania court believes he can pay. If his incarceration is unjust, it is not for the federal courts to adjudge, and certainly not a lower court faced with Supreme Court precedent."

Media bias

At Human Events, Rich Noyes of the Media Research Center has a good analysis of mainstream media bias on Judge Alito.

The Left's Game Plan Laid Out

David Nieporent breaks down the Left's plan of attack into 12 easy-to-follow steps. Print it out and you can play at home!

It just doesn't stop! Yet another snide column from Dahlia Lithwick.

Maybe she's trying to win a bet among Slate editors to beat Saletan and include one cheap shot per sentence. Her latest attempt at the office pool is up at New York magazine.

Democrats and the "F" word

Law professor David Stras wants the Dems to ignore the threats coming from the extreme left and think about how filibustering Judge Alito now would effect our democracy over the long term.

Alito's Law School Performance

The New York Times' profile of Alito had this interesting remark:

Whether Samuel Alito's politics were apparent or not, his brains certainly were.

"This was 33 years ago, but I'm sitting in the back of a classroom [at Yale Law School] and this guy sitting in the front who never opened his mouth in the first two or three months raises his hand and is called on," recalled Peter Goldberger, who is now a lawyer in Ardmore, Pa. "And I said, 'Oh my God. That's what smart is about.' You're in a room of 75 people you don't know and then you realize there's another level of smart."

Leo: Alito's Record Distorted by Far Left Feminists

John Leo has an excellent piece on the distortions and lies the Angry Feminist Left are spreading about Judge Alito's record.

Morning News Round-up

Lawrence Tribe campaigns for the prestigious Saletan Award in this smug article about Alito's constitutional views on gender discrimination.

The media has a double standard? Say it ain't so! Human Events compares the media's use of "liberal" and "conservative" in the nominations of Ginsburg and Alito.

Bob Novak explains why Kate Michelman and the abortion lobby can't rally opposition to Alito.

Cathy Young explains that Alito's rulings don't reveal his policy preferences, only how he interprets the law.

Alito's Dissents

Cass Sunstein had a Washington Post op-ed the other day in which he analyzed the cases in which Judge Alito dissented. (He had already presented the results of his study on a radio show, as discussed by Ann Althouse here). Sunstein summarized Alito's dissents like this:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

Sunstein also emailed Ann Althouse (see the post linked above). In his email, he clarified his methodology:

In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right.

So out of 41 dissents, 13 to 20 are "neutral," whatever that means, while the other 21-28 are more identifiable as "conservative." So even assuming that Sunstein's classification is correct, Alito wrote a "conservative" dissent about 1.7 times per year. But as discussed further below, Alito participated in between several hundred and several thousand appellate decisions over his career (depending on how you count the cases). If Alito is supposed to be a radical conservative activist, dissenting a mere 1.7 times per year is a shabby performance. (Surely an activist could have done better than that!)

But Sunstein's analysis already seems to be getting some traction. On meeting Alito, Senator Mark Pryor's reaction included this:

Pryor said he questioned Alito about his dissents in cases that came before his court.

"I did talk to him about the fact that he had so many dissents and what should I make of that," he said. "Should I see that as he is biding his time until he goes up to the U.S. Supreme Court and then he's going to have his way?

But compare Sunstein's analysis to the analysis by a couple of New York Times reporters:

Judge Samuel A. Alito Jr. dissents slightly more often than the typical appeals court judge, and his dissenting opinions are almost always more conservative than the majority's.

In the several hundred cases he heard over 15 years on the United States Court of Appeals for the Third Circuit, Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

The first thing that I notice is that the numbers are different. Why did Sunstein find only 41 dissents when the New York Times found over 60? As for the total number of cases, this depends on how you count them. If one searches LEXIS for all cases where Alito was on the panel, LEXIS won't even compute the result, because it is over 3,000. By far, most of those were summary affirmances of the district court's decision. I'm not sure how to search for only the cases with written opinions, but I suspect that the New York Times' figure of "several hundred" is more accurate than Sunstein's figure of 240. 240 written opinions may sound like a lot, but it strikes me as very low for an appeals court judge who has been on the bench for 15 years.

On a different point, while both Sunstein and the New York Times describe Alito's dissents as "conservative," the New York Times' analysis is much more useful and accurate than Sunstein's:

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions.

* * *
One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

* * *
Judge Alito almost always showed reluctance to interfere with a case after a jury had decided it.* * *

If a appeals court judge generally defers to a jury or a district court judge, why is such deference classified as either "conservative" or "liberal"? "Restrained" or "modest" would be a more appropriate word. Sunstein seems to be determining what counts as "conservative" based on a crude caricature of conservatives (who apparently always want free speech claims and plaintiffs to lose) and a crude caricature of the law (in which judges do nothing other than award a "conservative" or "liberal" victory to their preferred side).

The New York Times' analysis is also more accurate in that it describes various Alito dissents that went in the "liberal" direction:

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

For example, after a truck driver lost a products liability trial against the manufacturer of his vehicle, the appeals court majority ordered a new trial, in part on the ground that the trial judge had improperly allowed the jury to hear that the driver was not wearing a seat belt. Judge Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, Judge Alito would have let verdicts stand. In one, a group of doctors sought to have a jury's verdict against them overturned in a lawsuit by the parents of a girl who died as a result of a liver disease.

The doctors argued, Judge Alito wrote, "that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants' advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it."

Note that in both cases here (assuming that the descriptions are accurate), Alito voted to affirm lower court rulings. In practice, this meant that some of his votes were for the plaintiff and some were for the defendant. It wouldn't be fair to pick out one of these personal injury cases in which Alito found for the defendant, and then to claim that this represents Alito's "conservative" desire to grant defendants a victory.

But that is exactly what Sunstein did. He explicitly lists a personal injury case where Alito said literally nothing other than that he would have affirmed the district court's factual judgment. This is supposed to support Sunstein's thesis that Alito writes "almost uniformly conservative" dissents. But Sunstein doesn't mention the other personal injury cases where Alito voted for the plaintiff. Nor does he explain why it is appropriate to say that these sorts of decisions are either "conservative" or "liberal" when the judge merely takes a deferential view towards the lower court or the jury, whatever it decided.

Finally, another fact not discussed by Sunstein:

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the [third] highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention"

Impressive.

Will Saletan

Patterico has another good takedown of Will Saletan's piece.

Will Saletan picks the wrong fight

Yesterday Will Saletan tried to take Sam Alito to task about his Casey opinion, but Saletan only succeeds at demonstrating why he's a journalist for an online magazine and not a federal judge. Saletan seethes with anger, trash-talking Alito in the first person, on his typing toes shadow boxing his intellectual superior with sarcastic quips like, "But not you, Judge. You didn't go along with what Justice O'Connor said, even when your colleagues flagged it in neon orange for you." (If you were to close your eyes and picture how a Dean-scream would look in 10 point Verdana font, you'd see Saletan's column.) Aside from the histrionics, Saletan offers two substantive complaints. He first recycles the argument that Supreme Court's overruling Alito Casey because of their last minute vote changes reflects poorly on Alito. I won't address that argument because it's been convincingly rebutted many times already. (Not even geniuses can know what O'Connor will eat for breakfast a year hence.) His second complaint is that Alito ignored key precedents in his Casey dissent, most importantly the Supreme Court's Hodgson decision from the prior year.

In Hodgson the court considered a Minnesota law that included a provision (called "subdivision 2") requiring minors to notify both of their parents 48 hours before having an abortion. The law contained an additional provision ("subdivision 6") that would be effective only if a court ruled subdivision 2 to be unconstitutional. Subdivision 6 was identical to subdivision 2 but provided a judicial bypass exception to the parental notification requirement. The Supreme Court split in its Hodgson ruling: O'Connor joined the four liberal justices in striking down subdivision 2 -- two-parent notification without judicial bypass -- as unconstitutional. O'Connor joined the four conservative justices in upholding subdivision 6 -- two-parent notification with option of judicial bypass -- as constitional. (Notice that O'Connor managed to cast two swing votes in one case.)

Now it's important to keep that scenario straight because Saletan relied on the case's complexity to mislead his readers. The paragraph of Hodgson he cites, in his attempt to prove that the Supreme Court believed one woman to be enough adults to decide to have an abortion, is taken from Steven's opinion striking down subdivision 2 -- two-parent notification without judicial bypass. But in upholding the constitutionality of subdvision 6, O'Connor made it perfectly clear that she doesn't see a constitutional problem with the two-adult notification requirement; the judicial bypass is dispositive: "Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure."

Because O'Connor held the two-parent (two-adult) notification requirement in subdivision 6 to be constitutional, and switched votes between subdivisions 2 and 6 solely due to the absence or presence of a judicial bypass option, Alito correctly ruled that Casey's inclusion of a judicial bypass option to the spousal notification requirement preserved its constitutionality according to O'Connor's undue-burden test.

And there's no way Alito could have known that O'Connor's oatmeal would be cold and pasty the following year.

Mainstream Alito

Another prestigious legal scholar supports the Alito nomination. John Lott backs up his conclusion that Alito is no extremist with the results of an independent study:

"Law professors Stephen Choi of New York University and Mitu Gulati of Georgetown University did a study of the circuit court judges appointed from the administration of presidents Jimmy Carter through the first term of Bill Clinton on several issues. Among them was whether a judge votes in lockstep with other judges nominated by the same political party. They found that Alito was the 12th-most politically independent Republican of the 55 that they studied. If he had been a Democrat, his ranking would have made him the eighth- most politically independent out of 42."(emphasis added)

Round Up, Part 2

• Charles Krauthammer defends Alito's application of Justice O'Connor's prior opinions to the Casey decision. Showing that O'Connors opinions were often hard to comprehend; making precedent hard to apply in future cases.
  
• The Star-Ledger of NJ has an editorial defending Judge Alito against any type of political label. The editorial says Samuel Alito has all the necessary characteristics of a Supreme Court Justice. Verniero writes, "Alito is uniformly viewed in legal circles as an experienced, intelligent, conscientious and honest jurist. If there are additional qualities needed for a seat on the Supreme Court, the burden is on those opposing him to tell us what they are and why he lacks them. "
  
  
• NY Times reports on Judge Alito's belief that the separation of Church and State has gone too far, however, the article could not decide how this might affect the way Judge Alito would rule. Human Events also covers a similar topic concerning Judge Samuel Alito, and religious expression.

Round Up

• AP reports that the confirmation hearings for Judge Alito are scheduled for January 9. Specter feels it is important to not rush the hearings and give Democrats ammunition for a possible filibuster.
  
• Yesterday, the Washington Times reported on the comfort level of the 'Gang of 14.' Ben Nelson (D-NE) of the 'Gang of 14' said, "At this point in time, I have a comfort level that I'm satisfied with." He continued, "I'm anxious to see the rest of the hearing process work and the whole confirmation process unfold."
  
• NY Post has an article expressing the Democrats hesitancy to filibuster Judge Alito on the abortion issue, mainly because such a large portion of the country supports parental notification and spousal notification before an abortion.
  
• AP also had an article stressing adamantly that Senators DeWine and Graham do not consider this an "extreme circumstance," and would support the consitutional option if needed.
  
• Jan LaRue writes in Human Events about Judge Alito and Stare Decisis. She defends overturning stare decisis when the case requires it. She also points out the hypocrisy on the left about this issue.
  

Welcome to the Committee for Justice group blog

Welcome to our new blog! We've assembled a stellar group to blog about the Alito nomination, including Spence Abraham, Ron Cass, Sean Rushton, Curt Levey, John Kalinger, Stuart Buck and myself. Because we're lawyers who greatly respect Sam Alito's judicial work, we will try to respond to every legal argument raised against him. If you find a case that's being used against Alito that we haven't answered, please send it to me and we'll respond. My email is matt*at*createdequal.org.