Woman of the Year

Harriet Miers is woman of the year, in my view.

Scalia is the Funniest Justice

A new study shows that Justice Antonin Scalia is good for about one laugh per oral argument. The New York Times summarizes a new study in The Green Bag.

Of course, The Times couldn’t complete its article without at least a few gratuitous digs at Clarence Thomas.

More Testimonials for Alito

More testimonials regarding Alito’s ability to distance himself from his personal feelings while doing his job. From The Washington Post:

Former students said in interviews that Alito was friendly but reserved: the type of professor you would like to have a beer with after class but never did. And yes, his conservatism was well known but was never in evidence in the classroom, they said.

"The judge kind of took it all in. He never imposed his beliefs as much as there were times when he could have. I didn't understand that then, that a judge shouldn't be discussing feelings. Times I wanted him to inject his thought process and opinion, and it just didn't happen. He'd answer a question with a question, which showed his interest in probing the issues and our thoughts," said former student Joseph Arnold, a Philadelphia attorney who also took the class in 2003.

The full article appears here.

Is Alito pro militant racial separatist?

Today brings news that, "Alito Recommended U.S. Government Not Appeal Black Panther Case." Going by the results-driven logic of previous liberal criticism, conservatives may be alarmed by Alito's apparent "endorsement" of militant racial separatists. Or, perhaps we should heed our liberal friends in this case, when they point out such cases prove nothing about Alito's view of race and everything about his commitment to the law.

Carville's prediction.

On NBC today, Democratic strategist James Carville gave Republicans hope for better-than-expected returns in 2006 Senate races:

BROWN: Item number two. All eyes will be on the president's second Supreme Court nominee as we approach the confirmation hearings for Samuel Alito. Will he get confirmed?

CARVILLE: I think so, but it will be a really big fight. I think they will go nuclear on a filibuster. The Democrats will mount a vigorous campaign. I think there will be big ethics questions and it will be an event that is a historical fight. The math is tough for the Democrats to overcome. I think the country will be treated to a huge civics lesson.

BROWN: Not like with John Roberts?

CARVILLE: No, and I think it will be pretty bitter and protracted and be a lot of procedural motions before this is over.

Unfortunately, Carville aside, there's virtually no way that red and purple state Democrats such as Ben Nelson, Tim Johnson, Kent Conrad, Conrad Burns, Mark Pryor, Mary Landrieu, Ken Salazar, Robert Byrd, et al. will allow their party to drive off the cliff this way.

Nevertheless, Carville is tapped into liberal DC circles, so when he mentions a big fight over Alito's ethics, it's worth paying attention.

"Liberty rights."

I was quoted in Tuesday's Boston Globe:

“There are many very important and serious legal scholars who take issue with [liberty rights] because it very quickly becomes what the judge thinks the law should cover,” said Sean Rushton, of the conservative Committee for Justice.

Andrew at confirmthem.com follows up:

Hmm, I wonder what those words were that got replaced by brackets. Maybe they included the words “due process”? For the record, the Fifth and Fourteenth Amendments both say that no person “shall be deprived of life, liberty, or property without due process of law.”

Andrew is correct: my quote was specifically about substantive due process, an amorphous concept with a history of abuse. I believe the Globe felt the term was sufficiently technical to require translation, though "liberty rights" certainly leaves a much more positive impression than the original term.

I almost feel guilty opposing them.

Civil Rights Group Opposes Judge Alito's Nomination

Earlier this month, the Asian American Justice Center (AAJC), a civil rights organization that "works to advance the human and civil rights of Asian Americans through advocacy, public policy, public education, and litigation," issued a press release announcing its opposition to the nomination of Judge Alito to the U.S. Supreme Court. AAJC's reasoning:

As a deputy assistant attorney general at the Department of Justice under President Ronald Reagan, Judge Alito argued that certain non-citizens are not entitled to the protections offered by the U.S. Constitution. Judge Alito also raised opposition to the Supreme Court decisions that first articulated the fundamental civil rights principle of “one person, one vote.”

My concern is not the position taken by AAJC, but the failure of the organization to substantively explain or defend it. That is, in its statement, AAJC does not spell out the allegedly questionable arguments made by Judge Alito (thus preventing the public from independently assessing the merits of these arguments), let alone describe how such legal judgments disqualify Judge Alito from service on the Supreme Court.

AAJC similarly ignores opinions in which Judge Alito ruled in favor of plaintiffs alleging discrimination (see, e.g., Fraternal Order of Police, Newark, Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) (holding that a police department's policy, which prohibited employees from wearing beards, had an exception for medical reasons, but admitted no exception for religious beliefs, violates the First Amendment); Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3rd Cir. 2004) (holding that a school district failed to provide a free and appropriate public education to a student who was subjected to “severe and prolonged harassment” on account of the student’s perceived sexual orientation and apparent athletic inadequacy)).

Despite these and other cases, AAJC's deputy director of programs states, "based on Judge Alito’s record, we believe that his decisions would fail to demonstrate a clear understanding of key issues important to the civil rights community," again with no recitation of the relevant aspects of the record.

AAJC's conclusory statements do nothing to enrich the discussion regarding whether Judge Alito should be confirmed as an associate justice. If AAJC said case x demonstrates that Judge Alito is hostile to civil rights and that the analysis offered in that case is troublesome with respect to the nomination for reason y, others would be able to evaluate the strength of this argument and perhaps offer counter-arguments as to both x and y. Rather than advance the state of the debate, AAJC performed no public service in issuing this press release. If anything, it only serves to reveal AAJC's naked opposition to this nomination.

* * *

Many thanks to Curt for inviting me to participate on this blog. I hope my entries will be of some value. As others have stated, I join this online community as an individual interested in the judiciary and the rule of law, not as an endorser of the CFJ. To briefly introduce myself, I'm a Sikh civil rights attorney and the co-director of the Discrimination and National Security Initiative, an affiliate of the Pluralism Project at Harvard University.

A Tale of Two Schumers

Allow yourself to fantasize about Sen. Chuck Schumer (D - NY) expressing these words of wisdom about Judge Alito:

"I'd like to read to you what Judge Alito has said about his own judicial philosophy: I consider myself a conservative . . . with a fair appreciation of judicial restraint. . . . Judge Alito has certain positions he personally believes in. He has an ideology. That's clear from . . . [his] pro-life point of view. That's different than mine. And of course I do not have a litmus test. Most of us don't. But what's abundantly clear from his record on the bench is that he can check his personal beliefs at the chamber's door and judge fairly and honestly."

Short of a Christmas season change of heart rivaling that of Ebenezer Scrooge, we will not be hearing such sentiments about Judge Alito coming from Chuck Schumer. Yet Schumer said exactly these words – if you substitute "Wesley" for "Alito" – in a June 2003 press release. At the time, the nomination of Judge Wesley of the U.S. Court of Appeals for the Second Circuit was before the Senate.

Is there any reason to believe that Judge Alito is less capable than Judge Wesley of checking his personal beliefs at the chamber's door? Absolutely not. The improbability of Schumer expressing similar sentiments about Alito has, I suspect, everything to do with both New York politics and the influence of liberal special interest groups, and nothing to do with any real differences between the nominees.

Thanks to Dan Sullivan for bringing Schumer's 2003 press release to CFJ's attention.

The Latest Poll on Judge Alito's Confirmation

While polls are a snapshot in time, the snapshots continue to improve regarding Judge Alito's nomination. Here is a story that discusses the latest Washington Post-ABC News poll numbers that show a majority of Americans, 54-28, believe that Judge Alito should be confirmed.

Yale Alito Project, cont'd

Following up on Mark's post: the new report from YAP (whose acronym I gather is unrelated to any Chihuahua-like tendency to bark without surcease at anyone not a member of its own ideological household) is also the subject of posts at Point of Law by my Manhattan Institute colleague Jim Copland and by Michael Krauss, both of them Elm City law alums. Jim concentrates on Alito's much-discussed FMLA opinion in Chittister (for more, follow links here and here). Michael mentions that a group of Yale law alums has banded together to buy ads in support of the nominee.

In all fairness to YLS, it should be pointed out that despite the involvement of some prominent liberal faculty, notably Bruce Ackerman and Owen Fiss, the Project does not in any way speak for the institution itself, any more than the Federalist Society-sponsored Harvard Journal of Law and Public Policy speaks for Harvard Law as an institution. The report itself can be found on a campus-activism website of the Center for American Progress.

Both sides of the mouth

Liberal groups are picking through Judge Alito's decisions with a fine-toothed comb and issuing reports on how "troubled" they are by his decisions in various cases. They argue that, because of those decisions, the Senate should scrap Alito's nomination to the Supreme Court.

On the other hand, these same liberal groups decry conservative criticism of court decisions. (See, e.g., PFAW's April 2005 "Right Wing Watch".) Can you imagine the liberal uproar about "judicial independence" if a conservative group were to oppose the appointment to a federal district court judgeship (say, by a President Hillary Clinton) of Judge George Greer (the Florida state judge who oversaw Terri Schiavo's starvation/dehydration) because of his "troubling" management of that case?

Maybe the rule is that it's okay to block appointments and promotions in retaliation for decisions, but not okay to criticize judges who are not up for higher appointment.

Or maybe the rule is that it's okay to lambast judges for conservative decisions, but not for liberal ones . . . .

Yale and Alito on Standing

On my birthday (yesterday), I spent part of the day reading the report of the Yale “Alito project,” which claims to reveal Alito’s conservative biases. Here’s how the report works: the authors reviewed Alito’s written opinions in cases where they believe there is no clear controlling precedent. Such cases, say the authors, give Alito leeway and therefore expose his ideological tendencies.

The premise is questionable. Take one example, Alito’s rulings on standing. (Standing, for non-lawyers, is the term for the rules governing when federal courts can hear a lawsuit). The Yale project, citing mostly unanimous decisions like Joint Stock Society v. UDV North America, Inc. and Conte Brothers Automotive, Inc. v. Quaker State-Slick 50, Inc., concludes Alito is ideologically driven to limit access to courts by“construing standing narrowly” when he can.

From my brief review of the caselaw, I accept that Alito tends to take a narrower view of standing than would many Yale law professors. But ideology may not have much to do with it. Another explanation may be that the circuit in which he sits (the Third) doesn’t rubber stamp plaintiffs’ standing theories. There’s much evidence for this: For example, in the last few years, the Third Circuit has controversially denied standing to -- (1) class action plaintiffs suing HMOs under RICO in an opinion by Judge Greenberg (Maio v. Aetna), (2) securities “holders” under the Securities Exchange Act of 1934 in an opinion by Judge McKee (Trump Hotel & Casino Resorts v. Mirage Resorts), (3) health care recipients seeking class-wide monetary restitution from “misleading” health plans under ERISA in an opinion by Judge Roth (Horvath v. Keystone Health Plan E), (4) plaintiffs alleging an “environmental injury” under the Clean Water Act in another opinion by Judge Roth (Public Interest Research Group v. Magnesium Elektron, later overturned by the Supreme Court), and (5) a housing rights group in a suit targeting discriminatory ads under the Fair Housing Act in an opinion by Judge Mansmann (Fair Housing Council v. Main Line Times).

All of these cases were politically and legally controversial. And all but the Fair Housing Council case were unanimous panel decisions. All were cases in which there was no clear controlling precedent. Yet, in each case, the Third Circuit disposed of the standing issue against plaintiffs.

If the Third Circuit doesn’t open the door wide to any plaintiffs who put their name to a complaint, as these cases tend to suggest, then what can we say about Alito’s standing rulings? Nothing juicy, I’m afraid. The fact Alito’s opinions are consistent with trends in his circuit doesn’t tell us much about Alito’s “ideology.” It suggests, instead, that on the standing issue he is in tune the law of his jurisdiction and tries to reach outcomes consistent with that law. Again, that’s what an appeals judge is supposed to do.

Liberal funding.

In Human Events last week, Tim Carney reported that "Wal-Mart, Ford Motor Co., AT&T, and Fannie Mae are among the major U.S. corporations whose foundations fund the liberal groups now waging war against Samuel Alito’s nomination."

CFJ in the Wash Post.

Nice mention in Bruce Fein's excellent piece in Sunday's Washington Post:

"Finally, conservatives were unprepared to respond to the liberal polemics aimed at Bork. Reagan was vacationing in California while Sen. Edward M. Kennedy was falsely maligning Bork as being callous about back-alley abortions and complacent about Jim Crow. Today, in contrast, conservative organizations like the Committee for Justice or Progress for America are flush with funds, talent and media access to promote Alito's credentials and to answer extremist liberal detractors like People for the American Way or Alliance for Justice."

The Left "Reports" Again on Judge Alito...Brought to you by Americans United for the Separation of Church and State

I am following-up on my post about the "Report" issued earlier in the week by NARAL Pro-Choice America.....now from Stage Left enter Americans United for the Separation of Church and State with their "Report" on Judge Alito they released late yesterday.

If this incoherent rant is what the Left is throwing at Judge Alito now, his hearings will be quite a spectacle. They are so far outside the mainstream they are fading into oblivion.

Thoughts on Judicial Term Limits

Would term limits help to solve the judicial activism problem, or would they merely make matters worse? As a general rule, my default assumption is that the constitutional structure is sound and should be left untouched. Our Constitution has served us well for more than 200 years, and I would prefer to leave it "as is" until and unless an overwhelming case is made that an amendment is necessary. Such a compelling case has not been made in regards to judicial term limits, in my view. I’ve recently written a piece on this subject here, for those who are interested in reading more.

The All-Consuming Abortion Issue

I am reading Team of Rivals, Doris Kearns Goodwin’s new book. One passage early in the book struck me.

GOODWIN: “The issue of slavery could no longer be put aside. It would dominate the debates in Congress. As Thomas Hart Benton once colorfully observed: ‘We read in Holy Writ, that a certain people were cursed by the plague of frogs, and that the plague was everywhere! You could not look upon the table but there were frogs, you could not sit down at the banquet but there were frogs, you could not go to the bridal couch and lift the sheets but there were frogs!’ A similar affliction infested national discourse as every other topic was subsumed by slavery. ‘We can see nothing, touch nothing, have no measures proposed, without having this pestilence thrust before us. Here it is, this black question forever on the table, on the nuptial couch, everywhere!’”

ME: Sounds a lot like the abortion issue today -- particularly when it comes to issues of judicial selection. Sadly, a jurist with a long and proven track record of fairness and honesty, like Samuel Alito, gets caught in the crossfire. In his attempts to honestly read and apply the law in a variety of situations, he has issued opinions on both the pro-life and the pro-choice sides of the abortion debate. Yet still he is raked over the coals on the abortion issue because he does not routinely rubber stamp the pro-choice position.

Introducing Myself

I am finally getting around to introducing myself as well. Like Walter and Mark, I haven’t always agreed with either the Committee for Justice or the Bush administration on judicial issues, so I am happy to be included as a blogger on this site. I am Tara Ross, retired lawyer turned freelance writer and author of Enlightened Democracy: The Case for the Electoral College.

I have written at length on each of the recent SCOTUS nominations, so I won’t regurgitate those feelings now. (A few links are here, here, and here, for those who are interested.) Instead, I will just briefly say that I supported the John Roberts nomination last summer and am wholeheartedly in favor of the pending Samuel Alito nomination. Despite this support of Bush’s nominees, if I were President for a day, an Edith Jones nomination would currently be pending before the Senate!

Thanks again to Curt and Sean. I look forward to blogging for CFJ!

NARAL Attacks Alito

NARAL Pro-Choice America just issued their Alito Report entitled: "Liberty at Risk: The Vulnerability of Reproductive Rights Under Alito" which you can read about here.

This is the opening shot of an onslaught of attacks from pro-abortion radicals who support unregulated abortion on demand, 24-7, 365.

It is 24 pages long, which I'm sure is full of predictible stuff, but here are a couple of snapshots:

"Whether Samuel Alito would vote to overrule Roe v. Wade and whether his vote would be the last necessary step to Roe’s demise are not the only questions before the Senate or the American public. For overruling Roe is not the only way to end legal abortion or make access so difficult, expensive, and dangerous that abortion’s legality is practically meaningless. Indeed, overturning Roe outright is not the most likely avenue for the Court and anti-choice legislatures to take in the near term.

"Stacking the Court with Justices who are indisposed to find a state regulation to be an “undue burden” is as sure a way of ending legal abortion for many women in much of the country as is overturning Roe. It’s just far more subtle and less likely to create political backlash."

Anti-Alito Tour Is Drawing Small Crowds

AFJ's "Rolling Justice" road show is imploding.

Website has deadlinks, low turnout. Very Shakespearean..."...full of sound and fury signifiying nothing."

Sean Rushton and I are quoted in a NY Sun article that you can read here.

Democrats Like Teenagers

The Las Vegas Review-Journal has a great editorial out today about the Democrats' posturing on the Alito nomination, particularly with regard to the filibuster threat. Here are some of the highlights:

"Like teenagers dashing across the tracks in front of an advancing locomotive, Senate Democrats are strutting their stuff at the Capitol, threatening to filibuster the Supreme Court nomination of appeals court Judge Samuel Alito."

"This is all about the Democrats' need to rally their constituents by convincing them such Republican nominees seek to outlaw all abortions on their way to creating a fundamentalist theocracy."

Sen. Byrd's "interpretation of 'freedom of speech' would justify tying up the only pay phone in a burning theater rather than allowing someone to use the line to summon the fire department. He wants the freedom not to submit the Alito nomination to a majority vote on its merits -- the only kind of political 'speech' that counts, in the long run."

"The risk [the Democrats] take is that Republicans will call their bluff, employ the 'nuclear option,' and clear the way to rule as majority party, leaving the minority to issue fatwas of dissent from their booth at the Palm over on 19th Street."

Abortion memo.

Thoughts on Alito's abortion memo from Richard Lessner, formerly of the American Conservative Union:

For what it’s worth, my thoughts on Alito and Roe: I don’t think he should try to parse this issue, or distance himself from his 1985 statements. He should state unequivocally and forthrightly that in his opinion Roe was wrongly decided. Anything else will appear insincere, calculated, evasive, less than fully honest.

That said, however, Alito should pledge to evaluate any case coming before him that touched upon Roe based upon the facts in that particular case. This is a principled and defensible position. Alito obviously cannot answer, and should refuse to answer, a hypothetical question whether he would vote to overturn Roe. Each case is different, the issues are different, the facts are different, and each case can only be decided on its own merit.

Talk in Richmond, VA

I invite anyone in the Richmond, VA area to hear my talk to the Richmond chapter of the Federalist Society on judicial philosophy, the confirmation fight for Judge Alito, and the Committee For Justice's role in it. My talk is from noon to 2 p.m. today (Dec. 14) at the Omni Hotel in downtown Richmond, and lunch is included.

Lies, Damned Lies, and "Statistics"

I’m late to dissecting the Knight-Ridder hit piece on Judge Alito, which claims to discern an ideological tilt in his decisions. Hugh Hewitt has uncovered one glaring flaw: the reporter excluded cases from the survey because Alito didn’t write the opinion. By that token, assessing Chief Justice Rehnquist’s views on federalism should exclude his dissenting vote in Gonzales v. Raich, since O’Connor and Thomas wielded the dissenters' pen. Common sense says otherwise.

But I noticed another, although lesser, flaw: The survey doesn't tell us how many of Alito's opinions are for a unanimous panel. That's a flaw Judge Frank Easterbrook identifies in Cass Sunstein’s study purporting to identify the biases of reputedly "conservative" judges. As Easterbrook has suggested to statistician John Lott (see page 3 of this Lott paper for the partial Easterbrook quote), the fact a judge frequently votes in favor of one type of party or another in a string of cases doesn't tell us much if most of those cases are unanimous. Unanimous decisions may reflect straightforward questions dictated by circuit or Supreme Court precedent. Therefore, they are a poor basis for inferring bias. Indeed, if a large proportion of a judge's opinions are unanimous, it may reflect his or her fidelity to the rule of law. If the Third Circuit is tough on criminal defendants, and Judge Alito follows precedent, then the fact he doesn't dissent very often from his brethren suggests Judge Alito is faithful to the law of the circuit--not that he's "biased" against defendants.

Stuart Taylor, Jr. on Alito press coverage

You'll need to click the link fairly quickly, since National Journal will be rotating it off soon, but centrist columnist Stuart Taylor, Jr. has another hard-hitting column on the unfairness of some sections of the media toward nominee Sam Alito. Taylor's catalogue of reporters' "factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics" not surprisingly begins with the already notorious Knight-Ridder piece in which, according to reporter Stephen Henderson, "we didn't find a single case in which Judge Alito sided with African-Americans ... [who were] alleging racial bias." (In fact there have been at least seven such cases, Taylor says.) Taylor isn't kind to the rest of the 2,652-word article by Henderson and Howard Mintz either ("illiterate statistical analysis and loaded language ...highly misleading...systematic slanting"). The Washington Post, Boston Globe and New York Times come in for a drubbing too, not to mention "the consistently mindless liberal hysteria of the New York Times' editorial page". This is Taylor's third column on the Alito nomination; if the link no longer works, Michael J. Gaynor at Conservative Voice has some highlights.

Relatedly, T.R. Goldman at Legal Times reports:

With Senate Democrats clearly outnumbered, liberal interest groups are staking their campaign against Samuel Alito Jr. on a simple strategy: Transform Alito into Robert Bork by any means possible — whether the shoe fits or not.

(cross-posted at Point of Law).

Greetings from Cato

Like Walter, I haven’t always seen eye to eye with the Bush administration or with the Committee for Justice, so I also appreciate Curt’s and Sean’s willingness to invite me to participate. I'm Mark Moller, a senior fellow at the Cato Institute, where I speak and write about the Supreme Court’s docket, oversee Cato’s amicus program, and also run Cato’s annual legal journal, the Cato Supreme Court Review.

I won’t pretend that I avidly endorse every aspect of Judge Alito’s record: Like Ilya Somin, I suspect (based on sheer conjecture) that I will be relatively pleased with Alito’s approach to federalism and the First Amendment, but the civil libertarian in me won't be pleased with his approach to, for example, criminal procedure.

Even so, I firmly believe that the judicial branch benefits from an unpoliticized nomination process, in which nominees who are demonstrably capable, independent, and committed to the rule of law get confirmed. That’s Judge Alito. And that’s why I’m willing to support his nomination even though I’m sure I won’t agree with all of his opinions. I only wish Senate Democrats were willing to do the same.

Introducing myself

In my post yesterday on Alito and antitrust I neglected to introduce myself, so let me fix that now. I'm a senior fellow at the Manhattan Institute who writes books and articles about the U.S. legal system, focusing especially on the high cost of our litigation system and how easy we make it to sue in this country. Among my other online activities, I edit the well-known websites Overlawyered and Point of Law, the latter of which has a subpage on Supreme Court nominations.

Sean Rushton and Curt Levey have been particularly generous in inviting me to join the discussion here since I haven't always seen eye to eye with the Committee on the best way of framing the debate over this fall's judicial nominations. (Nor do I always see eye to eye with the Bush Administration, either, though on the litigation-reform issues close to my heart it's shown welcome leadership.) Where we all do agree, I think, is in regarding John Roberts and Samuel Alito Jr. as outstandingly qualified nominees who are likely to bring distinction, along with a much-needed spirit of judicial restraint and humility, to the high court.

Senator Tim Johnson Being Targetted by Planned Parenthood

This is my inaugural blog with CFJ and thank Sean and Curt for the opportunity to join their list of contributors. By way of brief background, I am President of Fidelis, a Catholic-based advocacy group that has played an active role in this year's confirmation battles. We are based in Chelsea, Michigan and have a small office in Washington, D.C.

One week ago today, Fidelis launched a Christmas ad campaign that highlights our Judeo-Christian roots and referes to Judge Alito's ruling in the ACLU v Schundler that you can view by clicking here. It has gotten quite a bit of press coverage and forced the Religious Left to hold a press conference to which CFJ and Fidelis countered with their own.

Regarding Senator Johnson being targeted by Planned Parenthood, Fidelis discovered PP is calling South Dakota residents and patching them through to Johnson's D.C. office, who then tell him to oppose the nomination of Judge Alito because "he will overturn Roe v Wade."

Last Thursday we sent a press release which in part I stated: "Planned Parenthood is engaged in very risky politics by bringing their extreme position on abortion into South Dakota, a well known pro-life state. Senator Johnson must reject the political litmus tests imposed on judicial nominees by radical pro-abortion groups like Planned Parenthood. The place for policy politics is the Congress not the courts."

You can read Friday's AP coverage on this in the Aberdeen American News by clicking here. Johnson's comments are as strained as Daschle's were in August/September of 2004 before he started to unravel on the abortion issue.

The Rapid City Journal also picked up the topic on Saturday and you can read it here.

Alito on antitrust

The American Antitrust Institute, a group that tends to favor expansive interpretations of its particular legal specialty, sniped at nominee Alito a few weeks back as "not favorably disposed toward the private enforcement of the antitrust laws" (coverage then: David Giacalone, AntitrustProf Blog, PSoTD, (Anti)Trust Me, Donald Luskin, GreatAjax, Antitrust Hotch Potch). Now Philadelphia's legal paper, the Intelligencer, is out with an analysis by Carl W. Hittinger that analyzes Judge Alito's stance on antitrust issues, still not very sympathetically but in a more careful and detailed way than AAI (making clear, for example, that on the crucial issue of standing, i.e., who can sue, Alito has taken very much the same conservative view as Chief Justice Roberts). At Larry Ribstein's Ideoblog site, Joshua Wright further investigates a key case (SmithKline), and finds Judge Alito to have been scrupulously strict on matters of both law and fact-finding (cross-posted at Point of Law).

A Liberal Alito Clerk Speaks

Jeffrey Wasserstein has this op-ed defending Judge Alito:

As a former clerk for Judge Samuel Alito, I can tell you he is not the conservative ideologue portrayed in a recent article by Knight Ridder reporters Stephen Henderson and Howard Mintz.

I am a registered Democrat who supports progressive causes. (To my wife's consternation, I still can't bring myself to take my "Kerry for President" bumper sticker off of my car.) I clerked for Alito from 1997 to 1998. Notwithstanding my close work with Alito, until I read his 1985 Reagan job application statement, I could not tell you what his politics were.
* * *

One example that I witnessed of Alito's ability to approach cases with an open mind occurred in the area of criminal law, an area in which Alito -- a former federal prosecutor -- had particular expertise. One time, I was looking at a set of legal briefs in a criminal appeal. The attorney for the criminal defendant had submitted a sloppy brief, a very slipshod affair. The prosecuting attorney had submitted a neat, presentable brief. I suggested (in my youth and naivete) that this would be an easy case to decide for the government.

Alito stopped me cold by saying that that was an unfair attitude to have before I had even read the briefs carefully and conducted the necessary additional research needed to ensure that the defendant received a fair hearing before the court.

Perhaps that's not what one would expect from a conservative ideologue (and former federal prosecutor), but it is indicative of the way that Alito approaches each case with an open mind, and it is a lesson I've never forgotten.

Another example, which reached a result that would seem contrary to a conservative ideologue, was a case I worked on with Alito (U.S. vs. Kithcart) in which he reversed the conviction of a black male, holding that an all-points-bulletin for "two black men in a black sports car" was insufficient probable cause to arrest the driver of the car. Notwithstanding the driver's guilty plea, Alito reversed, finding that the initial arrest lacked probable cause, stating: "The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient."

This is hardly the work of a conservative ideologue.

Project 21.

Project 21 has issued a statement criticizing the Congressional Black Caucus for rushing to judgment on Alito. Good for them.

'Twas one month before the hearings...

Courtesy of Sen. John Cornyn's office:

“Twas one month before the hearings, and all through the city
Not many Democrats were waiting, not even some on the Committee

The hard left was already distorting his rulings
Why wait for the hearings if you oppose all the President’s doings?

Some Senators asked for privileged documents, no exception
So much for the “so-called” right to privacy protection.

From strip searches to abortion, “he's an extremist!” they wailed
But we've heard it before—against Judge Roberts, it failed.

Of course the attacks will not turn the public
“Confirm him” they say, we want independent courts in our republic!

The expectations game.

PFAW is promoting a CBS poll showing that the Alito confirmation is “far from settled,” which is probably true. After all, most Americans do not make up their minds definitively until they have seen a nominee testify before the Senate Judiciary Committee. Of course, most Americans still presume the President has a right to deference in his judicial appointments, and that nominees should only be rejected under highly unusual circumstances beyond ideology.

Any how, PFAW’s agenda is obvious: throw out enough accusations that the press reports the nominee as “controversial,” then, spin some line or another from the hearings as proof. Look for a barrage of liberal ads and events around the hearings, particularly after. These “see-what-sticks” attacks have already found takers at several of the nation’s premiere news outlets.

Another area for reportorial vigilance: more skeptical reporting on liberal groups opposing Alito. Puh-lease. As Third Branch Conference chairman Manny Miranda wrote yesterday in response to reports that the Congressional Black Caucus opposed Alito, “Oh, my lord. Say it isn't so. This must be ratings week. What’s next – Durbin in a dress?”

Remember reporters: the Left didn’t lay a glove on John Roberts, so their funders expect more this time around. Expect a harsh and extended attack from liberal interests on Judge Alito, and consider the motives behind it when reporting it to the country.

Specter: "Alito will have to answer more questions than Judge Roberts did"

Story from today's Washington Post. He says the reason for the additional scrutiny is due to the 1985 documents and his greater number of judicial opinions. Specter still thinks a filibuster is unlikely because "there is nothing they can point to" suggesting Alito is outside the judicial mainstream. (I'm not sure which "they" Specter was referring to -- Democrats or the Gang of 14.)

Results-Oriented Journalism

The Senate Republican Conference and Assistant Attorney General Rachel Brand (C-SPAN's Washington Journal, 12/6/05) have done a great job of rebutting a Knight Ridder article that claims Judge Alito "has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation's laws" during his 15 years on the Third Circuit. Now it's time to look at the methods by which Knight Ridder reached its faulty conclusion.

The basis for Knight Ridder's claim is a "review of Alito's record [which] reveals decisions so consistent that it appears results do matter to him." In other words, Alito stands accused of being a results-oriented judge. However, it turns out that it is Knight Ridder's methods and not Alito's decisions that are results-oriented. A meaningful analysis of Judge Alito's record would have looked to see if Alito bent the law and skewed his legal reasoning to reach certain outcomes. But that would have required analysts with a deep knowledge of the law. Instead, the review of Alito's record was performed by two reporters and a "researcher."

The results were predictably shoddy. The article's evidence that Alito is results-oriented consists not of legal analysis, but of little more than counting outcomes. For example, Alito is said to have sided with 4 of 18 discrimination plaintiffs, 12 out of 60 defendants in criminal appeals, 2 out of 10 death row inmates, and 7 of 24 noncitizens in immigration cases. In other words, the article is based on an utterly results-oriented analysis. How's that for the pot calling the kettle black?

The article reveals more than the poor quality of Knight Ridder's research. It also tells us something about the quality of the arguments typically made against Judge Alito. In fact, the article is a classic example of the results-oriented perspective that leads many journalists, politicians and liberal activists to believe that a judge, like Alito, who adheres faithfully to the law – rather than reflexively ruling for the "sympathetic" party – must have a conservative agenda.

Affirmative Distortion

The American Association for Affirmative Action (AAAA) has taken up the attack on Judge Alito's civil rights record – including his record on affirmative action – calling it "very troubling " and "suggest[ing] that Judge Samuel Alito is not prepared to represent all Americans or to fill the shoes of the distinguished Justice Sandra Day O’Connor." However, the AAAA's arguments – described in its December 5 press release – suffer from serious flaws.

The truth is we don't know what Judge Alito's personal or jurisprudential views on affirmative action are, as evidenced by the fact that AAAA can point to no more than a few tidbits from twenty years ago as indicators of those views. But even if we assume, for argument's sake, that Justice Alito would be skeptical of affirmative action – that is, preferences for minorities – it is hard to explain AAAA's negative comparison to Justice O’Connor. Although O'Connor did author an opinion upholding an affirmative action admissions plan in Grutter v. Bollinger, she has sided with the party challenging an affirmative action plan on most of the occasions that the issue has come before the Supreme Court. The examples include a broad range of affirmative action programs, encompassing employment (Wygant v. Jackson and Sheet Metal Workers v. EEOC), contracting (Adarand v. Pena and Richmond v. Croson), admissions (Gratz v. Bollinger), and government licensing (Metro Broadcasting v. FCC).

Perhaps the most interesting thing about AAAA's press release is that it reveals that AAAA – like much of the civil rights community – has never come to grips with the discriminatory nature of affirmative action. The press release describes President Johnson's famous Executive Order 11246, issued in 1965, as "requir[ing] that federal contractors . . . use affirmative action," but the release goes on to claim that "the Executive Order and its regulations do not require or condone preferential treatment." That is an outright contradiction, because affirmative action is, by definition, preferential treatment for minorities or other "disadvantaged" classes of people. That is precisely why it is controversial and subject to legal challenge. When affirmative action is challenged in court, the issue is not whether minorities are receiving preferences, but whether those preferences can be justified by diversity or the like. I bring this up not to find fault with AAAA, but to point out that the Left often defends affirmative action by refusing to acknowledge it for what it is. Thus, it is no wonder that AAAA cannot imagine that Judge Alito – and the American people – might have reservations about affirmative action while being entirely supportive of anti-discrimination laws.

Of course, AAAA would like us to believe that Alito is unsympathetic to victims of discrimination. But, like other attempts to support this claim, AAAA's press release paints a distorted picture of Alito's record by omitting mention of cases in which he ruled in favor of civil rights plaintiffs, and portraying rulings based on procedural and/or narrow issues as broad rulings against civil rights. Ample examples of both types of distortion can be found in a report by the Committee For Justice. Accordingly, I won't go into detail here, except to recommend looking at the report's examples of cases where Alito has ruled for plaintiffs claiming race discrimination (Brinson and Williams), disability discrimination (Polini and Shapiro), age discrimination (Showalter), and violations of other employee rights (Mitchum).

Holiday Season Ads

On the heels of CFJ’s announcement on Friday of a radio ad focusing on the importance of Judge Alito’s confirmation to the preservation of religious liberty, Fidelis launched an ad with a similar theme today. Like CFJ’s ad, the Fidelis ad points out that “at this time every year we see holiday displays . . . attacked by liberal groups like the ACLU,” while noting that these groups “are openly hostile to time-honored expressions of religious liberty and thus oppose judges like Sam Alito who are faithful to the Constitution.”

For a description of the religion cases in which Judge Alito has been involved, see CFJ’s report on his judicial record or Fidelis’s summary of the cases.

Threat Matrix

• Boston Globe reports top Democratic Senators are questioning Judge Alito's credibility. According to the Globe Sen. Kennedy said, "''The more I learn about Judge Alito, the more concerns I have. A credibility gap is emerging with each new piece of information." These types of comments are related to Judge Alito's omission of documents he wrote 20 years ago? Is he really suppose to remember all the documents he wrote or discussed while working for the Reagan administration?
• Savethecourt.org is continuing the assault on Judge Alito's credibility with a list of issues they say the new documents have raised questions about.
• NYT discusses the Democrat's new tougher stance on Alito. According to the article, Schumer said, "Certainly the chance of a filibuster is greater today than it was the day Alito was nominated because of so many new revelations."

CFJ Gets Shout Out in World Magazine

CFJ received some significant attention in World Magazine recently. The magainze discussed the on-going battle between activists on the Left and on the Right over the Alito nomination. The article agrees with Sean over the degression of the once honorable confirmation process. The magazine quoted Sean saying, " I think that's regrettable. But it wasn't the right that created this politicized confirmation environment. We're not interested in politicizing this . . . but we have to because the left insists on distorting [Judge Alito's] record."

The article mentions several other things about CFJ's recent activities trying to correct the false claims made by the Left about Judge Alito's judicial record. World Magazine mentions "CFJ's website carries a 27-page report that counters" their distortions. "And the group's Thanksgiving spots struck back at PFAW and allied groups for their broader agendas: 'They want to take God out of the Pledge of Allegiance and are fighting school choice,' the voiceover goes. 'They support . . . partial-birth abortion. They are trying to redefine traditional marriage and promote voting rights for convicted felons. . . . Do these groups represent you?'"

Click here to see the full article.

The Untouchable Right

One of the best points in yesterday's abortion column by George Will is easily missed in the second half of the following sentence:

"In the polarized post-Roe politics, many Democrats are now poised to oppose the confirmation of Sam Alito on the grounds that abortion rights, unlike all other rights (to free speech, private property, etc.), must be utterly unrestricted." (emphasis added)

It is worth noting that many of the other constitutional rights, on which greater restrictions are permitted, are explicitly found in the Constitution. Whatever you might think of the right to abortion first set forth in Roe v. Wade, it was found in the Constitution's penumbras rather than in its actual text. That makes the special untouchable nature of this right all the more inexplicable.

Consider the irony that the courts allow substantive burdens on the right to free speech, a right that is found explicitly in the First Amendment and is arguably the most important of all constitutional rights. For example, speech can be punished where it creates a hostile environment for minorities or women or threatens substantially disruption in a school. In contrast, the only restrictions that are allowed on abortion rights are procedural, such as requirements for parental notification or performance by a licensed physician.

John R. Lott, Jr. had a good piece on Alito's view of reapportionment in Tuesday's Washington Times.

Further Thoughts on Thornburg

Check out Ed Whelan's excellent post on Bench Memos criticizing WaPo's story on the Thornburg memo.

Threat Matrix

• People for the American Way issued a press release yesterday discussing Alito's preference on Roe v. Wade and a state's ability to restrict abortion access. The release cites several times from an Alito memo in 1986, which discussed the case Thornburgh v. American College of Obstetricians and Gynecologists.
• Daily Kos blogged today about Specter, Alito, and abortion. They claim that Specter or anyone else that considers themselves pro-choice cannot vote to confirm Judge Alito because it is a guaranteed vote to overturn Roe. They also conclude there are plenty of other reasons to reject Alito's nomination to the Supreme Court.
• NARAL sends out a press release calling Judge Alito the "Anti-choice Legal Architect" at the DOJ. Apparently, these new memos show just how hostile Judge Alito is to women and their reproductive rights. Supposedly, he spent years working to dismantle the fundamental protections women have under Roe v. Wade. Nancy Keenan says, "“Samuel Alito's writings reflect a visceral opposition to Roe v. Wade. It is clear that his legal philosophy calls for a calculated strategy to dismantle fundamental constitutional protections for women, including the health exception issue that the Supreme Court is considering right now."