January 31, 2006

The Democrats' Albatross

My op-ed at Townhall.com today:

"Faced with the opportunity to prove their independence from ultra-liberal interest groups, Senate Democrats struck out Tuesday when they voted almost unanimously against the confirmation of Samuel Alito to the Supreme Court. Come November, Democrats will bear the cost at the polls. . . ."

A Preview of Justice Alito

For the last three months we’ve been hearing from Senator Kennedy, PFAW, Knight-Ridder, et al about how Alito is a racist, sexist, homophobe who has never written an opinion in favor of a female or minority in a discrimination lawsuit. Ed Whelan, Stuart Taylor and others have pointed out the flaws and inaccuracies in these statements, but here is another case, filed just today, to add to your list: Jensen v. Potter

The case involves a woman, Anna Jensen, who brought a Title VII lawsuit against her employer, the US Postal Service. The lower court threw out the case, but Alito, for a unanimous three-judge panel, wrote an opinion reversing its decision.

The "little guy" wins this time, because the "little guy" ("little girl"?) has the law on her side, not because she's the more sympathetic party. When are the Democrats going to learn that this is the way the judiciary is supposed to function?

(Thanks to How Appealing for the link.)

State of the Union Stronger With Justice Alito

Once it became clear that Senator Baucus voted "yes" for Justice Alito, before he voted "no" on Justice Alito's confirmation, the final tally for Justice Alito's confirmation is 58-43.

Fidelis pointed out in its press release HERE that this is President Bush's greatest domestic victory to date.

The fallout for the Left is significant and I would not be surprised if a shakeup happens either within the Senate Democrat Caucus or the DNC before the election cycle gets into high gear.

Alito Confirmed 58-42

The final Senate vote, as reported by C-SPAN, is as follows:

Alexander (TN)YAkaka (HI) N
Allard (CO) YBaucus (MT) N
Allen (VA) YBayh (IN) N
Bennett (UT) YBiden (DE) N
Bond (MO) YBingaman (NM) N
Brownback (KS) YBoxer (CA) N
Bunning (KY) YByrd (WV) Y
Burns (MT) YCantwell (WA) N
Burr (NC) YCarper (DE) N
Chafee (RI) NClinton (NY) N
Chambliss (GA) YConrad (ND) Y
Coburn (OK) YDayton (MN) N
Cochran (MS) YDodd (CT) N
Coleman (MN) YDorgan (ND) N
Collins (ME) YDurbin (IL) N
Cornyn (TX) YFeingold (WI) N
Craig (ID) YFeinstein (CA) N
Crapo (ID) YHarkin (IA) N
DeMint (SC) YInouye (HI) N
DeWine (OH) YJohnson (SD) Y
Dole (NC) YKennedy (MA) N
Domenici (NM) YKerry (MA) N
Ensign (NV) YKohl (WI) N
Enzi (WY) YLandrieu (LA) N
Frist (TN) YLautenberg (NJ) N
Graham (SC) YLeahy (VT) N
Grassley (IA) YLevin (MI) N
Gregg (NH) YLieberman (CT) N
Hagel (NE) YLincoln (AR) N
Hatch (UT) YMenendez (NJ) N
Hutchison (TX) YMikulski (MD) N
Inhofe (OK) YMurray (WA) N
Isakson (GA) YNelson, Ben (NE) Y
Kyl (AZ) YNelson, Bill (FL) N
Lott (MS) YObama (IL) N
Lugar (IN) YPryor (AR) N
Martinez (FL) YReed, J. (RI) N
McCain (AZ) YReid, H. (NV) N
McConnell (KY) YRockefeller (WV) N
Murkowski (AK) YSalazar (CO) N
Roberts (KS) YSarbanes (MD) N
Santorum (PA) YSchumer (NY) N
Sessions (AL) YStabenow (MI) N
Shelby (AL) YWyden (OR) N
Smith (OR) Y
Snowe (ME) YIndependent
Specter (PA) YJeffords (VT) N
Stevens (AK) Y
Sununu (NH) Y
Talent (MO) Y
Thomas (WY) Y
Thune (SD) Y
Vitter (LA) Y
Voinovich (OH) Y
Warner (VA) Y

January 30, 2006

They're Taking It Well

You know, you can always count on the Angry Left to take embarrassing defeats with grace, class and humility. Here's a sampling of some of the comments on AMERICAblog:

Oh why the f--- bother?BludevlsAdvocate 01.30.06 - 5:44 pm #

I am not giving another cent to the Demopublican party.Anonymous 01.30.06 - 5:47 pm #

WE HAVE BEEN BETRAYED!This is the absolute last straw! I'm gonna go watch some television and eat some nachos.jojo 01.30.06 - 5:52 pm #

Let's leave the union. F---tards.The Raving Badger Homepage 01.30.06 - 5:53 pm #

Be warned, this paves the way for Bush to cancel further elections 'for national security' and for the other two brances of govt let it stick. NEvermind the fact that civil rights are going to get rolled right back to the 19th century and beyond. Pretty soon it will be legal to own pwoplw again, nevermind the endless discrimnination this will bring.AdmNaismith 01.30.06 - 5:53 pm #

It's a very sad day in this Democratic country. Unfortunately, both of my state senators are republicans and Saxby Chamblis is deaf. I have no voice in the senate. It's so sad.Please vote in the Brokeback Mountain Poll if you haven't already done so. Thanks Much!!Billyga 01.30.06 - 6:01 pm #

Senator Cantwell was one of the 17?!?! MY Senator?!?!?! Oh Maria, we hardly knew ye.Oh she is in for a nasty primary...Galactic Dustbin Homepage 01.30.06 - 6:01 pm #

DISILLUSIONED...oh I think so.matt 01.30.06 - 6:12 pm #

oohh. I can't wait 'til some poor Dem sap calls me asking for money! Poor bastard's gonna get an earful!dAVE 01.30.06 - 6:17 pm #

Can we all drop the O'Connor worship now? She was at best a mixed curse. At worst she was the one who voted to make George W. Bush king so he could name her successor. She was a Republican tool, somewhat more pragmatic than the trollish nutzoids who will now vote to overturn all of those swing votes of hers. But she was always one of them.EPT 01.30.06 - 6:20 pm #

My plan was to get out of this sick Fascist Country by July.If I had any shred of doubt about whether I was doing the right thing, well that was just removed. So long America, it was great while it lasted.The Angry Hobbit Homepage 01.30.06 - 6:22 pm #

Great idea! I vote for Paris. The people are obnoxious, the food is fabulous - I'll feel right at home there.Ed Sikov Homepage 01.30.06 - 6:44 pm

Lierberman voted against it!YOU VILE SON OF A B----! TRAITOR!jojo 01.30.06 - 6:25 pm #

IF HARRY REID could NOT keep the caucus together THEN he NEEDS TO BE REPLACED AS WELL. REPUBLICANS have no problem keeping their NAZI CAUCUS together. Again, NO MORE MONEY for Democrats. I HAVE NO REPRESENTATION IN CONGRESS.cowboyNEOK 01.30.06 - 6:29 pm #


On the bright side, tomorrow night's clap-fest for Bush would be a prime target for terrorists. Too bad all the terrorists are Republicans.anonymous 01.30.06 - 6:47 pm #

I say f--- the a------ hick voters in the red states, particularly places like the Dakotas and Nebraska, who by and large show the strongest support for fascists and Demopublicans.TM Conroy 01.30.06 - 6:50 pm #

My God, I can't believe I live in a fascist country. America has gone Nazi. God help us. Wait until the Unitary executive decides not to step down from office.Bubbles 01.30.06 - 6:51 pm #

I give up...f--- this.VS 01.30.06 - 6:35 pm #

Democrats for a Fair Vote

Seventeen Democrats refused to engage in an unprecendented filibuster attempt against a SCOTUS nominee. Whether or not they will vote for Judge Alito they should be commended for at least allowing him a fair up-or-down vote.

Max Baucus (Mont.)
Jeff Bingaman (N.M.)
Robert Byrd (W.Va.)
Maria Cantwell (Wash.)
Thomas Carper (Del.)
Kent Conrad (N.D.)
Byron Dorgan (N.D.)
Daniel Inouye (Hawaii)
Tim Johnson (S.D.)
Herb Kohl (Wis.)
Mary Landrieu (La.)
Joe Lieberman (Conn.)
Blanche Lincoln (Ark.)
Bill Nelson (Fla.)
Ben Nelson (Neb.)
Mark Pryor (Ark.)
Ken Salazar (Colo.)

Barbara Boxer's Callous Disregard of Mrs. Alito's Tears

Boxer just callously dismissed Mrs. Alito breaking down in tears during the hearings, saying (and I paraphrase): "it comes with the territory" and then quickly shifted gears to say how: "More of a story should have been made about the tears of those affected by Judge Alito's rulings."

Just when you think the Left couldn't sink any lower, they defy expectations.

Senator Conrad Voting "Yes" on Judge Alito...

...says "No" to the Kerry/Kennedy Filibuster.

Click here to read Senator Conrad's announcement.

January 27, 2006

Brennan clerks impressed with Alito...

...and they're critical of the alarmism of the Senate Democrats and N.Y. Times editorials, reports the New York Sun. At RedState, "Leon H." observes that the tactic of "Borking" well-qualified nominees like Alito is damaging to the image of the legal profession as well as the courts, and is likely to provoke distaste from much of the bar, conservative or not. (via Taranto)(cross-posted from Point of Law).

Guilt by Innuendo

Do they even pretend to be objective at the New York Times anymore? Today's editorial:

Justice Antonin Scalia certainly has poor judgment when it comes to vacations.
Justice Scalia was apparently unchastened by the criticism of his 2004 duck-hunting excursion with Vice President Dick Cheney, one of that term's most prominent Supreme Court litigants. Last September, he skipped the swearing-in of Chief Justice John Roberts Jr. because of another ethically dubious trip, this time to the posh Ritz-Carlton at the Beaver Creek ski resort in Colorado.
He was there to teach a 10-hour seminar over a couple of days for a conservative group, the Federalist Society. "Nightline" recently reported that the gig had left Justice Scalia plenty of time for tennis, fly-fishing and socializing with seminar participants, some of whom may have business before the Supreme Court. One Federalist Society cocktail reception was sponsored in part by the lobbying and law firm that used to employ Jack Abramoff, Tom DeLay's convicted pal and benefactor for golf trips.
Justice Scalia's travel is part of a broader affliction on the federal bench. The Los Angeles Times reported in 2004, for example, that Justice Clarence Thomas had accepted thousands of dollars in gifts in recent years, including an $800 leather jacket, a $1,200 set of tires from Nascar and an extravagant vacation from a conservative activist. Federal judges below the Supreme Court level accept dozens of free vacations each year from well-heeled special interests under the guise of "judicial education."
The judicial lobbying problem is more serious in one respect than the scandal enveloping Congress. Lawmakers operate in an overtly political environment, but the decision-making process of judges is supposed to be impermeable to clever efforts by special interests to buy access and favor.
Three Democratic senators with a longstanding concern about this problem — Patrick Leahy of Vermont, Russell Feingold of Wisconsin and John Kerry of Massachusetts — are readying provisions to ban junkets and other compromising gifts for judges, which they hope to make part of their party's lobbying reform proposal. For Congress to pass a lobbying reform bill that curbs inappropriate perks for lawmakers but not for federal judges would be a scandal in itself.

Kerry Snowboards While Filibustering

Fidelis sent out a release late yesterday on Kerry's international filibuster that you can read here.

Charlie Hurt writes about it here today in today's Washington Times.

January 26, 2006

Byrd "Yes" on Alito, Lieberman "No"

More Democrats Get Behind Alito Nomination
Jan 26 2:02 PM US/Eastern

Associated Press Writer

WASHINGTON – Supreme Court nominee Samuel Alito, whose confirmation seems certain in the Republican-run Senate, padded his modest Democratic support Thursday with endorsements by Sens. Robert Byrd and Tim Johnson.

Alito already was assured the votes of the 55 Republicans in the 100- member chamber –enough to be put over the top – when West Virginia's Byrd and Johnson of South Dakota joined Nebraska's Ben Nelson in saying they'll vote yes.

Alito would become the nation's 110th justice, replacing retiring Justice Sandra Day O'Connor. Throughout her years on the high court, she often has been a key fifth vote on contentious social issues including abortion, affirmative action and the death penalty.

"I am troubled by Judge Alito's apparent views on matters such as executive power, his past opposition to the principle of one person, one vote, and his narrow interpretation of certain civil rights laws," Johnson said. "Even so, I cannot accept an argument that his views are so radical that the Senate is justified in denying his confirmation."

Johnson and other senators also are advising Democratic leaders against attempting a filibuster, the only chance the minority party would have to stop Alito's confirmation.

"Because we have such a full plate of pressing issues before Congress, a filibuster at this time would be, in my view, very counterproductive," said Sen. Mary Landrieu, D-La., who wants the Senate to concentrate on Hurricane Katrina rebuilding programs.

President Bush praised Alito during a news conference Thursday. "He understands the role of a judge is not to advance a personal and political agenda," Bush said. "He is a decent man. He's got a lot of experience and he deserves an up or down vote in the Senate."

The confirmation debate on the Senate floor continued Thursday, but Republicans and the White House are so confident that Alito will be approved by the Senate that they've already started congratulating him and sending up new lower-court nominations for senators to consider.

A few hours after senators started debating his nomination Wednesday, Alito met with Senate Majority Leader Bill Frist, Majority Whip Mitch McConnell and Judiciary Committee Chairman Arlen Specter in a U.S. Capitol room that directly faces the neighboring Supreme Court.

The conservative judge shook their hands and joked with the Republican leaders and thanked them for their efforts. Alito, who had met privately with more than 80 senators since Bush nominated him in October, also thanked "all of the senators who supported me and were kind enough to meet with me."

The 100-member Senate is expected to confirm the 55-year-old judge from the 3rd U.S. Circuit Court of Appeals in Philadelphia before Bush's State of the Union address on Tuesday.

Democrats continued to warn that Alito's nomination would put individual rights and liberties in danger. Sen. Dianne Feinstein, D- Calif., the only woman on the Senate Judiciary Committee, said Alito will join justices Clarence Thomas and Antonin Scalia in the court's conservative wing and apply "originalist" interpretations to court decisions.

"If an originalist analysis was applied to the Fourteenth Amendment, women would not be provided equal protection under the Constitution, interracial marriages could be outlawed, schools could still be segregated and the principle of one man, one vote would not govern the way we elect our representatives," Feinstein said.

Even though Democrats like Landrieu and Ken Salazar of Colorado won't support a filibuster, that doesn't mean that liberals aren't working to get the largest vote against Alito possible.

Twenty-nine senators – including Democratic Sens. Blanche Lincoln, Carl Levin, Daniel Inouye, Joesph Lieberman and Jeff Bingaman as well as independent Sen. Jim Jeffords of Vermont – have said they will vote against Alito. Twenty-two Democrats voted against conservative Chief Justice John Roberts last year.

If the pattern continues, Alito may be on his way to the most partisan Senate victory for a Supreme Court nominee in years. The closest vote in modern history is Justice Clarence Thomas' 52-48 victory in 1991, when 11 Democrats broke with their party and voted for President George H.W. Bush's nominee.

Senator Tim Johnson Voting for Alito and Will Fight Filibuster

Johnson to Vote for Alito

WASHINGTON (AP) South Dakota Sen. Tim Johnson said Thursday that he will vote for Supreme Court nominee Samuel Alito, making him the second Democrat to support the judge.

``It does appear his legal skills are excellent and he is a person of integrity, and I do believe it can't be said that his legal viewpoint is outside the mainstream of contemporary jurisprudence,'' Johnson told the Associated Press. ``It was somewhat of a close call for me.''

Still, he said the conservative federal appeals court judge would not have been his pick for the Supreme Court, adding that his deliberation over Alito was more difficult than his decision to support Chief Justice John Roberts last fall.

``I am troubled by Judge Alitos apparent views on matters such as executive power, his past opposition to the principle of one person, one vote, and his narrow interpretation of certain civil rights laws,'' Johnson said. ``Even so, I cannot accept an argument that his views are so radical that the Senate is justified in denying his confirmation.''

He said he would fight any effort by Democrats to filibuster Alito's nomination.

Without a filibuster, Alito will be confirmed as the replacement for retiring Justice Sandra Day O'Connor, who throughout her years on the high court often has been a key fifth vote on contentious social issues including abortion, affirmative action and the death penalty. Alito already has majority support in the Senate, with more than 50 Republicans already publicly supporting his confirmation.

Ben Nelson of Nebraska is the only other Senate Democrat to say he will support Alito. South Dakota's other senator, Republican John Thune, has also said he will support the judge.

January 25, 2006

Getting it straight.

One of the more egregious distortions from today’s Alito floor statements:

    Sen. Bill Nelson (D-FL): “I explained how a recent Supreme Court decision has frightened many of our constituents who fear that their homes can now be seized by the government to make way for a private developer's project. And while he expressed sympathy for the parties whose homes had been seized in this personal meeting with him he offered no misgivings about the legal reasoning that led to that outcome.”

    Response: Hellooo? It was the court’s LIBERAL BLOC that made that decision! If Alito is anywhere close to the court’s conservative axis, he will likely favor STRONGER property rights.
And one of the better clarifications:

    Sen. Orrin Hatch (R-UT): “At Judge Alito's hearing, the senator from New York cited a few cases in which colleagues disagreed with how he treated the court's prior decisions…. What the senator from New York never said was that Judge Alito dissented in just 79 of the more than 5,000 cases in which he participated. Seventy-nine. That's a rate below the average for appeals court judges around the country. Something else the senator from New York has not revealed is that Judge Alito has voted to overturn his own court's precedents just four times in his whole 15 years on the bench. Just four times. And in each of those cases in which all the judges of the circuit participate, judge Alito is in the majority and two of them were unanimous. In each of those cases, he was in the majority and two of them had a unanimous majority.”

Is referencing the ABA such a wise move by Republicans?

Dumbest judicial ethics story ever

ABC News "Nightline" is strongly in contention for that honor with its breathless Brian Ross investigative report on Justice Scalia's Federalist Society appearance. A general hail of dead cats has descended on ABC from commentators including, among others: Tom Goldstein, SCOTUSblog; Mike Cernovich, and again at more length; Orin Kerr; Sean Sirrine, Objective Justice; Ed Brayton; and Bill Nienhuis.

Don't just blame ABC, though. Blame lawprof Stephen Gillers, who was much relied on by Ross in his report, and who's enjoyed a status in much of the press for years -- a quite inexplicable status, as this episode shows -- as the go-to guy on legal ethics. (cross-posted, and slightly shortened, from Point of Law). P.S. The Federalist Society's letter in response is here in PDF format.

January 24, 2006

Who’s Out of the Mainstream?

Ever since Judge Samuel Alito was nominated to the Supreme Court, the Committee for Justice has been hammering away on the theme that it is the ultra-liberal anti-Alito coalition – led by People for the American Way – rather than Judge Alito, that is out of the mainstream. We have emphasized their agenda, their dilemma, and their motivation for attacking Alito:

“They want to take God out of the Pledge of Allegiance and are fighting to redefine traditional marriage.”CFJ’s Nov. ’05 TV ad

“These groups realize that, because their views are out of the mainstream, their agendas cannot be implemented through democratic means such as legislation and ballot initiatives.”CFJ’s Dec. ’05 report

“Judge Alito believes judges should faithfully interpret the law, not advance political agendas. That's why the liberals are desperately trying to stop Judge Alito's confirmation to the Supreme Court.”CFJ’s Dec. ’05 radio ad

It’s gratifying to notice that these themes have taken hold and become a major part of the debate over Judge Alito. The latest examples are found in statements by senators at today’s session of the Judiciary Committee:

“Judge Alito is closer to the mainstream of America than [People for the]
American Way.”
– Sen. Graham (R – SC)

“They favor things like an end to traditional marriage between one man and one woman, continuation of the barbaric practice of partial- birth abortion, and abolition of the Pledge of Allegiance. Judge Alito's detractors oppose this nomination because he will not go along with this agenda.” – Sen. Cornyn (R – TX)

“. . . the system of judicial activism that some political interests favor so that they can achieve their agenda through the courts rather than through the elected representatives. . . . The reason why so many senators and the political interests to which they cater will not support Judge Alito is that they cannot support the kind of limited judiciary that he represents.” – Sen. Hatch (R – UT)

Fed Soc responds to ABC.

Human Events is reporting the Federalist Society has responded to ABC News's slam on Justice Scalia.


Why does “balance on the court” only matter to the media when conservatives are concerned?

Covering Roe.

Reporters: Please get it right when discussing Roe v. Wade -- reversing Roe would NOT “outlaw abortion,” as Chris Matthews just said on Hardball. Rather, the issue would revert to the states, where polling indicates that around 45 states would probably keep it legal in some form.

Time’s Karen Tumulty does a better job.

ABC News "hit piece" on Justices Scalia and Thomas

ABC News has this amazing "hit piece" on Justices Scalia and Thomas. The piece starts out going after Scalia for missing Justice Roberts swearing in ceremony because of a prior appointment in Colorado. If that weren't horrible enought, Scalia was addressing a Federalist Society Conference. And then horrors of horrors: "One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked." The piece then goes on to note that five Justices have received gifts, but they only mention those received by Thomas. (None of this last point is new.)

I guess that have a hard time believing that anyone takes these attacks seriously. He had a prior engagement so he missed the swearing in. I assume that Scalia sent Roberts a note apologizing, and that Roberts said no big deal. So someone attended a cocktail party? Scalia probably doesn't even know who paid for the meal, but for a couple of shrimp is Scalia going to change his position on a case?

Anti-Roe classic.

At confirmthem.com, Tim Carney has posted John Hart Ely's classic, "The Wages of Crying Wolf," on Roe v. Wade.

Alito vote tally.

Senator Graham Gets It

I listened to some of the Democrats’ speeches today before the Judiciary Committee and I can’t help but think of that great American philosopher, Yogi Berra, when he said, “It’s like déjà vu all over again.” Again and again Democratic Senators repeated the same old tired talking points, distortions and accusations that they’ve been trotting out before the public for the last several months. I did notice that they’ve stopped talking about Vanguard or CAP. I guess they figure they’ve embarrassed themselves enough with those non-issues.

One Senator who did I felt did bring up a number of excellent points and really got to the crux of the problem with the judicial selection process was Senator Graham. Here is part of his statement:

“[T]o long for the good ol' days of the united nation under President Clinton is…rewriting history. I don't remember it being that united. I remember it being pretty contentious…What's changed? It's not the quality of the nominees; it's the quality of the process.
To my friend, Senator Feinstein, from a pro-life point of view, Justice Ginsburg replaced a vote on Roe v. Wade. Justice Byron White voted against Roe v. Wade. We knew that would be a change... [But we] decided not to make our vote dependent upon Roe v. Wade. Every Democratic nominee that I can remember has openly campaigned on the idea that, ‘If I get to make a Supreme Court choice, I will make sure it will be a judge who will honor Roe v. Wade.’ There is no hiding that; that's said at the convention…

I really do worry that we're going to take the Supreme Court nominating process and boil it down to abortion. And that won't be good for the country, but that's definitely the direction we're headed.

And let me tell you another thing that's not good for the country. With little chance of stopping Judge Alito confirmation to the Supreme Court, Senate Democratic leaders urged their members Tuesday to vote against him in an effort to lay the groundwork for making a campaign issue of the decisions on the court.

I'll just tell you right now we welcome that debate on our side. We'll clean your clock. I mean, Judge Alito is closer to the mainstream of America than [People] for the American Way. We'll win that debate, but the judiciary will lose…

Why did seven judges who served on the 3rd Circuit come to his aid? How do you ignore that? How could someone who is that hard- hearted, that bent on ignoring the law and following a narrow agenda, get a well-qualified rating after thousands of cases have been analyzed by the American Bar Association?...

Professor Michael Gerhardt, who's an adviser to our Democratic friends about the confirmation process, wrote, ‘The Constitution establishes a presumption of confirmation that works to the advantage of the president and his nominee. Furthermore, once a nomination is made, it is likely, by virtue of having been formally made by the president of the United States, to be clothed with an aura of respectability, credibility and presumptive merit unless a critical mass of senators can show otherwise…’

We're no longer advising and consenting. We're jockeying for the next election. And over time we'll erode the quality of the judiciary.”

January 23, 2006

Time to Vote Senators!

President Bush’s nomination of Judge Samuel Alito was formally received by the U.S. Senate on November 10, 2005, therefore, even if the full Senate voted on his nomination this Wednesday (the earliest possible day they could), the number of days between the nomination being received and the final action by the Senate would be 77. How does this compare with the past SCOTUS nominations?

Median number of days from between date received in the Senate and final action, 1789-2005: 10

Median number of days from between date received in the Senate and final action, 1789-1966: 7

Median number of days from between date received in the Senate and final action, 1967-2005: 67

Obviously (and unfortunately), the judicial nomination process has become much more politicized since 1967. However, even by that standard, the Senate is already ten days past the median.

Senators, it’s time to give Judge Samuel A. Alito, Jr. an up-or-down vote!

Source: Congressional Research Service Report for Congress, “Supreme Court Nominations, 1789 – 2005: Actions by the Senate, the Judiciary Committee, and the President,” January 5, 2006

So when did this standard of maintaining the Supreme Court's balance start?

Today in OpinionJournal's Political Diary, John Fund writes:

. . . . But in 1993, when President Bill Clinton nominated former ACLU attorney Ruth Bader Ginsburg to fill the seat of retiring Justice Byron White, a conservative, there was no such wringing of hands about an impending ideological shift on the court.

An analysis by David Boaz of the Cato Institute found that major newspapers used the phrase "shift the court" 36 times in covering the Alito nomination. They referred to changes in the "balance" of the court another 31 times and used the phrase "shift to the right" 18 times.

By way of contrast, not a single major newspaper used any of those phrases when the Senate considered the Ginsburg nomination, though her appointment would clearly change the ideological makeup of the Court. Ms. Ginsburg was a noted liberal, while Justice White had voted in the minority in such key liberal decisions as Roe v. Wade and the Miranda ruling. He also wrote the majority opinion in Bowers v. Hardwick, the 1986 case that upheld the constitutionality of laws against homosexuality in some states. That decision was later overturned in the Lawrence case by a Supreme Court that included Justice Ginsburg. Indeed, the libertarian Institute for Justice has concluded that Justice Ginsburg is the most consistently liberal justice sitting on the Supreme Court today. . . .

It's Showtime

Constitutional scholar Alan Dershowitz of Harvard Law School offers his thoughts regarding the Senate Judiciary Committee's apparent failure "to elicit much useful information from [Judge] Alito."

Contrary to what some may think, the main source of the problem isn't an "evasive" Judge Alito. As Professor Dershowitz notes, "the real trouble with the hearings is some of the senators themselves." Indeed, Professor Dershowitz observes that "too many senators view the hearings as a campaign opportunity instead of as a confirmation hearing":
For example, Sen. Joseph Biden (D-Del.), the first announced presidential candidate of the 2008 campaign, spent more than two-thirds of his first 30-minute "questioning" session talking about himself.
Well, isn't that special: the person who called the Roberts hearings a "Kabuki Dance" is himself responsible for ensuring the hearings are "political theater" rather than a meaningful exercise.

Relatedly, one mustn't forget this delightful post from Wonkette:
The NY Times reports today that NY senator Chuck Schumer was so concerned about his performance at today's confirmations hears for John Roberts, he "held a mock hearing in his office on Sunday, with a Harvard law professor playing Judge Roberts." You can't even keep the man away from fake cameras.

New York Times editorial on Judge Alito

In an editorial today titled "Judge Alito's Radical Views," The New York Times reached its unsurprising conclusion that Judge Samuel Alito should not be confirmed as the next associate justice of the Supreme Court.

According to the Times, Alito "has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law." Alito did advocate a policy of Presidents issuing signing statements during the Reagan administration, and it is far from "outlandish." All three co-equal branches of the federal government have a duty to interpret the Constitution. It seems quite reasonable for a President to provide his own interpretation of the bill and for the courts to weigh his statement accordingly.

The Times also argues: "Judge Alito would also work to reduce Congress's power in other ways. . . . [A]s a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers." This assertion is a bold-faced mischaracterization of the record. During an exchange at the hearings that took place between Alito and Senator Diane Feinstein, the Senator pointed to a statement that Alito wrote while at the Office of Legal Counsel, when he recommended that President Reagan veto an odometer fraud bill because he believed it violated the principles of federalism.

Alito explained that the memo was "primarily expressing . . . [not] an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan administration." Alito never said that Congress did not possess the power to regulate odometers, but rather that it should defer to the states on that issue. The Times's assertion is a gray lie.

The Times also observes: "There is every reason to believe . . . that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights." It may be that these senators do not believe that mere ideological disagreement on a single issue with an otherwise stellar nominee of impeccable reputation is a sufficient basis for rejecting his nomination. This would square with the understanding of the past 200-plus years of judicial confirmation hearings.

The only thing "hard to see" is how anyone to the right of Chuck Schumer would find the Times editorial persuasive.

January 20, 2006

Tim Johnson, Your Constituents Are Calling!

From one group of senators to another: Below is the South Dakota Senate's resolution calling for Senators Thune and Johnson to confirm Judge Alito to SCOTUS (it passed by a vote of 25-9). Thune has already announced his support for Alito, now it's Senator Johnson's turn. We hope that Senator Johnson will show the same good judgment and political indepedence from the left-wing of the Democratic party as when he voted to confirm Chief Justice Roberts.

SR No. 1 Page 1

A RESOLUTION, Supporting the nomination of Judge Samuel Alito to the Supreme Court of the United States.

WHEREAS, Judge Samuel Alito is exceptionally well-qualified and has proven on the bench that he possesses the temperament, integrity, impartiality, and sound legal judgment necessary for a Supreme Court justice; and

WHEREAS, Judge Samuel Alito has a history of ruling based upon the established rule of law and the specific facts of the cases before him; and

WHEREAS, Judge Samuel Alito has extensive experience in the Supreme Court, having argued twelve cases before the Supreme Court; and

WHEREAS, Judge Samuel Alito served as an editor on the Yale Law Journal, and after graduation was selected for a clerkship with Judge Leonard Garth of the Third Circuit; and

WHEREAS, Judge Samuel Alito has a long and distinguished legal career while serving as an Assistant U.S. Attorney, an Assistant to the Solicitor General, a Deputy Assistant Attorney in the Office of Legal Counsel, a U.S. Attorney, and a federal judge; and

WHEREAS, Judge Samuel Alito was unanimously confirmed by the United States Senate to the Third Circuit Court of Appeals in 1990 and has served for the past fifteen years as a federal judge with honor and distinction; and

WHEREAS, the protracted political battles over qualified candidates and attacks on candidates based on misleading allegations need to be controlled, as they demean the federal judiciary and deter otherwise qualified candidates from participating:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Eighty-first Legislature of the State of South Dakota, that the Senate supports the nomination of Judge Samuel Alito to the United States Supreme Court, and encourages Senators Tim Johnson and John Thune to support this nominee.
Dennis Daugaard
President of the Senate
Patricia Adam
Secretary of the Senate

One last smear from Kennedy

Drudge is reporting that Ted Kennedy's version of Luca Brasi, Jim Flug, is making one last sad attempt to undermine Judge Alito's nomination with guess what? Another smear job.

When are these guys going to learn?

January 19, 2006

Filibuster Theory Unconvincing

The news that Sen. Max Baucus (D – MT) will vote against Judge Alito and that Sen. Ken Salazar (D – CO) will almost surely follow suit, along with Sen. Durbin’s (D – IL) comments on the filibuster today at Northwestern Law School, has some people bringing up the f-word again. The most thorough analysis by those who see a filibuster against Alito as a real possibility is by Leon H at RedState.com. He believes that if Minority Leader Harry Reid (D – NV) “plays his cards right, he can make the GOP pay for it,” and concludes that “I can't see how a filibuster doesn't make tactical sense for the Democrats at this point, given the current political landscape.” While Leon’s analysis is intriguing, I must say I find it unconvincing.

As Leon points out, there are two possible scenarios if the Democrats take the filibuster route. One is that cloture is invoked by 60 senators, such that the constitutional option is never used. Under that scenario, the Democrats don’t risk losing the filibuster for future nominees. But what do Senate Democrats gain? Leon mentions only one possible advantage for Reid and company, namely:

“pressure on Lincoln Chafee, who is facing a very uphill battle in Rhode Island. Chafee is balancing on such a thin wire right now that a vote either way might very well doom his chances in the general election – a vote FOR cloture would be damaging with Rhode Island's overwhelmingly Democrat general election voters. If he votes no, that may well be the final straw that provokes GOP primary voters to kick him to the curb.”

He concludes that, therefore, “[Reid] can significantly tilt the playing field in at least one critical race in '06, basically for free.” But Leon seems to be ignoring the fact that Sen. Chafee faces the same dilemma on the final floor vote, even if there is no filibuster attempt. In fact, Chafee’s alleged bind is worse at that point, because he can’t rest a pro-Alito vote on the principle that nominees deserve an up-or-down vote, something many Democratic voters agree with. Chafee might even welcome a cloture vote as a chance to split the difference – that is, appeal to Rhode Island Republicans with a vote for closure and to the state’s Democrats with a final vote against Alito.

Under the other possible scenario, cloture fails and the constitutional option is successfully invoked (Leon concedes that the 50 votes necessary for success are in the bag). In that case, Leon sees several benefits for the Democrats:

1) “[Reid] buys at least a week of delay in the process.”

Big deal. The extra week will do the Democrats as much good as the current week-long delay, and will distract the party from battles they can win.

2) “[Reid] may be able to keep Alito off the court for the entire term.”

Again, big deal. Half a term without Alito is a drop in the bucket compared to the next 25 terms with Alito on the Court. That’s all the more true given that Roe v. Wade is safe for the remainder of this term.

3) “forcing a vote on the Constitutional Option would provide great fodder for Sherrod Brown and Bob Casey in October television ads.”

“Great” is an overstatement at best, especially given that the Alito battle will be over in plenty of time for its relevance to voters to fade by October. If I’m wrong about that, it just means that the Republican incumbents in these races, Sens. DeWine (D – OH) and Santorum (R – PA), can run against the obstructionist tactics of the filibustering minority party. In any case, great TV ads seem like a very high price to pay for losing the option to filibuster future nominees, Sen. Reid’s dreams of winning back the Senate in November notwithstanding.

In addition to exaggerating the “damage” to Republicans, Leon ignores the harm to the Democrats’ image if they filibuster Alito. Under either scenario, Senate Democrats look like obstructionists and in a much higher visibility setting than the battle over circuit court nominees. Also, under either scenario, the Democrats ultimately lose. Fighting to the last might make the Democratic Party faithful happy. However, huffing and puffing then striking out will not present an attractive image to swing voters. Since the Democrats can’t stop Alito, it makes much more sense for them to look somewhat bipartisan, as they did with Roberts.

Kennedy and His Discredited "Evidence"

One of the more annoying things about Ted Kennedy’s speech today is that he continued to refer to discredited “studies” done by various left-wing interest groups, professors and media sources.

First, he mentioned a study done by “law professors at Judge Alito’s alma mater, Yale Law School.” What Senator Kennedy fails to mention was that this “study” was done by a group of hard left liberal Yale Law professors and students who call themselves “The Alito Project.” Ed Whelan eviscerates their drivel here and here. From what I can see, their report is little more than a rehash of the preliminary PFAW report on Alito with the Yale Law School name attached to it.

Kennedy also brings up the Cass Sunstein study, as he did during the hearings. Byron York did a wonderful job on NRO last week discussing why this study can not be used by any serious person to evaluate Alito’s record. Key quote:

“Even further, Sunstein said that he had employed ‘a high degree of discretion’in analyzing Alito's work. ‘A preliminary analysis suggests two points,' Sunstein wrote. ‘First, Judge Alito's opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law.’… Sunstein concluded with two more disclaimers. First, he said he was not saying whether Alito should be confirmed or not. And second, he said his findings must be regarded ‘as tentative and preliminary.’(emphasis added)
Finally, we come to the ridiculously biased Knight-Ridder article which Kennedy called “a comprehensive review of Judge Alito’s published opinions.” Co-author Stephen Henderson was unable to competently defend the article on Hugh Hewitt’s radio program and Stuart Taylor mentioned it by name in an article on distortions of Judge Alito’s record in the media. Here’s Taylor’s take:

“I focus here not on the consistently mindless liberal hysteria of the New York Times' editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito's more than 300 judicial opinions, ‘we didn't find a single case in which Judge Alito sided with African-Americans ... [who were] alleging racial bias.’ This, Henderson added, is ‘rather remarkable.’
What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the highly misleading claim that in 15 years as a judge, Alito has sought ‘to weave a conservative legal agenda into the fabric of the nation's laws,’ including ‘a standard higher than the Supreme Court requires’ for proving job discrimination.”(emphasis added)
A former Alito clerk, and proud liberal Democrat, Jeffrey Wasserstein also slammed the Knight-Ridder article in an op-ed soon after its publication. Our own Curt Levey also blogged on this bit of “results-oriented journalism” here.

Yet despite all of this, Kennedy continues to refer to the Knight-Ridder article and other discredited studies to support his accusations.

Leahy and Kennedy Yawners

Below, Curt Levey has ably reviewed the Leahy speech, but I just want to quickly give my general impressions on both Leahy’s speech and the Ted Kennedy speech at the Center for American Progress this afternoon.

First, in terms of substance (and also in style), they were both complete yawners. Neither Senator had anything really new to say, although Leahy’s comparison of President Bush exercising his authority and duty to appoint federal judges to FDR’s court-packing plan was perhaps the most laughable charge to come out of this whole process.

Kennedy simply reiterated many of the same baseless charges the Democrats have been making for months, though he (like Leahy) notably left out any mention of Vanguard, CAP or Rybar. I guess the first two issues have already brought the Democrats enough embarrassment, and the latter shows them to be hypocrites when it comes to the “Alito-only-rules-for-the-big-guy” argument, since in that case, Alito did rule for the little guy. It’s just that that particular “little guy” was a gun-owner, and therefore not a politically correct little guy.

One thing interesting about both speeches was the lack of reporters at either of them. It seems the media has better things to do then listen to Democrats repeat the same nonsense they’ve been saying for the last three months. All that’s left now is to see how many red-state Democrats are willing to ignore the will of their constituents and take orders from Ralph Neas, Nan Aron and company.

Leahy Gets Nasty

No one is surprised that Sen. Leahy (D - VT) just announced his intention to vote against Judge Alito. But in his accompanying speech at Georgetown University, Leahy sunk to a level of mean-spiritedness usually reserved for his fellow senator from Massachusetts. Here are a few examples:

Leahy called Judge Alito's talk in November 2000 before the Federalist Society Convention – including his remarks on the unitary executive theory –an "audition" for a Supreme Court nomination that "appeared to work, reminded those advising the new president that they had a known quantity in Samuel Alito." Of course, Leahy completely distorted the meaning of the theory by equating it with unlimited presidential power, a very popular Democratic "mistake" of late (the theory says only that the president controls all the executive power that is granted by the Constitution).

Leahy went on to say that the President nominated Judge Alito because he was assured – by Alito's speeches, record, and White House interviews – that Alito would be a rubber stamp for presidential power. Leahy compared this to FDR's court-packing scheme. Leahy concluded that "I asked Judge Alito to demonstrate his independence [from] the president and he failed that test."

Leahy then ridiculed Judge Alito's story, in his opening statement at the hearings, about "How in the world did I get here?" "How did I get here? I got a pretty good idea," Leahy said.

Leahy also accused Judge Alito of misstating Justice Jackson's famous framework for when presidential power is at its highest and lowest, given Congressional action on the issue in question. In fact, Alito's explanation of the framework at the hearings was not only accurate, but clear and articulate enough for my non-lawyer friends to understand.

I can only imagine what Sen. Kennedy will have to say when he announces his vote this afternoon.

January 18, 2006

Jay Leno on the Alito Hearing

Leno: "Senator Ted Kennedy announced that he and his dog Splash are writing a children's book. Is Splash the best name for Ted Kennedy's dog? Isn't that a bit like Jack Abramoff naming his dog Bribe? ... Have you watched any of these confirmation hearings for Supreme Court nominee Sam Alito? Senators are given thirty minutes to question the guy: thirty minutes exactly. Senator Joe Biden's question took 23 1/2 minutes. And Alito is smart. He's brilliant. Do you know what he said? "I'm sorry, could you repeat the question?" ... Ted Kennedy got pretty contentious, after he pointed out that Alito once belonged to a club that didn't allow women, it was discovered that Senator Kennedy also once belonged to a club that wouldn't allow women. Of course, with Kennedy those were club rules in place purely for the safety of women. ... Ted Kennedy questioned Judge Alito's integrity when Alito was at Princeton. As you may know, Kennedy was kicked out of Harvard for cheating. So when it comes to questionable integrity in college he knows what he is talking about."

January 17, 2006

CAP article a parody?

At Volokh, Todd Zywicki discovers that the passage read aloud from the Concerned Alumni of Princeton's magazine by Sen. Kennedy may have been... a parody.

Poor Ted.

Senator Ted Kennedy belongs to All Male club

This article is quite funny, especially these statements: "Kennedy admitted to Hiller that he himself probably couldn’t pass Judiciary Committee muster" or “I’m not a member; I continue to pay about $100.”

    U.S. Sen. Edward M. Kennedy — who ripped Supreme Court nominee Samuel Alito for ties to a group that discriminates against women — says he’s going to quit a club notorious for discriminating against women “as fast as I can.”

    Kennedy was outed by conservatives late last week as a current member of The Owl Club, a social club for Harvard alumni that bans women from membership.

    In an interview with WHDH Channel 7’s Andy Hiller that aired last night, Kennedy said, “I joined when I . . . 52 years ago, I was a member of the Owl Club, which was basically a fraternal organization.”

    Asked by Hiller whether he is still a member, Kennedy said, “I’m not a member; I continue to pay about $100.”

    He then said of being a member in a club that discriminates against women, “I shouldn’t be and I’m going to get out of it as fast as I can.”

    The Harvard Crimson reports that, in 1984, the university severed ties with clubs like the Owl, citing a federal law championed by Kennedy.

    Meanwhile, Kennedy admitted to Hiller that he himself probably couldn’t pass Judiciary Committee muster.

    “Probably not . . . probably not,” Kennedy said. . . .

January 16, 2006

Statement of the Senate Judiciary Committee on the Delay of Judge Alito’s Committee Vote

You know its the 2006 election year in Washington when.....

"The Democrats have elected to delay the Executive Committee meeting on Judge Samuel Alito from the Chairman's scheduled date of January 17th. The Chairman has now scheduled an executive business meeting for Tuesday, January 24th at 9:30 AM with the expectation that floor debate will begin no later than January 25th."

January 15, 2006

A Trend?

Kudos to Sen. Dianne Feinstein (D - CA) for expressing, on Face The Nation today, exactly the attitude that all liberal Democratic senators should have: "This might be a man I disagree with, but it doesn't mean he shouldn't be on the Court." Given the similar sentiments in today's Washington Post editorial, a trend may be emerging.

January 14, 2006

Get Over It

Although the Washington Post finds Judge Alito's record "troubling" in various areas, its editorial supporting his confirmation make some great points:

"A Supreme Court nomination isn't a forum to refight a presidential election." In other words, Democrats, you lost in 2004, so get over it.

"The president's choice is due deference – the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president." And the same deference that Republican senators showed to Ruth Bader Ginsburg, who was confirmed 96 to 3.

"The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically." Apparently, even the Post has had enough of judicial activism.

"Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law -- which is repugnant to the ideal of the rule of law." So shame on you Judiciary Committee Democrats if you all vote against Alito, as many observers predict.

January 13, 2006

Affirmative Action and Baseball

During his testimony today against Judge Alito, Ted Shaw, President of the NAACP Legal Defense and Educational Fund, brought up yet another baseball analogy – this one a quote about Hank Aaron and affirmative action that is attributed to Judge Alito. Actually, the quote is from the Reagan administration's Supreme Court brief in Wygant v. Jackson Board of Education (1986), a brief that Samuel Alito helped write while working in the solicitor general's office. The brief, which opposed a layoff system favoring minority teachers, argued that "Henry Aaron would not be regarded as the all-time home run king, and he would not have been a model for youth, if the fences had been moved in whenever he came to the plate." Shaw took issue with the analogy, saying it "reflects a fundamental misunderstanding about affirmative action." "It's not about asking that the fences be moved in. It's about asking about an opportunity to take the field," he said.

There may be affirmative action programs that can, at least charitably, be described as doing nothing more than leveling the playing field. But Ted Shaw knows full well that affirmative action programs often involve massive racial preferences akin to moving the fences nearly all the way to the infield, because he has been at the forefront of efforts to defend such programs. A recent example is Shaw's defense of the University of Michigan's race-based admissions system, the subject of a pair of 2003 Supreme Court cases discussed below. Under UM's point-based undergraduate admissions system, minority applicants received a 20-point bonus, the equivalent of a full grade point. By comparison, applicants could receive one point for an outstanding essay and five points for the highest level of personal achievement. The racial preferences in UM Law School's admissions system were equally massive, though less transparent. In both cases, black, Hispanic, and Native American applicants with B-averages were treated as equal to white and Asian applicants with A-averages. Now, if that’s not moving the fences in, what is??

January 12, 2006

Alito on Diversity

Kudos to Judge Alito for his handling of Sen. Feingold's (D - WI) questions today about Grutter v. Bollinger, the 2003 Supreme Court decision which held that diversity was a "compelling interest" and, therefore, could justify the University of Michigan Law School's racial admissions preferences. Feingold pressed Alito about whether he thought "diversity in the classroom is a compelling state interest," but Alito's reply was as measured as it was for questions about Roe v. Wade. His answer to Feingold was simply "It's a precedent." His answer was of special interest to me, because I was on the losing side of Grutter while working as part of the Center for Individual Rights team that represented the plaintiffs in that case and the companion case of Gratz v. Bollinger.

Even better was Alito's recounting of how diversity "made an enormous contribution" to the law school seminar he taught on civil liberties and terrorism. Of the four examples of diversity he gave, only one involved race or ethnicity. The other three involved viewpoints, personal experiences, and job experience. Schools may not understand that diversity is more than skin deep, and courts may pay little more than lip service to the concept, but Judge Alito's seminar story subtly but effectively made the point.

Finally, for the record, Sen. Feingold was incorrect when he stated that "in Gratz and Grutter, seven of the nine justices – all but Justices Scalia and Thomas – reaffirmed . . . that the state has a compelling interest in promoting diversity in the classroom." The truth is that Chief Justice Rehnquist did nothing of the sort. He took no position on the compelling interest issue.

Senator Feinstein Goes Shopping

Just prior to the outside witness testimony beginning, I was at the Senate gift shop between Hart and Dirksen to purchase a small toy for my baby girl.

Who was in there working hard to prepare for oustide witness testimony? None other than Senator Diane Feinstein (D-CA).

She either escaped the clutches of the Left wing groups, or wasn't taking the Alito hearings very seriously and went shopping instead.

Yet another comical episode from the week of the Alito hearings.

As an aside, Senator Feinstein purchased two puzzles.

Three must-reads.

First, CFJ chairman Spence Abraham has a piece at NRO today analyzing the anti-Alito coalition's policy views.

Second, Charlie Hurt of The Washington Times points out that Sen. Ted "Defender of Women and Minorities" Kennedy is a member of an exclusive, all-male club for Harvard alumni, The Owl Club.

Third, The Economist evicerates Senate Democrats, starting with the aformentioned nan of the people.

Setting a Bad Example

Goodwin Liu, an assistant professor at UC Berkeley’s law school, testified against Judge Alito late this afternoon. After explaining that his study of Alito’s judicial record found that the judge almost always sides with the government, Liu announced that he would give three examples. His first – and undoubtedly, in his mind, best – example was Garner v. Memphis Police Dept., a fleeing felon case. Alito’s critics love this case, because it involves the fatal shooting of an eight-grader. But the case is irrelevant to Liu’s analysis of Alito’s judicial record, because Alito never heard the case as a judge. Instead, he wrote a memo about the case while working for the solicitor general's office, long before becoming a judge. In addition, the memo is not easily characterized as pro-government, because Alito recommended against asking the Supreme Court to reverse the Sixth Circuit’s decision, which struck down the Tennessee "fleeing felon" statute that authorized the shooting.

I suppose when your goal is to paint the nominee as a jack-booted thug, minor details (like Alito’s recommendation and the fact that it wasn’t part of his judicial record) are mere distractions. But Alito supporters take heart. If the Left’s current best example of why Alito is a pro-government judge is a memo he wrote long before becoming a judge, that line of attack must really be floundering.

Kennedy vs. freedom of association

Via Taranto, here's TigerHawk posing a pertinent question regarding Sen. Kennedy's demand that the Senate subpoena the private papers of former National Review publisher William Rusher, a founder of Concerned Alumni of Princeton, in search of dirt about Alito's possible ties to the conservative group (details: S.F. Chronicle, Daily Princetonian):

Senator Kennedy took the scary position that it was just and appropriate for the Congress to extract by coercion the private, internal records of a political advocacy group just because it was considering the nomination of a person who had once been a member of that organization.To understand how weird this is, consider the following "thought experiment": If the next Democratic SCOTUS nominee once belonged to the American Civil Liberties Union (as Ruth Bader Ginsburg actually did) and, say, Sam Brownback proposed issuing a subpoena for the "records" of the ACLU to help him "understand" the nominee's testimony, what do you imagine the reaction of the mainstream media might be? The implications of Senator Kennedy's demand for freedom of speech and association are appalling. Where's the outrage?

(cross-posted at Point of Law)

It Takes One to Know One

TV producer George Schlatter was just on Neil Cavuto’s show on FOX explaining his theory behind the unfortunate incident in which Mrs. Alito was reduced to tears while sitting behind her husband at the hearings. According to Schlatter, the incident was staged for the TV cameras. He cited as his number one piece of evidence the allegation that, shortly before but not during the crying incident, Mrs. Alito was being blocked from the cameras’ view by her husband. When Cavuto asked Schlatter whether Mrs. Alito cried on purpose, he backed off a little bit from his theory, but still maintained that the incident was a brilliant piece of media manipulation.

Before you conclude that Schlatter is completely insane, consider that he was probably just guilty of projecting his own history onto the Alitos. You see, Schlatter is no stranger to using TV to subtly advance a political agenda. He was executive producer of the famed TV show Laugh-In, which broke new ground by weaving a liberal political and social agenda into what was otherwise a light-hearted, entertaining comedy show.

On the Government's Wartime Authority

Judge Alito was asked a number of questions regarding the interplay of national security, executive power, and judicial review. Judge Alito noted:
[I]t's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them....

[W]hen situations like [Youngstown Co. v. Sawyer, 343 U.S. 579 (1952)] come up, it is the responsibility of the judiciary to hold fast....

The courts do not have expertise in foreign affairs or in military affairs.... But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court....

I certainly don't think that the president has a blank check in time of war.
Representative exchanges, limited to this area of law, are available here [Day 2], here [Day 3], and here [Day 4].

The Last CAsP of the Left

Byron York at NRO has an excellent article concerning the absurd CAP non-issue and the silly temper tantrum that Kennedy threw yesterday. It would be funny if it wasn't so sad.


RealClearPolitics recently printed my response to Steve Chapman's article in the Chicago Tribune, which is also posted on this blog below.

How many Democrats on this committee could be confirmed using their own standards?

RealClearPolitics has an excellent post questioning how many Democrat members of the Senate Judiciary Committee could be confirmed to the SCOTUS using their own standards. Answer, maybe two.

"Not Ted Kennedy: for obvious reasons.
Not Joe Biden: he has a plagiarism problem.
Not Dianne Feinstein: she's had a Guatemalan houskeeper issue, was fined $190,000 in 1992 for failing to properly report $3.5 million in campaign expenditures, and her husband runs a company that scored a $600 million Iraq war contract in 2003. Imagine what the Dems would do with this last one.
Not Charles Schumer: two of the people under his employ at the DSCC are currently being investigated for illegally obtaining Michael Steele's credit report last year. In 1983, Schumer narrowly escaped indictment for misusing state funds in his 1980 Congressional race. The U.S. Attorney in the case, Raymond J. Dearie, actually recommended that Schumer be indicted, but the Reagan Justice Department turned down the request citing 'lack of jurisdiction.'
Not Dick Durbin: he would never get around his pro-life past. Durbin is on the record in the 1980's saying that he 'believed that Roe v. Wade was incorrectly decided" and that "the right to an abortion is not guaranteed in the U.S. Constitution.'...
Pat Leahy's 1987 resignation as Vice Chairman of the Senate Intelligence
for leaking classified information to a reporter."

January 11, 2006

Former Attorney General Ed Meese on Senator Kennedy: "Totally Hypocritical"

Today Brian Burch (the co-founder of Fidelis) interviewed Formal Attorney General Ed Meese for our Podcast covering Judge Alito's confirmation hearings.

You can listen to the interview by clicking HERE.

General Meese shared some very blunt thoughts about Senator Kennedy attacking Judge Alito over the Vanguard recusal:


On a separate note, Senator Kennedy and others have attacked Judge Alito's ethics in regard to the Vanguard recusal issue. In light of Judge Alito's responses and the fact that the ABA did review this issue, and gave him a unanimmous well-qualified rating, how would you describe these attacks?


I would say again the attacks are political and it's totally hypocritical and false for anybody like Senator Kennedy, of all people, to question anyone's ethics, in view of his own past background. So, I think it is just politics and I think the ABA rating of well-qualified, their highest rating, which was unanimous, really says it all about Judge Alito.

There He Goes Again

Once again, this afternoon, Sen. Feingold (D - WI) is demanding to know who Judge Alito met with in preparing for these hearings. So much for the Democrats' concerns about privacy. It's time for journalists to demand to know what staffers and left-wing activists Democratic Senators met with in preparing for these hearings and developing their anti-Alito strategy in general.

Vanguard, Again?

Feingold's questioning of Alito just now was extremely misleading. He started with an analogy to a judge owning IBM stock and the need for a judge to recuse himself, and then he applied it to the Vanguard case. I wish that people would make it clear that holding stock in a company and holding a mutual fund issued by a company that issues mutual funds are two completely different issues. I am sure that Vanguard does not have its own stock in the mutual fund. It makes you wonder whether these Senators even know what a mutual fund is. (Of course they do, but that only makes all this even worse.)

'Mainstream' Is Defined at the Ballot Box

Good article from Human Events.

The award for the biggest grandstander goes to...

After Kennedy’s despicable smear tactics earlier today, he may have taken the lead from Biden, but as this hilarious NYT article shows, the distinguished Senator from Delaware definitely held the lead going into this morning.

Alito’s All-Time High

Despite the Democrats’ increasingly desperate attacks on Judge Alito today, his chances of confirmation are at an all-time high – just short of 95% – according to the popular political (and other) futures market, Tradesports.com.

Cthulhu and Sen. Durbin

Prof. Bainbridge reflects on the Alito peril, as seen by Democratic senators:

After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it's the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin's opening remarks.)

Everything is proceeding as I have foreseen. Schumer and Leahy's feeble skills are no match for the power of the Dark Side....

More Questions for Democratic Senators

I present below the second installment of questions journalists should be asking Democratic senators on the Judiciary Committee (quotes are from Tuesday's hearings). The first installment is here.

For Sen. Leahy (D - VT) and Sen. Biden (D - DE):
During Tuesday's hearings, you criticized Judge Alito for having been a member of Concerned Alumni of Princeton (CAP), because, in Sen. Leahy's words, the group "resisted the admission of women and minorities to Princeton." Given that Alito joined CAP because of its opposition to ROTC's expulsion from campus, and there is no indication of whether Alito shared any of CAP's other views, can you point to anything which would make your criticism anything more than guilt by association? If not, how would you distinguish this line of attack from, say, attributing to various Democrats on this committee the extreme positions advocated by some of the organizations opposing Judge Alito, simply because those senators have held strategy meetings with those organizations?

For Judiciary Committee Democrats in general:
You expressed concern about various Supreme Court decisions and two of Judge Alito's Third Circuit opinions – in Rybar and Chittister – because they adapted a view of the Constitution which puts enforceable limits on Congress's authority under the Fourteenth Amendment and the commerce clause. Do you see any tension between criticizing Alito for having advocated an arguably expansive view of executive power, while simultaneously advocating an expansive view of Congress' power under the commerce clause and the Fourteenth Amendment?

For Sen. Feingold (D - WI):
You asked Judge Alito numerous questions about his practice sessions for these hearings, including the subjects discussed and the people present. Do you believe it would be fair game for reporters to ask you similar questions about the sessions during which your staff briefed you for these hearings?

For Sen. Kohl (D - WI):
You told Judge Alito that "the neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy," such that "many of the most fundamental protections of civil rights and civil liberties" require "that judges apply a more expansive, imaginative view of the Constitution." Why do you take that view given that 1) constitutional amendments were responsible for righting the greatest constitutional wrongs, such as the elimination of slavery and the enfranchisement of African-Americans and women, and 2) the greatest of all civil rights decision by the Supreme Court, Brown v. Board, was based squarely on the words of the Equal Protection Clause.

Second, when Supreme Court justices "apply a more expansive, imaginative view of the Constitution," as you suggest, is there any means of ensuring that the results will be consistent with the American people's – or even your – notions of "social progress" and the advancement of "civil liberties?"