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.)

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.)

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).

January 25, 2006

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)

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?

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. . . .

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

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 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.

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.

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

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.)

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?"

January 10, 2006

A Very Different Ted Kennedy

From Senator Kennedy’s Opening Statement at the Confirmation Hearings of Sandra Day O’Connor, September 9, 1981:

"By some, Judge O'Connor has been termed a judicial conservative. However, simplistic labels are inadequate to define a complex concept like judicial philosophy, let alone predict a vote in a future case. What we seek in the Federal courts are judges who will display legal excellence and personal integrity and sensitivity to individual rights. It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass the litmus test of any single-issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the "New Right" have no place in these hearings and no place in our Nation's democracy.

I look forward to Judge O'Connor's testimony and her response to the questions. Based on what I know today, I intend to support her nomination. I take pride in the opportunity to participate in these historic hearings."

"Ultra-conservative" Alito vs. "Moderate" O'Connor?

Stuart Taylor skewers Alito for being a radical right-wing theocratic racist who is a threat the civil rights of women, gays and minorities. Or does he?

In the same vein, Sen. John Cornyn makes similar points in another must-read article.

The Threat Matrix

Haven’t had enough distortions, lies and misunderstandings of the law? Try the Angry Left blogs:

AMERICAblog congratulates Kennedy on his disingenuous attack concerning the “Vanguard” case (in which Vanguard wasn’t even a party, didn’t have a financial interest and several independent legal ethics experts have found Alito did nothing wrong).

Over at MyDD, Chris Bowers regurgitates PFAW/AFJ talking points, distorts the Doe v. Groody case, raises the question of a possible filibuster (is that a joke?) and engages in typical Angry Left name-calling (Alito is a “liar,” a “freeper,” etc.).

At DailyKos, several bloggers are at work on the Alito hearings and yet they still can’t get anything right. See Mark Moller’s excellent post below for a real explanation of what “unitary executive” really does mean.

Atrios doesn’t seem that interested in the Alito hearings other than to claim that he’s a liar and linking to the other Angry Left blogs.

In other words, nothing new from the Left. They seem to have fired all their ammo and are hoping that Alito might say something during the hearings that they can distort. Meanwhile, back on Planet Earth FactCheck.org just nailed IndependentCourt.org for using selective quotes in their latest smear ad. Lying liars!

CFJ Response to Chicago Tribune Article

January 10, 2006

To the Editors of the Chicago Tribune:
In his Sunday column [“Should the Senate Vote on Alito’s Ideology?] Steve Chapman directly attacks the Committee for Justice (CFJ) for claiming that we support Judge Alito because he is one of the most qualified judges ever to be nominated to the Supreme Court and is a paragon of judicial modesty and restraint, when really we support him because we are looking for a judge to oppose the American Civil Liberties Union’s positions on flag burning and internet child pornography.
Mr. Chapman’s (willful?) misunderstanding of our position both on Judge Alito and our opposition to the coalition of extremist left-wing groups that are trying to undermine his nomination, is poor support for his absurd assertion later in the article that Senators should vote on judicial nominees based on whether or not the “ideology” of the judge in question matches their own views on a variety of topics.
First, we support Judge Alito, as stated above, because of his experience and the fact that he is one of the most respected legal minds in the country. Moreover, as a former federal prosecutor he brings to the court experience that no other current sitting justice has, experience that is all the more important considering the legal issues that have come up in the War on Terror.
Furthermore, CFJ supports Alito because we feel that he will be a neutral interpreter of established law and will not fall prey to grandiose delusions that a Supreme Court justice should be a philosopher-king, writing new law and changing social and economic policy. We are satisfied that Alito is not an ideologue, but rather a “pro-law” judge who does not decide cases based on policy preferences or which litigant garners more sympathy, but rather rules for the party that has the law on its side.
We also believe that elections should actually matter. Not only President Bush, but several Republicans Senators have run on issue of putting constitutionalist judges on the federal bench. As a result the President won re-election, and the GOP has a solid majority in the Senate. It is not only the President’s responsibility; it is also his duty to nominate the kind of judges he promised to America during the election.
In short, we endorse Alito because he is the opposite of the results-oriented judge the Left needs to advance an agenda which has consistently lost at the ballot box. It is this agenda that we seek to expose in our most recent ads and white paper. The constant refrain of these Left-wing groups and their puppets in the Senate is that Alito (or Roberts, or Bork, or whomever they’re attacking) is “out of the mainstream.” We seek to inform the public of the views these Left-wing groups hold and ask, “Who truly is out of the mainstream of American opinion?”
Apparently, judicial activism makes strange bedfellows, because the supposedly libertarian Mr. Chapman apparently takes the side of liberals like Ted Kennedy, Dick Durbin and Ralph Neas in claiming that ideology is what matters in a judicial appointment. “I won’t deny that ideology matters to me,” Mr. Chapman sanctimoniously declares. It seems Mr. Chapman is OK with liberals installing social activists on the federal bench, just so long as he gets to vote for someone who would read his laissez-faire economic viewpoint into the Constitution.
The practical result of Mr. Chapman’s view is that the Senate, in conflict with the Appointments Clause of the Constitution, would become a co-equal partner with the President in selecting who would sit on the federal bench. Since, as Mr. Chapman would have it, each Senator would vote based on his or her ideology, the President would be forced to select a judge with either no record at all, or a record that reflects the ideology of the majority of the Senate at that time. Under this regime not only would Robert Bork have been rejected, but so would have Justices Stevens, Kennedy, Thomas, Souter and Breyer.
The history of the Senate makes it clear that not only was ideology not a consideration in the nomination process, but that the President’s selections for the federal bench were given great deference. Indeed, it was not until 1955 that Senate hearings on Supreme Court appointments became standard procedure. Even in the 1980’s nominees like Antonin Scalia, whose prior pronouncements would cause uproar if he were nominated today, were unanimously confirmed by the Senate. The fact of the matter is that ideology has never been part of the judicial selection process until recently and it’s not something we should welcome.
Judge Alito should be confirmed because he is exactly what the Supreme Court and the country needs: An experienced, modest judge of even temperament, unquestionable integrity and great intellect who will help the court move toward a more restrained, less politicized path.

Democrat Distortions: Doe v. Groody

Doe v. Groody has been extensively discussed (and extensively distorted by Senators Leahy and Kennedy) this morning, so I thought it would be helpful to show the readers of this weblog our discussion of this case in our white paper, "Judge Alito's Record: Restraint, Commitment to Precedent, Faithful Application of the Law":

"By now it should come as no surprise that left-wing groups’
characterization of Judge Alito’s dissent in Doe v. Groody, 361 F.3d 232 (3d Cir. 2004), a case involving a search for illegal drugs, is a gross distortion. In Doe, police officers obtained from a judge a warrant to search John Doe’s residence for drug paraphernalia. The accompanying warrant application sought permission to search all occupants of the house – on the reasonable theory that drug dealers often secret their wares on others’ persons in order to evade detection. However, the warrant’s description of the persons and places to be searched only listed John Doe and his residence, apparently because the box on the form was too small to fit the rest of the information. When executing the warrant, a female officer took Jane and Mary Doe(John Doe’s wife and 10-year-old daughter, respectively) to a private room and searched them for drugs, asking them to shift or remove various articles of clothing. This is hardly the invasive “strip-search” that [the Left] bewails.

The issue in Doe had nothing to do with whether the wife and daughter could be strip-searched. The fact that the search involved a female police officer asking Jane and Mary Doe to adjust their clothes simply was not relevant to the outcome of the case. Instead, the issue was a mundane and technical question of criminal law: How precisely must a search warrant incorporate the terms of an accompanying application?"

January 09, 2006

Questions for Democratic Senators

During this week's hearings for Supreme Court nominee Samuel Alito, Democratic senators on the Judiciary Committee will undoubtedly ask Judge Alito many tough, often accusatory, questions. And they are entitled to do so, as long as the questions are both relevant and fair. Conversely, journalists are both entitled and duty-bound to ask those senators questions about the lines of attack they pursue at the hearings. In that spirit, I present below the first installment of suggested questions for the Judiciary Committee Democrats. Today's questions are all based on the senators' opening statements this afternoon.

For Sen. Leahy (D - VT) and Sen. Schumer (D - NY):
In your opening statement, you criticized the withdrawal of Harriet Miers' nomination. During the period in October in which her nomination was clearly in trouble, did you speak out on her behalf, urge the president not to withdraw her name, or otherwise support her nomination?

For Sen. Schumer (D - NY):
You said that, following the Miers nomination, "everyone now seems to agree that nominees should explain their judicial philosophy and ideology." Do you sincerely believe that the vast majority of your colleagues – no less "everyone" – now agree that ideology is a legitimate issue for Senators to pursue during the confirmation proceedings?

For Sen. Biden (D - DE):
You expressed concern that Judge Alito's confirmation might cause "the jurisprudence of the Supreme Court . . . to change from the consensus that existed the last 70 years." Given the sharp disagreements on the Court and among the American public over a wide variety of legal issues – including abortion, affirmative action, separation of church and state – what sort of consensus did you have in mind?

For Sen. Feinstein (D - CA):
You stated that Judge Alito's nomination to the Supreme Court is "a pivotal appointment" because he would replace Justice O'Connor. You then went on to express "very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution, including the commerce clause and the 14th Amendment." Given that Justice O'Connor sided with Rehnquist in the great majority of the pro-federalism decisions that you are referring to, do you have any reason to believe that Judge Alito's confirmation would shift the Court on this issue?

Also, in the last 70 years, the Supreme Court has only twice found legislation to be beyond Congress's authority under the commerce clause. Given that you are critical of the two instances in 70 years, is it fair to say that you effectively believe that the Supreme Court should never enforce the commerce clause's limits on Congressional power? If not, please provide a counterexample.

For Sen. Kohl (D - WI):
You talked about the "need to examine" the allegations by Judge Alito's critics, including the claim that he will "side with more powerful interests [and] narrow the rights we enjoy." How do you define those terms? For example, for the issue of abortion, which you cite as an example, is it the interests of the mother or of the unborn baby that are "more powerful?" And is it the rights of the mother or the unborn baby that Alito will allegedly "narrow?"

For Sen. Schumer (D - NY):
Apart from a twenty year old Justice Department memo in which Samuel Alito discusses whether money damages are the proper remedy for warrantless wiretapping, what is your basis for the following statement? You said that under Judge Alito's "absolutist view of separation of powers . . . in times of war, the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers."

Alito and Discrimination Plaintiffs

In her opening statement earlier this afternoon, Sen. Dianne Feinstein (D - CA) stated that Judge Alto has “sided against the individual alleging discrimination in about three-quarters of the cases before [him].” Feinstein is apparently referring to the much-repeated claim in a Knight Ridder article that Alito “has written in at least 18 [employment] discrimination cases and has sided with plaintiffs four times." Putting aside the shallow and shoddy analysis in the Knight Ridder article (see my earlier thoughts), it is worth noting that federal appeals court judges side with employment discrimination plaintiffs in only 13 percent of cases. So the truth is that Judge Alito's record here is more pro-plaintiff than is typical. Thanks to Sen. John Cornyn (R – TX) for first noting this statistic, which is the result of a 2003 study by three law professors.

Kennedy and Judicial Ethics: Then and Now

During his opening statement today Senator Kennedy continued his attacks on Judge Alito integrity, specifically citing a case involving Vanguard (though Vanguard was NOT a party). Twelve years ago, however, Kennedy led the defense of then-Judge Breyer when his nomination to the Supreme Court was threatened by accusations that he acted unethically when he ruled on several cases that could have had a substantial financial effect on Lloyd’s of London, an insurance firm that Breyer had a significant investment in.

Below is a statement by Senator Kennedy on July 29, 1994 on the Senate floor concerning the debate.

Senator Kennedy…I would like to address myself very briefly to the questions raised and belabored in some quarters regarding Judge Breyer's investment in Lloyd's of London...The Judiciary Committee obtained opinions from leading experts on judicial ethics and environmental insurance litigation. The overwhelming majority of those consulted concluded that Judge Breyer violated no ethical rules…He always recused himself from any case where Lloyd's was a party…The Bar Association of the city of New York and the American Bar Association each found that Judge Breyer had unquestionable integrity. Indeed, the ABA gave Judge Breyer its highest rating.

Of course, each of Kennedy’s three arguments in this statement can be applied to Judge Alito. First, each of the three leading experts on judicial ethics asked by the Judiciary Committee to review the record have said that Alito did not violate the code of judicial ethics. Second, Alito never ruled in a case in which Vanguard was a party. Third, the ABA, which takes integrity and adherence to the legal ethics codes into consideration, has unanimously given Judge Alito its highest rating.

The Examiner Quotes CFJ White Paper

CFJ’s white paper on the Left-wing extremist groups, “Who’s Out of the Mainstream: An Examination of the Coalition Opposing Judge Alito,” is quoted here in today’s The Examiner – Washington:

“Perhaps their characterization of Alito's record can best be explained by the world they inhabit, a world in which Michael Moore is a hero, George Bush is a villain and religion is best seen but not heard," Curt Levey, general counsel of the Alito-supporting Committee For Justice, said in a statement. "From that perch, the values held by Judge Alito and most Americans must genuinely seem extreme."

January 06, 2006

O'Reilly Exposes ACLU

As you may be aware, CFJ recently came out with an extensive report on the radical left-wing groups that are opposing Judge Alito’s confirmation. But we aren’t the only ones exposing their agenda. Bill O’Reilly on Fox News has a few things to say about the ACLU and how that group has been become “the attack dog in the secular progressive jihad to change the culture and political landscape in America.”

O’Reilly reveals who it is that’s funding this increasingly radical group:

“The top ACLU donor is far left businessman Peter Lewis, who has given the organization about $25 million, $25 million since 2001. Obviously, a colossal amount of money. Lewis wants legalized drugs, a libertine society. He is a true far-left believer. His pal, George Soros, another far-left fanatic, has donated more than $5 million to the ACLU since 1998. Soros is also behind the radical left organization Move On, which routinely coordinates with the ACLU.
The executive director and point man for the civil liberties group is 39-year-old Anthony Romero, another far-left guy, who actively opposes most traditional beliefs. Romero's a former Ford Foundation executive. And while he was at that operation, it gave at least $7 million to the ACLU. So it's no surprise Romero is now running the place.
So when you combine Lewis and Soros and Romero, you have three radical Americans who are bent on changing this country. And all this nonsense about protecting rights is a ruse.”

O’Reilly then plays a tape of an interview he did on “The Radio Factor” with former ACLU Board Member Michael Myers:

MICHAEL MYERS, FMR. ACLU BOARD MEMBER: The ACLU is flush with money. It has a lot of money, and not just from Peter B. Lewis and not just from George Soros.
It has a lot of money. It's all about fundraising, and the lefty loony agenda of Anthony Romero…The ACLU has, in fact and in effect, been taken over by the hard left.”

January 05, 2006

Predictions for 2006

My top ten predictions for 2006 can be found here. The prediction that is relevant to judicial issues is number three.

3. Samuel Alito will be confirmed to the Supreme Court, but the hearings will be much more vicious than expected. Another Supreme Court vacancy will arise. The President will once again fail to nominate Judge Michael Luttig or Judge Edith Jones, instead appointing Judge Karen Williams of the Fourth Circuit. The Senate hearings will be even more partisan and brutal than those for Alito.

I guess we'll just have to wait and see!

Polling the Impossible

There are several reasons not to trust the Harris poll on the Alito nomination (like the fact that other polls conducted at the same time shows much greater support for the Alito nomination), but the perhaps the best is that one of the two questions asked is based on a COMPLETE FALLACY.

The poll asks adult Americans, “If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?”

Of course, Judge Alito would NOT vote to make abortions illegal as a Supreme Court justice, because that’s NOT WHAT THE SUPREME COURT DOES. Even if the Court overturned Roe and threw it the jurisprudential waste basket with Plessy and Lochner, that would not outlaw abortions nationwide. Instead, democratically elected state legislatures would decide what restrictions, if any, there would be on abortions in each individual state (i.e. the way things were before Roe corrupted our jurisprudence and our politics).

It is amazing - and depressing - to me how many people still think that overturning Roe would instantly make abortion illegal. This ignorance is aided and abetted by the media, who couch any and all judicial decisions in a results-oriented manner. Senator John Cornyn has an excellent article on NRO today which talks about the media’s role in the way judges are perceived by the public and it’s a must-read.

Furthermore, left-wing groups like PFAW and AFJ who put out propaganda like their scurrilous “reports” on Judge Alito’s record don’t exactly help the situation either. Their rhetoric emphasizes which “side” judges rule for or whether the judge is pro-minority, pro-woman, pro-environment, etc. This reduces the judicial process to, in Senator Cornyn’s words, “little more than reading the caption of the case and deciding which party merits greater sympathy.”

Until more people understand the true nature of the role that judges play in our democracy we will not be able to have an intelligent discussion about the real issues over the next few weeks.

The Threat Matrix

• Moveon.org, the Angry Left organization that opposed America’s invasion of Afghanistan and placed ads on their website comparing Bush to Hitler, is launching a smear campaign this Monday according to fair and well-written piece by David D. Kirkpatrick in the New York Times today.

• Unfortunately, the rest of the NYT is not quite as impartial. At least the on-line version has five letters concerning op-eds by Charles Fried and Adam Cohen, all from people opposed to Alito, including a former Clinton official and Nan Aron of the Alliance for Justice.

Dean Screams, “Alito Fails [My Litmus] Test[s]”: In the Pittsburg Post-Gazette today DNC Chairman Howard Dean has a somewhat odd op-ed that’s ostensibly about Alito, but that doesn’t stop him from going off on an strange tangent in which he rails about Vice-President Cheney, Halliburton, Bill Frist, Jack Abramoff, Karl Rove and Tom Delay. Besides that weird moment the op-ed is little more than Dean dutifully reading off PFAW’s talking points.

• As you can see below, this has been the week for PFAW, AFJ and other left-wing groups to come out with their “reports” on Judge Alito’s record. This is probably a good moment to remind everyone that CFJ recently put out its own report on where these groups are coming from.

January 04, 2006

ABA Unanously Gives Alito Its Highest Rating: "Well Qualified"

It is nice that the ABA has given Alito it highest rating, and it makes it all the more a done deal that The Washington Post reports:

Supreme Court nominee Samuel Alito received an unanimous well-qualified rating from the American Bar Association on Wednesday, giving his nomination momentum as the Senate prepares for confirmation hearings next week.

The rating came after a vote of the ABA federal judiciary committee and was delivered in a letter to the Senate Judiciary Committee, which will launch Alito's confirmation hearings on Monday. Alito will face almost an hour of questioning from each of the 18 senators on the committee. . . .

PFAW President Ralph Neas says that "The ABA rating does not consider ideology or philosophy." But the ABA Journal (August 1989) quotes then Attorney General Richard Thornburgh as claiming that the committee screens "judicial nominees for their political and ideological philosophies to the extent extreme views might bear on judicial temperament or integrity." (See Charles-Edward Anderson, "SCREENING JUDGES: ABA again reviews nominees after court, Justice disputes")

Finally, I worry that the Republicans are going to use the ABA rating excessively and in the process give it undue credibility. Justice Roberts' high rating was mentioned frequently during his hearing. In my forthcoming book on the judicial confirmation process, I find that the ABA on average gives Republican nominees lower ratings than Democratic ones, but these lower ratings occur when there is divided political control between the Senate and Presidency. A good example of this would be when Judge Robert Bork was nominated. When there is split control, a lower rating is more likely to have an impact on confirmations. The bottom line is that it is hard to tout the ABA rating now as being so important and then at a later date say that we should ignore it.

Alito and Presidential Signing Statements

An article in the Washington Post describes an idea that Samuel Alito had when working for the Reagan administration:
As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

* * *

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon.
The Alito memo can be found here.

The Post is very misleading in giving the impression that Alito was the first person to "outline[] a strategy" for having Presidents issue signing statements. An academic article by Christopher Kelley offers examples starting with Monroe, and continuing through Jackson, Roosevelt, Truman, and Carter.

For example, one 1978 budgetary law included an amendment that prohibited "the use of funds under this Act to carry out [President Carter's] amnesty program" for Vietnam draft resisters. When Carter signed the law, he stated that he objected to the amendment "because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law." And as it turned out, "the Carter administration ignored the amendment and processed all of the [amnesty] applications." This decision was unreviewable in court, because no one had standing to complain.

Another good example is Roosevelt's statement on signing the Emergency Price Control Act of 1942:
Roosevelt objected to a section of the bill that was a 'protectionist measure for farmers' in the United States. Roosevelt stated: " . . . there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies . . . ." Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity. Roosevelt had solicited and received advice from the Dean of the Oregon Law School regarding what powers were afforded him during a time of war, particularly what rights did he have to ignore sections of laws he determined interfered with the war error. The Dean told him that "if you decide that a certain course of action is essential as a war measure, it supersedes congressional action."
Some might say that while previous Presidents issued signing statements (including some that indicated an intent to ignore the law in question), no one before Alito had thought that such signing statements should be used by courts when construing the law. But that's not true either: In United States v. Lovett, 328 U.S. 303 (1946), Congress included a provision in an appropriations act specifically naming three federal employees who should not be paid any further salaries, due to their "subversive activities." The Supreme Court held that the law was unconstitutional, and in so doing, cited President Roosevelt's signing statement: "The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional."

The Post is also coy in referring to the practice of "subsequent administrations." Clinton actually used presidential signing statements (105 times) more often than Reagan (71 times), who is credited by the Post with having "popularized" the practice. Here's a summary from the Kelley article:
Even though President Clinton was blessed with unified party control when he came to office, his staff in the OLC early on was busy defending unique presidential powers, particularly the signing statement. * * *

In using the constitutional signing statement, Clinton was similar to the Bush administration in issuing most in the area of foreign policy (52%), precisely where presidential power is at its zenith. But even where the power of the presidency is clearest, President Clinton was still willing to use the constitutional signing statement from the high profile to the mundane, often to achieve what could not be achieved after veto bargaining had taken place. And like the Bush administration, President Clinton in at least three separate instances asked the OLC to issue opinions either buttressing the president's authority to decline to enforce provisions of a statute or to direct inferior officers on how to implement the terms of a constitutional signing statement . . . .

For the Clinton administration, the signing statement was an important cornerstone of presidential power, as outlined by Walter Dellinger in his 1993 OLC memo. It would become particularly important after the 1994 midterm elections when the Congress became Republican and more polarized.
The Kelley article also points out that Walter Dellinger wrote the following in a very interesting memo to Clinton's counsel Abner Mikva:
The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

* * * [Discussion of the Supreme Court's Myers decision]

The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional.
Wow. I wonder what Dellinger thinks of the notion that President Bush can ignore FISA if he believes that it unconstitutionally limits his powers to defend the country.

Finally, the Post is not quite accurate in stating that the "courts have yet to give them [signing statements] much weight." Besides the United States v. Lovett decision discussed above, Walter Dellinger's first Office of Legal Counsel memo, as requested by the Clinton administration, pointed out several other examples:
It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress's) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) ("though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan's views are significant here because the Executive Branch participated in the negotiation of the compromise legislation."); Berry v. Dep't of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson's signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman's description in signing statement of proper legal standard to be used in Portal-to-Portal Act).
Of course, it might be the case that few decisions have even raised the issue of presidential signing statements; or that other decisions have actually held that such statements are irrelevant. I wonder if the Washington Post journalists have any idea.

* * *

Addressing the Alito memo, Texas law professor Sandy Levinson writes:
[W]hat should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President.
There are two things that are wrong with this analysis. First, Levinson does not specify why he thinks Alito believes in Thayer's "clear mistake rule" as to presidential interpretive statements. Second, now that we can read the memo for ourselves, there's no need to speculate about what Alito "presumably" meant. Alito never argued that one should give "priority" to the President. Quite the contrary. His memo listed five "primary obstacles" to the use of presidential signing statements, and the most significant was number 5:
Because presidential intent has been all but ignored in interpreting the meaning of statutes, the theoretical problems have not been explored. For example: In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance? . . . What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?
Alito was posing those questions, not answering them. And notably, later in the memo, Alito recommends, "We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

* * *

A lot of bloggers appear to think that it is obviously wrong -- too obvious to need an argument -- for a court to give any weight to the statutory interpretation offered by a President. The closest thing that I've seen to an argument is this blogger's point that the Constitution grants all "legislative power" to Congress, and the President can do nothing other than say yes or no.

Well, that's rather unconvincing. One might as well say that because the Constitution gives the President the last word on signing a bill into law, therefore Congress's intent is irrelevant; the only thing that matters is what the President thought he was signing.

In any event, I can readily imagine a situation that is something like this: The President vetoes or threatens to veto a bill, after which Congress rewrites it to conform to the President's desires. Then the President signs it along with a statement that reads something like this, "I believe this bill to have been rewritten so that it accomplishes X [or so that it doesn't ban Y, etc.]. On that interpretation, I hereby sign this bill."

Then, if the question arose in court as to whether the law accomplished X [or banned Y, etc.], why wouldn't that signing statement be as enlightening as any other item from the legislative history? If not for the President's interpretation, as set out in the signing statement, that bill would never have become law in the first place.