Alito on the Ropes

When Samuel Alito was nominated to the Supreme Court, I wasn't too confident that he would be stopped. After all, in the eyes of the general public, anyone would have been an improvement after Harriet Miers. However, I've increasingly come to believe that Alito will not make it to the Supreme Court. His well-established record of legal strategizing to overturn Roe v. Wade would probably not be enough on its own if it weren't for Alito's blatant breach of ethics in not recusing himself as promised from matters related to financial company Vanguard. The Boston Globe is one of a number of papers starting to pay attention to the very serious questions people are raising about Alito.

In a 1985 memo, Alito outlined ways to use a Pennsylvania case to whittle away at the Roe v. Wade decision legalizing abortion. But Alito did not mention the case in his answers to the Judiciary Committee's bipartisan questionnaire, which was made public the same day the National Archives released the memo.

The disclosure heightened suspicions about whether Alito and his White House backers are keeping information from the Senate. Democratic lawmakers are concerned that Alito had promised to recuse himself from a case involving Vanguard -- a mutual fund company in which Alito held hundreds of thousands of dollars worth of shares -- and did not do so.

"The more I learn about Judge Alito, the more concerns I have. A credibility gap is emerging with each new piece of information," Senator Edward M. Kennedy, Democrat of Massachusetts, said yesterday. "He bears an especially heavy burden at the hearings in January to explain the growing number of discrepancies between his current statements and his past actions."

The Republican Party has spent much time and effort selling the American people on the idea that Democrats oppose their judicial nominees solely on the grounds that they're conservatives. True or not, that perception hurts Democrats greatly as it forces them to draw a difficult distinction between acceptable, mainstream conservatism and unacceptable extremism. The Republicans have also done a pretty good job of framing judicial conservatism as mere "originalism" -- something that sounds perfectly reasonable even if the average person doesn't really understand what it means.

The opposition to the Alito nomination is moving into a place where it's not about conservatism or originalism or anything like that. It's simply about telling the truth. Alito lied about recusing himself from cases involving Vanguard. Alito lied about being a member of Concerned Alumni of Princeton. How can he be trusted to truthfully answer any questions about his judicial philosophy in front of the Senate?

Scalia's Agenda: Power for the Right

UPDATE: Turns out this has been widely linked already. Oops.

Scalia just proved that right-wing judges have a political agenda:  

U.S. Supreme Court Justice Antonin Scalia says the high court did not inject itself into the 2000 presidential election.

Speaking at the Time Warner Center last night, Scalia said: "The election was dragged into the courts by the Gore people. We did not go looking for trouble."

But he said the court had to take the case.

"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

Funny.  I always thought that the Supreme Court should interpret and follow the law, not decide elections.

While We're Taking About Impeachment... How about Clarence Thomas?

One thing I've always wondered is why Clarence Thomas was able to lie to the Senate Judiciary Committee and face no consequences.  Tim Noah points this out.

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

--Clarence Thomas at his 1991 confirmation hearing for appointment to the Supreme Court.

But he did.  Many times. And let's leave Anita Hill out of this, though it's fairly clear that Thomas wasn't being entirely forthright there either.

I don't understand why lying to the Senate Judiciary Committee isn't an impeachable offense.

So... Impeach Thomas anyone?

UPDATE: Let me just make it clear that I don't think this movement would succeed right away, but that's not the point. As an opposition party, Democrats have to start pointing out that a reactionary regime is not acceptable to us. People on the Supreme Court who treat America like trash aren't special just because they wear robes, and a statement that this guy is out of the bounds of the acceptable even though he might have snuck through our institutional fabric to sit on the court is a clear statement to that effect. With a movement like this afoot, every controversial decision he makes, think Bush vs Gore if you want, will be understood through the lens of a man who is out of control and not worthy of being a judge. Future confirmation battles will be seen differently, as will the Democratic Party. That's the point.

Why Alito's Roe Statement Matters

From a recent Newsweek poll:Newsweek Poll conducted by Princeton Survey Research Associates International. Nov. 10-11, 2005. N=1,002 adults nationwide. MoE ± 3.

"As a Supreme Court justice, do you think Samuel Alito is likely to vote to overturn Roe versus Wade, the decision establishing a woman's constitutional right to a legal abortion, or not?"

Likely to Overturn    Not Likely    Unsure
      29		  33	      38
Right now, only 33% of the country thinks that Alito would overturn Roe. This is important because, a couple of weeks ago, Gallup had this finding:If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%. Never has obfuscation become more important for a Supreme Court nominee. If the country begins to believe in large numbers that Alito would overturn Roe, his nomination is sunk. Of course, it is unbelievably obvious that he would vote to overturn Roe. Not only did he say he would overturn Roe in a 1985 job application, but he also ruled against Planned Parenthood in 1991 in Planned Parenthood versus Casey.

He has said he was against Roe. He ruled to overturn Roe. How much more evidence do people need to know that he would overturn Roe as a Supreme Court justice?

Alito is doing what he can to downplay his history with reproductive rights and, generally speaking, the media is not paying that much attention. Part of the problem is that Democrats seem happy to go along with the existing narrative of Bush's total failures in every other aspect of our lives. It is kind of hard to blame them, since they are making big gains by going along with the current flow. It is also hard to expect much more, since not rocking the boat has been a Democratic trademark for some time now.

However, as in Peter Daou's formulation, if we are going to get the media to pay more attention to Alito, it will be necessary to get Democrats to do the same. I'm not sure how we go about doing that, but I do know that the blogs cannot do it by themselves. Without Democrats making more noise about Alito, we are going to lose this one badly.

Questions About Alito's Civil Rights Record

It's rich that the right has been so blustery in claiming that criticism of Alito is somehow based in ethnic bias, especially now that Alito's record on civil rights has come to the fore. On the front page of tomorrow's Washington Post is an examination of some of Alito's more questionable civil rights opinions and rulings.

Eight years ago, a trio of federal appellate judges heard the case of Beryl Bray, a housekeeping manager at a Marriott hotel in Park Ridge, N.J., who alleged that she was denied a promotion because she was black. Two of the judges concluded that Bray had shown a lower court enough evidence of discrimination that she deserved a jury trial.

But the third judge, Samuel A. Alito, disagreed, writing that the hotel had merely committed "minor inconsistencies" in its rules for filling jobs and that it would be wrong to allow "disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly."

Alito's dissent prompted a rebuke from his normally congenial colleagues. The federal law that bans employment discrimination, the other two judges wrote, "would be eviscerated" if courts followed Alito's logic.

But Alito's questionable rulings are not just limited to employment discrimination cases, in which proving intent can be difficult, even in the face of other evidence. On a matter far more important to the larger judicial system -- jury selection in criminal cases -- Alito seemed to shrug off the idea that the prosecution may have been improperly disqualifying some jurors.

...Alito was rebuked by the court majority in a case in which a black criminal defendant had alleged that the prosecutor in his case had improperly disqualified potential jurors who were black. The majority ruled that, based on statistics the man had presented, an "amateur with a pocket calculator" could deduce that the prosecutor was striking jurors based on their race.

Alito disagreed, saying that others reasons besides race could have been at issue. Just because five of the last six presidents were left-handed, is it reasonable to conclude that Americans chose their presidents based on that trait, he asked. In turn, the majority replied that the analogy minimized "the history of discrimination against black jurors."

Aside from all of this, there have been cases where Alito's opinions have been far more reasonable. In one case that challenged an arrest and conviction on a gun charge as the product of an unconstitutional search-and-seizure, Alito wrote that the police "could not justifiably arrest any African-American man who happened to drive by in any type of black sports car." I'm sure that's something we'd all agree with.

I don't view Alito's record on civil rights as problematic as I did Roberts'. But then, my problem with Roberts was not so much that he was extreme. From everything I read, Roberts displayed a troubling tendency of relying too much on his own preconceived notions about issues rather than research.

In Alito's case, I do think he is too far out of the mainstream on a broad range of issues to be approved. Questions about his civil rights record only add to that. Though he may a smart guy, Alito was not nominated because he was the best person for the job. He was nominated because, as a darling of the right, his nomination would give cover to the President on the right at a time of scandal and upheaval. And it's simply not right to play political games with the Supreme Court.


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