Justice | Alito
The Alito hearings have drawn to a close. The preliminaries in advance of confirmation wrangle their way to an inevitable outcome
Two Nominee Strategies. One Worked. - New York Times. Some Democrats feel there needs to be a filibuster. No, there doesn't. It's pointless in general to force nomination votes to a super-majority, and in this case not necessary. The nation will deal with this court and make do. At the same time I would like to see a largely party line vote, at least from the democrats. I don't want this man on the court and I would be puzzled if any democrat, as I understand what the party stands for, did. All of this underscores the importance of the presidential elections. Ask yourself: 'what is this vote about?' before you pull that lever. Consider all the manifold ramifications, and how long you will be living with them. There were a couple of arguments that were unlimbered in the course of the hearings. One that I had some sympathy for but couldn't really take seriously was the notion the president should have picked someone 'like Sandra Day O'Connor' for the purpose of maintaining the balance. This like-for-like argument has some good pragmatism, but the President is under no obligations towards it. Mr. Bush seems to have other obligations besides. Then there is whether being a good lawyer, having a keen intellect , is a more important consideration than certain ideologue tendencies. I've read that Alito was middling within the top ranks of viable Supreme Court candidates, leading to the view that his political quotient was the deciding factor in his selection. Cass Sunstein over on his Web log supports due deference to the president's choice
The University of Chicago Law School Faculty Blog: Confirming Justice Alito?. Ideological rigidity needs to be an order of magnitude removed from the mainstream before it can trump good lawyering and the profession (at least) of an open mind. What ideological cast some see in him is a predisposition towards the few (and corporate) versus the many (and individual)? What is the court for? Where would Judge Alito have it locate the good? Where is the level point for the playing field in environmental law, regarding property, in contract law? How conservative is too conservative? It depends on what the mainstream is read as. In an post earlier this year I pointed to a paper (Jurocracy and Mistrust) by law professor Mike Gerhardt where he claimed nomination battles partially serve the function of locating a set of ideas as the mainstream. This court will work quickly towards validating the ideas of the Federalist Society, Mountain States Legal Foundation, constitution in exile crowd, and adherents of Originalism
(The University of Chicago Law School Faculty Blog: Originalism and the Federalist Society). Whether or not these idea are accepted, well understood or known at all by the American people. They will work towards enacting them as the settled law of the land. Dahlia Lithwick observes: "They simply don't accept the proposition that the courts exist to elevate the interests of the little guy above everyone else."
Please Don't Feed the Federalists - A Democrat's field guide to the conservative jurist. By Dahlia Lithwick . This little guy, the individual, exists atomized and alienated from the resources vested interests have recourse to. This court is in danger of presiding over a cascade of foregone conclusions. What seems to have concerned observers most
The University of Chicago Law School Faculty Blog: Why the Senate Should Not Confirm Samuel Alito : Geoffrey Stone was Alito's apparent views on what has been called Unitary Theory of the Executive, particularly as it relates to domestic national security operations
Kiss and Make It Up - What happens when there is no law constraining Alito. By Dahlia Lithwick. The notion that the Presidents power is maximal. That the Executive Branch has an infinite freedom of action granted by express or implied authorization of, by an abdicating Congress, that the President is at liberty to infer as given. All by the late de-facto transfer of war powers. It is almost anti-climatic to tack onto the end of this, the near certainty that this court will attempt to overturn Roe v. Wade. Some say this won't happen, the ruling has been so hollowed that it isn't necessary. This I think underestimates the rights' need to hoist this symbolic victory aloft. The ascendency of the hidden/withheld information nomination process is one of the most troubling aspects of this political season. It doesn't change what people know or what they think. All this silent debate and closeted vetting does is limit what can be said out loud. For democrats the future lies in reminding people a conflict over values does exist. Attempting to sublimate it with stage managed nomination hearings merely means with every case the court takes on, it will continue anew. With the biases and opinions of the Justices examined at every turn of phrase, and every sentence end. - - -
tempus fugit etc. :
Alito Is Confirmed for Supreme Court in 58-42 Vote - New York Times.
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