Month: October 2005

“Jan Crawford Greenburg – who I think has always been ahead of the pack in on the nominations issue – reports that the White House is focused on Judges Luttig and Alito, and potentially Judges Owen and Williams.
Of these candidates Judge Alito seems most likely to me, and he is my prediction. Judge Alito would energize the President’s conservative supporters. But he would not be as much of a fight as the others. Luttig and Owen, in particular, raise the serious prospect of a filibuster and it seems unlikely in the current environment that the Administration is anxious to have that fight. It seems to me that the pressure to nominate a woman is considerably lessened now, and the focus is on getting someone confirmed. Judge Alito will be grudgingly confirmable to many Democrats once they look at his record.” – Tom Goldstein, SCOTUSBLOG, last Friday. (Marty Lederman also predicted Roberts and Alito in the order – last May.)

The key thing to remember about Bush’s nominees: they are all completely craven with respect to the executive’s powers in wartime. And wartime is now defined as: for ever. In my view, the real upshot of the Court’s shift under Bush may well be not in terms of the usual culture-war battles, but in terms of unrestricted executive power – to detain without charge, to cover up its own actions, and to torture. To do that, you have to get the Court out of the way. That’s what Cheney is doing; and what Roberts and Alito will support. Only the Congress will be able to stop the executive from now on.

Some encouraging research here.

CLASSIC CHOMSKY: A reader comments on the Chomsky interview in the Guardian:

That interview is simply classic Chomsky. Three elements of his shameful legacy appear in all their glory:

1. The denial of mass murder: just as he denied the Khmer Rouge genocide in Cambodia until it couldn’t be hidden any longer, the massacre at Srebrenica was overblown.

2. The intellectual defense of crackpot conspiracies: Chomsky never agreed with Robert Faurisson that the Holocaust was a hoax, he simply defended the possibility that Faurisson was some sort of “apolitical liberal” trying to find the truth and not an antisemitic crackpot. Likewise, he praised the “wrong, but outstanding work” of the Living Marxism magazine.

3. The latent anti-semitism. Note the throwaway claim at the beginning of the interview, where the brutal Tsarist policy of state anti-semitism is described as “not very bad, by contemporary standards. In the worst of the major massacres, I think about 49 people were killed.” This fits in nicely with his defense of Faurisson and the claims he has made about the need for Jews to “make sure they have total control, not just 98% control.” as they are “the most privileged and influential part of the population.” in the United States.

An anti-semitic crackpot, a denier of genocide, and an intellectual coward. Yup, Noam Chomsky shows his true colors to the skeptical Guardian reporter.

The good news is: he didn’t get away with it.

A soldier in Iraq weighs in.

Can we please have a debate about Alito without descending immediately into inflammatory rhetoric about his ethnicity? Anti-Alito morons who touted his failure to win a case against the mob seem to have started this, according to Chris Matthews. Mehlman and Hatch seem to be picking up the guantlet. Jeez. If it’s this ugly on Day One …

A blogger comes clean:

I have a confession; I supported the war. I was one of the “liberal hawks” who focused only on the (true) horror of the Hussein regime, without listening to the nagging doubts of caution and the fear of pride that I felt right above my belt. No, I too was swept up in the bright hubristic vision, and thought that we could re-make the broken map. I remember thinking such silly things at the time:

The invasion will be welcomed, after the people realize Hussein is gone for good.
Iraq is at heart a middle-class country.
We could move our bases out of Saudi Arabia, and have a stable base of power in the Middle East.
The other Satrapies will democratize because of our example in Iraq, and our menace.
If the Shia and Sunnis and Kurds don’t get along, we’ll just break the country up.
We’re the only remaining superpower. We have a moral obligation to project power against dictators.

Bullshit.

It’s painful to read. And no, I’m not where this guy is. I haven’t given up yet.

There are still some in the hierarchy with open hearts.

An interesting fisking of the current talking points against Alito.

A fascinating moment in a Guardian interview. Noam Chomsky refuses to believe there was a genocidal “massacre” at Srebrenica. That’s a little much even for a Guardian journalist.

A reader looks into one of Alito’s rulings:

I linked to the website listing Alito cases and picked one at random – Doe v. Groody. Take a look at Alito’s dissent.

What’s interesting about it is that it reaches a statist result (i.e., he believed that a search warrant authorized the search of two persons who were living in the residence to be searched but who were not listed among those persons to be searched) by ignoring the plain text of the warrant and relying, instead, on the equivalent of “what the legislature (in this case, the officers who drafted the application for the warrant and the proposed warrant) meant the warrant to say”.

The warrant appears not to conform to the application – it was drafted more narrowly (perhaps by mistake), but c’est la vie. That’s not “strict constructionism” at all; it’s pure originalism. He didn’t decide the case strictly according to the text, using “originalism” to determine the meaning of an ambiguous provision. Instead, he overrode the text by reference to intent.

From a brief look, the reader looks correct. Check it out. It cuts to the core of someone’s judicial philosophy.

Blankenhorn and Gallagher keep missing the point. Ampersand explains.