Month: October 2005

The good news is that they’re now allowed in. The bad news is: they can’t talk to the detainees.

By the logic that a judge should be assessed by the results of his decisions and not by his judicial reasoning, the anti-Alito forces should at least acknowledge that Alito recently upheld the constitutionality of partial birth abortion. His reason? He was following Supreme Court precedent. So is he therefore pro-partial birth abortion? The answer is: we don’t know from the case. Volokh has the details. Somehow I don’t see Planned Parenthood celebrating Alito’s upholding of a constitutional right to abort an unborn child very late in the pregnancy. But by their own reasoning, why not?

Here they are. For the record, I find the whole process of taking results from someone’s judicial record and inferring policy preferences from them to be one of the major factors corrupting the judiciary and judicial selection process. What matters is not the result of someone’s decisions, but the reasoning that led to them. That’s what requires analysis. But in the coming culture war spat, we’re not likely to hear that. I might also say that the litany of results the anti-Alito forces have just produced are probably quite effective rhetorically and in ads. I can see the mantra of the “Halloween appointment” becoming routine. Groan.

Time has an interesting discussion of

a little-known Social Security case in 2002 which may be instructive when it comes to comparing Alito to Scalia.

In that case, Alito argued passionately with other members of the 3rd Circuit Appeals Court that a disabled woman, Pauline Thomas, should be granted benefits because she had been laid off from her job as an elevator operator and could not find a new job since the position of “elevator operator” had virtually disappeared from the economy. A lower court had ruled that a narrow and technical reading of the Social Security statute did not entitle Thomas to benefits. Alito called this result “absurd” and overrode the objections of several of his colleagues and convinced the full 3rd Circuit to overturn the lower court decision.

Alito’s passion didn’t move the Supreme Court, however, which overturned his decision in 2003. In a pointed rejection of Alito’s opinion – accusing him of “disregarding” basic grammatical rules for interpreting the law – the Supreme Court fell back on the narrow and technical reading and denied Thomas her Social Security benefits. The author of this stinging rebuke to Alito? Justice Antonin Scalia.

Ouch. Does that mean that, in this case, Scalia thought Alito was too activist?

There are now potentially five Catholics (and two Jews) on the Supreme Court.

RealClearPolitics has some useful links to profiles and opinions. Here’s a piece on his frequent dissents. Money quote:

[O]ver the years, Alito has been a frequent dissenter. And, unlike in Casey, he has sometimes been vindicated, when the Supreme Court reversed his colleagues and made his view the law.
In Homar v. Gilbert, Alito dissented from a ruling that a state university had violated a campus police officer’s due process rights by suspending him without pay immediately after he was arrested on drug charges. The Supreme Court later agreed with Alito’s view that no hearing was required because the criminal charges showed that the suspension was not baseless.
Perhaps Alito’s most memorable dissent came in 1996 in Sheridan v. Dupont, a sex discrimination suit that forced the 3rd Circuit to tackle fundamental questions about the plaintiff’s burden of proof.

Every profile emphasizes his mild manner. So he’s got the temperament of Roberts with the judicial philosophy of Scalia. From the point of view of the right: about as good as it gets.

Well, here’s some good news. And yes, I do defend the rights of bigots to use their First Amendment rights to harass me because I’m gay. Just so long as I get to harass them back for being bigots.

Scotusblog lays out the battleground Alito decisions:

in 1991, supporting abortion restrictions, in the Planned Parenthood v. Casey decision that later went to the Supreme Court and led to the partial reaffirmation of Roe v. Wade; in 1997, in Bray v. Marriott Hotels, seeming to endorse a limited view of minorities’ job rights; in 1991, in Nathanson v. Medical College, appearing to embrace tougher standard for asserting disability rights; in 2000, in Chittister v. Department of Community and Economic Development, finding that Congress had gone too far in passing the Family and Medical Leave Act; in 2004, in Doe v. Groody, embracing broader police search power, including strip searches; and in 2004, Dia v. Ashcroft and Ki Se Lee v. Ashcroft, taking a hard line against immigrants’ rights.

Doesn’t exactly sound like a libertarian, does he? Meanwhile, the current SCOTUS ignores Hamdan. Another little death for liberty in America.

Mediacrity is having a field day.

Not quite as politically skewed as the faculties they run:

College presidents are about twice as likely to be registered Democrats as they are to be registered Republicans or independents, and twice as many of them voted last year for John F. Kerry as for George W. Bush for president, according to The Chronicle’s survey of presidents of four-year institutions. Of the survey’s respondents, 41 percent said they were registered Democrats, 22 percent said they were independent, and 19 percent said they were Republican.

Larry Summers isn’t the only one slightly to the right of his professors.