A must-read, as always. Money quote:
Here, then, is the dilemma posed by Judge Alito: His federalism opinions suggest that he might be a conservative activist like Thomas with an agenda to restrict congressional power; many of his other opinions suggest that he might be a cautious incrementalist, as Roberts is likely to be, nudging the law in a more conservative direction rather than rewriting it from the ground up. Given the conflicting evidence, how can senators decide what kind of justice Alito would be? The questions to ask Alito are obvious enough. They’re many of the same ones that have been asked in Supreme Court confirmation hearings for nearly two decades, and they involve the nominee’s attitudes toward congressional power, previous judicial precedents, and the original understanding of the Constitution.
The contrast in the answers given by Thomas and Roberts suggest clues for senators to look for as they try to decode Alito’s responses. If Alito is evasive, as Thomas was, about a) how often the Court should strike down federal laws; b) how much weight it should give precedents that have been repeatedly reaffirmed; or c) how rigidly it should follow the original understanding of the Constitution, run for the hills. If he answers those questions precisely and candidly, as Roberts did, breathe a sigh of relief.
I hear that Alito already has 65 votes wrapped up.
LINCOLN AND LIBERTY: An emailer dissents from my respect for Lincoln’s concerns for liberty even as he faced a uniquely grave crisis in American history:
You may be underestimating the scale of arbitrary arrests (arrests with no right of release, either by habeas or otherwise) during the Civil War period. Mark Neely, an admirer of Lincoln and a respected scholar, cites estimates that there were over 14,000 arbitrary arrests from the beginning of the war until its conclusion — and this amounts to the staggering total of 1 in every 1,500 Americans. And Lincoln was not at all apologetic about this policy. As Neely says:
“He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: “… the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many.” He argued that the Confederate States, when they seceded, had been counting on being able to keep “on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause” under “cover of ‘Liberty of speech’ ‘Liberty of the press’ and ‘Habeas corpus.'” Nicolay and Hay, who were not given to overstatement, noted that “few of the President’s state papers … produced a stronger impression upon the public mind than this.” Little wonder. Elsewhere in the letter, the president used even stronger language, saying that he could never “appreciate the danger … that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trail by jury, and Habeas Corpus, throughout the indefinite peaceful future … any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.”
The questions before us, however, are: does the current situation approximate the crisis of the Civil War; and how “temporary” is our new war? One reason to be particularly concerned is that this war has been defined without any termination point or any enemy who could surrender and end our temporary illness. We are applying emergency powers to the executive indefinitely. Our only recourse is to trust the president. After the past three years? You’ve got to be kidding.
The Dish 