Year: 2005

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.

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.