October 31, 2005

"Scalito."

I'm seeing news reports that President Bush will nominate Samuel Alito for the Supreme Court. Bush needs to pick a solid nominee and put the Miers debacle behind him. Presumably, he's determined that Alito is such a person. I would give a favorable presumption to Alito, but I will need to watch the nomination and see what comes out about him.

I welcome hearing something more substantial about the man than that people call him "Scalito" to signify his similarity to Scalia and because his last name is similar enough to Scalia that people just can't hear "Alito" without wanting to say "Scalito."
Alito: refer to him as Scalito.
That is an entry that belongs in a modern "Dictionary of Received Ideas." A side benefit of his nomination would be that people might -- eventually -- get over that mental tic.

What we're most likely to be talking about reflexively -- as we always must with a Supreme Court nomination -- is abortion, and we have one very hot fact about Alito:
In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion," Alito wrote.

The case ended up at the Supreme Court where the justices, in a 6-3 decision struck down the spousal notification provision of the law. The late Chief Justice William H. Rehnquist cited Alito's reasoning in his own dissent.
What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?

UPDATE: Here's the CNN report, which includes the line:
Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito."
Oh, yes, legal experts. And you know, of course, they say it because they really have made a close study of the work of the two men and discerned a precise ideological similarity. Because legal experts wouldn't just reflexively mouth a meme.

UPDATE: Welcome Instapundit readers, and please come over to this more recent post for my discussion of why Alito is a stronger nominee than John Roberts.

32 comments:

John(classic) said...

Is abortion the political equivalent of slavery in 1850? Is it so powerful a political force that we are going to determine a Supreme Court appointment, likely to eventually participate in say 3,000 decisions. based on how he would decide the maybe dozen abortion cases that will come before the court during his tenure?

JSU said...

Incidentally:

"The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

[...]

(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual."

ALH ipinions said...

Ann

"...but I will need to watch the nomination and see what comes out about him"?

Your constraint in this regard is commendable I'm sure. But shouldn't you watch the hearings to determine his fitness to serve as a justice of the SCOTUS?

After all, it was from watching the nomination that misguided partisans became motivated to bork Bork. Whatever became of the honourable principle of holding judgment on the president's judicial nominees until they've had a fair hearing...and then casting your up or down vote along with the full Senate (if the nominee makes it out of the judiciary committee)

SippicanCottage said...
This comment has been removed by the author.
Goesh said...

Scalito - oh ya' just gotta' luv it. I'm willing to fork over the money I bet on my lovely Janice to get this business settled. With 15 years on the bench and being a former fed. prosecutor, let's just vote and be done with it. Aye from me.

griffin d. politico dog said...

Bush has caved to the screaming extremists. They have demanded that Bush pay them back for their support, and he is bending their way. How unfortunate that at his weakest moment, Bush is bending to pressure that most Americans do not agree with (most Americans agree that women should have choice). Weak.

John(classic) said...

"screaming extremists"?

I am sure there are some, but most of the people I read who eventually opposed Miers were not screaming extremists.

griffin d. politico dog said...

John(c)-
Abortion is not the political equivalent of slavery in the 1850's, but it might be the political equivalent of segregation of the 1950's. The difference is what public opinion is and the amount of pressure it carries. In the 1950's things had changed so that there was an undercurrent of desire for segregation; for abortion today, most people believe in a women's right to choose. Obviously, there are exceptions like for late-term abortions and such. But most people believe that women should have the right to choose.

So, based on the significance of those 12 or so decisions, I would modify your question and answer that I think this nomination carries a weight equivalent to a non-segregation vote would carry in the 50's-60's. Scalito's leanings on those are this important.

California Conservative said...

Scalito's Way. Now playing.

griffin d. politico dog said...

It's the screaming extremists-a very loud minority of the party- who demand someone who will overturn Roe, and that is why they opposed Miers.

DRJ said...

"What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?"

Your question might resonate with libertarians but I submit that judges should defer to rational state laws, even "bad" laws that don't work or aren't well thought out. It is not the function of the federal courts to correct misguided but otherwise constitutional state laws.

There is a mechanism available (voting) where the public can replace legislators who enact laws that don't work or with which they disagree. If the public is sufficiently indignant regarding the legislation and the lawmakers' attitudes toward a woman's right to choose, they will vote accordingly and the law will be changed.

digital mule 2 said...

The Corner over at National Review is reporting "When asked "what we know about Sam Alito" by Imus this morning, Andrea Mitchell immediately reported that "we know that he was a dissenting judge on the issue of spousal notification" in the case that became Planned Parenthood v. Casey. What she didn't report was that he also concurred in an opinion striking down New Jersey's partial birth abortion statute because he felt he had an obligation to follow the Supreme Court's decision in Carhart v. Stenberg, and that he held that a Clinton administration policy prohibiting states from adding additional conditions to Medicaid funding of abortions properly invalidated a Pennsylvania state law that required women seeking state-funded abortions in the cases of rape to report the crimes."

Which suggests a nuanced aproach to
the question of judicial action on issues of abortion rights.

John Thacker said...

What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?

Well, the statute did include these exceptions:
(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.
I agree that we can think of worst case scenarios, and obviously cases where personal risk is involved there's obviously a problem.

But most people believe that women should have the right to choose.

And these same people apparently believe that men should have no role in the process whatsoever other than to pay child support if the woman decides to have it. (Regardless of whether it's his child or not, or whether she lied about birth control or birth control failed, or they agreed before having sex that they weren't ready for a child, or whatever.) When the husband has certain automatic responsibilities for child support and other things, I think that a certain right to awareness of the situation comes in too. Not a right to prevent the abortion or force one, certainly, though.

John Thacker said...

Of course, let's not forget that the entire panel of which Judge Alito was a member ruled that the other provisions of the Pennsylvania law, including parental consent, notification rules, and other such clauses, were permissible.

Secondly, Justice O'Connor's writings, Roe v. Wade, and Planned Parenthood v. Casey make it clear that settled Supreme Court opinion agrees that there is no absolute right to choose by a woman. (Indeed, as a side note, Roe v. Wade was based more on a doctor's right to proceed according to his professional opinion.) Rather, it is granted that the fetus has some grant to a right to life as well, and that the State has an obvious interest in preserving that life. The rulings do state that the right to choose in general trumps that right, but the State is allowed to take actions to protect the fetus's life so long as they do not place an undue burden on the woman's right to choose an abortion. Judge Alito's decision defends why he thought that the spousal notification did not, and is certainly reasonable and non-extreme.

I'd like to see more defenses from people who can argue that the decision of the whole panel regarding, say, parental notification, is perfectly reasonable, yet spousal notification is utterly extreme. Certainly the vast majority of the objections I've heard for one apply to the other.

Dave Norris said...

Quite right DRJ. Tocqueville pointed out precisely that remedy when any law, bad result or good, is sufficiently antagonistic to the people.

But we also have a law here that seems to infringe on the liberty of individuals unconstitutionally. This is an old story that ends predictably.

The only remedy that will change this is amendment to the constitution. When the people properly express themselves in sufficient number to carry this argument nationally then abortion and regulation of abortion will become law.

I personally would have a problem with my wife having an abortion without my knowledge. Frankly though, if there is any real danger of this then both of us made a horrible mistake when we married and the state of Pennsylvannia's legislature would be neither adding to nor subtracting from an already tragic situation.

John Thacker said...

Abortion is not the political equivalent of slavery in the 1850's, but it might be the political equivalent of segregation of the 1950's. The difference is what public opinion is and the amount of pressure it carries. In the 1950's things had changed so that there was an undercurrent of desire for segregation; for abortion today, most people believe in a women's right to choose.

Ah. Hmm. Well, then by that logic why isn't it the political equivalent of slavery in the 1850s, then? Most people in the 1850s believed in a persons right to own slaves, although they were willing to entertain laws to decrease the total amount of slaves, and admitted that it could be a terrible practice, even if they didn't fully admit to the humanity of the victims. A smaller group of people were fantatically opposed to it, some going so far as to commit violence. By moderating their views, the opposing group was able to convert larger and larger percentages to their views, though it depended on the exact phrasing of the question. What was Lincoln if not a "stealth candidate" on slavery, attacked by his own side for not being forthright about slavery, but feared by the other as someone who really intended to abolish it?

I think it's easy to make an anology to slavery in the 1850s. It's just easier to put the anti-abortion folks in the role of the abolitionists, which I think a lot of the pro-abortion people would object to.

Ann Althouse said...

John Thacker: The Supreme Court doesn't see the fetus as having a "right to life," only that the state has an interest in protecting the future child. The fetus is dependent on the state's legislating to protect it. No one should think the Supreme Court is on the verge of recognizing a right to life. There is only a realistic chance of recognizing legislative power as against the woman's autonomy.

Peter said...

Never mind "Scalito". Wait until the first Democrat makes the "hah, he thinks he's nominated Lance Ito" joke...

vbspurs said...

I am just bereft I have NO chance of deriding Judge Alito's eyeliner, baubles, baubles, and tschochkes on his person today.

Seriously, he could've done us sexists a favour and worn too much mascara, AT LEAST.

Cheers,
Victoria

vbspurs said...

How unfortunate that at his weakest moment, Bush is bending to pressure that most Americans do not agree with (most Americans agree that women should have choice). Weak.

This is a power nomination.

The only weakness to be perceived here is the weakness that results from not having won enough Senatorial seats this past 2004.

The moment I heard Senator Kennedy come out strongly against Alito, is the moment I knew the President had hit a homer.

But, BTW, Senator Kennedy voted to confirm Judge Alito in his judicial capicity some 15 years ago.

Times. They are a-changing.

Cheers,
Victoria

Ruth Anne Adams said...

Victoria:
It looks like "samuelalito.blogspot.com" is still available. How 'bout gettin' in on the ground floor?

Glad to see Wilma didn't leave you in the rubble. Tee-hee.

vbspurs said...

It looks like "samuelalito.blogspot.com" is still available. How 'bout gettin' in on the ground floor?

As I said, Ruth Anne, some people lend themselves to ridicule.

And some others do not.

I think Sam Alito is the kind of person you fear. Not laugh at.

Glad to see Wilma didn't leave you in the rubble. Tee-hee.

I'll ignore the almost back-handed laughter at the end of that statement, and just say:

Thank you!

It's good to be back on Althouse. And so tasty too.

Cheers,
Victoria

Ruth Anne Adams said...

Victoria:
Wilma Flintstone and Betty Rubble...hence the Wilma/rubble tee-hee. Your pop reference meter [or should I say "metre"?] is off a tad. I'm *glad* you weathered the storm.

And as for Alito, I'm *glad*, not fearful. I am *glad* that the conservative in-fighting is OVER.

vbspurs said...

Victoria:
Wilma Flintstone and Betty Rubble...hence the Wilma/rubble tee-hee. Your pop reference meter [or should I say "metre"?] is off a tad. I'm *glad* you weathered the storm.

And as for Alito, I'm *glad*, not fearful. I am *glad* that the conservative in-fighting is OVER.


Mais non, Ruth Anne! I was just kidding.

You know better me better than that!

Or you could, if you bought me a nice pterodactyl steak dinner for me and Bam-Bam.

Cheers,
Victoria

Ruth Anne Adams said...

Victoria:
Bronto burgers on me!!

[Glad that he ditched that witch, Pebbles, for you!]

Yabba. Dabba. Doo.

Greg D said...

What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?


I don't know, what are we to thing of "judges" (who don't stand for election), thinking that they know better what "society believes" than do the legislators who do have to stand for election?

The Legislature thought that, since being married imposes costs on the husband, it is rational that it should also impose costs on the wife.

Who is a better "judge" of the appropriateness of the costs? The voters? Or the judges.

If you believe in democracy, I don't see how you can possibly believe that it's the judges who should get to decide.

Icepick said...

Greg D, I believe we live in a federated republic, or some such non-sense. So what am I supposed to think regarding judges v. the legislature?

Greg D said...

Well, Icepick, you could think that Judges should be bound by the law and written constitution, rather than free to go wherever their personal whims take them.

Alito didn't say he thought the Penn Legislature made teh correct choice, he said that he realized that making that choice was their job, not his.

That's an important, and I would think rather obvious, difference.

Democracy means the Legislature is allowed to make bad laws, to make stupid laws, to make utterly wrong-headed laws. They're just not allowed to make laws that violate our written consitution.

(Note: what do you think about Gun Control? How about Social Security? Rent control? The Welfare laws we had before 1996? The ones we have now? Think any of them are stupid? Think any of them are wrong? Do you think would be ok for a judge to decide that he thinks a law you like is stupid, and thus throw it out, despite the fact that there's no justification other than his personal beliefs?)

nobody's puppet said...

I think "Scalito" is going stick around as a nickname for a very, very long time! Could you imagine going to a Taco Bell drive-thru and saying, "Yeah, I'll have a Scalito ... er, I mean a chilito." I can! Actually, I think Scalia will be called "Justice Scalito" by someone in the media before Alito will.

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