October 31, 2005

Why Alito is a stronger choice than John Roberts.

I wanted President Bush to nominate someone like John Roberts, and I think Samuel Alito in fact deserves to be considered a stronger nominee than Roberts. He has the impressive educational background followed by a stellar career before becoming a judge, but he also has a much longer record as a judge -- 15 years to Roberts's 2. I am glad to see Bush not shy away from a person with a real judicial record. The fear of putting up a nominee with actual cases to peruse puts too many fine candidates off limits. To see Roberts as the ideal nominee is to prefer a judicial mystery, someone who is hard to know and hard to attack. With Alito, we can read his cases. It will be important to recognize that an inferior court judge is profoundly limited compared to a Supreme Court justice, but the judicial record is still highly valuable. Here is an article summarizing a few of his hot-button cases:
In a 1999 case, Fraternal Order of Police v. City of Newark, the 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. The police had made exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons. Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not." In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages. Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh. "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote. In 1999, Alito was part of a majority opinion in ACLU v. Schundler. At issue was a holiday display in Jersey City. The court held that the display didn't violate the establishment clause of the First Amendment because in addition to a creche and a menorah, it also had a Frosty the Snowman and a banner hailing diversity. In the case of Homar v. Gilbert in 1996, Alito wrote the dissenting opinion that a state university didn't violate the due process rights of a campus police officer when they suspended him without pay after they learned he had been arrested on drug charges. One of the most notable opinions was Alito's dissent in the 1996 case of Sheridan v. Dupont, a sex discrimination case. Alito wrote that a plaintiff in such a case should not be able to withstand summary judgment just by casting doubt on an employer's version of the story. In Fatin v. INS (1993), Alito joined the majority in ruling that an Iranian woman seeking asylum could establish eligibility based on citing that she would be persecuted for gender and belief in feminism. In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.
The abortion case will surely get the most attention, but issues about religion and the Constitution should come to the fore as well. Alito will, if confirmed, replace Sandra Day O'Connor, and her swing-vote role was especially influential in the cases about the religion clauses. From the little I'm seeing here about Alito, he has a marked sympathy to pleas for accommodation from members of minority religions -- a tendency that alone should shake off the nickname Scalito. (See Scalia's majority opinion in Employment Division v. Smith.) I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record.


Robert said...

So he's a Muslim-loving pro-drunk Frosty-worshipping pothead-coddling woman-hating Iranophobic machine-gun fetishist, eh?

Man, I hate those guys.

Frank from Delavan said...

If you're "look forward to a serious analysis of constitutional law issues" don't visit daily koz, or the DNC.

vbspurs said...

I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record.

I think I speak for most people on Althouse when I say:


God, this is music to my ears.

Finally, after almost a full hapless month of in-fighting, eyeliner-ridiculing, and torturous non-legal bickering, we have an appointment of substance we can sink our teeth into.

It's now up to bloggers precisely like Althouse, Instapundit, Bainbridge, and so many others, to give us detailed opinions on Alito's opinions.

Never mind Halloween. We've hit the Lotto.


vbspurs said...

Oh, and speaking of Halloween, didya know:

Sam Alito was born on April Fool's Day and nominated to the SCOTUS on Halloween?

As I mention in my blog piece about this appointment:

Take that, it's Alito!

...all we need now, is for him to be confirmed on that other non-legal celebration, Groundhog Day, 2 February.

Let's face it, there's going to be a filibuster.

It'll take as long as February to get him in the SCOTUS.

Here's hoping not, though, seeing how he has even more gravitas, if possible, than just a five-years older-than-he, John Roberts did.

Anyway, Punxsutawney Sam has a certain ring to it.


Commander Carrots said...

Although I think it's a shame, it does seem likely that abortion rights will be outlawed in due time. After that, they will go after contraception.

IMHO, this was all decided last November, when voters decided that they would like the country to be ruled by fundamentalist Christians.

Gordon Freece said...

Mark, what exactly does "individual rights" mean, in your vocabulary? Hiring preferences for individual members of preferred groups? The right of individual government agencies to participate in the "collective right" to bear arms?

How many of these "individual rights" involve some other individual having a right to my stuff? How many involve my "right", as an individual, to be protected from my own preferences by the state (unless of course if I prefer to marry somebody of my own sex and adopt a child; then, for once, they mind their own business, at least until it's time for the kid to inherit).

Gordon Freece said...

Oh, and how are "individual rights" negatively impacted by letting parents send their kids to school where they choose?

Mind you, there's a great deal of foolishness on the other side as well. The left/right dichotomy looks really significant only when you're very careful about your choice of examples, or if you re-define "individual rights" to mean "whatever I'm in favor of this week".

Bruce Hayden said...

Uncle Buck,

Both Roberts and Alito are Roman Catholic. I am not sure if I would call that fundamentalist Christain. But it does show that the divide between devout Catholics and fundamental Protestants is much smaller than it ever was. Call them fellow travelers.

But I am not sure if you can really call Dick Cheney, Laura Bush, Don Rumsfeld, or maybe even Condi Rice, fundamental Christains.

Indeed, both Cheney (actually both of them) and Rumsfeld would probably best be described as neo-conservatives, and many of the other neocons in the administration were, well, Jewish.

So, the idea that this is a fundamentalist Christain administration is, IMHO, simplistic.

Bruce Hayden said...

I think that Forward has a good point. One way to to view the left/right divide is precisely that of collectivism versus individual rights. Time after time, the left comes down on the collectivist side of these debates. Not always, but often.

- 2nd Amdt. Liberal view is that this is a collective right, while conservative is that this is an individual right. Also, liberal view is that this can be curtailed for the benefit of the collective.

- 1st Amdt. Free Speech. Left backs free speech, until it conflicts with other collectivist goals, such as nondiscrimination, (See David Bernstein's "You Can't Say That").

- Affirmative Action. This is a classically collectivist idea. It clashes significantly with individualism and individual rights.

jeff said...

Planned Parenthood has already come out against him (unsuprisingly).

That's enough for me to support him. It's kind of like supporting practically anyone on the other side of the vs. from the ACLU.

reader_iam said...

Serious analysis would be great!

Alas, I fear we'll be in danger of being dragged into the mud.

Apparently, reporter John Roberts referred to Alito (in a question) as "sloppy seconds."


Alluding to another current Althouse thread, Roberts just made Hume seem a piker!


Eli Blake said...

Planned parenthood came out against him because of an opinion he wrote upholding a law (later struck down by the Supreme Court) that married women seeking an abortion had to notify their husbands. Of course with the major societal problem of domestic abuse and violence against women, this was a foolish opinion on his part, and one which I am sure you will hear a lot about.

Icepick said...

Of course with the major societal problem of domestic abuse and violence against women, this was a foolish opinion on his part....

So you're saying that his opinion on the constitutionality of the law has no bearing, and the only thing that matters is the preferred outcome you want? That's not what appeals courts are for. In fact, that is precidely the problem.

The courts shouldn't be setting policy, or creating laws at their own whim. That's what the legislative and executive branches should be doing.

Goatwhacker said...

Apparently, reporter John Roberts referred to Alito (in a question) as "sloppy seconds."

Alluding to another current Althouse thread, Roberts just made Hume seem a piker!

Reminds me more of Howard Dean's "hide the salami" comment, what's on these people's minds anyway?

Ann Althouse said...

Geoduck: see my new post on the subject.

Unknown said...

Uncle Buck and Mark, and all those who object to "conservative" justices, IMO the best way to ensure individual rights and freedom is to make sure individuals themselves make the law. We do this through our elected representatives in State legislatures and the Congress.

It's not a perfect system, by any means, and I do buy some of the living constitution business, but ceding our rights to a panel of lifetime appointees seems in the end quite dangerous; the ayatollah who grants one wish with a SCOTUS ruling may cut off your head with another.

Gordon Freece said...

Bruce Hayden, I actually don't think we agree; that wasn't clear enough in my first comment, so I tacked on a second just after. Proving that B is bad doesn't get A off the hook.

We wouldn't have terms like "libertarian conservative" and "conservative libertarian" if the two were synonymous. Why don't we talk about "libertarian liberals"? Some would claim that those two are synonymous: That only pervasive government intervention in every aspect of our lives can make us truly free. But you hear a lot more of that claim from liberals than from libertarians. I mean, the term "winged lobster" doesn't get much use, but not because it's redundant.

I do think conservatives are generally more likely to distrust government in principle, while liberals are more likely to think that it's perfectly wise and safe to increase government power arbitrarily and permanently, as long as there's a Democrat in office on the day you pass the law. But conservatives aren't immune to that kind of thinking either.

Jibba said...

Wow. Highlighting favorable comments from your friends at the top of your blog? Sort of like a pulp book with breathless props on the inside cover.

Ann Althouse said...

I'm friends with Slate? Cool!

Actually I've only met one of those people. And it's not Glenn Reynolds!

geekesque said...

His Doe v. Groody opinion is a horrid example of a results-oriented attempt to eviscerate the 4th Amendment. A disgrace any which way one looks at it.

Kurmudge said...

Hey, Uncle Buck:
"Although I think it's a shame, it does seem likely that abortion rights will be outlawed in due time. After that, they will go after contraception.

"IMHO, this was all decided last November, when voters decided that they would like the country to be ruled by fundamentalist Christians."

You are right! I will be the lead enforcer, and if I catch you having sex with your wife (any other alternative is too horrible to mention) in any non-missionary-approved manner and trying to prevent pregnancy, I'll have you horsewhipped to a point within a nanometer of your life. Be warned.

XWL said...

If you were looking forward to a serious analysis of Judge Alito then I suspect that you may already be feeling disappointed by the time the first trick-or-treaters ring your doorbell.

The hostility aimed at Scott McClellan during this afternoon's press conference was palpabable, and the Alito nomination was one of many subjects which the press corps were showing groupthink kneejerk negativity. Reporters are already asking about what the White House will do about the expected fillibuster.

Everyone should hope for serious analysis, but when it comes to this administration the press as an institution fails so completely at this goal that the necessity of blogs like this one to unspin the factual distortions when they are made becomes paramount in preserving the quality of the upcoming debate (and they will be made it's not a matter of if, but how many times and how severely).

Gordon Freece said...

Spike1949, if the Court overturns Roe v Wade, blood will rain from the sky, infernal bats will hatch from hens' eggs, and feral dogs will roam the streets, gnawing the charred, emaciated bodies of the poor.

That is my reasoned opinion. I read it in the New York Times. We may safely infer that the infernal bat industry is funding right-wing extremist think tanks with this very outcome in mind.

chuck b. said...

I would like some clarification about what it means "not [to] be able to withstand summary judgment". I [think I] know about summary judgment--one side seeks a directed verdict between discovery and trial because the evidence clearly favors one side--but I'm not sure I get the whole picture from the little clip of story. Casting aspersion on the employer's story isn't enough to provoke a summary judgment? Or it is enough?

And so what would that mean? Something else would need to suffice for summary judgment?

Thorley Winston said...

Reminds me more of Howard Dean's "hide the salami" comment, what's on these people's minds anyway?

Too much Merlot?

Unknown said...


To get summary judgment, a party must submit evidence to show they are entitled to judgment as a matter of law (i.e., no reasonable jury could disagree) and the other party does not have any evidence (i.e., affidavits or deposition testimony) to show there are disputed facts such that the question should go to a jury. Not infrequently, summary judgment is rendered on stipulated facts.

Unknown said...

Can someone inform me why this is kind of a right wing sounding board/echo chamber? If I'm not mistaken from what I've read, Prof. Althouse is pro-choice, does not really care if gays have the right-to-marry, and is probably centrist at best on other "cultural" issues. The only reason I can see is that Prof. Althouse does not seem to find (or at least endorse the opinions written thus far) a constitutional argument that individuals should be entitled to these rights. Maybe I should read all of her law review articles. Anyway, it does seem like she enjoys pimping the left, which, from what I can tell, arises primarily from her experience living in Madison, where (from my experience living there when I was in school) the left is kind of predictably lock-step. For all the criticism of Madison, however, one would be hard-pressed to say it is not a nice town.

Prof. Althouse asked for a reasoned analysis of Alito's opinions here, and, thus far, it appears that most comments are just complaints about the immediate reaction by the Democrats and the liberal interest groups that hope to persuade them to fillibuster. I personally believe that the president should get his pick in all but the worst nominations. Frankly, I know nothing about Judge Alito, so I'll keep my mouth shut and read.

I have a question for those who tend to harp on Roe v. Wade and the other opinions finding "rights" that are not enumerated. My query follows:

There is no fundamental right to marry in the constitution, i.e., it is not enumerated. If a state outlawed all marriage, would male/female couples who intended to marry but could not because of said restriction have a constitutional claim? If so, how do you defend the general conservative position that there is no constitutional right to marry for gay couples?

For those who might be wondering, I'm not gay, but have lots of friends who are and who have been together for a long time (longer than most marriages). I personally do not know why there is a big beef about semantics...i.e., if gay couples had all the same rights, but their relationship was simply called a legal family partnership rather than a "marriage," I do not not really know why they care to fight for the right to use a particular word to define their relationship. On the other hand, those who say gay marriage will somehow ruin marriage, in my opinion, are generally confusing civil marriage and religious marriage cerimonies.

Typos are mine, I'm wired!

Bruce Hayden said...


I think that you overstate your case. Yes, there was some knee-jerk conservatism here. But compared to a lot of the blogs I read, it stayed pretty much inbounds.

As to Gay Marriage, volokh.com has had some interesting discussions. Last week, they had someone opposed to such jump in and get beaten up pretty badly by the commenters. This week, it is the pro side. You may have to go to the archives to see it all, but is one of the more exhaustive discussions I have seen on the subject.

Bruce Hayden said...

So far, Alito seems more an extremely skilled technician than someone who is agenda driven in his decisions. He seems more willing than the other judges he sits with to apply the law as it sits at that point in time, and let the chips fall as they will, while they seem more willing to do the equitable or "right" thing sometimes. And, maybe there is more room for the later at the Supreme Court level, but my view is that he is currently doing the job of an appelate judge extrodinarily well - deciding cases on their merits and the prevailing law, as opposed to basing his decisions on where things should be.

Needless to say, I haven't read all his decisions yet, and, probably won't since it isn't my job, and I am not voting on him. Nevertheless, in the cases I have read of his, he seems to make the more legally sound arguments. And, indeed, I think that it could be argued in Casey that that was precisely what he had done (which is why the dissent quoted him), even though it was reversed. The fact that the Supreme Court changed the law later was really of no concern to him when writing his opinion there. Rather, he was bound by the law as it stood before that.

chuck b. said...

Who said religious fundamentalism in the Middle East is a bad thing?

When Catholics in the USA get wide public approval for detonating nail bombs in gay bars, exectuting women during the halftime show for having aborted pregnancies, and hijacking passenger airplanes and flying them into condom factories, I'll call it a bad thing.

In the meantime, please see under "moral equivalence".

Gordon Freece said...

EPluribus thinks "fundamentalist" means "anybody who is identified to any degree with any religion". That would include, for example, Jimmy Carter, Bill Clinton, Al Gore, and John Kerry.

I won't mention the American Friends' Service Committee because they arguably are fundamentalists.