Alito and the Family and Medical Leave Act -- Part 3.

Nathan Newman at TPM Café wants to make the case against Alito out of Chittister, the Family and Medical Leave Act case. Newman is a lawyer, in fact he went to Yale Law School, so presumably he knows something about how legal analysis is done and the way Supreme Court cases bind lower court judges. But maybe he doesn't mind using his aura of expertise to sell a specious argument to serve a political goal. I won't assume he actually understands the cases Alito had to deal with in deciding Chittister. They are difficult, and you have to take the trouble to read them. (I have spent a lot of time with them and claim expertise based on this law review article and 20 years teaching in the relevant field of law. I explain Alito's Chittister decision here. ) But why should Newman bother to understand the cases and to treat Alito fairly, when it's so easy and exciting to demagogue and to say that Alito is hostile to this important federal statutory benefit? What more do you need to know than that the statute is good and Alito did something against it?

To build the case against Alito, we do need to document all the ways thsat Alito opposes the rights of the accused, threatens abortion rights, and endangers workers rights.

But we need at least one decision that encapsulates what's wrong with Alito's view of the law, unites the maximum voters against him, and divides the potential opposition.

And that case is Chittister v. Department of Community and Economic Development, the decision where Alito ruled that the Family and Medical Leave Act did not apply to millions of state employees across the country.

False. The FMLA would still apply to state employees. (The decision only prevented suits by individual state employees for retrospective relief -- such as backpay.) But nice to see you admit that you're all about building a case against the man and finding something you can use.

This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.

Well, Rehnquist decided a different case, Hibbs, but that's just a careless error. Still, thanks for showing how little you care about accuracy as you mount your attack.

There is little question that the Family and Medical Leave Act is one of the popular laws passed in recent decades -- a lifesaver for many mothers and fathers who want to stay home with a newborn or a sick family member without fear of being fired from their job for taking that time off.

Yes, the law is popular. Nice grasp of the role of courts and the Constitution. The law is popular, so you should strain to find a way to leave it alone. After all, Rehnquist found a way. Of course, Rehnquist did not have to take so much trouble to follow Supreme Court cases. But down with Alito for respecting the case law. Because he's a bad, bad man. He went against a popular law. He wants mommies and daddies fired!

Opposition to Alito's decision is a unifier-- it unites feminists, oganized labor, public employees, and soccer Moms. And by alienating working mothers especially, who depend on FMLA leave, Chittister has the potential to deeply divide the Republican base.

Yes, fire them up. Who really cares about law and the courts? This is all about organizing the opposition. People will get really mad when they hear that Alito wants to fire mommies and daddies!

Other issues that motivate progressive activists-- Casey for abortion rights activists, Alito's deeply disturbing anti-union attacks or his disdain for criminal defendants -- will motivate key groups, but the question is how to we make the danger of Alito on the Supreme Court clear enough to swing voters that their Senators fear the backlash.

Politically, the pressures on parents in balancing work and family is overwhelming. That Alito would attack a common sense law like the Family and Medical Leave Act in the name of "states rights" will seem to most such voters as pure rightwing ideology. And it can be painted as exactly the judicial activism, the "legislating from the bench" that Bush claimed his judges would not engage in.

Yes, regular folks won't get the concept that courts apply law. What matters is what we can make seem like "pure rightwing ideology." Those dopey soccer moms will totally fall for this one.

If we want to encapsulate what the "federalism revolution" means, what the "Constitution in Exile" means for average families, it is this: ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology.

Randomly! Those rightwingers are just crazy. They might see a law and just shoot it down -- absurdly attempting to interpret legal texts -- even when the law is popular. And, no, don't bother me now about the way liberals care about some parts of the Constitution and might sometimes want a court to strike down a popular statute.

It's worth thinking about why Renhquist, the original architect of the federalism legal revolution, decided to uphold the Family and Medical Leave Act when it came before the Supreme Court. A pretty fair analysis is that, aside from the legal arguments, Rehnquist recognized that a decision against the Family Leave law would create such a backlash that it might endanger the whole legal movement in the long term.

Yes, and shame on Rehnquist then, right? Or if the case law was so terrible, it was up to the Supreme Court to change it. There was nothing Alito as a lower court judge could do to change it. The fact that Rehnquist changed it in the Supreme Court in no way showed that Alito should have or even could have changed it in the court of appeals. There is no basis for criticizing him for what was ordinary faithfulness to established law. (Sound like a concept you might want to rely on some time?)

So raising the profile of Chittister should be a key strategy, to raise that spectre of a shift of the Court not just to the right of O'Connor but to the right of Renhquist and to raise pressure on those swing Senators.

Sure, go ahead. Great idea. Teach the world that the Court is nothing more than a political game and the judges who attempt to follow the law are just dangerous, arbitrary fanatics. No chance you might care about the rule of law some day. Screw it! We can win a political battle.

It isn't even funny that you really have virtually no chance of defeating the nominee. Your abject disrespect for law is thoroughly disgusting. But thanks for posting your embarrassing strategy on a blog and for not noticing that there are other bloggers out there who know the legal details that you are counting on the soccer moms not understand or care about at all.

UPDATE: Welcome Instapundit readers. For other parts to my ongoing effort to stop the Chittister demagogery: Part 1, 2, and (dealing with Kos) Part 4.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.