In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.Let the battle begin.
"I am and always have been a conservative," he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. "I am a lifelong registered Republican."...
"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly," he wrote.
"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."...
Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.
"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.
"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.
The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.
"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."
Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.
With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.
First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.
Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.
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34 comments:
- let the sparks and fur fly - 15 years on the bench says alot to this layman
'Bork-like idealogue'...sounds like a great choice. Someone who will actually utilize precedent and brains to interpret the US constitution.
Who is this Mark? He has a reliable lefty opinion.
Drudge was reporting on his radio show last night about Alito's abortion comments, however when you actually read the comment:
"I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."...
Alito said he is "proud of the contribution to the cases," he does not claim that (as Drudge implied) that Alito believes Roe V. Wade should be overturned.
To really garner opposition from moderates, democrats need to find Alito saying as a circuit appeals judge that Roe should be overturned.
Remember, the new line (acceptable by democrats was given by Kaine in the Virginia governor election, where one can abhore abortion as a public law (not just a private matter) but still promise to enforce the laws.
There is some ammunition with the Alito documents, but not enough.
I'm with wildaboutharrie on this one. I mean, everybody panders on job applications. Sure, ask questions, but his judicial record should weigh heavier than a cover letter.
This, perhaps, explains why Bush did not nominate Alito earlier.
This is among documents that the White House is releasing, rather than one that opposition research dug up. So I'm guessing that they have known about this document for a while, and that they made a conscious decision to release it now.
Mark is right. Alito represents the real risk to leftist relativist ideology in this country. There has been a cabal of liberal judges trying to impose their views on a society theat rejects such views. People like mark hide this ideology in terms such as "privacy."
Why then have the democrats been wasting their time on pre-war intelligence..... Alito is slipping by.
I would not attach any significance to anyone's statement how he or she respects precedents or superprecedents.
While I wouldn't completely dismiss the weight a nominee claims to give precedent, I mostly agree. On a scale of 100, one nominee gives stare decisis a weight of 30, another nominee gives 70. What's the diff? Nobody ever gets into the "red zone" at the fringes. ATEOTD, stare decisis will always apply - until the need for correction is deemed "significant" - say, 66+/100?
You're right to be upset, Mark. Your side has lost the legislative branch and the executive branch year after year. The liberal media and literature and film are despised by the majority of Americans. The last bastion of your power, the judicial branch, is up for grabs.
I'm glad the public debate is finally here.
"Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago."
I think that quote says it all... that despite his feelings, he has ruled in accordance with interpretting the law as it exists... not that anyone on either extreme side will see it that way.
People would rather look at what he said 20 years ago than what he's done since being on the bench.
Mark,
Part of the problem here is the different ways (at least some) conservatives see the problem of governance. Whether or not I think the government should be regulating private consensual sexual behavior is moot. I don't think the unelected juduciary should decide every single issue. Last time I read the Constitution, there wasn't a single word in it about sodomy, fornication, or any other type of sexual behavior. Nor, to the best of my recollection, was there a mention of a right to privacy.
Maybe there should be a right to provacy, but I don't believe there is one. But the fact that the judiciary feels free to make up such rights disturbs the hell out of me, because what they can give, they can take away. (Which is apparently what you are most fearful of.)
These types of issues should be handled either by the elective branches of government, or by further amending the constitution.
Take the example of abortion. If Roe et al are overturned, abortion returns to the elective domain. While I doubt that pro-abortion forces would be able to get an amendment to the national constitution passed, I would image it would be easy to get such amendments passed to a majority of state constitutions. Further, I doubt that more than three or four states would even pass any legislation outlawing abortion in any meaningful way.
Once this returns to the elective domain, elective representatives will have to put up or shut up. And I imagine that given the polling numbers, those anti-abortion opponents who don't shut up face being voted out, or being heavily marginalized. And I say this as someone who is anti-abortion. We're on the losing side, electorally.
Frankly, the evangelicals don't make up that much of the electorate. (For the record, I am not an evangelical, nor am I religous.) As it stands, however, they have an inordinate amount of influence in the Republican Party. They can have this influence because the non-evans know that the courts will restrain the worst excesses of the religious right. Strip that away, and those non-evan Repulbicans will be faced with some rather tough choices. And I have little doubt that in such a case the fragile and slim Republican majority would disappear. Honestly, I don't see why Dems wouldn't want some of these issues to be up for a vote....
"Mark, as you have guessed, I don't take you seriously. Your arguments consist of hyperbolic extrapolations larded with ad hominems."
Amen. See ya.
Why can't a society decide through the various legislatures if marriage to your sister, sex with farm animals, drug use, sodomy, etc. should be legal or illegal. Doesn't it seem wrong that an unelected judge would decide?
I still think that so many of the hot button issues would dissolve politically if either party would be brave enough to propose a Right to Privacy amendment (arguments opposing it would be interesting). It would certainly temper the debates about abortion, consensual sex, and illegal search and seizure (Patriot Act, DRMA). Of coarse that is why it will never happen. It seems some times that politicians use these very issues to keep much of the populous distracted from other important matters. Too many issues would be taken off the table, and our elected officials would then be held accountable for legislative largess and corruption, and out of control spending throughout government.
Jeez. I sound bitter this morning. What's up with that?
Mark wrote: The point is that states should not get to decide whether we have fundamental rights or not; it's the province of courts. I'd rather have independent judiciary decide what fundamental rights Constitution protects than have it decided by a legislature subject to various political pressures and current opinions in the society.
I would rather that the Constitution state clearly what rights are protected. Relying on an independent judiciary is to constantly gamble with our rights, relying on the inherent nature of the Justices of the Supreme Court. If I am to gamble with government officials, I prefer it to be the ones I can vote out of office.
Consider freedom of speech. "Congress shall make no law ... abridging the freedom of speech...." This is pretty easily understood. Also, it is pretty easy to grasp, even without taking a ConLaw class, that this right sensibly applies to more than actual speech: symbolic actions, printed words, etc.
However, it is disputable as to whether or not this applies to campaign contributions. (I think it should, but the text of the constitution doesn't make that clear.) However, the Supreme Court has decided that campaign contributions are not covered, and are subject to regulation by Congress.
Now Congress and the FEC seem to be set on a course whereby bloggers (amongst others, presumably) who endorse candidates will be subject to federal regulation as to the content of their sites. The idea (as I understand it) is that such endorsements carry comercial weight, in that it is free advertising. So if a big site, say DailyKOS or INSTAPUNDIT, were to endorse Candidate X, the value of said endorsement would exceed the permitted maximum donation. Thus they would be subject to legal sanction. (Presumably this could include jail time.)
Should such regulations be passed, there will no doubt be a court challenge. All that is required s for the Supreme Court to say this is legal, and all of a sudden we will have a massive abridgement of freedom of speech, regardless of the wording of the First Amendment.
My point (I think) is that even with clear language and easily understood intent, we are subject to the whims of the SCOTUS. To construct large numbers of non-explicit rights out of the phrase "due process of law" seems to be highly risky to me.
Hmm, that's a good point about the Ninth Amendment, MadCat.
That being the case, why has it been necessary to further amend the constitution to expand the rights of the citizenry? E.g., the 19th Amendment. Also, why have so many of these more recently established rights needed the SCOTUS to validate them, after decades or centuries of practice otherwise?
MadCat, my problem is that the Founders view of which enumerated rights mattered seemed to be rather flexible. See the Alien and Sedition Acts, as an example.
Further, the Founders seemed to take a narrow view of unenumerated rights. Thus the necessity of the 19th Amendment to allow women their unenumerated right to vote. And I doubt that most of the Founders would have had much problem with anti-sodomy laws.
In theory, the Ninth Amendment seems to offer a wide variety of rights to the citizens, but in practice I don't believe that has been the case.
Mark said..."Society can certainly regulate incest marriages, bestiality, etc. But society cannot regulate private adult consensual sex because society has no legitimate interest in regulating it...."
This comment restates the obvious concern... who is it that should decide that society has "no legitimate interest in regulating private adult consensual sex?"
If a society enacts a consitution which, does not enumerate a freedom against regulating private adult consensual sex, and then 75% of the people state they would vote to regulate private consensual sex, how is it that a judge can decide all of a sudden that "society has no interest in regulating private consensual sex."
Such a notion is ludicrous. Judges cannot just decide on a whim what is right and what is wrong - this is moral deprivity of the worst kind.
If you allow judges to decide these issues, then judges can decide anything....a judge could decide that society has no interest in regulating sex with children or a judge could decide the government has no interest in regulating private economics and strike down socialism or a judge could ban christmas trees from the home, because they violate the right of the trees.
Isn't this discussion losing the concept of what an attorney does?
I am proud of the legal work I did in some cases even though my private opinion was that my client was scum whose legal position, that I advanced, was wrong.
That comes with the job. Lawyers promise within the bounds of professional ethics to represent their clients as well as they can.
So the fact that Alito is proud of his contribution to representing the government's position doesn't mean that he thinks the government's position is morally correct or even fom the differing perspective of a judge legally correct.
Having said that, I think it is offensive to the whole legal system to make onbe's views on one difficult debatable issue be a determinant of whether one can be a SC justice or not.
Every Supreme Court justice, I am sure, has many points of disagreement with my view of the world and the constitution. Were I a senator, ought I vote against them all?
Mark wrote: I have a solution. If you think a court was mistaken, utilize the democratic process and pass the Constitutional amendment overruling the Court. It has been done in the past and it works.
In all seriousness, why wouldn't this line of arguement apply to "your side" as well? Especially since a Privacy Amendment would accomplish most of your stated aims?
"While I am not sure I agree with the outcome of that case, the court, based on precedent, upheld the local governments' rights to exercise eminent domain with respect to blighted areas. Now, should have the Court given more protections to private property owners? Perhaps."
Mark - quite the contrary. you sound somewhat eloquent and educated on issues but regarding this case Kelo had NOTHING to do with eminent domain vis-a-vis the finding of blight. This case was unique if and only if for the reason that the SOLE rationale given for the eminent domain was for economic development and not to cure a blighted area.
And the justices who followed the reasoning (rightly or wrongly) that a 'public use' constitutes giving a redevelopment authority bankrolled by a large corpration the right carte blanche to take someone's property because it generates more taxes.. Those were all the 'liberal' judges.
So the answer is no - I wound not feel more comfortable living in a world dominated by this world view.
Mark,
Nice try, but this is an echo chamber here, and we like it that way.
Take this to the huffpo
Lost in all of this discussion is the idea of governmental rights (read: Authority) being created by the SCOTUS, particularly with regards to enforcing or abrogating individual rights. My earlier example of campaign finance laws would be one.
But let me take one that pretty much everyone will be able to agree on, at least as far as the greivance goes: Public school segregation. I will assume that everyone here agrees that racial segregation in public schools is wrong. Given that, what power does the federal government have to remidy such segregation, given that it takes place at a local level?
Should the government (unless otherwise stated, assume 'government' means federal gov) simply be able to strike down local provisions that enforce segregation? Should the government be allowed to pass legislation that would enforce a more just outcome? Should the government be permitted to use its executive authority to take over the running of the district? Do the COURTS have the ability to take all of these decisions out of the hands of any level of elected government? In other words, do the courts have the right to abrogate all legislative and executive authority on this matter?
As best I can tell from your position, Mark, the answer is yes to this last question. (If not, please correct me.) In which case, we have ceded all rights to an unelected judiciary.
This is why I look for a narrower reading of the constitution from the courts. It's not their interpretation of individual rights that worries me, it's their interpretation of governmental rights that scares me.
Another example, this time not addressing a violation of other recognized(!) constitutional rights: consider Gonzales v. Raich. Here the SCOTUS determined that the Commerce Clause allowed the federal government great authority to pry into individual lives. Please note that the Ninth Amendment did not apply to the right of Angel Raich to get stoned for medical purposes. Also please note that it was "your" side (plus Scalia, noted with annoyance) that allowed for this expansive view of governmental rights.
These issues are not simple, nor do they allow for simple categorical statements about "right-wing idealogues." There's more than a little wrong with the "left-wing idealogues" as well, and neither side nor center is without blame.
WildAboutH, now you see why Ann's overriding demand of a SCOTUS nominee is the ability to write well, juducial philosophy be damned!
It's not just a discussion of courts vs legislatures that we're having. It's about the proper role of the courts in our government.
Your contention, as best I can tell, is that the courts, SCOTUS in particular, have the power to expansively interpret the constitution.
My contention is that this is a dangerous practice, regardless of the outcome of any individual decision, because this view allows for an expansion of governmental authority.
Raich is, to me at least, a prime example of what I fear: The federal government's authority be extended on a rather flimsy premise. If the Commerce Clause can justify the Feds breaking into Angel Raich's house in search of some home-grown home-smoked, what else can be read into the constitution?
And apologies to both Mark and MadCat for not addressing all points. Some I don't have an opinion on, some I do, and here and there I need to think about an answer, which will probably never be posted. There's just too much to discuss! Nevertheless, I am enjoying this conversation.
Ironic, that libertarians would cheer for the eternally expansive "constitutional right" to abortion, a right found nowhere in the text but which has a trimester framework that now extends to the elimination of mostly birthed babies - the longest first trimester in the world; but at the same time boo the massive expansion of the federal police power and the federal micromanagement of intrastate commerce power.
Neither the claimed right nor the alleged powers are found in the constitution, nor can they properly be said to be implied by it. Both came into existence through the same mechanism - the Ipse Dixit clause, which Chief Justice Marshall read into the Constitution. As long as judges were a little modest, it worked. But when judges undertook to usurp the roles of the other branches of government, the system stopped working properly. Now we have the courts inserting themselves into foreign policy. Why have a president or senate? Ahh, to take care of the minutae of the budget. Give it time; the courts will want to take over that function too.
The irony lost on most partisans is that the process of judicially making up new limbs and organs of the Constitution is all of a piece. The same weakness that causes a judge to make up a new right, is the same weakness that makes the same judge recognize a heretofore unheard of federal power. It's a willingness to stray from the text of the constitution and the statutes, and the hubris to arrogate power to the bench, taking it away from the people, their elected representatives in the states, and the Congress. It presumes a wisdom in the legal profession that doesn't seem to be there.
A pox on both their houses. Give me an inartful judge who would just as soon devolve power to the states, or to the people, or God forbid, to Congress itself.
Mark, the Court can indeed be restrictive in one case but expansive in another. It does seem, however, that an expansionist view of one coincides with an expansionist view of the other with statisically significant frequency.
You also wrote: Law is partially about human expectations. If the society came to rely on Roe as settled law, you better have very good reasons for overturning it. Simply disagreeing with the Roe court's decision is not enough, I think.
I dare say that thinking that abortion is deeply immoral (which is the view of most who want Roe overturned) might well constitute a good reason.
Roe v. Wade is not well settled law. Neither was Plessy vs. Ferguson, which survived 60+ years before being overturned.
The fact is that that Liberals use the Courts to push through their own agendas which are not supported by a majority of the population. Liberals consistently argue that a majority of the population supports a right to abortion, yet this is true only when you add in a bunch of restrictions in reduce the age of the fetus.
There would be no need for Roe v. Wade if liberals had stuck to traditional democracy. Why not lobby the states to grant abortion rights and support candidates who will vote for it. I have admitted on this board that I would vote for abortion rights (with more restrictions of course), but supporting liberal activism to achieve such an aim is gross. Activist judges like Blackmun, Brennan, etc.. violate my rights to effect change in the society I live in.
I don't get why liberals mistrust democracy so much... it's because they think that the populace, which usually slants more traditional, is stupid. They won't even tell the truth to their own constituents, that overturning Roe would not end the right to an abortion.
"You are right about Kelo; in the sense that it did not require blightness to be found. Nevertheless, this is the case which relied on 100 years of precedent; which deferred to the judgment of local government."
Mark,
Again - the use of eminent domain to justify economic development related redevelopment is fairly new. All within the last 20-30 years max. Precedent for eminent domain for public use or for controlling blight does in no way contribute to the legitimacy of eminent domain for purposes of higher tax rolls.
And to tie this into the other section of your argument - You say that its OK for the local government to decide how it likes to operate without judicial override when it comes to Kelo and issuance of eminent domain - but I bet you were thrilled when the supreme court knocked down Texas's anti-sodomy laws. When is it that the states and localities are to be trusted with their own lawmaking - Only when the laws are laws that you like?
Thats just not a good enough litmus test.
Well, Alito has done it now. He's white, male, *and* he's stated a view that half of Americans agree with and the other half disagree with.
Of course, factually, he is correct. I wonder if that matters.
http://nevermoreblog.blogspot.com/
MadCat, are you saying the Founding Fathers were down with desegregation, sodomy, and a woman's right to choose? Or vote, for that matter?
Clearly the Ninth Amendment wasn't as expansive originally as you now interpret to be, or the above issues wouldn't have been settled in the last 100 years.
dqpguMadCat, I think we've reached the stage where we're talking past each other, sadly. I was not implying a right to sodomy, but rather pointing out that arguements of original intent do have their limitations.
I am not an originalist. I just believe in a relatively narrow focus for the constitution. It is not a bible, with the answers to all problems. Nor is it a guarantor of all rights, although some rights are guaranteed. It is a political document used to set out the basic nature and function of the federal government, and the relation between that government and the states.
As such, I want the basics displayed clearly and succinctly. I want the main guarantees to be those that are basic for poliitical liberty: Speech, assembly, freedom of association, property rights, and the means to defend them.
Over time, it has been necessary to add to the list so as to enfranchise women and minorities (thus guaranteeing their political rights), to end slavery, etc. (Also there have been procedural changes, for example on the nature of how senators are elected, and how the Electoral College works.)
To me, the most eggregious uses of the constitution have been those which attempted to set social policy, most notably on slavery and for prohibition of alcohol. These are matters to be settled by the polity, and it's why I am opposed to mucking up the constitution further with social policy or for even more frivolous reasons. An example of the first type would be an anti-abortion amendment, and an example of frivolous changes would be the Flag Burning Amendment, which has to be the dumbest proposed amendment in the nation's history.
And it's for this reason that I don't like judges conjuring new rights out of thin air and sophistry. You want a right to privacy? Fine, get an amendment. I'd be for it, depending on the wording. But I don't think one is there, and being dependent on judges who are far removed from the political process is worrisome in the extreme. What they can infer into existence,, they can infer out of existence.
Oh, and someone asked about having rights removed. I have one, although not removed so much as curtailed. How does one reconcile the Second Amendment with various local ordanances banning gun ownership? (see NYC and Washington DC)
Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision.
Hmm, so what were the "ambiguous" "texts and precedents" that lead to Roe? To getting rid of the death penalty for those under the age of 18? For Lawrence v. Texas?
I think you've portrayed a bit of a straw man in your argument. It's certainly possible to be a conservative judicial activist. I don't know of any conservatives who would disagree with that.
What it's not possible to do, IMHO, is to believe in a "Living Constitution", and be an honest judge, as opposed to being a political advocate.
Evidence offered in proof: What is the functional, practical, difference between saying "The Constitution is a Living Document", and saying "The Constitution means whatever 5 members of the Supreme Court think they can get away with saying that it means"?
The answer is that there is no difference. And once you've granted "judges" the power to act that way, you've completely trashed the concept of a written Constitution.
We have a long, drawn out process for Amending the Constitution, for two reasons. The first is to make it possible to change the document when necessary.
The second, and equally important, is to keep the document from being changed very often, and to thus leave most issues to the discretion of the current political process.
If the current political process goes against you, that's too bad. But going to the Courts to get what you couldn't get from the political process is an assault on democracy, the rule of law, and the US Constitution.
And that's why, while it's certainly possible for there to be bad / unqualified "conservative" nominees (see Meirs), it is not possible for there to be a good "liberal" judicial nominee.
Because in todays legal culture, understanding that there's a difference between what's in the Constitution, and what you wish were in the Constitution, immediately marks one as a "conservative".
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