>>We're trying to talk about things civilly, and we strongly request that all commenters do the same. <<

Good Lord guys! You know the kind of restraints you're asking me and others to work under? Man!... You guys are taking ALL the fun out of this!

;>)

ALethinos

Sorry, Al! It may be less fun, but unlike most political discussions, these just might have a chance of influencing someone's opinion. :-)

Personally, I find it more fun when you can actually talk about something!

How many qualified "moderate" judges are out there?

Suss, when it comes to the Supreme Court, there is no such thing as a moderate. Sneezing with one's head turned slightly to right or left is enough to get the other side screaming "extremeist!"

:-)

Some interesting points brought forth in here, fellas. I'll begin with the kudos for a job well done setting up the equation.

Should Alito receive a different kind or degree of scrutiny because of the 'balance of the court?' It is an interesting question. I think he will receive different and stronger scrutiny because of it but I am not sure he should. We are filling one vacancy on The Court. Alito is either acceptable to fill that seat or he is not.

I think the standards for getting on the court should remain largely the same once we get to the confirmation portion of the process. The Senate should not be a rubber stamp per se but their role of advise and consent should be to ensure the candidate passes muster as a capable jurist.

The presidential election seems to me to be the place where we decide the 'idealogical' part of this equation. President Clinton's nominees were promoted to The Court with nearly unanimous consent (90 plus votes in both cases if I am not mistaken). The Senate held hearings and found two qualified judges. Breyer and Ginsburg can hardly be considered moderate or conservative. They got their seat on The Court because they are qualified. They are 'liberal' or 'left-leaning' because President Clinton won the White House.

You raise some valid points, DJR. But the difference between "should" and "what is" in Washington are two different things! I certainly think that Alito should be given a fair hearing -- a hearing that was denied to Miers (which, unbelievably, is being blamed on the Democrats by White House spokesmen!).

There should be a bar for being qualified for this extraordinary lifetime appointment. And then there should be some kind of criteria for looking at the law and the Constitution that matches up very broadly with mainstream values.

For example, a large majority of the American people support abortion rights and/or certainly don't want to see Roe overturned. If a Democratic or moderate/pro-choice Republican Senator is convinced after close study and the hearings that Alito will vote against precedent and the feelings of the people, should he/she vote to confirm the judge?

I'm not sure -- it's a very tough question.

the problem is with the (lack of) agreement of what "mainstream" means.

many conservatives think that center-right/right is mainstream.

many liberals think the opposite, though most are too meak and/or beaten down to actually voice that opinion.

Mark - Well said, though the Democrats are getting tough and getting feisty (see: Reid's closed door meeting this week on pre-war intelligence hearings)... and Frist and the Republicans like it none too much.

So that's certainly a factor in what looks to be some battlin' ahead. And I'm not sure at all that that's a bad thing.

yes, i love the commentary leaning towards "oh my, look at what those silly democrats are up to now. this will certainly hurt them in upcoming elections".

right, as if they've been doing so well at the polls previously.

Mark, I tend to find all such "we think X, they think Y" argument to be misguided and inaccurate.

Most people think that their own views are "mainstream," no matter what their views are.

You are certainly right about "should be" and "is." It is a distinction I often make in conversations. Ask me what I think should happen or what I think will happen and you often get two different responses.

"Large majority," to me, on abortion might be a stretch. I think abortion is one of those issues that can be sliced and diced by either side to get a majority on 'their' side. I don't think we can get a large majority on either side of the equation. I am pretty sure the only thing we as a nation agree on as pertains to abortion is that we don't agree on abortion.

Your example is well-taken all the same. Law and politics are inextricably linked in our system. The way I interpret advise and consent I would suggest the judge should be confirmed (using your example, Eric). How many pro-life Republicans voted for President Clinton's pro-choice judges? I may be different from some (many) but in my mind that was a great example of checks, balances, and the system working.

And to Mark's point... that's why I think we should let the ideological fight be part of the presidential election battle and ask our Senate to make sure the nominees are qualified, competent, and more or less trustworthy. Let's make sure Judge _______ graduated from a real law school, has real field experience, doesn't advocate the violent extermination of entire races of people, didn't cheat on their bar exam, etc. Then we don't have two parties calling each other extremists.

It would be nice if we could do that, DJR, but I think that's difficult to do in practice.

Take another example. Alito seems to universally side against individuals in cases he sees. Now, this may be appropriate in some and even many cases. But doesn't it tell you something when a judge always sides with the corporation or with the state?

Is that mainstream? Is that extremism? Again, that's a tough call as far as I'm concerned.

This is serious stuff, so personally I'm not obliged to let a judge through solely on the qualifications/competence/sanity issue. I need to see a lot more than that.

Where's the line between wanting to make sure a nominee isn't an "extremist" (whatever that means) and wanting a nominee who will vote exactly the way you want him to?

The problem with committees is that, over time, they produce nothing but the blandest possible results. So if the Senate decides to be picky, the only candidates that get through have absolutely no opinions whatsoever. And as we've just seen with Miers, that presumes that they can even get to the confirmation hearings!

In order to satisfy the competence and sanity conditions, a candidate will have opinions with which somewhere in the neighborhood of half the Senate will disagree. Should they vote solely based on that?

I don't think so.

By the way, I think I would want to read more than one political editorial before deciding that Alito "always" does anything, whether siding against the individual or for or against anything.

I provided at least one link above that suggests the opposite is true. An Ann Althouse editorial, linked in that Blogcritics.org article, lists several cases in which Alito ruled in favor of individuals against institutions. (Two Muslim police officers against their department, a Lakota Indian against Pennsylvania.)

Well yes, I should have said, "Let's assume that's true" with regard to Alito and individuals. And that's why a deliberative process is necessary. I think this is a genuine case where some Senators on both sides will seriously give this guy a chance and hopefully have a (somewhat) open mind about it.

Phillip, while I believe that judges should have opinions and that there will be those who disagree, surely you'll agree that merely holding opinions and expressing them is enough to pass muster. I think you do need to go issue by issue, and again this is where I'll say that it's about a lot more than abortion.

Eric (#17), so can I combine your comments and come up with the idea that you view anyone who doesn't support unlimited access to abortion as an extremist? Or is that reading too much into what you've said here?

No, that certainly isn't an extremist position. But I do think a judge who clearly (and this is difficult to determine, of course) wants to overturn the established precedent of Roe is clearly a conservative "activist" judge, to use a conservative term.

So I think you would need to match that belief against other decisions and opinions of the judge to see if he/she fits under the very subjective areas of mainstream or extreme.

Let me ask you: could you ever see a case where an otherwise qualified judge would need to be rejected based on ideological beliefs?

EB, I could see such an example but it would have to be something like Marge Schott's views on Hitler and minorities. It would have to be something that outrageous.

EB, I though you'd also said that you don't have a problem with activist judges? I certainly don't. It was judicial activism that ended Jim Crow laws, after all. In fact, most advances in civil rights have been the result of judicial activism and the overturning of existing (unjust) laws.

Roe v Wade was judicial activism, and overturning it would also be judicial activism. In and of itself, activism is value-neutral. Rather, activism derives value from the law being acted against.

Right, everyone's idea of extreme is going to be different, but there should be some kind of limit.

What about this: let's say we can determine with some degree of certainty that Alito would likely overturn Roe and will also likely side with the corporation or the state 95% or more of the time.

Would that qualify him as an extremist judge, or simply one with opinions who is more than fine for the Court because the president nominated him?

Would you view that question differently if you represent a largely conservative, moderate, or liberal state?

Phillip -- Personally, I think activism is fine if it moves the law in such a way that is helpful to the country. It's conservatives, remember, who always rail against the "activist judges," yet seem to love Clarence Thomas, who, it could be said, "legislates from the bench" fairly often!

Unfortunately there is no way for there to be a "fair" hearing. Not when the nominee is seen as a "device" by all sides.

In order for there to be a Court that it seems the Founding Fathers wanted we would need to divest the process of bringing nominees to the Court from party politics. Now, admittedly that sounds naive but it could be done. It would take a POPULAR MOVEMENT in order to make it happen - one that essentially shoved the fanatics on both the Right and Left to the margins.

As much controversy as this whole thing as generated - it is a perfect example of why so many Americans are disgusted with politics as usual. Granted, they may not be able to articulate WHAT bothers them about this current circus, but they DO know one when they see it.

This is endemic of partisan politics. The Founders worried about it and before they could go to their graves it had already taken firm hold of this country.

The GOAL for us all should be to DISCOVER what is best for the nation as a whole. When you have the DISEASE of religious fantaticism which now rears its ugly head such a goal is impossible.

If we do not call for a more rational approach on these key issues I guarantee we will see a continued Balkanization of the American cultural landscape.

Alethinos

Wanted to add: I very much agree with Stephen Breyer's notion of "active liberty."

So, based on what I said in #21, I've got a bit of a problem with saying I'd reject someone on ideological grounds alone. I would be tempted to say that someone who didn't respected "settled law" is right out, and that would still leave abortion on the table, as many issues related to abortion are far from settled law.

But the judges who acted to end injustice to women and racial minorities in this were overturning settled law, and that was a good thing. So even the question of settled law isn't enough.

I can't say that the basis should be that a nominee reflects the views of the American people, either. As tempting as that would be, the majority of Americans can be wrong, too, and surely a majority of Americans weren't happy with the end of segregation.

I would say that a judicial nominee who is clearly bent on overturning settled law, that it is a driving force for them, is worthy of extra scrutiny, but that clearly isn't the case with Alito. It might or might not have been with Miers; we'll never know.

The point is, I think, that examining a nominee on individual issues is invidious. The question is whether or not they respect the law and the Constitution. If they do, then we should be able to trust that their decisions will be consonant with that.

Democrats and Republicans alike seem to agree Alito is such a person.

So it sounds like you would consider rejecting a candidate if, after that "extra scrutiny" you talked about, it was determined that the judge would act in a way, let us say, contrary to the best interests of the American people... however you would define it.

Thus, it sounds like you're in the same camp as DJR.

Al, the problem is that it is not always easy to determine what is best for this nation, as much as we each like to think we have a perfect grasp on it. Many people were opposed to desegregation for what they considered to be valid, non-racist reasons. Time gives us a better perspective to make such judgments, but even then it isn't perfect.

I don't think that a person free from ideological bias truly exists, or if he or she does, then he or she is useless as a Supreme Court Justice.

Either religious fanatacism, or fanatical devotion to irreligious belief, is a danger if left unchecked. The Court is part of the check on the other branches of government, and there are nine justices to check each other.

Eric, every time you hear "strictly interpret," it's not "from the bench" to a conservative view, because the strictness implies "if it ain't in the Constitution, it ain't gonna happen in the United States of Am-rrrca!"

Simply put, I can see how activism is tossed around as a negative word when it's just a precedent killer. And it's necessary -- seditious libel comes to mind.

>> This is endemic of partisan politics. The Founders worried about it and before they could go to their graves it had already taken firm hold of this country.

There's a reason the Framers said nothing about parties in the Constitution.

EB, I think that, generally speaking, I would set a very high bar for a yes-vote with regard to experience, intelligence, and reason. But I would set a high bar for a no-vote with regard to specific ideological views. A capable and consistent candidate with whom I disagreed on issues like abortion or racial quotas or whatever, but who nevertheless applied a consistent and erasonable rationale in forming his or her views, would get my vote.

Phillip, I disagree in part. I think individual issues that are critical to constitutional law must be looked at in terms of a judges philosophy, past decisions, and statements. Then they must all be looked as a whole and matched with the issue of competence, etc.

In and of itself, activism is value-neutral

Maybe not. The very act of legislating from the bench, regardless of intent or result, runs counter to the concept of "strict construction." Even if the result of judicial activism is appealing to conservatives I would submit it is an act of liberalism.

Does that mean there is no place for judicial activism? Not entirely. I think there are times for exceptions to the rule (especially if one considers ending Jim Crow activism; I am not sure I would consider it such). I think where we get into trouble is when the judicial branch consistently sees fit to write and re-write laws from the bench rather than setting the parameters for legislatures and executives to operate.

Ending Jim Crow laws to me was not really judicial activism but rather reading the 14th and 15th Amendments to the Constitution.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

DJ (#34), when people use the term activism, they usually mean the overturning of law. The laws themselves, of course, can be flat-out wrong, as Jim Crow laws were, as anti-miscegenation laws were, and so on. And yet it is still considered activism.

I agree that all decisions should be guided by the U.S. Constitution, and such decisions that are considered activist that do that are value-positive. Such decisisons that don't do that and are considered activist are value-negative. That's my point.

EB (#33), I hear what you're saying, but it sounds an awful lot like, "If you're not going to support unlimited access to abortion, I'm against you."

You've mentioned the anti-individual thing a couple of times, by the way, and I've provided evidence to the contrary. So that one probably ought to be re-examined.

Yeah, it's subjective, isn't it!

On my last few examples, I've made sure to say "let's say it's determined if..." so I'm perfectly willing to hang back and see what the real deal is with Alito in terms of any number of issues.

On abortion, I'm very strongly pro-choice. I also have the advantage of not being a Senator, so I can like and not like who I want in terms of judges!

That said, I can see letting through a judge who holds their personal beliefs while respecting established law, as John Roberts has professed to do. A judge that states clearly that Roe should be overturned? Yeah, I'd have a big problem with that.

That's funny, EB, because from a strictly legal perspective, many legal scholars agree that Roe is questionable law, even if they support the outcome.

But it's nice to know that you're honest about your bias!

I've mentioned before that I think that the overturning of Roe wouldn't end abortion in the vast majority of states, so I'm semi-ambivalent on that particular law.

In any case, Alito has ruled many times with respect to abortion, and it seems clear to me that nobody should count on him (or fear him) overturning Roe. The confirmation hearings may provide more details, but I'm betting you'll come around to my side on that issue by the time they're over. :-)

Striking down a law is not inherently activist. If a law violates a strict reading of the Constitution, it is not legislating from the bench to strike it down.

Activism, or legislating from the bench, is when someone starts reading things into The Constitution that are not there. 'Separation of Church and State.' I am not arguing whether or not such a separation is a good idea but it is not in The Constitution. If 'Separation of Church and State' is something we should have, that should have been legislatively decided or Constitutionally amended (in my view). Same for 'the right to privacy.' Privacy is not guaranteed in The Constitution the way the Constitution is written. Someone interpreted that it should be there and decided to pretend it was there even though it's not. I am not anti-privacy here. I am just saying that the actual, written, agreed upon Constitution does not grant a right to privacy. If our nation, or states, think we should have that right there are ways to have agreed upon it. A judge took that decision out of our hands. I disagree with that philosophy (even though I don't always disagree with the results).

Looking at Jim Crow, I think it is incomprehensible that discriminating against African-Americans could have been viewed as legal when one actually reads the words of the 14th and 15th Amendments. Striking down segregation was not activism in my view but rather a correct reading of our own Constitution.

separation of church and state isn't in the constitution? so you're saying that the establishment clause is just being interpreted as such?

Heheheh... I figured I would get myself in some trouble here.

I do think the doctrine of Separation of Church and State is the result of tampering with The Establishment Clause. I think Separation of Church and State has evolved over time in a series of decisions that has redefined the intent of The Establishment Clause rather than looking at exactly what is in The Constitution.

Before we go too far off the tracks... I am not advocating anything as pertains to the role of relgion in society. I do think 'Separation of Church and State' is just one example of legislating from the bench regardless of one's religious sensibilities.

Allow me to extend the previous remarks to say this: that's the type of thing we should be asking our Senators to review in a nominee's background. The ability to follow the law in the face of their own preferences. Can a judge preside over controversial issues using the law as a guide rather than personal political preferences?

I was actually impressed with the way Roberts handled those sorts of questions, DJR.

As a center-left guy, however, talk of "original intent" kind of scares me, and makes me think about how when the Constitution was drawn, it was a revolutionary document blah blah blah, but still: the framers had slaves, only land owners could vote, women and slaves weren't deemed much higher than oxen on the equality scale, etc.

I understand where you are coming from, EB and I share some of the same thoughts and concerns.

So how do I resolve them? First, even though I myself used the word intent I say, "Fuck intent." I don't care what the Framers could or could not imagine. I care about the words on the paper we all recognize as the law of the land. Just because the Constitution doesn't guarantee a right of privacy (in my view) doesn't mean we can't pass legislation that allows for citizens to enjoy privacy. We can and should. The fact the Constitution doesn't spell out those privacy rights means we can change them on our own over time to reflect changes we can't envision or imagine.

We can also amend the Constitution if we come to an agreement upon something we don't want easily changed or altered. Our nation [finally] decided slavery was not something to be taken lightly and we put a Constitutional prohibition on the practice, just as one example.

excellent again! thanks guys - how much is abortion at the center of the confirmation?

I think abortion is the show on all confirmations for the near future. Abortion is either the most or second most divisive issue in our country today. At least, that's my read on it.

As a rule, the Constitution works best when any decision based on it errs on the side of more individual liberty rather than less. At it's heart that's what the intent of the framers was.

Dave

It's all about abortion as far as I can see. The talk about a right to privacy (on which I disagree with DJ, since I think it is implicitly in the Constitution, as does Alito) is important because the right to privacy is considered foundational to Roe. The concern about individual rights in general is important because of Roe. That's why, no matter how many cases I could list in which Alito sided with individuals, anything less than perfect support for unrestricted access to abortion will be viewed as denial of individual rights.

They'll talk about a number of other things during the hearing, but the subtext is all about abortion.

That's how I see it, anyway.

and found that she had a different opinion when it came to wives notifying husbands than she did about teenage girls notifying parents.

Shouldn't it have been glaringly obvious that the spousal relationship isn't the same as a parent child relationship???

That's a pretty radical oversimplification of the situation, T. In fact, Alito never suggested that the two types of relationship were equivalent. The question was whether notification created an "undue burden," which had been defined by Justice O'Connor as an "absolute obstacle or a severe limitation."

The law in question allowed for exception in cases of rape, or when a woman said the spouse was not the father of the child, or when the location of the spouse was unknown, or when a woman said that telling her spouse was "likely to result in the infliction of bodily injury."

So given all of those conditions, is notification still and "undue burden?" Justice O'Connor had ruled that it wasn't an undue burden in the case of a teenage woman, leaving it an open question whether simple notification (not permission, note) was an "undue burden" for an adult woman.

Many reasonable people could go either way on that issue, and Alito made it clear at the time that he was trying to be consistent with O'Connor's rulings specifically.

It's "undue burden," and it's a legal standard, not just an opinion about relationships.

>>DJ (#34), when people use the term activism, they usually mean the overturning of law.

Thre was no law overturned in the Massachusett's marrige ruling, or many of these laws along the way. What the courts seem to be saying is "gay marriage"is not explicitly addressed in the old aws, and therefore, to put it as simply as I can, more law is needed.


Also, I don't see why we hold Senate confirmation hearings anymore. People say ideology shouldn't be discussed, but then many judges clearly hold ideological opinions and put their money where there mouth is. So they have become ideological and clearly many of their decisions are based on ideology not law. (Priscilla Owen flashes to mind)

I don't see how anyone can say they learned anything fronm the Roberts hearings. He said nothing that wasn't already part of the record. From the point of view of whether they were polished answers or not. Yes they were. So what?

Temple, if more law is needed than the legislature should be the ones making it or the Constitution(s) should be amended. It's not supposed to be the judge's role to decide that more laws are needed and then to go forth and make that law. In my view.

Temple, courts cannot make law. So if the law now states that two people of the same gender can get a marriage license in Massachussetts, that's a change in law. If the law used to say that two people of the same gender couldn't get a marriage license, but no longer does, that's a change in law. In fact, for the case to be brought to the court to begin with, there had to be a law involved, the application or meaning of which was challenged.

I don't think we can really say that U.S. courts have not been activist on occasion: the question seems to be about the merit of such activism. Generally speaking, I would say that activism from the court tends to point to either bad judging, or bad legislating.

Jim Crow laws, for example, were bad legislation, and deserved to be overturned. Other laws, maybe not so much.

I'm certainly not inclined to make a blanket statement against either legislatures or courts, though.

Does "change" mean "overturned"?"

The theory about judges is grand. The reality - every day - is less so. Look at the problem with elected judges in the DeLay money laundering cluster.

A "guilty" plea would end that, of course, but . ...

Does "change" mean "overturned"?"

Yes, Temple. When court cases are referred to the Supreme Court, it is because a plaintiff is challenging a law, and wants that law to be overturned. Any change in how the law has been applied in the past is an invalidation of how the law has been applied in the past, which means that the law has been overturned.

Phillip you accidentally changed the argument to refer to only Supreme Court cases. In general the Supreme Court was the subject of the original piece, but it had evolved beyond that by the time I got here to read.

At the Supreme Court level justices can accept a prior change of law by refusing to hear a case - and do so often. They can also take a case to affirm or clarify an existing law. Neither overturns the law. To me, overturn means "invalidates" or takes off the books.

I'd say in the majority of cases, changing the interpretation of a law does not overturn a law.

Nazis! Pinkio-Commies! Sorry it's just too civil around here.

Great job again guys!