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Here Comes “Scalito”

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Dubya Bush introduced his new Supreme Court nominee to the nation this morning: It’s Samuel Alito Jr., a New Jersey native who has been on the US Circuit Court of Appeals for the Third Circuit since 1990. Over the course of his career, Alito has served in the Army National Guard, as US attorney for the state of New Jersey, as a deputy attorney general for the Justice Department, and as a an assistant solicitor general.

Bush says that Alito comes to the nomination with the most judicial experience of any nominee in 70 years. As expected, he is seen as a far-right judge in line with the philosophies of Justices Antonin Scalia and Clarence Thomas: In fact, though he doesn’t demonstrate the bombast of Scalia, many of his colleagues call him “Scalito.”

Alito is clearly no Harriet Miers. He has a track record and the paper trail to prove it. From the New York Times:

Among his noteworthy opinions was his lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the Third 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 Supreme Court, in a 6-3 ruling, struck down the spousal notification, but Chief Justice William Rehnquist quoted from Alito’s opinion in his dissent. …

In a 1999 case, Fraternal Order of Police v. City of Newark, the Third 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 Third Circuit 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.

Bush went straight to the right for advice on nominees that would win points with conservatives. According to the Washington Post, one of those advisors was the anti-GLBT, anti-choice political-fundamentalist group Concerned Women for America: CWA attorney Janet M. LaRue said the group received a call from the White House on Saturday and liked what it heard, which means liberals, gays, and those who believe in women’s reproductive rights may have serious cause for concern.

The scandal-plagued White House has been looking for a way to move the still-ongoing Plamegate investigation off of the front pages of the nation’s newspapers. By choosing a Supreme Court nominee sure to win favor with his far-right base, Bush may indeed revive his sagging popularity with conservatives — and set off a battle royal in the US Senate. Already there is talk that Democratic Sen. Harry Reid is talking filibuster, according to right-wing site The Conservative Voice, which quotes Reid, who reportedly warned the Shrub not to nominate the New Jersey judge, as saying the Alito nomination raises “a lot of problems.”

The choice appears to be a frightening one for those with liberties in jeopardy and for those who already are unequal under law. Which means observers should be prepared to see a real scrap: Senate Republicans and Democrats are ready to rumble over this one. If the GOP wins, certain Americans — the ones the White House does not value — could pay a steep price for generations to come.

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About NR Davis

  • Matthew T. Sussman

    And supposedly I didn’t go into History of Violence with an open mind.

  • Natalie Davis

    Why I waste my time replying to you is beyond me… At any rate, Mr. Sussman, Alito’s well-documented judicial past raises red flags for me. Given the effect a SCOTUS jurist could have on my life, it should not be surprising that I have concerns. And I have the right to express them. Botom line: This is much bigger than some Hollywood film.

  • Michael J. West

    Children, please. Behave.

    I am interested in confirmation hearings. In fact, I was interested in confirmation hearings with Miers. Details, somehow, are important.

  • Matthew T. Sussman

    Exactly. This is much more important than some bad movie. All the more reason to have an open mind.

    We can analyze one day’s worth of research on this guy, or we can be big people and see if he believes in interpreting the Constitution. From those examples from the NYT article, you could take his previous opinions and mold them to who you want him to be. Like Michael J. Fox West said, the confirmation hearings will be the selling point. Although I will admit, watching the ideological Jihad between the two parties is gonna be way better to watch than any … certain … overrated … R-rated … cinematic … failure.

    And like I said, I enjoyed the first half hour of HoV, but somehow I lost my taste for the flick when the kid took the shotgun and turned Ed Harris into the world’s most foul-smelling donut. That’s called having an open mind.

  • Natalie Davis

    That’s your opinon. You’re entitled. Give others the right to theirs. And you don’t know who I want Scalito to be. I want him to be someone who will stand for equality for all under law. I have my doubts of that. IF he is, hallelujah, but if Bush likes him. that does not speak well for him. IMO.

  • Cunning Linguist

    Why is it OK for Clinton to nominate someone from t he far left, Ginsberg, but it is not ok for Bush to nominate someone on the right?

    Just Curious

  • RogerMDillon

    It will be fun to watch all the Republicans talk about The Democrats denying the President the judges he wants and that all nominees deserve an “up or down” vote. I just saw McConnell say the latter. Alert John Stewart!

  • Aaman

    Why shouldn’t a woman let her spouse know of her intention to seek an abortion? It’s a shared decision, innit?

  • RogerMDillon

    Psst, Anthony. That’s your cue.

  • LegendaryMonkey

    Two things concern me:

    -This is a judge who’s had several high profile decisions overturned by the Supreme Court. Doesn’t that speak about his ability to interpret the law… that it somehow may be lacking? Of course, the face of the court changes with time, but still. To me, it seems a flaw.

    -Unrelated to Alito himself, but… when did strict interpretation become synonymous with judgments that fall into the realm of the right? Sure, there’s nothing in the original Constitution about the right to choose to have an abortion, but there’s nothing against it, either. Either way, it’s taking the law a step away from what was initally framed. It seems to me that this is simply a logical step. In the late 18th century, all of the concerns of a modern world could not be addressed. Some were absolute nonissues at the time.

    Maybe I’m just missing something here. I’m certainly no expert on the law.

  • Nancy

    A judge who’s had his opinions overturned by higher courts is not a good candidate; it says his judgement is flawed, more than usual. How many overturns has this guy had, over how long a period of time, & on what issues? That said, it certainly wouldn’t surprise me that all Dubya knows are dicey candidates, given his own personality flaws & inability to discern gold from glitter – or just plain suckups.

  • LegendaryMonkey

    This article had a few of them. I’m sure we’ll see more of his record in the next few days. I’d like to see a list of every decision that went to a higher court. It could be that these were just plucked out as controversial examples. But if that’s not the case… if his decisions are often overturned, I agree — it indicates flawed judgment.

  • Aaman

    Volokh has another decision, here Alito concurred with a decision striking down partial-birth abortion in New Jersey.

    As always, there are no pasteboard characters to knock-down.

  • Dave Nalle

    Flawed judgement unless the upper court that;s overturning Alito is out of whack the way the 9th district court out on the west coast is.


  • LegendaryMonkey

    A couple of the ones I’ve seen were struck down by the SC… “eventually overturned” is the language, I believe, without checking.

    I’ll be glad to read more on his record. I’m sure the press will start rolling out the details in the next couple of days. It’ll just be wading through all the filler that will be the challenge.

  • Baronius

    I think that most Court-watchers would agree that the Rehnquist Court was inconsistent. It clearly had two camps with a couple of swing votes. This prevented the Court from developing and applying clear tests and precedents. Point being, it wouldn’t worry me if Alito were often overturned.

  • Anthony the Sane and Sensible

    Perfect choice!!! A Pro-Life Italian. What more can we ask for???

    And Roger, why do you mention me when I am not even present??? Are you really that obsessed with me???

  • Alethinos

    The hue and cry from the Right about not wanting judges that “legislate” from the bench is quite possibly one of the greater hypocritical stances taken by them.

    What they desperately want are judges to do their bidding. Roe v. Wade is to be overturned… But when Congress doesn’t respond to the Christian fanatics desires quickly enough or boldly enough, well then, where will they turn? To the US Supreme Court!

    What I would like to see from a judge is someone who is NOT beholding to ANY party line – to ANY narrow judicial philosophy.

    I am no more thrilled with the asinine mental mush of the PC Left as I am with the holier-than-thou BS from the Right. Indeed – BOTH mindsets are equally disturbing! While the one on the Right suffers from classic religious psychosis the Left has made a religion-of-sorts out of Political Correctness. They have their priesthood to which struggles constantly – esp., in places like college campuses to assert THEIR will on others.

    If this Alito is, God forbid, in ANY way like Scalia I can scarce imagine where the Court will end up in 5 yrs.


  • Sean

    Judge Alito has had several of his decisions overturned by the Supreme Court. On the other hand, the Supreme Court has adopted some of the positions Judge Alito set forth in his dissenting opinions.

    I don’t buy the argument that because a judge has had his decisions overturned on appeal he should be disqualified. The Supreme Court sometimes gets it wrong (Dred Scott, Plessy, Wickard)and the lower courts were right.

    I have appeared before Judge Alito for oral arguments. He is quiet and does not ask many questions, but the questions he does ask go straigh to the heart of the matter at hand. It is going to be hard to paint this guy as an extremist.

  • Red State

    “If this Alito is, God forbid, in ANY way like Scalia I can scarce imagine where the Court will end up in 5 yrs.”
    Hmm maybe the court will actually decide against siezing private porperty and giving it to businesses Althenios. (Kelo vs. New London)

  • Matthew T. Sussman

    Alethinos, stop running around frantically, take a deep breath.

    Not everyone cares that much about Roe v. Wade. Believe it or not, there are other issues besides abortion. Granted, it’s as divided as it was since then, but I don’t think that will ever go away.

    Roe maybe split on the “right” and “left” but the Supreme Court doesn’t work that way. It’s strict (states’ rights) vs. loose (activist) interpretation. Yes, they’re similar, but it’s not Democrat/Republican or left/right or even liberal/conservative, but it’s just two more schools of thought.

    Even if it does get overturned, it will most likely be ratified in every state.

    The dilemma lies here: while it was an activist decision at the time, it has been precedent for some time.

    Still, judging a judge based on abortion is like evaluating a quarterback based on arm strength alone.

  • Anthony Grande

    Roe v Wade is strongly against States Rights. Roe v. Wade states that the States do not have the CHOICE to decide abortion for themeselves.

  • Matthew T. Sussman

    Exactly. Overturning that would grant the states ther right to legistlate it themselves.

  • Anthony Grande

    And do you agree with that, Suss???

  • Matthew T. Sussman

    No skin off my back either way. These judges have way more on their plate than just abortion, and I want them to interpret it all. And that’s how I want the judges to be judged.

  • Baronius

    Matthew, I’d say that judging a judge on Roe alone is like judging a punter on arm strength alone.

    As much as I’d like to see the Supreme Court rule according to my political views, I’d rather see it be originalist. It goes back to the old Oliver Wendell Holmes line, that the Court isn’t supposed to do good, it’s supposed to enforce the law. I think this is what Alethinos and Monkey miss. There are three possibilities: the activist Rep, the activist Dem, and the originalist. There’s a fourth possibility, only observed once in nature, the activist moderate. O’Conner loves to represent moderation, to the exclusion of any judicial philosophy or political agenda.

    A truly strict constructionist Court would frustrate a lot of Republicans, and might not overturn Roe, but it would be good for the country. The best thing would be a strict constructionist Court that did overturn Roe. But when senators talk about the Court as a machine for morality, they’re as wrong as the senators who see it as a machine for advancing civil rights.

  • Alethinos

    FIRST: Red State… Why don’t you LIST the vote on KELO… Then try and proceed with your point…

    Sussman, I couldn’t have been “running around” frantically – not with a martini in my hand and a bum ankle…

    Roe v. Wade, is the bellweather case. Of course it isn’t the end all. But it is – in the minds of the religio-right – the heart of things “evil” that they want to overturn. You can add to the list their desire to throw out evolution, seperation of church and state, etc., etc.

    Roe was based on Griswold. The issue didn’t hinge of State’s rights – it hinged – and let’s remember Douglas worked HARD to hang it this way, on the Ninth Amendment. The issue was NOT the Federal Gov v. States. It was right to privacy and the power of the State – i.e., where does that “power” end.


  • Michael J. West

    This is fascinating…WaPo points out that frequently, when Alito was reversed by the Supreme Court, O’Connor was the deciding vote in that reversal. The very Justice Alito would replace…

    Well, I thought it was fascinating, anyway.

  • Michael J. West

    OK, I put a tag at the end of the word “This” in that last comment and it somehow got lost. Editor? Help?

  • Anthony Grande

    We should have a united effort between the Democrats and Republicans to overturn Roe v. Wade:

    For the Republicans are anti-Abortion.

    And the Democrats are always calling themeselves, “Pro-Choice” and if Roe v. Wade were to be overturned it would give the States the “RIGHT TO CHOOSE” if they want abortion is their State or not.

  • Michael J. West

    I’ve said this before, but both sides really make a mountain lion out of a housecat with Roe v. Wade. Contrary to liberal fears, and as has been pointed out here, overturning Roe would not make abortion illegal. It would make abortion a state-by-state issue.

    And contrary to Anthony’s wonderful dreams of unanimity among the 50 states, I would guess that MAYBE ten — MAYBE — would make abortion illegal.

  • Anthony Grande

    Michael, all the the Midwest states, Southern states and any other state that makes it a proposition will ban abortion. But even not, wouldn’t it be fair to give the states “THE RIGHT TO CHOOSE” if abortion is should be legal for themeselves.

  • Michael J. West

    Anthony, you’re assuming that every state that went for Bush last November would automatically make abortion illegal. No way, kiddo. Not everyone who voted for Bush in 2004 is pro-life, believe it or not.

    I’m not even certain that all of the Southern states would (I’m from North Carolina and I really doubt it would happen there), and I KNOW that not all the midwest states would.

  • Alethinos

    Mr. West… As bad as things are NOW with these issues playing out on a national level… Can you imagine the death grip this would have is STATE LEGISLATURES? Roe v. Wade, played out 50 times over…

    Which wouldn’t be the end of it anyway as the socio-political carnage would be so massive it would AGAIN in some form end up back before the Court – AND the Congress…


  • Anthony Grande

    The state lawmakers do not represent the people in their decisions. This happened in the late 1700’s France. We all know what happened to the lawmakers there that didn’t represent the people, right???

  • Michael J. West

    How’s that different than the way things are now, Alethinos?

    I’m not disagreeing with you, I’m just saying we might as well not parse it too finely here. Whether Roe is upheld or struck down, it will do nothing whatsoever to calm down the abortion debate in this country.

    I daresay it won’t even change it much.

  • Anthony Grande

    Michael, I would safely argue that over half of Americans are Pro-Life. Not everyone that voted for Bush was pro-life??? Well, not everyone that voted for Kerry is pro-choice.

  • Michael J. West

    Anthony, do you imagine that it will be an issue that the state legislatures will decide by themselves? Or will it be a ballot issue for the people?

  • Anthony Grande

    I would like it to be a ballot issue. Us Pro-Lifers would have more success that way.

    But I could see many states having there state legislasures doing it themeselves. They are afraid of what the people might vote for.

  • Michael J. West

    Either way, of course, Alethinos is right. It’ll be 50 separate dramas just like the big federal one now. Abortion will go before state supreme courts, and regardless of which way the courts decide, each party will then try to stack the state courts with “activist judges” who take their side on the issue.

  • Anthony Grande

    Then maybe civil war will break out.

    Hey, it is how we ended the barbaric tradition of slavery, isn’t it???

  • steve

    I love it. After all of the liberal whining of no track record for Miers……BOOOM!!!! thats what you get you commies!!! a hard-right nominee. Its beautiful. I love his illustrious track record of voting consistantly to the right! W. isnt (eff)ing around on this nomination! he tried to please everyone with the Moderate Miers. BUT NOOOOOO…. Now, without further adeu, I welcome Scalia’s mini-me. Do you think he goes duck hunting with Scalia and Cheney?

  • RogerMDillon

    “After all of the liberal whining of no track record for Miers”

    Thanks for paying attention. All the whining came from the other side of the aisle.

  • alienboy

    Michael J: I fixed your broken link in #28, you actually closed it with /i not /a, which just goes to remind us all how IMPORTANT it is to be VER CAREFUL out there when writing live code…

  • Alethinos

    West… You’re right of course – the heat of this issue will continue one way or the other… the mind becomes numb though when considering this battle tearing up each state…



  • Michael J. West

    Thanks Alienboy. Oops. :-)

    Steve, seriously!

    After all of the liberal whining of no track record for Miers……BOOOM!!!!

    Yeah. From diehard liberals like Rush Limbaugh, Arlen Specter, Trent Lott, and Robert Bork. You are referring, I think, to the CONSERVATIVE whining of no track record for Miers. Liberals for the most part didn’t say a word.

    Steve, you really ought to make sure you know what the Hell you’re talking about before you comment.

  • Anthony Grande

    No the Conservatives were whining about no Conservative track record. The Liberals were just whining because they had to whine about something.

  • Anthony Grande

    Michael, Arlen Specter a Conservative???

    You better start doing a bit more research.

  • RogerMDillon

    “Steve, you really ought to make sure you know what the Hell you’re talking about before you comment.”

    Why should he start now?