From: Phillip Winn @ Center-Right To: Eric Berlin @ Center-Left
Actually, the Appeals Court does deal with most of the same issues as the Supreme Court, including the question of settled law. It was over just such a question during Alito's tenure as an Appeals judge that he and O'Connor had a rare disagreement, as he tried to decide a case in keeping with her stated philosophy in a related case, and found that she had a different opinion when it came to wives notifying husbands than she did about teenage girls notifying parents.
As I said before, all of the other dancing around when it comes to Supreme Court nominations is window dressing. The real issue at hand is abortion. On that score, I believe the hard-core conservatives are missing several important clues from Alito's rulings as an Appeals Court judge that might give them less confidence than they currently seem to feel. Alito has issued and supported rulings denying restrictions on abortion and upholding access to abortion within the Third Circuit, precisely because of precedent.
In fact, I would say he's as likely to vote to uphold Roe v. Wade as to overturn it, which is roughly where Justice O'Connor found herself early in her service to the Court. Frankly, I'm not actually sure either Roberts or Alito is as reliable an anti-Roe vote as some believe!
Still, Alito will almost certainly win the nomination, despite potential misgivings from conservatives. Early signals have made it clear that Alito is a candidate worth ending the filibuster for, if that parliamentary rule is invoked to avoid a vote. His opponents may (and should) question him thoroughly and sternly, but it is hard to imagine anyone coming up with any reason to deny Alito the position other than ideological differences. Based on coverage of his rulings over the last fifteen years, he is certainly not an ideological extremist.
Reid is playing hardball politics, that's for sure. Between the publicity stunt of a closed-door Senate hearing and strong words at just the right time about the withdrawal of Harriet Miers, Senator Reid is positioning himself as President Bush's chief political adversary. Dare I say he might be angling for a Presidential nomination in 2008? However, Reid himself voted for the invasion of Iraq, and that will surely color his efforts to criticize the Bush administration on the subject. In the end, hardball politics are still just politics, and won't affect anything other than poll numbers. Poll numbers which, at this point, matter more to Reid than to Bush, I think.
Article comments
— go to most recent comments1 - Alethinos
>>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
2 - Phillip Winn
Sorry, Al! It may be less fun, but unlike most political discussions, these just might have a chance of influencing someone's opinion. :-)
3 - Eric Berlin
Personally, I find it more fun when you can actually talk about something!
4 - Matthew T. Sussman
How many qualified "moderate" judges are out there?
5 - Phillip Winn
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!"
:-)
6 - DJRadiohead
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.
7 - Eric Berlin
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.
8 - Mark Saleski
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.
9 - Eric Berlin
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.
10 - Mark Saleski
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.
11 - Phillip Winn
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.
12 - DJRadiohead
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.
13 - DJRadiohead
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.
14 - Eric Berlin
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.
15 - Phillip Winn
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.
16 - Phillip Winn
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.)
17 - Eric Berlin
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.
18 - Phillip Winn
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?
19 - Eric Berlin
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?
20 - DJRadiohead
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.
21 - Phillip Winn
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.
22 - Eric Berlin
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?
23 - Eric Berlin
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!
24 - Alethinos
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
25 - Eric Berlin
Wanted to add: I very much agree with Stephen Breyer's notion of "active liberty."