Just Stop It

If I hear one more person state that Alito is in favor of strip searching 12 year olds, or in favor requiring women to notify their husbands if they intend to have an abortion, or in favor of racial discrimination, or whatever, I am going to blow a gasket. John Henke has already dealt with many of these bullshit attacks (as has Patterico), but they have not received enough attention.

It sure didn’t take you guys long to get your talking points disseminated, and the fact that many of you are spouting them already reminds me that as a lot, the left is as unprincipled as many in my party, and that, sadly, includes a number of the commenters here.

None of you, and I mean NOT ONE SINGLE PERSON, knows whether Judge Alito favors strip searching twelve year olds. We do, however, have some evidence that he finds it distasteful. How do we know that? Well, not from the Thinkprogress or dKos talking points (or Senator Feinstein’s notes), but from his actual opinion:

I share the Majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealer’s sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from search a child (in a proper manner) if a warrant has been issued and the warrant is no illegal on its face.

In short, it would appear that the exact opposite is true- Judge Alito might actually find searching 12 year olds an unfavorable behavior. But what he says is that he finds no legal reason why police should be prohibited from doing so. I would tend to find this an unfavorbable behavior, and I would pressure my legislature and executives to make sure it is not happening. The Supreme Court is not there to protect rights in the abstract, they are there to determine whether rights, as outlined in the Constitution, are defended and protected. They are not there to ‘make things right.’ They are there to faithfully interpret legislation and the Constitution.

Personally, I find the case in question disgusting for a number of reasons, most of which is based up0n my opinion on the War on Drugs in general (not to mention my decidedly non-Republican position on the rights of the accused). But simply lying about Alito, making him out to be some sort of crazed misogynist intent on controlling a woman’s uterus or strip searching little girls is unfair, inaccurate, and does nothing but queer the debate.

Alito may be an unacceptable candidate. He may be a perfectly good nominee. But we should debate his judicial philosophy, not inject silly attacks on what we think he believes, or distort his dissents and his opinions into some sort of catalogue of political opinions. There is a difference between a legal opinion and a political opinion, and what Justices believe personally is irrelevant- it is how they interpret the Constitution that matters.

Failing to recognize that leads me to believe that many of you really are in favor of judicial activism- just the kind that fits your politics.

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218 replies
  1. 1
    ppGaz says:

    Well, I heard the guy’s name for the first time 4 hours ago.

    Excuse me for not having his up-to-date dossier on my desk by now.

    As for your last sentence … Everybody is in favor of decisions that fit their politics. “Activism” is just a manipulation word, no matter who is using it. Anyone who says otherwise is just fill of balloon-juice (hot air).

  2. 2
    jg says:

    When did you turn into Hannity? No one is saying he’s in favor of strip searching children. Thats FOX style misdirection. People are pissed that he seems to think its ok for cops to exceed the limits of a warrant. Thats what the incident says about him. Don’t fall into the FOX trap and yell at your opposition over shit they ain’t saying.

  3. 3
    John Cole says:

    JG- read the Jon Henke post. What you are saying about exceeding the warrant appears to be inaccurate. And you might read some of the commenters in previous posts in which people asserted just that.

  4. 4
    Caroline says:

    Seems to me if there was such a great chance that the little girl carried drugs, then they should have gotten approval from the judge. Okaying a case where the police only had approval from a judge to strip search the father and the house and then when they got there strip searching a little girl doesn’t look good at all. He could have dissented on this opinion but didn’t.

  5. 5
    NMI says:

    People don’t like that Alito supported cops when they obtained a warrent to search a mans home and then strip searched a woman and child living there. In Alito’s view the woman and child were just pieces of the man’s property like his couch and desk.

  6. 6
    John Cole says:

    Caroline- Read the Jon Henke link, especially this part:

    First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.

    Really- the hyperlinks are there for a reason.

  7. 7
    Tim F. says:

    If he’s anything like Scalia then it’s entirely possible that when philosophy runs up against agenda, agenda wins. I’m not the legal or Alito scholar to say whether this is the case, but it happens.

  8. 8
    KC says:

    John, great post. The truth is both sides are into judicial activism. Harriett Miers may have been unqualified, but the truth is is a lot of conservatives didn’t like her because they weren’t sure whether she was active enough. I know this very well from listening to my conservative religious friends talk. On the other hand, I’m already getting a little upset about all the wild talk I’m seeing on the left right now. I’m also getting a little peeved at the whole judicial war meme that’s being so spattered about in the press. I just wish everyone would calm down a little bit, drink a beer or something.

  9. 9
    Barbar says:

    I love conversations about “judicial activism.”

    A lot of people have read the Constitution, because it is a very brief document. And then a lot of people have heard about various Supreme Court cases like Roe v. Wade and the Kelo case. And they have an easy time understanding and repeating points like “Where in the Constitution is there a right to privacy?” “Where in the Consitution can Kelo be justified?”

    But if you ever open up a Con Law casebook you will need about five minutes to realize how ridiculous it is to think that this sort of argument settles the matter. Where exactly did Jefferson get the power to make the Louisiana Purchase? How did the national government get the power to create a national bank that couldn’t be taxed by the state governments? Where is soverign immunity specified in the Constitution?

    The fact of the matter is that Constitutional interpretation is a complicated process, going well beyond the ability to read a five-page bullet-point document. There is no “Constitutional determinism” where answers to every legal question can be found just by reading it more carefully. There are certainly better and worse arguments regarding the Constitution, but merely reading the Constitution settles very little.

    It is also a fact that Alito has developed a style of Constitutional interpretation that leads him to consistently defend certain laws that most people would consider unpalatable.

  10. 10
    Kimmitt says:

    Um, the majority considered and rejected Probable Cause in the case of the mother and her daughter, so arguing about that (as in your linked articles) is pretty dishonest.

    In addition, I don’t care what legal sophistry you hide behind; anyone who upholds spousal notification laws as Constitutional is either a complete wackjob or simply in favor of them. Judge Alito does seem to be able to tie his own shoes and type using capitalization, so I’m going with option B.

    Finally, I do note that you are honest enough not to fight the fact that Alito is against the FMLA and wishes to eviscerate civil rights protections.

  11. 11
    Steve says:

    Do you really think people care more about “judicial philosophy” than about abortion, capital punishment, torture and indefinite incarceration of suspected terrorists, and any number of other substantive issues?

    There is such a thing as “judicial philosophy” – if you are a law professor. In the real world, you’re just buying into framing, where “judicial restraint” is a code word that means you don’t think there’s a right to privacy in the Constitution.

    When Judge Alito struck down the Family Medical Leave Act, was he “appropriately” deferring to Congress’ resolution of a policy debate? Of course not – but good luck finding a single advocate of “judicial restraint” who will condemn that decision. No, they will instead praise it, because striking down liberal policy initiatives is the “good” type of judicial activism, and protecting individual rights that aren’t listed by name in the Constitution is the “bad” type.

    It’s funny how a certain type of “judicial philosophy” always seems to lead judges to a certain set of conservative-friendly results. The sooner we drop the pretense that “judicial philosophy” is anything other than a code name for ideology, the sooner we can have an honest debate.

  12. 12
    Davebo says:

    Hey, you wanted a nominee with a track record, you’ve got one.

    I can think of several instances where requiring a woman to notify her husband (not seek approval) prior to getting an abortion would consitute an undue burdon.

    I think that allowing a company to fire someone solely because they have AIDS is a bit outrageous. But not at all suprising from this candidate.

    If Patterico and others feel they have perfectly reasonable explanations for the decisions I suggest they pass them along to the senate judiciary committee asap.

    They will likely need all the help they can get on this one. But they better come up with better excuses for the two examples above than they are currently offering in your links. Because there’s no way those will fly with the American public.

  13. 13
    NMI says:

    “First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.”

    Irrelevant. The warrant application sought this permission, but the warrant DID NOT grant it.

  14. 14
    kenB says:

    anyone who upholds spousal notification laws as Constitutional is either a complete wackjob or simply in favor of them.

    So, where in the Constitution do you locate the right not to notify your spouse before obtaining an abortion?

  15. 15
    demimondian says:

    First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.

    Irrelevant. The warrant application sought this permission, but the warrant DID NOT grant it.

    If this is true — and I haven’t read this _Doe_, so I don’t know one way or another — then it seems to me the magistrate had explicitly refused to grant permission to the police to perform the search, which would make it grossly out of bounds under A4.

  16. 16
    Geek, Esq. says:

    The problem was that he engaged in bullshit reasoning and a results-oriented opinion in order to permit the strip-searching.

    The warrant DID NOT MENTION ANYONE BUT THE FATHER.

    But he held that the strip search of the wife and daughter were authorized anyways.

    So much for that 4th Amendment.

  17. 17
    Geek, Esq. says:

    And Henke was under the impression that the police authorize their own warrants, so there ya go.

  18. 18
    Sojourner says:

    So, where in the Constitution do you locate the right not to notify your spouse before obtaining an abortion?

    Life, liberty and the pursuit of happiness.

  19. 19
    Blue Neponset says:

    In short, it would appear that the exact opposite is true- Judge Alito might actually find searching 12 year olds an unfavorable behavior. But what he says is that he finds no legal reason why police should be prohibited from doing so.

    Who gives a shit what he personally thinks about the results of his decisions? The fact remains that Alito has concluded it is OK for the government to strip search 12 year olds and it is also OK for the Gov’t to require a wife to inform her husband if she desires an abortion.

  20. 20
    Barbar says:

    Uh that’s not in the Constitution Sojourner.

  21. 21
    Sojourner says:

    You’ve written some pretty lame things, John, but this has got to be at or near the top of the list.

    When a judge is in the minority (often a minority of one) on his own court and his position is not held by the SC, you want to accuse US of judicial activism?

    Whoops, I forgot. This is Bush world where up is down and black is white.

  22. 22
    docG says:

    My, my. All worked up and no where to go! Judge Alito will be confirmed after much handwringing and name calling. The check for thirty years of intense conservative activism is about to be cashed and the Democrats cannot stop it. Abortion will eventually be more limited than under Roe v. Wade, but not enough to keep the Religious Right from using its most powerful fund-raising tool – the ungodly are killing babies.

    Conservatism will finally beach itself on its own hubris and overeaching, which is well under way. The conservative/liberal pendulum swing will move to the left once again.

  23. 23
    Sojourner says:

    So, where in the Constitution do you locate the right not to notify your spouse before obtaining an abortion?

    Where is it written in the Constitution that a woman has to get permission from her husband to do anything?

  24. 24
    alex says:

    confused..you start by saying he doesn’t favor strip searching 12 year olds, then you follow by quoting him favoring strip searching 12 year olds, and so on with your further complaints. am i being unsophisticated about this? which i’ll admit is entirely possible.

  25. 25
    Geek, Esq. says:

    JC:

    We’re arguing for strict adherence to the 4th Amendment. Alito is the activist in that he’s saying it’s not binding on the Executive.

  26. 26
    Defense Guy says:

    The fact remains that Alito has concluded it is OK for the government to strip search 12 year olds…

    You’ve never read the decision or the case, I can tell.

  27. 27
    srv says:

    The 4th is dead and gone, move on.

    And Henke was under the impression that the police authorize their own warrants, so there ya go.

    Warrants are passe also, look for the Patriot Act standards to be the norm in about 10 years.

  28. 28
    jg says:

    First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.

    I agree they asked for permission to search everyone, I agree with why they would aske for that. Did they get permission?

  29. 29
    Geek, Esq. says:

    Let’s see.

    If I apply for a job, and write numerous times on the application that I want to be paid a million-billion dollars a nanosecond, I guess that would trump whatever agreement regarding salary I actually sign with the company.

  30. 30
    Defense Guy says:

    Where is it written in the Constitution that a woman has to get permission from her husband to do anything?

    Now you know that the decision which has you up in arms does no such thing.

  31. 31
    Geek, Esq. says:

    agree they asked for permission to search everyone, I agree with why they would aske for that. Did they get permission?

    No.

  32. 32
    jg says:

    Then JC’s wrong here:

    JG- read the Jon Henke post. What you are saying about exceeding the warrant appears to be inaccurate. And you might read some of the commenters in previous posts in which people asserted just that.

  33. 33
    Shygetz says:

    The warrant did not state that they had permission to search everyone in the apartment. If the police can’t take the time to read the warrant, then fuckem. There were no exigent circumstances to require a warrantless search. They asked for a warrant and did not receive it. They did the search anyway, and Alito said it was okay. That is a crappy decision, and no talking point.

  34. 34
    Defense Guy says:

    ShyGetz hasn’t read the opinion.

  35. 35
    Davebo says:

    So, where in the Constitution do you locate the right not to notify your spouse before obtaining an abortion?

    It’s just below the section authorizing congress to form the US Air Force.

  36. 36
    NMI says:

    Did they get permission?

    No. http://pub.bna.com/cl/024532.pdf The explanation of why the warrant did not give them permission starts the last paragraph of page 6.

  37. 37
    Kirk Spencer says:

    Sadly, John, Henke and Patterico’s rebuttals of the strip search issue are wrong. That’s why I actually linked to the full decision in the last post. Both of the affirming judges cleanly destroyed the points the rebuttal claims. Let me put it simply (and it’s NOT that Alito approves of cavity searches of 10 year olds).

    Alito ruled that when a warrant sets bounds smaller than requested, searchers could exceed the warrant so long as they did not exceed the bounds of the original request. Yes, there are caveats and nuances, but that’s the core of the position.

    The rest of the business – yep, the officers typed both affidavit and warrant for the signature, and the whole house was valid for search – is as much a smoke screen as the fact that one of the two searched without warrant was a 10 year old girl. Both create talking points for positions for and against Alito – and I will point to responses in the other thread as to exactly which will carry more weight with most people.

    Henke and Patterico basically restate Alito’s dissent. That is, since the officers wrote both, OF COURSE they meant what was in the affidavit to be in the warrant. Note that the other two judges took the position that since they wrote both they also had every reason to know what was in the warrant. The defenders also claim that there was probable cause for the search. Again I refer you to the original link I made of the whole decision. Essentially, the majority said probable cause did not exist. The raid was a “surprise” raid. The likelihood that drugs would be hidden in the vagina and anus of either of the other two people (wife and daughter) as a matter of course was highly unlikely, and the swiftness of the intrusion was such as to make it equally unlikely they’d been hidden as a desparate ploy. Probable Cause has some core requirements, and “sometimes it happens” is a weak reed on which to exceed a warrant.

    I will point out that the judge appears to be implying in his dissent that the wife and daughter are equivalent to property as he states the breadth of the property search authorization implies the intended warrant to search EVERYTHING. In counterpoint I’ll note he did not SAY they were part and parcel of property, just that the breadth of the property warrant implied they too could be searched. Again, careful parsing and nuance make it fall into the realm of “trying to find a line in the gray area.” But barring reading of the full and careful consideration of the same, the summation makes it a nightmare for Alito.

    To close, I did not intend to push the talking point. I intended to argue that Alito’s decisions – and in particular this decision – give strong indication of his opinions of privacy and property. Better said, I think, would be that in a case of the rights of states vs individuals it becomes fairly clear where his decision would proceed. Unfortunately doing so meant discussing the case, which in turn means the elephant in the living room makes it hard to discuss the furniture.

  38. 38
    metalgrid says:

    The Supreme Court is not there to protect rights in the abstract, they are there to determine whether rights, as outlined in the Constitution, are defended and protected. They are not there to ‘make things right.’ They are there to faithfully interpret legislation and the Constitution.

    So does that mean that you:
    1. Don’t believe in the 9th amendment.
    2. Believe that the constitution is about government granting rights to individuals (as Patterico does) rather than the people granting valid areas of jurisdiction to government and restricting government interference from the rest.

  39. 39
    smijer says:

    anyone who upholds spousal notification laws as Constitutional is either a complete wackjob or simply in favor of them.

    AMEN. If as an appellate court judge, he recognized Roe as established law, it is inescapable that spousal notification would violate both the right to privacy as established under Griswold that was the basis of Roe, but also the undue burden clause of Roe itself. Upholding this law is nothing but judicial activism, and the only reason to engage in judicial activisim is because you support the ideology of the law… Ergo, he’s either a complete moron, or he actually thinks women should have to notify their husbands if they have an abortion.

    And, people wonder where radical feminists get the idea that abortion opponents are Rapo-fascists… (I think they are, largely, wrong in picturing abortion opponents this way… but hey – it ain’t like George Bush didn’t just give them all the more reason to believe it).

  40. 40
    Defense Guy says:

    Alito ruled that when a warrant sets bounds smaller than requested, searchers could exceed the warrant so long as they did not exceed the bounds of the original request. Yes, there are caveats and nuances, but that’s the core of the position.

    No, not really. In fact, the claim is that the warrent references another document, in this case the affidavit, which it does. The majority simply takes the position that this reference is in the wrong place to be applicable. Alito disagreed, and his reasons are spelled out in his opinion.

  41. 41
    Pb says:

    Amid John’s faux outrage and bluster was buried some good advice–read the actual opinion. Of course the truth is more complex than either side would have you believe, but after reading it, then you can decide for yourself whether Alito is either a brilliant shining champion of justice defending the government’s inalienable rights to search potential drug addicts/traffickers/criminals without having their hands tied by ridiculous liberal ‘probable cause’ tests, or a diabolical authoritarian fascist who hates America, women, and children, and seeks to subvert the 4th Amendment, the Bill of Rights, and the Constitution. We report, you decide.

  42. 42
    jg says:

    The majority simply takes the position that this reference is in the wrong place to be applicable.

    Simply? Is it in the wrong place? Alito is assuming what the officers meant? Thats not activism?

  43. 43
    rob says:

    Caroline- Read the Jon Henke link, especially this part:

    First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.

    Really- the hyperlinks are there for a reason.

    John you jumped in twice to say that we were all wrong about exceeding the warrent. Now after a few people read the decision, and it shows that the only John Doe was named as to be searched you are suddenly silent.

    Are you previous comments inoperable?

  44. 44
    Defense Guy says:

    Simply? Is it in the wrong place? Alito is assuming what the officers meant? Thats not activism?

    Have you read his dissent? It doesn’t appear that you have.

  45. 45
    jg says:

    having their hands tied by ridiculous liberal ‘probable cause’ tests

    Efforts to prevent a police state are liberal now? Amazing that the people who rail on communism would seem to find great comfort living with the KGB running law enforcement in the US.

  46. 46
    jg says:

    Have you read his dissent? It doesn’t appear that you have.

    Was. it. in. the. wrong. place?

  47. 47
    Geek, Esq. says:

    In fact, the claim is that the warrent references another document, in this case the affidavit, which it does. The majority simply takes the position that this reference is in the wrong place to be applicable. Alito disagreed, and his reasons are spelled out in his opinion.

    No, the problem is that the warrant DID reference the affidavit for certain questions but failed to do so with regard to the question of who was subject to search.

    If I say that I agree with you that Osama bin Laden is a murderous terrorist and that Saddam was a cruel dictator, that does not mean I agree with you that Bush was a better choice than Kerry.

  48. 48
    KC says:

    I believe this is one of the more important passages of the majority’s ruling in the “warrant” case:

    In the case we consider now, however, the circumstances are precisely the reverse of the preceding category of
    “cure” cases. Here, the affidavit is broader than the warrant, and the police in fact searched more broadly than the warrant. Unlike Carlisle, then, the officers seek to use the affidavit to expand, rather than limit, the warrant. That makes all the difference.

    Hmmm. Maybe I was wrong about what I said above?

  49. 49
    Defense Guy says:

    Was. it. in. the. wrong. place?

    The majority decision thought so, Alito did not.

    No, the problem is that the warrant DID reference the affidavit for certain questions but failed to do so with regard to the question of who was subject to search.

    The reason given for this was that there was no more room in the space provided. The affidavat was referenced in another spot on the warrent, so it was a supporting document for the search. The affidavat clearly stated the search was to be of anyone in the house. The majority got it wrong in this case.

  50. 50
    Cromagnon says:

    Lets be real. One man’s judicial activist is another man’s strict constructionist. Just depends on your ideology. Basically a judicial activist is defined as a judge who makes rulings that conflict with ones own ideology

  51. 51
    MI says:

    Hey John

    Kirk Spencer’s last post gave me an idea for your site. Ever thought about elevating certain comments to the front page as counter arguments to your posts?

    I would love reading a well thought out, intelligent and honest rebuttal to your original posts right there in the original post itself. I don’t always have time to scan through the comments section and read everything, especially when the comments get into triple digits.

  52. 52
    Kirk Spencer says:

    Pb, wrong case. Or rather, not the one with which I started this firestorm, though markedly similar (even though it’s nine years earlier).

    I linked to Doe v Groody, not Baker v Monroe Township. The former (as per prior thread’s link) can be found at
    caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf .

  53. 53
    Defense Guy says:

    KC

    They got it wrong because they did not allow the consideration of the affidavat as being an extension of the warrent, and in this case it was. This is the only way they could conclude that the search was broader than the scope allowed, as the scope was laid out in the affidavat and the affidavat was reference on the warrent.

  54. 54
    Geek, Esq. says:

    The reason given for this was that there was no more room in the space provided. The affidavat was referenced in another spot on the warrent, so it was a supporting document for the search. The affidavat clearly stated the search was to be of anyone in the house. The majority got it wrong in this case.

    Bottom line: The warrant didn’t authorize a search of anyone in the household. It flat out didn’t.

    Judges authorize warrants, not affidavits.

  55. 55
    JonBuck says:

    I see a lot of fireworks here.

    I see very little of substance.

    These issues are so emotionally charged that nobody can think straight, much less engage in real debate that would lead to any kind of concensus.

  56. 56
    Geek, Esq. says:

    They got it wrong because they did not allow the consideration of the affidavat as being an extension of the warrent, and in this case it was. This is the only way they could conclude that the search was broader than the scope allowed, as the scope was laid out in the affidavat and the affidavat was reference on the warrent.

    The scope clearly exceeded the warrant. The only way around this was to claim that the warrant incorporated the affidavit in its entirety. That is a clearly erroneous viewpoint, where the form referenced the affidavit in some areas but not the area in question.

  57. 57
    jg says:

    They got it wrong because they did not allow the consideration of the affidavat as being an extension of the warrent

    Should they have. Is there law or precedent? Cops can’t just make up process for getting and acting on warrants.

  58. 58
    John Cole says:

    John you jumped in twice to say that we were all wrong about exceeding the warrent. Now after a few people read the decision, and it shows that the only John Doe was named as to be searched you are suddenly silent.

    Are you previous comments inoperable?

    Or I might have suddenly been at the bank.

    I was wrong with this statement, but not wrong with my description here of Alito’s view (since it was a direct quote).

    And I concur with this:

    The warrant did not state that they had permission to search everyone in the apartment. If the police can’t take the time to read the warrant, then fuckem. There were no exigent circumstances to require a warrantless search. They asked for a warrant and did not receive it. They did the search anyway, and Alito said it was okay. That is a crappy decision, and no talking point.

    And this seems to me to be accurate:

    Let me put it simply (and it’s NOT that Alito approves of cavity searches of 10 year olds).

    Alito ruled that when a warrant sets bounds smaller than requested, searchers could exceed the warrant so long as they did not exceed the bounds of the original request. Yes, there are caveats and nuances, but that’s the core of the position.

    meanwhile, you are all doing the same thing to me that others are doing to Alito. I probably, if in Alito’s shoes, would have voted with the majority in the search case. The point of this post was that rather than debate the Alito nomination on the merits, already a number of you are ranting and raving that “Judge Alito favors searching little girls” rather than the much more compelling argument thatKirk made here.

  59. 59
    jg says:

    This all boils down to ‘he got off on a technicality’ bullshit. If a criminal gets off because cops fucked up the paperwork the solution isn’t to allow cops to get by with shoddy paperwork. Imagine if the IRS allowed that?

  60. 60
    Defense Guy says:

    Judges authorize warrants, not affidavits.

    Sigh. I’m not even a lawyer, but I have taken the time to learn the law on this. Warrents can reference other documents, and when they do, the referenced document becomes a part of the warrent. The judge can refuse to sign it, or make the applicant change the attached documents if he/she so desires. In this case, the judge did not do that having read both the warrent and the attached affidavat (being referenced in the application).

  61. 61
    Pb says:

    Kirk,

    Thanks for the correction! I like how Alito mentions that “probable cause to search premises does not necessarily provide probable cause to search every person who is found on the premises” — it’s just a shame that he didn’t cite Baker v Monroe Township as precedent. :)

  62. 62
    Defense Guy says:

    And I concur with this:

    The warrant did not state that they had permission to search everyone in the apartment. If the police can’t take the time to read the warrant, then fuckem. There were no exigent circumstances to require a warrantless search. They asked for a warrant and did not receive it. They did the search anyway, and Alito said it was okay. That is a crappy decision, and no talking point.

    John, it’s simply not true that they police acted in bad faith on this one. They did recieve the warrent they requested, and they did believe that the supporting document gave them the right to search all occupants. I happen to believe Alito was right in this decision, regardless of the fact that I find the actual act intolerable.

  63. 63
    Kimmitt says:

    Oh, come on. The majority’s opinion is very much the correct one, and obviously so. Alito’s in favor of warrantless strip-searches of little girls without the benefit of probable cause — because of his overwhelming interest in the War On Your Neighbor. So there we go; Alito’s such a wackjob on the WOYN that even strip-searching little girls isn’t enough to force him to get a clue.

    But that’s, you know, a bit nuanced, so we have to settle for “Alito’s in favor of strip-searching little girls.” The all-important sound bite.

  64. 64
    Davebo says:

    already a number of you are ranting and raving that “Judge Alito favors searching little girls” rather than the much more compelling argument thatKirk made here.

    I’ve read every single comment and I seem to have missed those.

    I think more likely, you are assuming that your commenters are reacting in a way you predicted without actually having read them.

  65. 65
    jg says:

    Warrents can reference other documents, and when they do, the referenced document becomes a part of the warrent.

    At least twice its been stated that they did not reference the affidavid in the area in question. Are you ignoring that issue? Since they referenced the affidavid at least once it applies to the whole warrant? Is that you’re position? Is it opinion or is it backed up?

  66. 66
    Davebo says:

    While typing my last Kimmet came and made the exact claim I said hadn’t been made here.

    But I believe at the time, I was correct.

  67. 67
    Otto Man says:

    I love how Alito said he regretted having to support the strip searching of a little girl.

    Reminds me of another jurist, Judge Smells from Caddyshack: “Danny, I’ve sentenced boys younger than you to the gas chamber. Didn’t want to do it. I felt I … owed it to them.”

  68. 68
    Geek, Esq. says:

    Sigh. I’m not even a lawyer, but I have taken the time to learn the law on this. Warrents can reference other documents, and when they do, the referenced document becomes a part of the warrent. The judge can refuse to sign it, or make the applicant change the attached documents if he/she so desires. In this case, the judge did not do that having read both the warrent and the attached affidavat (being referenced in the application).

    Yes, there can be incorporation. BUT, the warrant did not incorporate the affidavit as a whole. Rather, it picked and chose certain sections of the affidavit for incorporation.

    It did not incorporate or otherwise mention the affidavit’s language on who was subject to search, and it did not state that “the accompanying affidavit is incorporated in its entirety.”

  69. 69
    Lines says:

    Lets see, a Supreme Court nominee that is always writing dissents. He’s obviously in the minority in a lot of his opinions, but Defense Guy and JC think thats just swell dandy and its us god damn liberals that keep manipulating things.

    Well fuck you John and DG. What you are defending is a man that does support the rights of the police to overstep their bounds and essentially anally rape a 10 year old girl under the cover of a drug search. Those cops are criminals, John. They stopped being cops when they went outside of the bounds of the warrent and Alito was definatelly defending them.

    And if you don’t see the mysoginy in the other decisions, the “women are the property of their husbands/men”, I feel sorry for you. In being a lone dissent, he’s gone far to the side of Judicial Activism that so many want to avoid.

    Where Miers would have been clueless, Alito will be ruthless. He will put on a great show for everyone, but when that show is the death of our Judicial System, is it really worth the price of admission?

    Jesus, John, you’re really going out there to support a bad candidate and you’re not even remotely willing to listen to the arguments because you have framed them as “talking points”. Congrats, you’re a fucking Republican.

  70. 70
    John Cole says:

    DaveBo- I was going to direct you to the comments in this thread (scroll down), and send you to anywhere in liberal blogosphere, but Lines, right above this, has provided a perfect example.

    Jesus, John, you’re really going out there to support a bad candidate and you’re not even remotely willing to listen to the arguments because you have framed them as “talking points”. Congrats, you’re a fucking Republican.

    Where have I said I supported him? A link would be nice.

    Smacking down idiots who say he is ‘in favor of strip searching children’ is not the same thing as supporting someone.

  71. 71
    Defense Guy says:

    Fuck you right back Lines. Since you can’t even argue without needing a strawman to help you out there is little point in addressing your ‘points’.

  72. 72
    Kirk Spencer says:

    Defense Guy said: The reason given for this was that there was no more room in the space provided. The affidavat was referenced in another spot on the warrent, so it was a supporting document for the search. The affidavat clearly stated the search was to be of anyone in the house. The majority got it wrong in this case.

    Yes, that’s the reason the officers gave. And I strongly suspect that the other justices might have gone along with Alito’s point on this if it weren’t for a small detail – the officers did not stay within the bounds of the box. The “persons/property to be searched” box went into significant detail and ran well outside the box. As one judge noted – since they’d already gone outside the bounds, why would adding “and more as per affidavit” outside the box as well been so difficult?

    “Got it wrong” is debatable. Given that the majority said what they did, and further given that the supreme court declined to hear it further, I would counter-debate that it was Alito who “got it wrong.”

  73. 73
    jg says:

    Reminds me of another jurist, Judge Smells from Caddyshack: “Danny, I’ve sentenced boys younger than you to the gas chamber. Didn’t want to do it. I felt I … owed it to them.”

    I believe its Judge Smails. Funny you bring him up, did you know his nephew Spaulding grew up to become president?

  74. 74
    Faux News says:

    “Alito is either a brilliant shining champion of justice defending the government’s inalienable rights to search potential drug addicts/traffickers/criminals without having their hands tied by ridiculous liberal ‘probable cause’ tests, or a diabolical authoritarian fascist who hates America, women, and children, and seeks to subvert the 4th Amendment, the Bill of Rights, and the Constitution. We report, you decide”.

    To paraphrase Harriet Miers “you are the most brilliant poster EVER on BJ”!

    I (heart) you. :-)

  75. 75
    Lines says:

    John, what would have been wrong in the cops taking everyone in for questioning and awaiting a judicial clarification (they do have night court judges) on the warrant? There were obviously issues with the original warrant as issued, and the cops that did the searching should have been arrested for their actions. Instead Alito SUPPORTS them, all by himself, as a lone dissenting voice.

    And you want people to stop talking about it? Or stop saying he supports the anal rape of 10 year old girls as long as there is a document that originally said it was ok?

    Bullshit John. You don’t have the right to make these decisions for everyone. You, Patterico and the rest of the apologists can shove it. You might want to stop now and save yourself the obviously humiliating position you’ve put yourself in.

    How about we listen to how the Judicial Committee rakes him over the coals for this one? I for one would prefer not to even let the asshole into the committee. Run him out now.

  76. 76
    Defense Guy says:

    Kirk Spencer

    I disagree with the majority opinion, and find Alito’s reasons for his dissent compelling based on the law and the respective cites. You are correct, however, that it was the majority decision that was the ‘correct’ one, as it is the decision that was followed.

  77. 77
    Davebo says:

    John,

    I’ve reviewed the comments in the thread you linked to and again can’t seem to find the comment you are referencing.

    PPGAZ references comments on another blog, Caroline seems to think illegal strip searches won’t play well in Peoria.

    But other than that you seem to have come up short.

  78. 78
    Davebo says:

    In the end Alito represents the red meat Bush’s ultraconservative base was clamoring for. Not to mention a grand attempt at deflection of current events.

    To ask someone to give an up or down vote now is just ludicrous. The nomination isn’t even 12 hours old yet.

    I expect John will offer his opinion on Alito at some point probably during of after confirmation hearings.

  79. 79
    Vladi G says:

    If I hear one more person state that Alito is in favor of strip searching 12 year olds, or in favor requiring women to notify their husbands if they intend to have an abortion, or in favor of racial discrimination, or whatever, I am going to blow a gasket.

    Fuck that. The Republicans having been stretching the truth or outright lying about the Democrats for years. How many wingnuts still think that Joe Wilson claimed Cheney sent him to Niger? Hell, Stormy is still stupid enough to believe that. How many believe that there is a connection between Saddam and 9/11? And when you try to set people straight, the lying assholes like Powerline and their ilk just yell louder.

    I have no qualms about the Dems doing the same on this nomination. If there’s a tenuous case to be made that Alito wants 10 year old to be strip searched, then make it. If he made an argument that people who have AIDS should be fired, then make it. I don’t fucking care anymore. We can argue all day here about what he really said, or what he really meant, but people don’t care about that anymore. They listen to who yells the loudest. Hopefully the Dems will start yelling.

  80. 80
    ppGaz says:

    Where is it written in the Constitution that a woman has to get permission from her husband to do anything?

    Right. It’s not.

    Except, at my place, it’s the other way around.

  81. 81
    RA says:

    All the ACLU types are not going to like Alito. He actually believes in a constitution they cannot subvert with the likes of Breyer and Ruth Badder Godzilla.

    This is why we need the Breyer’s and Ginsbergs out of any future courts.

    Death to the ACLU and all its supporters.

  82. 82
    Pb says:

    I never thought I’d say this, but…

    Thank you FauxNews!

  83. 83
    Sojourner says:

    Now you know that the decision which has you up in arms does no such thing.

    I stand corrected. Where does it say in the Constitution that the woman has to notify her husband about anything?

  84. 84
    Sojourner says:

    Except, at my place, it’s the other way around.

    And that’s how it should be.

  85. 85
    Doug says:

    My apologies if this has been mentioned upthread, but I just read the Doe v. Groody opinion listed above. Seems to me as incongruous that a supposedly strict constructionist of the Constitution wants to read so very much into the warrant.

    The warrant said, you can search John Doe in the part of the warrant describing who was to be searched. To be sure, the warrant application requested broader authority. And, the other parts of the warrant specifically referenced the warrant application. Other parts of the warrant, but not the “persons to be searched” portion, reference the application. Nevertheless, in his opinion, Alito is determined to go beyond the face of the warrant and read into it permission to search the wife and the 10 year old girl.

    Doesn’t sound like a strict constructionist to me.

  86. 86
    Geek, Esq. says:

    That’s the problem:

    He’s a rightwing activist, not a principled judicial conservative.

    His reasoning is EXACTLY the kind of reasoning that the movement conservatives bitch and moan about when it comes from liberals.

  87. 87
    kenB says:

    Where does it say in the Constitution that the woman has to notify her husband about anything?

    Nowhere. Where does it say in the Constitution that the legislature can’t require a woman to notify her husband about getting an abortion? Or more to the point, where does it say that so clearly that anyone who thinks otherwise must be a “wackjob”?

  88. 88
    Defense Guy says:

    Where does it say in the Constitution that the woman has to notify her husband about anything?

    It doesn’t, clearly. However, the 9th gives the states and the people all the other rights not enumerated in the constitution. In that vein, a state is within it’s rights to do so.

    Not that I think it’s a good idea.

  89. 89
    Mark Wilson says:

    This “Doe” case is pretty slim evidence for attacking Judge Alito. Think about it this way — all of the judges on the panel would have reached the result Judge Alito did if the police officer typing the warrant had added the words “and all other persons present on the premises” or the words “see attached affidavit” to the box setting out the person to be searched. Don’t you think that, since this case was decided, the police in the 3rd Circuit have done this on all of their search warrant applications?

  90. 90
    Defense Guy says:

    Shorter Vladi G

    Lying is fine, as long as I agree with it’s intent.

  91. 91

    Judicial activism is inevitable. Has been all along and will continue to be, no matter who, no matter what. As sure as no modern media or transportation, or a million and one other things existed when the Constitution was written. As sure as society is so completely transformed from what it was in the 18th century.

    The question really is, and always will be, which way the activism exerts itself.

  92. 92
    DougJ says:

    I want to know where Alito comes down on this touchy issue raised by Scooter Libby in his book “The Apprentice”:

    “At age 10 the madam put the child in a cage with a bear trained to couple with young girls so the girls would be frigid and not fall in love with their patrons. They fed her through the bars and aroused the bear with a stick when it seemed to lose interest.”

    I’m going to give Scalito the benefit of the doubt and say he’s against it.

  93. 93
    Robert Chavez says:

    Am I the only one who finds that “Alito is in favor of allowing the police to overstep their lawful 4th amendment bounds, as long as it’s for the public good” to be a far scarier proposition than “Alito is in favor of strip-searching 10 year olds?” Just wondering, because I agree that Alito doesn’t want to strip search kids, but somehow, that doesn’t assure me very much.

    Also, just as a flame baiting aside, why is it that people who admit that they’re not a lawyer assume that with a few hours of internet research, they can understand 4th amendment law on warrants and exigency better than the lawyers who spent 3 years learning this stuff, and then proceed to tell the lawyers why they’re wrong?

    Just saying.

  94. 94
    Geek, Esq. says:

    This “Doe” case is pretty slim evidence for attacking Judge Alito. Think about it this way—all of the judges on the panel would have reached the result Judge Alito did if the police officer typing the warrant had added the words “and all other persons present on the premises” or the words “see attached affidavit” to the box setting out the person to be searched. Don’t you think that, since this case was decided, the police in the 3rd Circuit have done this on all of their search warrant applications?

    That’s the entire point. If the court authorizes such a search, then that’s fine and dandy.

    But, that’s not what the court authorized. If the executive branch wants to go around strip-searching women and children, they had damn well better get clear, explicit permission to do so.

  95. 95
    Anderson says:

    The issue isn’t whether Alito wants cops to strip-search little girls.

    The issue is whether he’ll bend over backwards to get the cops off the hook when they egregiously violate people’s rights.

    The answer, based solely on the op under debate, is “yes.”

    That sucks.

    Defense Guy, for someone who rails about others’ not having read the op, you seem unfamiliar with the majority’s side. THE PART ABOUT WHO/WHAT COULD BE SEARCHED DID NOT INCORPORATE THE AFFIDAVIT. End of discussion. Its incorporation elsewhere is what we brilliant legal minds call “irrelevant.”

    Blueview at Legal Fiction had it down: apparently Alito believes in a dead Constitution, but living warrants.

  96. 96
    Sojourner says:

    Death to the ACLU and all its supporters.

    Is that you, DougJ?

  97. 97
    Vladi G says:

    Lying is fine, as long as I agree with it’s intent.

    You caught me reading the Republican playbook. All’s fair, bitches.

  98. 98
    Sojourner says:

    It doesn’t, clearly. However, the 9th gives the states and the people all the other rights not enumerated in the constitution. In that vein, a state is within it’s rights to do so.

    The 9th says that the Constitution does not specify all of the rights a person has. Therefore, a compelling case has to be made to deprive a person of a right.

  99. 99
    Anderson says:

    The 9th Amendment! It slices! It dices! ;)

  100. 100
    KC says:

    As linked to by kos, White House talking points on Alito?

  101. 101
    Lines says:

    #1) Women have a right to privacy despite their marital status. Men have the same privacy. Marriage does not allow for the state to interfere with that right.

    #2) The Warrent in Doe was expicit that it only covered the male suspect and the house. Alito was a lone dissent and was blatently incorrect in it. In being incorrect, he basically made himself look like he’s ok with the strip search of a 10 year old girl.

    #3) Alito is as much of a right-wing activist from the bench as anyone on the left could ever be. He interprets laws and actions to fit his worldview and in doing so has weakened the judicial system and America.

  102. 102
    Pb says:

    kenB,

    Where does it say in the Constitution that the legislature can’t require a woman to notify her husband about getting an abortion?

    I’m no Constitutional scholar, but if I had to guess, I’d say (in order of importance/relevance) the 14th Amendment, the 5th Amendment, the 9th Amendment, the 10th Amendment, everything that isn’t in Article I and Article IV, and perhaps the 13th Amendment too (heh).

  103. 103
    Steve S says:

    If I hear one more person state that Alito is in favor of strip searching 12 year olds, or in favor requiring women to notify their husbands if they intend to have an abortion, or in favor of racial discrimination, or whatever, I am going to blow a gasket.

    So you’re saying, just because he ruled that way in these cases, it’s not necessarily what he personally believed?

    So if a Senator doesn’t vote in favor of a bill that says lock up all sex offenders for life, it’s fair to say you would be against any candidate or party using that to claim that said Senator likes sex offenders?

    Just as a random example, obviously…

    Oh no… Republicans would never resort to such hyperbole, ever. Nooo… Sirrrrrr Reeeee…

    Excuse me while I retch my guts out.

  104. 104
    jg says:

    However, the 9th gives the states and the people all the other rights not enumerated in the constitution.

    No it doesn’t. You’re conflating the 9th and 10th.

  105. 105
    Steve S says:

    Where does it say in the Constitution that the legislature can’t require a woman to notify her husband about getting an abortion?

    Actually the question is. Where in the Constitution does it say the Legislature has the authority to impose such a restriction?

    The Constitution is about limiting the power of government… not the rights of the people.

  106. 106
    Anderson says:

    The Constitution is about limiting the power of government… not the rights of the people.

    Exactly. We have Judge Alito to do the latter.

  107. 107
    SLE says:

    I personally cannot get all in a lather about this. The worst decision in the history of the court was to designate W the winner of the 2000 election. It will never get worse than that.

  108. 108
    Geek, Esq. says:

    There should be some sort of equivalent to Godwin’s law for Bush v. Gore.

  109. 109
    Kimmitt says:

    The worst decision in the history of the court was to designate W the winner of the 2000 election. It will never get worse than that.

    Dude, Dred Scott. Seriously. Nothing will ever compare, not even Plessy v Ferguson.

  110. 110
    neil says:

    Hewitt’s Law:
    Any argument of the form “This institution is using morally repulsive tactics previously exclusive to my political opposition!” automatically ends the thread.

  111. 111
    demimondian says:

    There should be some sort of equivalent to Godwin’s law for Bush v. Gore

    I propose we call it “Gore-Won” Law.

  112. 112
    srv says:

    Y’alls ‘worst decisions’ are just footnotes in history.

    Santa Clara County v. Southern Pacific Railroad Company

    Impacts America every minute of the day.

  113. 113

    Gee, if you favor strip-searching twelve year-olds in California, when you get out of prison the State has to notify the neighbors of your proclivities.

  114. 114

    Where in the Constitution does it say the Legislature has the authority to impose such a restriction?

    Check the structure of the Constitution some time. It goes kinda like this: the people will have state legislatures and those legislatures will pass laws governing their behavior, but they may not pass laws that impinge on specific, enumerated powers of the federal government or specific enumerated rights of the people.

    The right to fuck around on your spouse would not be in the list of enumerated rights, and given the moral climate of 18th century America, that hardly needed spelling out.

    So it’s not even a close call, the federal courts have no business getting involved in matters of state law concerning who gets notified of an abortion.

  115. 115
    Enigma says:

    I hear he goes solo on vacations to Delhi.

  116. 116
  117. 117
    Stormy70 says:

    This pick is effing awesome. Makes my long day at work evaporate in the evening mists.

    I hoist my Dos XX to Bush for this pick.

    Commence the pile on, I’m off to watch Surface.

  118. 118
    Puzzled says:

    “Alito ruled that when a warrant sets bounds smaller than requested, searchers could exceed the warrant so long as they did not exceed the bounds of the original request. Yes, there are caveats and nuances, but that’s the core of the position.”

    I am not a lawyer and this may very well be rationale, but can some explain to me why judges have to approve warrants if the original request is the final authority for a search?

    I am also puzzled as to how a search warrant, can turn into a strip-search at the will of the authorities. I have not read the warrant, so I this may be answered there, but I was just wondering.

  119. 119
    KC says:

    NYTimes has a great piece on “activist” judges. I’ll bet the conclusions it draws are not what people expect.

  120. 120
    jaime says:

    Death to the ACLU and all its supporters.

    Try coming within six feet of me, jackass.

  121. 121
    Halffasthero says:

    Stormy70 Says:

    This pick is effing awesome. Makes my long day at work evaporate in the evening mists.

    I hoist my Dos XX to Bush for this pick.

    How did I know this would be your position? : )

    I need a drink…for the exact opposite reason. Oh, well. The fight has left me.

  122. 122
    Slide says:

    The right to fuck around on your spouse would not be in the list of enumerated rights, and given the moral climate of 18th century America, that hardly needed spelling out.

    So it’s not even a close call, the federal courts have no business getting involved in matters of state law concerning who gets notified of an abortion.

    huh? Wow, what an interesting way to look at it. So we’re talking about the right to “fuck around on your spouse”? lol…

    Whether you like it or not the Supreme court has decided that a woman has a right, (with certain limitations) to have an abortion. Now are there any other “rights” that you can think of where a citizen has to advise his or her spouse before exercising? According to your argument it would be constitutional for a State to legislate that I have freedom of speech but I can exercise that right only after I tell my wife what I plan to say? You know, come to think of it, that may be a good idea in the Balloon Juice comments section.

  123. 123
    ppGaz says:

    Death to the ACLU and all its supporters.

    DougJ, that’s over the top even for you.

    And please put on some pants.

  124. 124

    Slide, the issue is within the boundaries of the “certain limitations” on the abortion right. O’Connor said that these limitations must not pose an “undue burden” on the pregnant chick, and judges in the lower courts have struggled with interpreting what than might mean. In the third trimester, for example, it has to be balanced by the child’s right to life, so an additional “balancing test” is needed to establish the burden.

    This sort of “I know it when I see it” jurisprudence, characteristic of O’Connor, is the main reason she’s not respected by judges. Is notification of the father an “undue burden” before killing his offspring? Some would say “yes”, and some would say “no”. That’s why it’s a matter best left to the legislative branch.

  125. 125
    Sojourner says:

    O’Connor said that these limitations must not pose an “undue burden” on the pregnant chick,

    Pregnant chick? I thought we were talking about women.

  126. 126
    ppGaz says:

    Some would say “yes”, and some would say “no”. That’s why it’s a matter best left to the legislative branch.

    After pulling this sort of thing out of your ass all day, don’t you get a sore ass?

    Really, I’m just asking.

  127. 127

    Tell me how to recognize an “undue burden” with a “balancing test”, ppGaz, if I like the method I’ll pay for your therapy for a while.

  128. 128
    Zifnab says:

    http://vls.law.villanova.edu/l.....24532p.pdf
    For those who want to read the original case.

    Chertoff makes a couple of very relavent points in this case. Firstly, the discrepency stems from an affidavit attached to the original warrant for search. The warrant explicitly states that John Doe may be searched, while the affidavit asks permission to search “all occupants”. Pennsylvania law frowns on “all occupants” searches – Commonwealth v. Gilliam – and there is a possibility that a magistrate would have turned down the original warrant if “all occupants” was filed for the target of the search. Due to the discrepancy, there is a question of which document to hold to – the original warrant or the attached affidavit. In this incident, the original warrant’s wording overrules the affidavit, according to Chertoff and the Fourth Amendment Rights preventing unlawful search and seizure hold.

    Just food for thought.

  129. 129
    Zifnab says:

    That’s page 8, second column for those reading the original.

  130. 130
    Slide says:

    Is notification of the father an “undue burden” before killing his offspring? Some would say “yes”, and some would say “no”. That’s why it’s a matter best left to the legislative branch.

    Your language betrays you. There is no “father”. There is no “offspring”. Both of those terms necessitate a born child, a living being. Second, the law required the woman (or as you call her, the pregnant chick) to notify her spouse, who may, or may not, be the sperm donor. What a horrendous ruling – and one that treats women more like property than first class citizens.

  131. 131
    ppGaz says:

    Explain to me how to take the blurb of yours that I blockquoted. It makes no sense.

    As for your “undue burden”, get serious. The mother-father relationship is not necessarily going to be Ozzie and Harriet. It could be completely dysfunctional, or pathological. A “father” is not necessarily anything but a sperm donor. The law has no business making any assumptions about this situation. Zygotes are not people, that’s why the Constitution doesn’t recognize them.

    Strict construction …. life begins at birth. If you can find a Constitutional reference that says otherwise, post it. Life does not begin when a legislature says it does. Nor when James Dobson says it does. Nor when some failed blogger says it does. In lieu of agreement, then leave citizens the fuck alone. It’s none of your damned business.

    “Citizens” here means people who have been born, per the Constitution.

  132. 132
    Slide says:

    Bennett, I thought you conservatives wanted LESS government, but here you are suggesting that the government should be right smack dab in the middle of the most personal of family decisions? Like in the Schiavo case, the conservatives LOVE government when they can tell us all how we should live our lives. Unbelievable.

  133. 133
    VictorRay says:

    I expected the unhinged left to come out smearing here, but they’ve surprised even cynical me with the ferocity and sleaziness of their attacks. First of all, calling judge Alito “Scalito” is an outrageous offense against Italian-Americans. If he had been jewish, would it have been okay to call him “Gisburgo” or something like that? I know the Sopranos has somehow given the idea that it’s okay to make fun of Italians, but come on, the very people who whine about saying Indian rather than “native american” are coming out of the woodwork with ethnic smears here.

    Second of all, the idea that this has anything to do with Scooter, or whatever his name his, Libby’s indictment last week is quite simply a joke. Most Americans don’t know — and don’t care — who Karl Rove or Scooter Libby is. And in any case, what we learned last week is that there was no underlying crime. Friday was a victory for the Bush administration, not some horrible set-back.

    Well, I just hope the democrats keep on drinking the kool-aid, thinking the American people care about who Scooter Libby and Valerie Plame are, and keep on thinking they should smear judge Alioto. They’ll dream themselves back into political obvlivion. And the country will be better for it.

  134. 134
    Caroline says:

    After reading more about Alito, he sounds just like those “big government conservatives” you guys here love to hate.

  135. 135
    Caroline says:

    “Scalito”. LOL, that came from conservatives not liberals.

  136. 136
    ppGaz says:

    Well, I just hope the democrats keep on drinking the kool-aid,

    Trick or Treat, DJ.

  137. 137
    Slide says:

    As a 100% full blooded Italian-American, I totally disagree with you that the term Scalito is somehow a slur against Italians. It is refering to his resemblence (judicially speaking) to Scalia as you well know and not some attack on Italians. Why does the right always try to do this bull shit.Its so blatently disengenious. When we were against Estrada we were against anti Hispanic. Don’t like Miers? you’re an elitist sexist. Don’t vote for this judge – anti-Catholic. Please, save me the phony outrage.

  138. 138

    Your language betrays you. There is no “father”. There is no “offspring”. Both of those terms necessitate a born child, a living being. Second, the law required the woman (or as you call her, the pregnant chick) to notify her spouse, who may, or may not, be the sperm donor.

    Your language point is hilarious, given that you call fathers “sperm donors”. How many pregnant chicks have you ever known to say “I can feel the zygote kicking?” It doesn’t happen.

    The PA law question excepted cases in which the pregnant chick was carrying her boyfriend’s child rather than her husband’s, but thanks for foaming.

    Personally, I’m not a small government conservative, I’m a federalist, meaning that I want state legislatures to have meaningful powers. This law is a good case in point, because it shows how silly it is for the Supreme Court to try and micromanage every action of every pregnant chick in America. We can do that better at the state level.

  139. 139
    Sojourner says:

    Personally, I’m not a small government conservative, I’m a federalist,

    Uh, no, Chick Boy, you’re an ass.

  140. 140
    Slide says:

    Oh, and btw, the term Scalito was first used to describe Alito 13 years ago in a National Law Journal Article:

    Judge Alito is described by lawyers as exceptionally bright, but much more of an ideologue than most of his colleagues. It’s a trait that has led some to nickname him “Scalito,” after the acerbic Supreme Court Justice Antonin Scalia.

    and we know who was the reporter:

    Shannon P. Duffy said…

    I’m the one who nick-named Alito “Scalito.” The National Law Journal article you refer to was written by Joseph Slobodzian. At the time, he and I were both reporters covering the federal courthouse in Philadelphia – he for the Philadelphia Inquirer and I for the Legal Intelligencer. He did some freelancing for NLJ and we had several discussions at the time he wrote that article. I knew as soon as it was published that my nickname would stick, but I never would have guessed just how popular it would become.

    .

  141. 141
    VictorRay says:

    I hoist my Dos XX to Bush for this pick.

    I’m drinking yuengling but I’m elated all the same. And mark my words: the smears of the left will come back to bite them, just as they always do.

  142. 142
    ppGaz says:

    you call fathers “sperm donors”.

    Some are, which is why it is wrong to generalize about them. Some are rapists. Some are thugs who beat their wives and girlfriends.

    People are all different. Situations are different. Leave people the fuck alone. It’s not your business.

  143. 143
    Slide says:

    Personally, I’m not a small government conservative, I’m a federalist, meaning that I want state legislatures to have meaningful powers.

    and what was your position on Schiavo, since the Florida legislature were the one’s that created the laws that the judges repeatedly enforced to allow Michael Schiavo to fulfill his wife’s wishes? Were you all for the legislature making the decision then or did you want the Federal court system to “legislate” to your liking?

    Such hypocrites the right.

  144. 144

    Slide, you really are a hoot. I was totally on Michael Schiavo’s side, and I delighted in kicking the crap out of all the phonies who tried to profit from the corpse, from George W. Bush all the way down to Jesse Jackson and Sean Hannity.

    We were all born, but we weren’t all born yesterday.

  145. 145
    Krista says:

    Notice how he’s emphasizing the words “pregnant chick” to try to get some of us riled up.

    For shame, Bennett…I didn’t realize you were so ham-handed.

    We can do that better at the state level.

    Micromanaging every “pregnant chick” at state level, as opposed to at federal level. Why yes, that’s a big improvement.

    Do us all a favor, sweetpea…until you grow a uterus, you can tone down the pomposity and condescension.

    Not Cordially…

  146. 146
    Ancient Purple says:

    O’Connor said that these limitations must not pose an “undue burden” on the pregnant chick,

    If you check the calendar, you will see we are in 2005, not 1955.

    (Psst. We don’t call African-Americans “Negroes” any more.)

  147. 147

    It’s not your business.

    Actually, ppGaz, in a democracy it is my business what other people do, especially to The Children. We all care about The Children, don’t we?

    I certainly do.

  148. 148

    Krista, until you grow the ability to financially support a child, you can also tone down the arrogance.

    Let’s take a look at the dissent Alito wrote in Casey on spousal notification, at this handy link. Anyone who can read has to conclude that his reasoning is sound, which is more than I can say for the foaming-at-the-mouth feminist liberals in this discussion.

  149. 149
    Sojourner says:

    Anyone who can read has to conclude that his reasoning is sound, which is more than I can say for the foaming-at-the-mouth feminist liberals in this discussion.

    Nothing particularly sound about his reasoning. The reality is that “undue burden” is in the eye of the beholder. I especially find it interesting that he compares spousal notification to parental notification, which reinforces the impression that he considers adult, married women to have the same capacity to make life-changing decisions as minors.

    Given your obvious hostility to women, it’s no surprise that you have no problem with that comparison.

  150. 150
    Krista says:

    Krista, until you grow the ability to financially support a child, you can also tone down the arrogance.

    Why do you assume that I cannot?

  151. 151
    Ancient Purple says:

    Actually, ppGaz, in a democracy it is my business what other people do, especially to The Children. We all care about The Children, don’t we?

    Sure. But I don’t care about them more than anyone else.

  152. 152

    I don’t sense a high degree of maturity from your comments, Krista, although I readily admit they’re head and shoulders wiser than those of the Sojourner.

    Children are expensive, which is one reason child support is so emotional. But in roughly two-thirds of the cases, it’s the mother not the father who seeks the divorce, so they must not have it nearly as bad as you think.

    Women aren’t stupid, you know, and they wouldn’t seek divorce if it weren’t in their interests to do so.

  153. 153
    ppGaz says:

    Actually, ppGaz, in a democracy it is my business what other people do, especially to The Children. We all care about The Children, don’t we?

    I think that if you believe that, you are a goofy-assed troll. But I’d wager that you don’t, and you’re just trying to be “irascible.”

    Alas, I think Andy Rooney has the Irascible Guy thing pretty well covered. Have you considered being something more appealing, like Spider Man? Or Lou Ferrigno?

    How about Triumph the Insult Dog?”

  154. 154
    Slide says:

    Krista, until you grow the ability to financially support a child, you can also tone down the arrogance.

    oooohhhh…. them’s fightin’ words.

  155. 155
    CaseyL says:

    Alito ruled that when a warrant sets bounds smaller than requested, searchers could exceed the warrant so long as they did not exceed the bounds of the original request.

    This reasoning is insane. It means that the ‘original request’ can include any damn thing the police want, and the judge is powerless to do anything but sign off on it. Why even bother with a warrant, then?

  156. 156

    Sojie, it’s not unreasonable for a judge to examine related precedent when deciding a case, and parental notification is a type of related precedent insofar as it deals with notification, barriers, bypasses, and that sort of thing.

    Alito tried to put “undue burden” on a meaningful foundation by examining O’Connor’s opinions, even those where she was in the minority, and he came away with a pretty good definition. As a matter of method and reasoning, which is what we want in our judges, he did an excellent job, whether you agree with his conclusion or not.

  157. 157
    Sojourner says:

    I don’t sense a high degree of maturity from your comments, Krista, although I readily admit they’re head and shoulders wiser than those of the Sojourner.

    Coming from you, I consider that a complement. But ppGaz had it right, you’re really not worth talking to. Mocking you gets tedious pretty quickly.

  158. 158
    Sojourner says:

    Sojie, it’s not unreasonable for a judge to examine related precedent when deciding a case, and parental notification is a type of related precedent insofar as it deals with notification, barriers, bypasses, and that sort of thing.

    And the rights of adult women can be compared to those of minors… how?

  159. 159

    Well, Sojie, abortion law doesn’t actually consider pregnant chicks minors, even when they are. A pregnant 16-year-old has pretty much the same right to an abortion as a pregnant 35-year-old, or haven’t you noticed?

    My point was that some very similar issues are indeed involved in parental notification laws, all of which have bypasses of some sort intended to address the “undue burden” question, which is independent of majority status.

    (You should probably think about that before responding, just so you don’t look dumb.)

  160. 160
    Krista says:

    Women aren’t stupid, you know, and they wouldn’t seek divorce if it weren’t in their interests to do so.

    See, this is where we disagree. You seem to think that women seek divorces because they want child support payments. However, I am of the opinion that most women who seek divorces, do so because they are miserable in their marriages. As well, in the case of a marriage that has turned acrimonious or abusive, the woman usually figures that it is better to be alone than to have her children grow up in a house filled with discord. I will concede that IF the woman knew that she were to receive no child support, she might think twice about filing. However, I’m pretty firmly of the opinion that the knowledge of being able to receive child support facilitates the decision, but does not cause the actual desire to terminate the marriage.

  161. 161
    ppGaz says:

    Kids, you are arguing with a guy whose blog featured, in one recent week, an average of about one comment per thread. Most of the threads with multiple comments were peppered with Bennett’s own replies as he feebly tried to gin up conversation. I figure John dragged him in here because he’s irritating and it’s easier for John to outsource irritation than to harass us libruls himself. A failed blogger who calls pregnant women “chicks” and Democrats “anti-American” as a ploy to get people riled up and make himself look cool.

    In short, he’s the guy at the office who never gets invited to lunch …. for good reason.

  162. 162
    Sojourner says:

    Well, Sojie, abortion law doesn’t actually consider pregnant chicks minors, even when they are. A pregnant 16-year-old has pretty much the same right to an abortion as a pregnant 35-year-old, or haven’t you noticed?

    Um, Chick Man, you’ve heard of parental notification laws, right? They’re aimed at minors, the assumption being that minors should not be allowed to make such life-changing decisions without parental involvement.

    So if Alito wants to use that as his comparison, one can reasonably conclude that he does not believe that adult, married women are capable of making this decision without the advice of their husbands.

    Hence the need to be careful when choosing comparisons. Perhaps if Alito hadn’t chosen to compare adult women to teenagers, he would have come to a different conclusion. For those with a background in cognitive science, it’s called “framing.”

    (You should think real hard about what I said, just so you don’t look dumb – again.)

  163. 163
    Sojourner says:

    In short, he’s the guy at the office who never gets invited to lunch …. for good reason.

    Yeh, I know. But I just can’t seem to get around this irresistable urge to make fun of him. I mean, really, even DougJ never felt the need to rely on words like “chick.” The Bush administration may be dragging this country into the shitter but it’s reassuring to know that there is at least one asshole still left in this country who still refers to women as chicks.

  164. 164
    Krista says:

    Sojourner — besides…I’m having fun, aren’t you? Bennett enjoys riling us, but I’ll give him credit for not hitting below the belt. Besides, I need the practice at developing a thicker skin…one comment made to me last week hit a weak spot in my armor, and it really, really got to me. So sparring with people like Bennett is good exercise.

  165. 165
    ppGaz says:

    Same here, Krista. The guy almost made me pop a vein, until I figured out he was just a mediocre comedian.

    Now we really need to get DougJ to cop to his latest impersonation. He’s been bagging victims with impunity and might get a big head ……

    Well, a bigger head ……

  166. 166

    Um, Chick Man, you’ve heard of parental notification laws, right? They’re aimed at minors, the assumption being that minors should not be allowed to make such life-changing decisions without parental involvement.

    You’re not getting it, Soj; read my last comment on this subject again. The key is that minors have exactly the same rights regarding abortion as majors.

  167. 167

    Incidentally, ppGaz is a psycho who’s clearly off his meds. Pay him no mind.

  168. 168
    Sojourner says:

    Sojourner—besides…I’m having fun, aren’t you?

    Absolutely! A nice respite from the serious issues.

  169. 169
    Sojourner says:

    Now we really need to get DougJ to cop to his latest impersonation. He’s been bagging victims with impunity and might get a big head ……

    DougJ needs to be slapped down big time. He got me good over the weekend. Butthead (used as a term of endearment)!

  170. 170
    ppGaz says:

    ppGaz is a psycho

    You need some new material, Dick. You used that line the other day.

  171. 171
    Sojourner says:

    The key is that minors have exactly the same rights regarding abortion as majors.

    In your world and Alito’s they do. Which is why he should not be allowed a seat on the SC. In spite of what you think, women should not be second-class citizens in this country. This is not (yet) Afghanistan.

  172. 172
    Krista says:

    Well Bennett darling…it’s been a slice. It really has. We’ll have to do this again sometime. But right now, I have a choice (funny thing that, when chicks have choices, huh?). My choice is to continue arguing with you, or to go curl up my cozy bed with my warm man and adoring dog.

    ‘Night, everybody.

  173. 173

    That’s the law, Sojie, sorry you don’t like it.

  174. 174
    Sojourner says:

    ‘Night, Krista!

  175. 175
    ppGaz says:

    DougJ is good, no doubt about it.

  176. 176
    Sojourner says:

    That’s the law, Sojie, sorry you don’t like it.

    I wish it were true, but…

    Look it up, Chickie Boy.

    http://www.plannedparenthood.o.....onsent.xml

    And on that note, goodnight.

  177. 177

    Watch out for the fleas, Krista.

  178. 178
    ppGaz says:

    Watch out for the fleas, Krista.

    All (cl)ass.

  179. 179
    Ancient Purple says:

    Incidentally, ppGaz is a psycho who’s clearly off his meds. Pay him no mind.

    Wow. A diagnosis over the internet!

    Welcome to Balloon Juice, Sen. Frist.

  180. 180
    Doug says:

    The problem with the 10-year old girl dissent by Alito is that he was apparently trying to divine the intent of the warrant issuing magistrate by going beyond the warrant itself. This is exactly the kind of behavior “strict constructionists” supposedly decry when “activist judges” go beyond the language of the Constitution.

    Never mind what the warrant actually said, says Alito, I can tell that the magistrate who issued it actually meant it to say “everyone in the house” instead of “John Doe.”

  181. 181
    VictorRay says:

    Actually, you guys make a good point about “judicial acitivism”. It’s only “activism” when the other guy is doing it.

    The issue shouldn’t be “activism” but faithfulness to the framer’s original words, as opposed to what someone today might *think* the framer’s intent was. Strip searching a ten year-old might seem barbaric, but (1) it isn’t something the constitution specifically precludes (indeed, children were not accorded special rights as children until around 1910) and (2) there certainly are certain circumstances under which children should be strip-searched, such as when they are suspected of carrying bombs. Don’t forget — terrorists in Iraq are increasingly using children in this way in their bombings.

  182. 182
    ppGaz says:

    VictorRay Says:

    Oh, the humanity …..

  183. 183
    Otto Man says:

    The issue shouldn’t be “activism” but faithfulness to the framer’s original words

    But look at those words used by the framers. Many of the most important parts are purposely vague and elastic. “Due process.” “Equal protection.” “Freedom of speech.”

    This vague language isn’t a result of the Founders’ inability to write, of course, and it isn’t because they didn’t want to put specifics into the Constitution. (The now repealed provision that blacks would count as three-fifths a person for proportional representation is just one of many examples where they got down to fine details.)

    Many legal scholars argue that it’s wrong to consider it to be a case of “loose construction” on one hand and “original intent” on the other. Rather, it seems that loose construction was the original intent.

  184. 184
    VictorRay says:

    Many of the most important parts are purposely vague and elastic. “Due process.” “Equal protection.” “Freedom of speech.”

    LOL. I’m sorry but only a liberal would consider the phrase “freedom of speech” was vague or elastic. What *isn’t* vague or elastic, then? Other than support of Roe v. Wade, which I admit liberals are pretty firm about it.

  185. 185
    ppGaz says:

    What isn’t vague or elastic, then?

    Republican ideology, Doug.

    It’s downright wooden. Like your head ;-)

  186. 186
    VictorRay says:

    Is it possible for someone here to post from the conservative point of view without Sojourner and ppGaz calling the person Doug? I don’t understand this, but they seem to view it as the ultimate put down.

  187. 187
    ppGaz says:

    I don’t understand this

    That’s okay. I’m still trying to figure out what makes you do this all the time.

    Were you a fan of Señor Wences as a child?

  188. 188
    Otto Man says:

    I’m sorry but only a liberal would consider the phrase “freedom of speech” was vague or elastic.

    No, a liberal would consider “freedom of speech” to be absolute in the tradition of Hugo Black.

    A conservative would consider “freedom of speech” to be something that should be navigated and limited. The “clear and present danger standard” of the Abrams case. The prior restraint efforts in the Pentagon Papers case. The libel charges in NY Times v. Sullivan. In virtually every single landmark First Amendment case, the argument that the guideline “freedom of speech” could be parsed and limited was posed by conservatives, not liberals.

    This guy isn’t Doug J. Doug J isn’t this stupid.

  189. 189
    ppGaz says:

    This guy isn’t Doug J. Doug J isn’t this stupid.

    I’ve got $5 that says he’s DougJ.

    Not saying that Doug is stupid.

  190. 190
    circlethewagons says:

    So what’s this I hear about Alito being in favor of strip searching 12 year olds?

    (Sorry, couldn’t resist.)

    Always late to the forum…sigh.

  191. 191
    Andrew J. Lazarus says:

    The key is that minors have exactly the same rights regarding abortion as majors.

    No, this was Alito’s reasoning, or similar, which was rejected by the Supreme Court. And with good reason. Majors have the right to an abortion without notifying their husbands. Minors can be required to notify parents, subject to various exceptions which O’Connor insisted upon. None of the nominal justifications for parental notification in case of minors is applicable to adult women, at least with a view of adult women that does not see them as men’s chattel. (As it happens, I think the nominal justifications for these requirements are entirely pretextual, and the intent is to further immiserate frightened girls who are “easy”.)

    Tell me, if an unmarried adult woman wishes to obtain an abortion, would it be legal to require notification of her parents? Perhaps the eldest brother in cases where the parents are deceased?

  192. 192
    DaveC says:

    As well, in the case of a marriage that has turned acrimonious or abusive, the woman usually figures that it is better to be alone than to have her children grow up in a house filled with discord

    I translate this as saying that children are women’s property, and as such can be used as leverage in a disagreements with their husbands. That is, if a man fights verbally with his wife, she can take his children away from him.

    Which of course is the way things are.

  193. 193

    Strip searching a ten year-old might seem barbaric

    It’s odd that the people who think this way are generally OK with killing the child shortly before birth, as long as it’s the mother’s choice; no barbarity there.

    No, this was Alito’s reasoning, or similar, which was rejected by the Supreme Court. And with good reason. Majors have the right to an abortion without notifying their husbands.

    You’re mixing up statute and precedent here. The Supreme Court has a problem with parental notification laws, and said problem is indistinguishable from the problem it had with the PA spousal notification law. In neither case does the problem relate to any notion of chattel, but to unwarranted restrictions on a gender-based abortion right that’s independent of majority status.

    I don’t expect you to understand this, because your views on this matter are clearly dictated by the talking points orders currently in effect.

  194. 194
    p.lukasiak says:

    So what’s this I hear about Alito being in favor of strip searching 12 year olds?

    He’s not in favor of them, he just approves of them.

  195. 195
    Cyrus says:

    VictorRay said:

    Strip searching a ten year-old might seem barbaric, but (1) it isn’t something the constitution specifically precludes (indeed, children were not accorded special rights as children until around 1910) and…

    No, no, no. Anyone who’s ever read a book on the Constitution should know that the question is not what the Constitution “specifically precludes [the government to do],” the question is what the constitution “specifically allows the government to do.” In the Framer’s original intent, people are assumed to have all individual rights, except for those specifically reserved for the government, and the government is assumed to have no rights or powers at all, except for what is explicitly put in the constitution.* The rights of the government are secondary to those of the people. The Constitution does not specifically say “if any warrant is issued, then the law officers may treat it is if their original request was fully granted regardless of the text of said warrant.” Therefore, law officers do not have that right.

    So if that is what happened (that’s how it seems, but I admit I haven’t read Alito’s entire decision in that case), then he ruled incorrectly. And either he got the facts of the case wrong when all the other judges got it right, or he was incorrect about a really basic and fundemental Constitutional issue. A misconception you seem to share.

    * It’s a little more complicated because the states had more rights originally, but the 14th Amendment changed that. And despite whining about its other effects, relatively few people still argue that personhood – the right to freedom, self-determination, equality before the law – should be a states rights issue. So what I said above is pretty much how things are now.

  196. 196
    Slide says:

    John Cole:

    JUST STOP IT
    It sure didn’t take you guys long to get your talking points disseminated. . .

    Talking Points ?

    Drudge:

    The NIAF is distressed by the attempts of some senators and the media (CNN, CBS) to marginalize Judge Samuel Alito’s outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, “Scalito.”

    From Chris Matthews:

    “I don’t know. I think the democrats, i’m sitting here holding in my hands a disgusting document, put out not for attribution. The democrats are circulating it. It’s a complaint sheet against judge alito’s nomination. The first thing they nail is he failed to win a mob conviction in 1988. They nail him on not putting italian mobsters in jail. Why would they bring this up? This is either a very bad coincidence or very bad politics. Either way it will hurt them. This document, not abortion rights, not civil rights but that he failed to nail some mobsters in 1988. This is the top of their list. Amazingly bad politics.”

    Redstate picks up the anti-Italian talking points

    Townhall.com picks up the anti-Italian talking points

    the Corner on NRO picks up the anti-Italian talking points

    So typical of the right. Against Estrada? you must be anti-Hispanic. Against a Catholic nominee? Anti-Catholic. Against Miers? Sexist elitist. Against Alito? anti-Italian. And John wants the left to stop with the talking points? please give me a fuckin break.

  197. 197
    Shygetz says:

    It’s odd that the people who think this way are generally OK with killing the child shortly before birth, as long as it’s the mother’s choice; no barbarity there.

    Won’t someone please think of the womb-babies?

    Hey Richard, I bet you are generally OK with spilling your seed, killing millions of half womb-babies in one stroke. Murderer. Since you do that, you have no moral authority to comment on any topic. Away with you. (/snark)

    You’re mixing up statute and precedent here. The Supreme Court has a problem with parental notification laws, and said problem is indistinguishable from the problem it had with the PA spousal notification law. In neither case does the problem relate to any notion of chattel, but to unwarranted restrictions on a gender-based abortion right that’s independent of majority status.

    Bull. Shit. Cite one reason why you think that both have the same basis in law. I’ll give you a hint–there is none. In fact, the parental permission clause in the Penn statute was upheld as constitutional in Casey, while the spousal notification was held as unconstitutional in the same ruling. So you are arguing that, by saying that it is ok to require permission for minors but not ok to require notification (not permission) for majors, that “The Supreme Court has a problem with parental notification laws, and said problem is indistinguishable from the problem it had with the PA spousal notification law.” That’s funny.

  198. 198
    John Cole says:

    Slide- Did you see me even mention that nonsense?

    No, you didn’t.

    Your point?

  199. 199
    Slide says:

    Slide- Did you see me even mention that nonsense?

    No, and I didn’t suggest that you did, as a matter of fact I give you credit (generally speaking) for attacking those in your party that are “unprincipled” as you call them.

    Your point?

    The thread it seems to be is about “talking points” and how each side uses ridiculous arguments to bolster their case (i.e. the Dems are anti-Italian for opposing Alito, Alito wants to strip search little girls). My additional point, and my firm belief, is that while both sides do this to a certain extent, the Republicans are much, much more egregious violators of civil debate and I will point that out at every opportunity.

  200. 200
    Ancient Purple says:

    Redstate picks up the anti-Italian talking points

    Townhall.com picks up the anti-Italian talking points

    the Corner on NRO picks up the anti-Italian talking points

    How quickly this has blown up in their faces though. Drudge has pulled the item from his website, particularly after the sleuthing from Hunter over at dKos which showed that the person making the initial anti-Italian claim was a heavy Republican donor who’s son was a clerk for Alito, and that the memo never mentions Alito’s heritage.

    I would think Matthews would issue an apology/correction on tonight’s Hardball, but considering his ego, I wouldn’t take that bet. Ever.

  201. 201
    Slide says:

    Alito said it was ok to fire someone with AIDS. Is that fair to bring up?

    …according to the Washington Post, on September 24, 1986, Deputy Assistant Attorney General Sam Alito helped author a Justice Department policy that “said that discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the handicapped. Employers, it said, may legally fire AIDS victims because of a ‘fear of contagion whether reasonable or not.'” The Justice Department’s position was rejected by many states, including some that reacted by barring discrimination against people with AIDS. Alito, whose work helped foster some of the hysteria about AIDS during the Reagan era, said, “We certainly did not want to encourage irrational discrimination,” but the reaction to it “hasn’t shaken our belief in the rightness of our opinion.”

  202. 202
    Defense Guy says:

    A “father” is not necessarily anything but a sperm donor. The law has no business making any assumptions about this situation. Zygotes are not people, that’s why the Constitution doesn’t recognize them.

    The problem with this is that the law already has spoken on both of these issues. It may not have any business doing so, as you claim, but the fact is that it does. On strictly a state by state basis the state has more often than not taken pains to ensure the father supports any offspring he has, and has stated that murder charges can be levied against the intentional death of an unborn.

    So, while your statement might be true in the idealized libertarian world so many Americans claim to want, it is not the case in the word we live in now.

    Those pointing out my incorrect cite of the 9th, are correct that I was speaking of the 10th. Thanks.

    Article [X.]
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  203. 203
    Lines says:

    Would anyone here want Alito dating your sister, mother, daughter? Would anyone want him presiding over a reproductive case for a themselves or a woman they were closely related to?

    Heck, would you want him presiding over any case you were involved in that wasn’t a man vs. a woman?

  204. 204
    Krista says:

    I translate this as saying that children are women’s property, and as such can be used as leverage in a disagreements with their husbands. That is, if a man fights verbally with his wife, she can take his children away from him.

    DaveC – if a woman is being abused, then she is absolutely in the right to take the children with her. If a relationship is acrimonious, with just a lot of verbal fighting, then it still makes sense for the children to not have to grow up watching that. As far as who gets the children, yes…the courts usually favor the mother. But there are always exceptions.

  205. 205

    Am I the only one who finds that “Alito is in favor of allowing the police to overstep their lawful 4th amendment bounds, as long as it’s for the public good” to be a far scarier proposition than “Alito is in favor of strip-searching 10 year olds?”

    Absolutely.

  206. 206
    Mac Buckets says:

    NYTimes has a great piece on “activist” judges. I’ll bet the conclusions it draws are not what people expect.

    Except for the fact that they seem to have no idea what “judicial activism” is, and base their entire article on a ridiculous criteria…yeah, it’s a great article. How they get this lamebrainery published is boggling.

    Deeming a law to be unconstitutional isn’t “judicial activism.” Someone pass that on to the Times.

  207. 207
    Sojourner says:

    Deeming a law to be unconstitutional isn’t “judicial activism.” Someone pass that on to the Times.

    The NYT article reflects the fact that there’s a lot of confusion surrounding what judicial activism is. I’ve heard two definitions: 1. The framers’ original intent. 2. Allowing the legislature to determine what is legal.

    The reality is the whole judicial activism issue is complete and total bullshit. When Scalia signed up to choose the POTUS, he put a stake through whatever was left of the judicial activism argument. It don’t get more activist than selecting the POTUS given that the Constitution clearly spells out what to do in the event of a dispute.

    RIP, strict Constitutional interpretation.

  208. 208
    Andrew J. Lazarus says:

    Deeming a law to be unconstitutional isn’t “judicial activism.”

    And your definition of judicial activism is? (Methinks: any judicial action not approved by Focus on the Family, but that’s just a stab in the back dark.

  209. 209
    Defense Guy says:

    When Scalia signed up to choose the POTUS, he put a stake through whatever was left of the judicial activism argument.

    Contrary to your assertion, the USSC did not choose the president, they ruled on appeal from a lower court having to do with the methodology of the recounts. It was well within their purvue to do so.

  210. 210
    Kimmitt says:

    Heh, States’ Rights for thee, but not for me, I guess.

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    Sojourner says:

    Contrary to your assertion, the USSC did not choose the president, they ruled on appeal from a lower court having to do with the methodology of the recounts. It was well within their purvue to do so.

    Nope. They override the state’s efforts to resolve the situation. If the state could not successfully resolve it, it would have gone to the House. There was absolutely no reason for them to intercede, especially the so-called states’ rights types like Scalia.

  212. 212

    Cite one reason why you think that both have the same basis in law. I’ll give you a hint—there is none. In fact, the parental permission clause in the Penn statute was upheld as constitutional in Casey, while the spousal notification was held as unconstitutional in the same ruling.

    Whether we’re talking about adults or children, women are deemed to have the right to an abortion with certain limitations. The law says these limitations are of two kinds, those that impose an undue burden and those that don’t. Limitations that impose the undue burden are permitted on a strict scrutiny test that requires them to serve a compelling state interest. Other limitations simply have to be rationally related to a public policy goal.

    These mechanics apply to both adults and children, the only difference being how the judgments of undue burden and rational relationship are made because there are compelling state interests in the case of children that don’t exist in relation to adult women.

    An analogy might help to clarify this for those of you who learned law from Daily Kos: pornography is defined in law as offending the public’s sense of decency. There are different standards for child pornography than for adult pornography because there are certain activities of a sexual nature that the public considers inappropriate where children are concerned. So there are two standards for porn, but they resolve into a single principle of law.

    Similarly, there are different standards regarding restrictions on abortion for adults and children, but they resolve into a common legal principle with two definitions of some of the key terms.

    Consequently, it’s simply not correct to maintain that Judge Alito’s jurisprudence treats women as children.

    As a historical note, it’s somewhat interesting to reflect on the fact that the first child abuse prosecutions in the US were based on a judicial interpretation of animal abuse laws. Animal abuse was called out in statute as a crime before child abuse, so the first prosecutions for child abuse actually relied on animal abuse statutes. That’s not to say that the judges who applied these laws in this manner believed that children were animals, but they did find a relevant analogy in the law. Judges do that sort of thing all the time, of course.

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    There was absolutely no reason for them to intercede, especially the so-called states’ rights types like Scalia.

    So much for the Voting Rights Act and the whole of civil rights legislation; in Sojourner’s world, Rosa Parks was an anti-Amercan infidel.

  214. 214
    Robert Chavez says:

    Child porn and adult porn do not “resolve into a single principal of law”. I used to work for a prosecutor’s office dealing with child pornography. Pornography is protected under the 1st amendment, but can be banned, even while remaining protected, if it is obscenity. Child porn is not considered protected by the first amendment at all, and as such, isn’t considered speech. Obscenity standards don’t even come into play.

    Just a subtle point that adult pornography and child pornography are two separate sets of case law that don’t really meet.

    Not that that has anything to do with the topic at hand.

  215. 215

    Obscenity standards come into play in this discussion in terms of evaluating whether a given image is pornographic, Bob, as I’m sure you know. So it goes to definitions and that does have something to do with the topic.

  216. 216
    Andrew J. Lazarus says:

    No Richard. The dispute we are having is over standards. Just as porn means the same thing for girls and women, an abortion is the same procedure for girls and women.

    Judge Alito thinks there is some overlap in standards. I’m still wondering: in the case of an unmarried woman who becomes pregnant, should her parents be notified (or the eldest male relative if the parents are dead), on the same reasoning as used for married women in Alito’s dissent?

  217. 217
    Shygetz says:

    Richard Bennett–Biggest pile of shit I’ve heard in a while. The limitations of non-emancipated minors to receive an abortion is not due to the courts deciding that something is less of a burden for minors. It’s due to parental rights in the raising of their children. The fact that the courts allow for parental permission but deny spousal notification gives specific lie to your assertion, but instead of addressing this specifically, you try to make a crappy analogy and imply that you have some legal background beyond reading the internet. Do you have a SCOTUS opinion that states your position that the differences in the law for minors and majors is due to different definitions of undue burden, or are you talking out of your ass? Are you a lawyer? Or are you talking out of your ass again? My money is on the latter in both cases.

  218. 218

    Perhaps the analogy doesn’t work, Lazarus, certainly at the level of your analysis. I was trying to help some of the lay people understand the difference between facts and principles, and you already grasp that. So discard the analogy and comment on the two prongs of abortion rights limitations that Alito applied in his Casey opinion, if you’d like.

    Shygetz, read Alito’s dissent in Casey and try to follow the discussion before you melt down again.

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