Scalito It Is

Bush nominates Samuel Alito, Jr., to replace O’Connor on the Supreme Court:

President Bush today named appeals court Judge Samuel A. Alito to the U.S. Supreme Court. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.

Alito, appointed to the appeals court in 1990 by George H.W. Bush, has been a regular for years on the White House high court short list. He was also among those proposed by conservative intellectuals as an alternative to Harriet Miers, the White House counsel who withdrew as the nominee last week…

Alito’s resume, including a degree from the Yale Law School and service in the Reagan administration Justice Department, is very much unlike Miers’, who had no appellate experience, and very much like that of Chief Justice John Roberts.

Like Chief Justice John Roberts, Alito served during the Reagan administration in the office of Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

While he has been dubbed “Scalito” by some lawyers for a supposed affinity to conservative Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record.

Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.

He is young, experienced, credentialed, and qualified. I am pretty sure he is too conservative for most Democrats, and will most certainly be opposed by the advocacy groups on the left, but I do not think he will be opposed by the Gang of 14 and I think conservatives will crawl over broken glass to get him on the bench, so I give his nomination a pretty good chance.

I don’t know where I stand on him- I will wait to see what comes out of the next few weeks.

*** Update ***

Several interesting pieces up at Red State. First, the Baseball Crank notes that the Casey decision will weigh heavily on the nomination and the candidacy of Bob Casey, Jr., while it appears I may have been right- the Gang of 14 will not allow a filibuster to stand.

*** Update #2 ***

Some useful links from the ACSblog (via the dKos, where there has not yet been a front page freak-out by Armando, but most assuredly will be) and Scotusblog.

*** Update #3 ***

Sen. Reid sets the tone for what will probably be the Democratic response:

The nomination of Judge Alito requires an especially long hard look by the Senate because of what happened last week to Harriet Miers. Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.

“I am disappointed in this choice for several reasons. First, unlike previous nominations, this one was not the product of consultation with Senate Democrats. Last Friday, Senator Leahy and I wrote to President Bush urging him to work with us to find a consensus nominee. The President has rejected that approach.

“Second, this appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O’Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court. And he has chosen yet another federal appellate judge to join a court that already has eight justices with that narrow background. President Bush would leave the Supreme Court looking less like America and more like an old boys club.

“Justice O’Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court. The stakes in selecting her replacement are high.

“I look forward to meeting Judge Alito and learning why those who want to pack the Court with judicial activists are so much more enthusiastic about him than they were about Harriet Miers.”

Looks like Matt Yglesias will get his wish about a Jonah Goldberg quota loving liberals column.

*** Update #4***

Orin Kerr writes:

I’m very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the “Scalito” nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we’ll see that Alito is more like John Roberts than Antonin Scalia. Like Roberts, Alito is an institutionalist who spent his career working in government at a very high level (including at the Solicitor General’s Office). Like Roberts, Alito is a very likable person. In light of his similarites to Roberts, I expect that Alito will be confirmed without a filibuster.

Meanwhile, the freakout starts at Think Progress with these two posts.

More links here.

*** Update #5 ***

As hoped, the Armando freak-out is posted, and the freak-out, at the moment, seems limited to the fact that Altio’s nickname is Scalito. Heady analysis, that!

Lots of links at the Campaign for the Supreme Court blog at the WaPo.

*** Update #6 ***

Captain Ed has an interesting point, of sorts:

As I mentioned below, Reid caused this problem in part because he did nothing to rescue his own suggestion for the court opening until Miers withdrew her nomination. He had specifically mentioned Miers as a compromise candidate that Democrats would not oppose, and then allowed Schumer and Leahy to belittle her responses in an echo of the conservative opposition that quickly coalesced around Miers. Reid and his caucus could have rescued the most moderate candidate they were likely to see from this administration. The Democratic delight in Bush’s predicament over the last three weeks undoubtedly played a part in the President’s decision to discount any further advice from Harry Reid.

The Captain then predicts confirmation 65-35. Sounds about right.

*** Update #7 ***

Patterico has a pretty decent defense against the “He wants to control your uterus!” charge, which is popping up all over already. Jeff Goldstein discusses the meme:

Meanwhile, as Patterico argued in advance of the nomination, conservatives should be prepared to combat attacks on Alito’s dissent in Casey. In short, left advocacy groups will try to frame that dissent—which touched on the legality of spousal notification for abortion and Justice O’Connor’s “undue burden” criterion guiding restrictions to abortion—as anti-woman, the suggestion being that Judge Alito “believes” women must obtain a husband’s permission before getting an abortion, essentially giving men veto power over a woman’s choice.

Such an argument would be (suprise!) a simplistic and dishonest way to frame a clear and well-reasoned dissent, naturally—which is precisely why we should anticipate the left using it, and why we must be prepared to rebut it in clear and simple terms, namely, that Judge Alito “believed” no such thing, but rather he that believed Pennsylvania had the authority to pass such a law, which did not violate established legal thinking on the conditions for placing restrictions on abortion.

This is going to be a heated one, for sure.






22 replies
  1. 1
    Otto Man says:

    It’s all just speculation at this point, but I think we might see the filibuster here.

    Alito was the sole dissenter in Casey when it rolled through the lower courts, so it’s clear where he stands on the issue of rolling back Roe. Plus, in the Marriott racial discrimination case, he basically made a defense of racial bias in hiring decisions. Those two opinions alone would likely be enough for the Gang of 14 to declare “extraordinary circumstances.” (He’s not someone this Senate approved, so there’s no immediate record of support to contradict either. All the more reason for them to break ranks.)

    And, as you note, conservatives will fight tooth and nail to get this guy in. I think we’re going to see a knock-down fight.

  2. 2
    Caroline says:

    The story seems to be that Alito makes Bush look like a wuss after the Miers debacle. He has made himself look like a tool of the far right with this nomination.

  3. 3
    John Cole says:

    The story seems to be that Alito makes Bush look like a wuss after the Miers debacle. He has made himself look like a tool of the far right with this nomination.

    That will certainly be how many on the partisan left try to frame the story, but I think most honest Democrats will agree with the statement that Miers was simply unqualified and not fit for the court, and that alone was enough to oppose her nomination.

  4. 4
    Caroline says:

    It’s interesting that Bush said that Miers “was the most qualified candidate.” So is he implying that Alito isn’t as qualified as Miers? Those words w/r/t Miers may very well come back to haunt him.

  5. 5

    […] John Cole of Balloon Juice, one of the most reasonable guys in the blogosphere says: He is young, experienced, credentialed, and qualified. I am pretty sure he is too conservative for most Democrats, and will most certainly be opposed by the advocacy groups on the left, but I do not think he will be opposed by the Gang of 14 and I think conservatives will crawl over broken glass to get him on the bench, so I give his nomination a pretty good chance. […]

  6. 6
    Krista says:

    Maybe I’m off-base here, but is it possible that Bush nominated Miers, knowing she didn’t have a hope in hell? That way, he can nominate the person he really wanted in the first place, while saying, “I tried to appoint someone different – a woman, who wasn’t a federal appelate judge, and who didn’t have a history of being against Roe vs. Wade, but nobody wanted her!”

    Just a theory.

  7. 7
    Shygetz says:

    I think the question is, can the Democratic opposition get the people to care enough about a SCOTUS appointment to kick up a fuss. This guy clearly is a bone to the radical base; if the political winds blow strongly against Alito, I could see the Gang of 14 (or at least the Democratic portion of it) decide that this really is “extraordinary.” But if the general population doesn’t care enough to really learn about this guy (which is what I expect), then he will be confirmed in a drag-out fight.

  8. 8
    Blue Neponset says:

    but I think most honest Democrats will agree with the statement that Miers was simply unqualified and not fit for the court, and that alone was enough to oppose her nomination.

    She was unqualified, but that didn’t seem to be a problem for a lot of Repubs until her 1993 speech regarding a women’s right to choose came to light.

  9. 9

    I like Judge Alito, but he did disappoint me with that whole “O.J. Simpson” case.

  10. 10
    Pug says:

    With the margin in the Senate at 55-45 I’m sure Bush will be able to get his nominee confirmed. It’s just more evidence,though, of the most narrowly elected president in history playing to his partisan, culture war base in spite of the small margins by which he was elected.

    Uniter, not a divider. Right.

  11. 11
    Sojourner says:

    The Dems are going to have to decide if they want to hold onto their base. If they don’t put up a serious fight, some of us will sit on the sidelines when the next election comes along. The only winners will be the far right. Certainly moderate Repubs are suffering as much as the left under this administration’s corrupt, selfish control.

  12. 12
    rayabacus says:

    “Justice O’Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court.

    This meme is just not true. O’Connor is one vote in a 6-3 decision. If her replacement votes differently there will be a 5-4 majority. The next appointment to SCOTUS could be the critical Roe appointment.

  13. 13
    Vlad says:

    “This meme is just not true.”

    The meme IS true, because it’s not referring specifically to Roe, but rather to a large group of other decisions.

  14. 14

    Bush Nominates Solidly Conservative Nominee To Supreme Court: The Big Battle Begins? (UPDATED)

    President George Bush has nominated conservative judge Samuel Alito to the Supreme Court — giving conservatives the kind of judge they hoped they were going to get after …

  15. 15
    metalgrid says:

    I’m just curious what his stance on the Commerce Clause is?

    I’m not too surprised with his strong 2nd amendment support, nor his poor 4th amendment stance coming as he is from a Republican nomination.

  16. 16
    roger says:

    dude….
    the steelers are on monday night football and your posting this crap…the scotus will be there tomorrow

  17. 17
    gorillagogo says:

    I don’t think Patterico’s defense is all that decent. It seems more like a fig leaf, really. It doesn’t matter if Alito was the only one that thought a man should have veto power over his wife’s choice, or if he was the only one that thought PA had a right to pass such a law. What matters is that he was the only one who voted to uphold that statute. The end result is the same regardless of what led Alito to vote the way he did.

  18. 18
    Tulie says:

    And believing that a state has the right to pass a law requiring one legal adult report to another legal adult before a medical procedure of any kind whether (s)he wants to or not is problematic in itself.

  19. 19
    BillS says:

    Should a husband have to get his wife’s permission (or at least notify her) if he wanted a vasectomy?

    I bet that Scalito would have another rationale in that case.

  20. 20
    Steve S says:

    Such an argument would be (suprise!) a simplistic and dishonest way to frame a clear and well-reasoned dissent, naturally

    Interesting. So Justice Sandra Day O’Connor was simplistic and dishonest.

    that Judge Alito “believed” no such thing, but rather he that believed Pennsylvania had the authority to pass such a law

    Well certainly. And Justice O’Connor never said that Pennsylvania had the authority to pass such a law.

    She simply said they shouldn’t be allowed to enforce it because it was unConstitutional.

    If you want to quible on a technicality, please try to at least be somewhat intellectually honest to yourself.

  21. 21

    […] Right-wingers, don’t even try to play the game that he’s not going to foster discrimination or that he’s not going to want to overturn Roe v. Wade. He’s the choice of the Dobsons and Delays and Santorums and the rest of the Neandertal wing of the Republican party, so to pretend that he ought to be palatable to progressives is offensively stupid. If you want a rabid wingnut on the court, you’re getting one…so at least be honest enough to admit it rather than acting as if he might harbor a liberal whim or three somewhere in his fossilized brain, and that we ought to therefore support him. […]

  22. 22
    Tulie says:

    BillS:
    That happened to a friend of mine’s husband. He went to get a vasectomy after their second child, and the doctor wouldn’t perform the surgery without a consent form from his wife. He took it hone to her, and she called and gave the doctor several blistering tongue lashes, fired him, and reported him to the state medical board.

Trackbacks & Pingbacks

  1. […] Right-wingers, don’t even try to play the game that he’s not going to foster discrimination or that he’s not going to want to overturn Roe v. Wade. He’s the choice of the Dobsons and Delays and Santorums and the rest of the Neandertal wing of the Republican party, so to pretend that he ought to be palatable to progressives is offensively stupid. If you want a rabid wingnut on the court, you’re getting one…so at least be honest enough to admit it rather than acting as if he might harbor a liberal whim or three somewhere in his fossilized brain, and that we ought to therefore support him. […]

  2. Bush Nominates Solidly Conservative Nominee To Supreme Court: The Big Battle Begins? (UPDATED)

    President George Bush has nominated conservative judge Samuel Alito to the Supreme Court — giving conservatives the kind of judge they hoped they were going to get after …

  3. […] John Cole of Balloon Juice, one of the most reasonable guys in the blogosphere says: He is young, experienced, credentialed, and qualified. I am pretty sure he is too conservative for most Democrats, and will most certainly be opposed by the advocacy groups on the left, but I do not think he will be opposed by the Gang of 14 and I think conservatives will crawl over broken glass to get him on the bench, so I give his nomination a pretty good chance. […]

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