Hard To Disagree

It is very difficult to disagree with this David Broder assessment of the politics of Bush’s SCOTUS pick:

Under other circumstances, President Bush’s choice of Judge Samuel Alito for the Supreme Court would have been seen as a bold move by a strong president with a clear policy objective. By choosing a man of superior intellectual heft and an indelible record of conservative views on major social issues, Bush would have been challenging his critics on the Democratic side to test their arguments in an arena where everything favored him: a Republican Senate.

But after the fiasco of the Harriet Miers nomination and the other reversals of recent days and weeks, the Alito nomination inevitably looks like a defensive move, a lunge for the lifeboat by an embattled president to secure what is left of his political base. Instead of a consistent and principled approach to major decision making, Bush’s efforts look like off-balance grabs for whatever policy rationales he can find. The president’s opponents are emboldened by this performance, and his fellow partisans must increasingly wonder if they can afford to march to his command.

Read the whole thing.






127 replies
  1. 1
    Mr Furious says:

    You’re right, hard to disagree. I am hopefullly agreeing. That is, I hope he’s right. Part of me wonders if this whole thing wasn’t a big giant bait and switch.

  2. 2
    Lines says:

    If it was a bait-and-switch, is it ok to feel sorry for Harriet Miers? Or is she going to rewarded for taking one for the team?

    And since when is a Conservative ideal to justify the strip searching of a 10 year old girl?

  3. 3
    Mike says:

    Good article. The only point I tend to disagree with is regarding what he said about conservatives wanting a guarantee that Roe v. Wade would be overruled. ALthough there are certainly some convervatives that feel strongly about this, I don’t agree that is the same litmus test for conservatives as it is for liberals. Liberals seem to obsess about this ruling far more than most conservatives in my opinion.

  4. 4
    p.lukasiak says:

    Read the whole thing.

    No. Broder’s an ass. Even when he’s right, he’s an ass. And the fact that he is simply spouting what has already been accepted as conventional beltway wisdom means there is even less need to read him.

    **********************

    The smart move for the Dems right now is to exploit the Alito nomination as an example of how Bush prefers the politics of confrontation to those of compromise. Focus on the fact that the Libby indictment and continuing investigation poses significant challenges for both the White House and the nation as a whole — challenges that would be far easier to meet in at atmosphere where the White House was working to achieve consensus with the Democratic Party on other issues.

    Instead, Bush delivers a “slap in the face” to those Democrats who want to work with the White House, nominating an extreme right wing conservative activist judge that he knew would be unacceptable to the vast majority of Democratic Senators.

    Point out that for the past five years, the Bush and the GOP congress have consistently engaged in hardball gutter politics — and the Democrats will no longer put up with those tactics without a fight.

  5. 5
    Matt D says:

    The politics and motivation may be hard to disagree with, but it does not change the essential question of whether a nominee for the court who is obviously qualified and credentialed, absent some skeleton in the closet that could cast reasonable doubt on his or her character, should be confirmed notwithstanding a difference of ideology with the minority party. People seem to forget that the question of whether the American people would approve of another conservative on the Court was decided a year ago (today) in both the presidential and congressional elections. If the pundits want to weigh in on what the nomination says about the present attitude and posture of the administration, they certainly should, but whether the nomination was made to “shore up the base,” divert attention from the Libby inditcment or to just to piss off Democrats is irrelevant to the question of whether this nominee should be confirmed.

  6. 6
    p.lukasiak says:

    People seem to forget that the question of whether the American people would approve of another conservative on the Court was decided a year ago (today) in both the presidential and congressional elections.

    Funny, but I don’t remember George Bush promising to appoint radical conservative activist judges during the campaign.

    Indeed, the GOP did everything they could to remove the focus from policy issues during the campaign, and focus on “character” and “leadership”. Given that the majority of Americans now say that they would vote against Bush if the election were held to day, its perfectly appropriate for the Democrats to challenge judges who are well out of the mainstream.

  7. 7
    Mithrandir says:

    Amen Matt D!!

    Lukasiak: I don’t understand how Alito is “extreme” when he was confirmed to his current position unanomously?

  8. 8
    neil says:

    Under other circumstances, President Bush’s choice of Judge Samuel Alito for the Supreme Court would have been seen as a bold move by a strong president with a clear policy objective….

    But after the fiasco of the Harriet Miers nomination and the other reversals of recent days and weeks, the Alito nomination inevitably looks like a defensive move, a lunge for the lifeboat by an embattled president to secure what is left of his political base.

    What Broder is really saying here is “Under other circumstances, we would have believed what the Republican spinners say, like we usually do. But after the fiasco of the Harriet Miers nomination, we’re going to believe what the Democratic spinners say for a change.”

    Am I missing something?

  9. 9
    Lines says:

    Alito isn’t extreme? Solo dissents on major cases prove that he would rather go with personal conviction rather than the law. He’s an activist, his record shows it. Thats someone you want appointed because “Bush won”? Wow, thats an amazingly ignorant view of the situation.

  10. 10
    Mithrandir says:

    Yeah, neil: don’t believe the spinners. :^) How ’bout just looking at a solid 15 years on the bench with no blatantly apparent “black marks” on it?

  11. 11
    jg says:

    People seem to forget that the question of whether the American people would approve of another conservative on the Court was decided a year ago (today) in both the presidential and congressional elections.

    The votes weren’t unanimous so he’s not doing what the american public wants, he’s doing what some of the public wants. Most I would bet don’t really want this (or even understand the implications) but will blindly support a republican president.

  12. 12
    Tim F. says:

    You’re late to the party, Broder.

  13. 13
    Mithrandir says:

    The votes weren’t unanimous so he’s not doing what the american public wants, he’s doing what some of the public wants. Most I would bet don’t really want this (or even understand the implications) but will blindly support a republican president.

    That’s not the point of the argument, nor a democracy/representative republic. The majority has spoken, regardless of its size, and it knows what that entails, including judicial nominations.

    The majority of the country wants the gov’t to go in a more conservative direction. The difference now is that the minority now wants to whine about how it’s unfair and think they should be given creedence based merely on who they are, not on any rules or precedents that have been previously set or used.

  14. 14
    APF says:

    Most I would bet don’t really want this (or even understand the implications) but will blindly support a republican president.
    You mean they entrusted the leadership of the country–including this decision–to the man who is now the President. There’s a difference, esp. in terms of what realistically is the expectations of voters.

  15. 15
    Blue Neponset says:

    I don’t think Bush’s policy failures are a reflection of his poor management style. (although I agree that his mngmt style sucks) His policies just don’t have popular support and no amount of politicing is going to change that.

    People don’t want Bush flavored Soc. Sec. reform, they don’t want his pro employer labor policies, and I am betting his tax ‘simplification’ policy is going to be a big flop as well.

  16. 16
    jg says:

    The majority has spoken, regardless of its size, and it knows what that entails, including judicial nominations.

    The majority of the country wants the gov’t to go in a more conservative direction.

    The president represents even the people who didn’t vote for him, especially when he labels himself a uniter.

    If you think people went to the polls and pulled a lever because of a desire to move the country in a conservative direction you are living in a fantasy world. Thre were many different reasons for voting for Bush or against Kerry. Some people were scared into thinking OBL was going to attack us if Kerry was elected. Thats not a desire for a conservative country, thats safety.

  17. 17
    Geek, Esq. says:

    Funny, but I don’t remember George Bush promising to appoint radical conservative activist judges during the campaign.

    He promised to appoint judges like Scalia and Thomas.

  18. 18
    Mike says:

    “Mithrandir Says:

    Lukasiak: I don’t understand how Alito is “extreme” when he was confirmed to his current position unanomously?”

    He wasn’t once a lawyer for the ACLU like the oh so “unextreme” Ruthy.
    That makes him extreme to this crowd.

  19. 19
    Mike says:

    “jg Says:

    The votes weren’t unanimous so he’s not doing what the american public wants, he’s doing what some of the public wants. ”

    That’s exactly right. He’s doing it for those of us that elected him. Elections MEAN something. Just as when Harry Reid says “I speak for the American people”, no he doesn’t, he certainly doesn’t speak for me, any more than Bush speaks for you.

  20. 20
    Blue Neponset says:

    That’s exactly right. He’s doing it for those of us that elected him. Elections MEAN something.

    Do they mean the President can ignore the opinions of those who didn’t vote for him?

  21. 21
    Mike says:

    “Lines Says:
    Thats someone you want appointed because “Bush won”? Wow, thats an amazingly ignorant view of the situation.”

    No more ignorant than it would be if you wanted someone like Ginsberg appointed, which I’ll wager is the case. That’s not ignorance, that’s what happens when you lose elections. It’s called “Democracy”.

  22. 22
    Mithrandir says:

    The president represents even the people who didn’t vote for him, especially when he labels himself a uniter.

    Spoken like a member of the minority. I believe people pulled the lever in 2000 to move that way. And in 2002 mid-terms. Going all the way back to 1994 and prior.

    The POTUS is elected to lead. Doing what you’re saying means “follow.” I won’t mind if a Congressional Rep. or Senator does this, but they aren’t my leaders. While true, you don’t grind your “opponent’s” noses into the dirt, it isn’t necessary that you listen to them over the majority.

  23. 23
    Matt D says:

    If this country were governed by straw polls taken throughout the term of its elected officials, then you could make an argument based on poll numbers showing what “most of the public” wants in their SCOTUS nominees (for the record, to date, I have seen no such poll numbers anyway). The notion that the American people “didn’t understand what they were doing” when they (re)elected President Bush and the Republicans in Congress underscores what this debate is really about–the incredulous reaction of Democrats to the fact that they lost the last two elections. Appointing members to the Supreme Court (with the advise and consent of the Senate) is one of the jobs that every President of the United States is elected to peform. The fact that the White House and the Senate remains in control of the GOP reflects the will of a majority of the electorate. You want to say that Alito shouldn’t be confirmed because you can’t believe that the voting public actually meant “meant it” when they elected these people. To me, it’s that view that’s “ignorant.” If you want to debate the pros and cons of the American political system and thy tyranny of the majority, that’s a different topic for another another thread.

  24. 24
    Lines says:

    Gee, Mike, how about appointing someone that isn’t an ideologue in either direction? How about someone that has written opinions that arn’t mysogistic in nature or how about someone that doesn’t look for bogus justification when cops strip search and violate a 10 year old girl’s civil rights?

    You know, a GOOD judge. Would you want Alito as a judge over your case?

  25. 25

    Bush’s Desperate Play

    From WAPO: Under other circumstances, President Bush’s choice of Judge Samuel Alito for the Supreme Court would have been seen as a bold move by a strong president with a clear policy objective. By choosing a man of superior intellectual…

  26. 26
    jg says:

    American people “didn’t understand what they were doing” when they (re)elected President Bush and the Republicans in Congress underscores what this debate is really about—the incredulous reaction of Democrats to the fact that they lost the last two elections.

    No it doesn’t, at least not for me. Its from personal experience with friends and acquaintnaces. I know people with absolutely no economics education who argue with me that Bush’s economic policies are good. I would have to teach them econimics in order to explain to them how wrong they are. I hear corporate tax breaks allow companies to hire more people yet there’s no linkage and my company just finished another round of layoffs. I heard people ask one of my friends who should they vote for and my friend (community college professor, one of the smartest people I know) actually said if you fear terrorism you have to vote for Bush. WTF? Scare monger much? Theres a vote for Bush that had nothing to do with a conservative revolution. You think its the only one? With Cheney threatening attacks if Kerry won? You now how many people I know that didn’t come to work when the bogus color levels were increased? How many people in Ohio went to the polls because of gay marriage and pulled alever for Bush? Hard to count but do you think the RNC was smart enough to realize an issue like gay marriage will get a Bush supporter who might not otherwise vote, to the polls?

    There are lots of reasons why Bush won, not all have to do with a love of his vision of america, stop acting like he now has a blank chaeck signed by John Q Public.

  27. 27
    Steve says:

    On the somewhat controversial issue of whether Bush really promised to nominate judges like Thomas and Scalia, I find this pretty interesting.

  28. 28
    Otto Man says:

    I don’t understand how Alito is “extreme” when he was confirmed to his current position unanomously?

    Because the evidence of his extremism came after his placement to his current position. Everything we on the left side are upset about — his opinions in Casey, Doe, and the Marriott case for instance — came when Alito was on the 3rd Circuit Court. Again, after the last vote.

    Also, there’s a big difference between putting someone on a lower court, where you’re supposed to follow the lead of the Supremes, and the Supreme Court itself, where the precedents can often be set.

  29. 29
    RA says:

    Talk about left-wing spin. The appointment of Alito is the same regardless of the circumstances around it. Broder is a left-wing hack and he proves it by inventing propaganda out of whole cloth.

  30. 30
    Blue Neponset says:

    I don’t understand how Alito is “extreme” when he was confirmed to his current position unanomously?

    He was confirmed via unamimous consent along with a handful of other judges. That doesn’t mean every Senator approved of his nomination it just means no senator wanted to take up the Senates time to vote on those nominees.

  31. 31
    Doug says:

    He wasn’t once a lawyer for the ACLU like the oh so “unextreme” Ruthy.

    Well, the ACLU went to bat for Rush Limbaugh, so I guess they are kind of extreme.

  32. 32
    Stormy70 says:

    There are lots of reasons why Bush won, not all have to do with a love of his vision of america, stop acting like he now has a blank chaeck signed by John Q Public.

    In the case of Supreme Court picks, he does. There is no second place ribbon in Presidential elections. Clinton won, he got to pick who he wanted on the bench. I didn’t like it, but my dude lost the election. Bush won, and he gets to nominate his choice, and try to get him confirmed.

    It does not matter why someone votes for a President and will have no bearing on how they govern the entire country. A President does not have to govern by popular opinion once in office as well, unless the political heat grows to be too high, a la Miers.

  33. 33
    Stormy70 says:

    Oh yeah, Broder gets this wrong as usual.

  34. 34
    Darrell says:

    Well, the ACLU went to bat for Rush Limbaugh, so I guess they are kind of extreme

    Any organization that defends NAMBLA, arguing that NAMBLA members have a ‘Constitutional right’ to exchange photos of little boys and publish newsletters giving tactics how to lure them. The ACLU believes free speech trumps child protection laws,and that’s an extreme position by most any definition

  35. 35
    Darrell says:

    The ACLU supports NAMBLA having a website which includes such items as “how do seduce boys without getting caught or convicted”. Ruth Bader Ginsburg was once a top lawyer for the ACLU. She was an advocate for them

  36. 36
    Shygetz says:

    The Senate minority party has a history of influence when it comes to judicial appointments, through various procedural tactics. The fact that the current Republican majority has eliminated almost all of these tactics once it came into power, and now threatens to remove the filibuster if it is used, suggests that they have decided that the minority should have no influence when it comes to judicial appointments. Elections do mean something, but a simple majority doesn’t mean EVERYTHING in American government.

  37. 37
    Shygetz says:

    The ACLU loves the Constitution? The bastards! They think the Constitution trumps federal statutes? The fools! Let’s string ’em all up!

    And Stormy, no one is saying that the Democrats should get to choose who gets nominated. Bush needs to recognize that the minority party does have rights in the Senate, though, and actions that do not take their viewpoint into account will be met with opposition. Clinton got to pick the person, but he conferred with the Senate opposition party to ensure that his pick would be palatable. When Bush did that with Miers, the Dems were pretty quiet. He did not with Alito, and they are gonna fight.

  38. 38
    Rick says:

    LOL! The “dean” (more like the Howie kind) of the Washington press herd once again peers at the political landscape through the wrong end of the binoculars.

    Miers was a blunder; Bush’s mulligan is a 10-strike.

    Cordially…

  39. 39
    Rick says:

    Oh, John…so no, it’s most emphatically *not* hard to disagree.

    Cordially…

  40. 40
    Matt D says:

    If you’re somehow insinuating that a significant portion of the 52% of the voters who elected the President (and the other majorities who elected GOP senators) were somehow “duped” into it, and therefore there should be a special limitation on the powers granted to the President under the Constitution, then I’m not buying it (and frankly, it underscores my point about the incredulity of the Democrats about losing the past 2 elections). President Clinton was elected in 1992 (without a majority, mind you) and was thus given the authority to appoint members to the Court. It was in no way an abuse of such authority to appoint Justice Ginsberg, a qualified jurist who also spent time working as an attorney for the ACLU. Because she was obviously qualified, she sailed through confirmation with minimal moaning (at least in terms of “no” votes) from the minority GOP about how Clinton’s election as President doesn’t give him the right to appoint judges with whom they disagree. In 2005, somehow an ideological check on this presidential power has been fabricated by the opposition and it’s just flat out wrong.

  41. 41
    Otto Man says:

    Ginsberg and Breyer were both recommendations from Orrin Hatch, the ranking Republican on the Judiciary Committee. That’s why they sailed through — they already had the stamp of approval of the opposition party.

  42. 42
    KC says:

    Regardless of the motives behind the appointment, I think Alito is a better and more qualified candidate than Miers. While I think he’s going to be conservative activist respecting certain issues, I would rather have an intelligent justice on the court than an administration insider. So, I look at things this way: If it takes the president being on the ropes to make a wise decision, so be it. At least he’s finally paying attention.

  43. 43
    Stormy70 says:

    So, I look at things this way: If it takes the president being on the ropes to make a wise decision, so be it. At least he’s finally paying attention.

    Yes.

    Long time posters know I have no respect for most of the Senate, as a whole. Most of them are big whiners. Still waiting on Frist to actually grow a pair.

  44. 44
    Mr Furious says:

    I’ll second Otto on that point. Clinton’s “extreme” judges were pre-approved by the Republicans (or at least the ranking R on the Judicial Committee).

    In this case, Reid was called by Andrew Card AFTER Reid had already seen the nomination on TV. Just a bit different, don’t you think?

  45. 45
    Mr Furious says:

    In addition, I read that one of Alito’s more controversial opinions was when he was the lone dissent on a 12-JUSTICE PANEL! That doesn’t sound mainstream to me…

    I’ll have to find the link…

  46. 46
    Matt D says:

    I understand that Justices Ginsberg and Breyer were nomintated following consultation with Sen. Hatch. However, it does not change the essential point that barring a genuine issue of character, qualified jurists should not be held back by ideological differences with the minority party.

  47. 47
    Blue Neponset says:

    However, it does not change the essential point that barring a genuine issue of character, qualified jurists should not be held back by ideological differences with the minority party.

    That is wrong on so many levels. If it is ok for the majority party to hold back a qualified jurist because of ideological differences it is certainly ok for the minority party to do it as well. Winning an election doesn’t mean you get to ignore the minority party.

    The courts belong to everyone not just those who voted for the President. The people of California can’t all be ignored because both of their Senators are from the minority party.

  48. 48
    Steve S says:

    Darrell – The ACLU has also supported Nazi’s marching in parades. They’ve supported Rush Limbaugh’s right to not turn over medical records to law enforcement agents. They’ve also supported anti-abortion groups putting up websites. They are neither conservative or liberal in the American sense of those words.

    The ACLU defends the Bill of Rights. They defend Liberty and Freedom. They do not defend or condone the message of any particular group, they merely defend their right to voice that message.

    Why is Liberty, Freedom and Justice wrong? These are the foundations of our very Republic, and yet you attack them. Why? Why do you fear words? Are you that weak in your own faith?

    Frankly, I doubt there is even a real group that exists named NAMBLA. My understanding of the ACLU defense, is that they defended the general principle and had no contact with any real person representing said group. My suspicion is that NAMBLA is a group invented by Republicans to generate support against the 1st amendment, much like the Nazi’s burned the Reichstag.

    Even so, they are just words. I do not fear words.

  49. 49
    ppGaz says:

    ACLU exists for one reason, primarily: To resist and curb the power of government over people. I’m pretty skeptical about the boilerplate horror stories told by the bushmonkeys. For good horror stories, it’s generally only necessary to start looking at the foolish and imperial things that government and law enforcement people want to do. I’m much more afraid of government officials than I am of any private organization. That’s why I regularly give money to ACLU. I’ve been behind the scenes in offialdom, and AFAIC, there can never be enough ACLUs out there. The government is generally not your friend. No matter who is running it.

  50. 50
    Steve says:

    All you need to know about Ginsburg is that she was a federal appeals judge for 12 years, and yet whenever someone tries to make the case that she is a flaming liberal, they always have to dredge up ancient history from BEFORE that period. Truth is, one of the reasons Orrin Hatch suggested Ginsburg is that she had a moderate voting record as a judge, and in fact, the judges on the D.C. Circuit that she agreed with most often were Republican appointees. It defies logic to suggest that Clinton asked Hatch for suggestions and Hatch came up with the name of the most crazy moonbat he could think of.

  51. 51
    metalgrid says:

    Gotta love the ACLU bashing:
    – Defending Limbaugh
    – Defending Street Preachers (http://www.pntonline.com/engin.....38;id=5759)
    – Defending religious singing by students (http://www.aclu-nj.org/pressro.....suppor.htm)

    So they’re blind in certain areas, which is why we have the IJ, FIRE and NRA to pick up where ACLU doesn’t go and I’m glad to say I support all of em.

  52. 52
    Matt D says:

    1. I never suggested Ginsberg was a “flaming liberal” or “extreme.” I only used her as an example of someone with ideology with whom most senators from the minority party at the time (the GOP) disagreed. Oren Hatch’s blessing or not, I think that’s a fair statement.

    2. Re: the rights of the minority party. I’m not sure I understand this. If by “majority party” you mean the President, then the majority party doesn’t “hold back” nominees; the majority party nominates nominees. If by “majority party” you mean a Congressional majority that is from a different party than that of the President, then, I agree that they should not vote down a nominee based on ideology alone, and I never suggested otherwise.

    What I am saying is that for better or worse, the voters elected the President and Congress to do a number of jobs, among which is to appoint and confirm judges to the federal judiciary. If the President appoints someone and everyone in the Senate votes on confirmation based on party lines, then, in 2005 GOP-favored appointees will be confirmed. If the voters think they did a bad job, then in 2006 and 2008 they can vote for a change. Nobody is ignoring the senators from California, they get 2 votes just like everyone else, but based on the 2000, 2002 and 2006 elections, it appears that their ideology does not represent that of the majority of Americans who voted, and accordingly, they should not assume that absent issues of qualification or character “the people” will not approve of this nominee after we just had an election in which this was an essential issue.

  53. 53
    Bill Hicks says:

    Matt D, that is an interesting philosophy you have on how Senators should vote on judicial appointments. I do not know of any law or anything in the constitution that requires Senators to vote one way or the other on judicial appointments. I do not understand your reasoning. The President appoints judges based in part on politics/ideology. Why should Senators not do the same?

  54. 54
    DougJ says:

    RA, could you post a little more often? This place needs spoofing and I don’t have the time or energy right now.

    Cordially…

  55. 55
    Jay says:

    Oh my God! Alito was the lone dissent on a case!

    That’s never happened before!!

    Please. The people who are calling Alito a ‘radical’ and an ‘extremist’ are people who are simply repeating whatever Ralph “Super Bad Hair” Neas has been writing up on his website.

    The people who have worked for him and those who have found themselves on the opposite side of his rulings have said the man is a thoughtful jurist, who looks at each case with an open mind. There are too many judges that want a pre-determined outcome and look for ways to reach that end. According to colleagues, that’s not what Alito does.

    Those who are trying to say that Alito was attempting to ‘justify’ strip searching 10 year old girls are just stupid. Very stupid. So stupid that allowing them the means to vote scares the hell out of me (especially that clown Lines who thinks a lone dissent means a judge is allowing his personal convictions to win out over the law. Where do they get this crap?). Alito had a job to do and that was to determine if the strip search in question was constitutional. Whether it is ‘justified’ or ‘right’ is irrelevant.

  56. 56
    APF says:

    Isn’t suggesting that “all” the ACLU does is valiantly defend the Constitution just as much begging the question as suggesting that “all” Alito will do is correctly interpret the Constitution?

  57. 57
    DougJ says:

    Ralph “Super Bad Hair” Neas

    That is a very clever nickname. Did you think of it yourself?

  58. 58
    ppGaz says:

    Isn’t suggesting that “all” the ACLU does is valiantly defend the Constitution

    Characterize away, but the acronym ACLU pretty well describes their intent and their activities. A visit to their website will tell you more.

    The intent is to identify cases where the government is trying to screw over citizens, and take action. That’s a characterization in itself, but I think an accurate one.

  59. 59
    jg says:

    If you’re somehow insinuating that a significant portion of the 52% of the voters who elected the President (and the other majorities who elected GOP senators) were somehow “duped” into it, and therefore there should be a special limitation on the powers granted to the President under the Constitution, then I’m not buying it (and frankly, it underscores my point about the incredulity of the Democrats about losing the past 2 elections). President Clinton was elected in 1992 (without a majority, mind you) and was thus given the authority to appoint members to the Court. It was in no way an abuse of such authority to appoint Justice Ginsberg, a qualified jurist who also spent time working as an attorney for the ACLU. Because she was obviously qualified, she sailed through confirmation with minimal moaning (at least in terms of “no” votes) from the minority GOP about how Clinton’s election as President doesn’t give him the right to appoint judges with whom they disagree. In 2005, somehow an ideological check on this presidential power has been fabricated by the opposition and it’s just flat out wrong.

    I wasn’t trying to make any of those points but great job refuting them anyway.

  60. 60
    Darrell says:

    Frankly, I doubt there is even a real group that exists named NAMBLA

    Yeah?

  61. 61
    jg says:

    Isn’t suggesting that “all” the ACLU does is valiantly defend the Constitution just as much begging the question as suggesting that “all” Alito will do is correctly interpret the Constitution?

    Take out ‘valiantly’ and ‘correct’ and I agree.

  62. 62
    Shygetz says:

    I’m not pissed at Alito because I think he wants to strip search 10-year olds. I’m pissed because he wants to increase the police powers of search beyond the scope of the warrant. His opinion in that case was based largely on what the police meant to put in the warrant, but the fact was that the warrant did not list any people that the police could search, and they had no probable cause. I don’t think Alito is evil, per se, but his vision of what the Constitution means seems to be significantly different from mine and many other Americans.

    And those here who are pro-Alito have not addressed my point that there is nothing unprecedented about the minority using procedural tactics to derail a nomination. Are you conceding the point?

  63. 63
    Shygetz says:

    Oh, I believe that NAMBLA exists, alright, just like I believe in neo-Nazis and people who think we never landed on the moon. The world is full of weird (and sometimes dangerous) people. But they get rights too. The point of the First Amendment is not to protect popular speech.

  64. 64
    Lines says:

    Oh goodie, I’m a pussy clown today!

    Nice name calling, Jay. Amazing lack of intellectual capability, though. In being the lone desent in the case of Doe, he basically set himself up as a non-Constitutional follower, but one that was more in line with a personal ideology rather than Constitutional law. The 10 year old girl had the protection of the 4th Amendment and it was broken, yet Alito saw nothing wrong with that.

    Why do you hate 10 year old girls, Jay? One punch you in class today?

  65. 65
    Sojourner says:

    However, it does not change the essential point that barring a genuine issue of character, qualified jurists should not be held back by ideological differences with the minority party.

    There’s this little thing called judgement. And it appears that Alito’s judgement is pretty questionable. He doesn’t understand why expecting adult women to notify their husbands about anything is a problem, he doesn’t understand why allowing the sale of machine guns to the general public is a problem, he doesn’t understand why strip searching 10 year olds is a problem.

    Judgement is a key element of a judge’s job and Alito’s confirmation should depend on whether he has good judgement.

  66. 66
    ppGaz says:

    Oh, I believe that NAMBLA exists, alright, just like I believe in neo-Nazis and people who think we never landed on the moon. The world is full of weird (and sometimes dangerous) people. But they get rights too. The point of the First Amendment is not to protect popular speech.

    Correctamundo. In fact, pedophilia is not illegal. It’s simply a predilection. Acting on it, and actual abuse, is the crime. Not thinking about it.

    Of course, in the modern era of the Sex Police, these kinds of distinctions are not useful. What’s useful is manipulating other people. It makes people like Darrell feel important to rant about NAMBLA. Alas, this provides no proof that Darrell is not himself a mass murderer.

  67. 67
    Matt D says:

    I guess my point of view is grounded in history (as I know it, I’m not a scholar) based on the other executive powers granted to the President under the constitution. In my lifetime, I am aware of very few examples of the Senate voting down a nominee based purely on ideological reasons. Other than the “stealth” candidates who made unexpected ideological switches once on the bench (eg., Souter, Blackmun, agruably Warren), members of the Court have typically reflected the ideology of the President who appointed them, and not the prevailing sentiment of the senators who confirmed them. One of the Federalist papers authored by Alexander Hamilton (I forget which one) describes the “advice and consent” power given the senate as a check on the President’s power to appoint unqualified cronies to the federal judiciary (which casts an intesting light on the Meyers pick). In any case, I have yet to hear a convincing argument for voting down an otherwise qualified nominee on the grounds that he or she thinks X about abortion and I think Y. Taking a such a position makes it very difficult for a duly elected executive to govern. Finally, I (as I’m sure many of us here) paid pretty close attention to the presidential election last year, and the nomination of judges to the Court was a central issue in that election (and in the congressional elections as well–ask the voters of South Dakota). It seems to me that the people have been heard on the ideology issue, and that the purpose of the Senate hearings should be an objective evaluation of the nominee’s qualifications for the Court and whether there are any problems with his character that would cast doubt on fitness to serve on the Highest Court in the Land. Ideology (and the President’s motivation, to bring this back to the purpose of the original blog entry) should not be the main focus.

  68. 68
    Matt D says:

    Re: Judgment and the spousal notification law at issue in Casey–No, it was Judge Alito’s judgment that the spousal notification provision of the Pennsylvania abortion law did not create an “undue burdon” on ALL women seeking abortions in Pennsylvania (as opposed to an undue burden on only the married women in Pennsylvania seeking an abortion–a relatively small percentage), which is what Justice O’Connor’s standard in the controlling precedent required in order to overturn a state abortion law. There were 3 justices on the Supreme Court who felt the same way, which, whether you agree with it or not, does not paint Judge Alito as an extremist by any objective standard. Again, this is an issue of ideology over qualification.

  69. 69
    Sojourner says:

    There were 3 justices on the Supreme Court who felt the same way, which, whether you agree with it or not, does not paint Judge Alito as an extremist by any objective standard. Again, this is an issue of ideology over qualification.

    Fine but O’Connor disagreed with him and she is the author of the standard.

    It’s not just one ruling. It’s a pattern of rulings which suggests that Alito often ends up by himself or in a small minority. Which suggests that his judgement is problematic.

  70. 70
    rayabacus says:

    There’s this little thing called judgement. And it appears that Alito’s judgement is pretty questionable. He doesn’t understand why expecting adult women to notify their husbands about anything is a problem, he doesn’t understand why allowing the sale of machine guns to the general public is a problem, he doesn’t understand why strip searching 10 year olds is a problem.

    He has been on the Appeals Court for 15 years and issued hundreds of opinions, I’m sure if you searched some of these you would probably find many that you personally agreed with, just as you point out these that you disagree with.

    I think what you need to look at is what did he decide. In Casey, he decided that the PA law, based on prior SCOTUS decisions was Constitutional. That is that the PA legislature had a right to enact that law. When SCOTUS overturned, O’Conner broadened her previous “undue burden” qualifications. Had they been in place at the time of his decision he probably would have ruled otherwise.

    He has never said that “the sale of Machine Guns to the general public was safe”. What he ruled was that Congress had no authority under the Commerce Clause to regulate the intrastate commerce, be it machine guns or bubble gum.

    He also did not gleefully rub his hands and declare his delight at “strip searching” 10 year olds. He was ruling on the “qualified immunity” of those officers that conducted the search. He was ruling on the “Law” and the “reasonableness of the interpretation” of the warrant by the officers that executed it.

    There are many judicial rulings that I don’t personally agree with (Kelo for one). I can certainly see how five Judges came to the conclusion that they did and understand their reasoning even if I don’t agree that it was the correct decision. I’m not going to say that Ginsburg, et al “thinks it is OK for the city council to kick me out of my house and give it to Wal-Mart”. I know that is not true.

    IMHO I hope that Alito is the kind of Jurist that looks at the law and says it is constitutional or Unconstitutional – regardless whether it is a “good” law or a “bad” law. Legislatures, on occassion, enact “bad laws” that happen to be Constitutional or fail to take action in some areas where a law is needed. In other words sometimes the Legislative Branch fails to do its job. We shouldn’t look to the courts to do it for them.

  71. 71
    Steve S says:

    Apparently the only reason to resist a nomination which is acceptable to Republicans is if the nomination came from President Clinton…. or that person may have an open mind and may possibly be undecided on the issue of Roe v Wade, as Miers was.

    Otherwise we should just all role over and not question.

    I’m sorry. Broder is right. Your arguments are bullshit. If it’s ok for the GOP halt the Miers nomination, then it is perfectly acceptable for the Democrats to halt any nomination that they also feel is unaccaptable, for whatever reason… ideological, or even just that they don’t like his haircut.

  72. 72
    Sojourner says:

    I think what you need to look at is what did he decide. In Casey, he decided that the PA law, based on prior SCOTUS decisions was Constitutional. That is that the PA legislature had a right to enact that law. When SCOTUS overturned, O’Conner broadened her previous “undue burden” qualifications.

    She didn’t broaden it. She pointed out something that to most people is pretty obvious. Who is going to point out to Alito if he’s on the SC? That’s the problem. Nobody. He’ll be left to listening to his tin ear.

    IMHO I hope that Alito is the kind of Jurist that looks at the law and says it is constitutional or Unconstitutional – regardless whether it is a “good” law or a “bad” law.

    I agree with this completely. Unfortunately, Alito isn’t the guy to do this.

  73. 73
    Lines says:

    rayabacus, that is possibly the best post I’ve ever seen from you, thank you.

    But I disagree on Doe. I never pictured himself imagining his own personal strip search of a ten year old, I rather find that he sees no problem with cops going above and beyond the scope of a warrent because of 2 things:

    1) Parents hide drugs on children – ummm, no constitutional right to search for this reason, so this is just a personal justification on his part. The ideological possibilities are that he agrees with the war on drugs and a no-prisoners type attitude towards the policing of the drug war, or he hates girls.

    2) The original affidavit requested a search of all persons present – hmmm, no constitutionality here, either. The Constitution reads that people have the right to Not be searched without reason. The judge threw out the reason, but the cops ignored it. Alito came along, and in another solo-dissent, said the cops were just fine ignoring the original warrant. Now, can you explain how the female’s 4th amendment right wasn’t violated? Is it just because they are females and those are chattel of the man?

    Ok, the last part was a bit extreme, but it is part of my point. Do the decisions made by Alito lean towards mysogistic tones? Does he believe in 100% equal rights to women? Does he understand that marriage isn’t in the Constitution, that the rights granted in marriage to a couple isn’t one of ownership of man over woman?

  74. 74
    Otto Man says:

    IMHO I hope that Alito is the kind of Jurist that looks at the law and says it is constitutional or Unconstitutional

    No offense, but that’s what every judge does, regardless of their political or judicial ideology. Or is there a jurist out there who looks at a law and says it’s “Tuesday” or “shellfish”?

    The issue is just how a jurist comes to justify their decision that a law is constitutional or unconstitutional. They all interpret the constitution in one way or another, and it’s woefully naive to believe that “original intent” is anything but another means of interpretation.

  75. 75
    Steve S says:

    Darrell – Yep. I still suspect the website is maintained by Republican operatives, just so people like yourself can rail against them.

    I don’t have any other explanation as there is nobody that I have seen who at all supports their position other than the simple defense of the 1st amendment…. which get this… even allows us to buy Mein Kampf at the bookstore and allows little girls to sing white supremacist songs and sell CDs! Oh the outrage!

    Why do you bring it up? Other than to prove you are a statist, and like the Soviets want to banish free speech.

  76. 76
    Otto Man says:

    Wait, I think I get what you meant. Divorcing outcome from policy?

  77. 77
    rayabacus says:

    Ok, the last part was a bit extreme, but it is part of my point. Do the decisions made by Alito lean towards mysogistic tones? Does he believe in 100% equal rights to women? Does he understand that marriage isn’t in the Constitution, that the rights granted in marriage to a couple isn’t one of ownership of man over woman?

    I think he believes in equal rights for everyone. In order for you to come to that conclusion you would probably have to read many of his decisions other than those highlighted by his detractors. Can I convince you? Doubtful.

    She didn’t broaden it. She pointed out something that to most people is pretty obvious. Who is going to point out to Alito if he’s on the SC? That’s the problem. Nobody. He’ll be left to listening to his tin ear.

    The consensus from Atty bloggers is that she did broaden it after the fact. Read Patterico re Casey. Here is a quote from there regarding the other Justices Opinion

    Judge Alito has been criticized for applying the concept of an undue burden differently from the way it was applied by the majority in Casey. But look what the authors of the joint opinion in Casey said about their past application of exactly that standard:

    The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent.

    Volohk also has some excellent commentary regarding this and the other cases you cite.

    No offense, but that’s what every judge does, regardless of their political or judicial ideology. Or is there a jurist out there who looks at a law and says it’s “Tuesday” or “shellfish”?

    Obviously that is not what I meant. There are Jurists who view a case from an “ideological” viewpoint and make a decision based on that viewpoint and then work back from there to justify it. I call them “Legislating Judges” others call them “Activist Judges” and yes, they sit on both sides of the aisle. I don’t want them whether they are Liberal or Conservative.

  78. 78
    rayabacus says:

    I don’t know why the link didn’t take. Here is Patterico:

    http://patterico.com

  79. 79
    Perry Como says:

    I don’t understand how Alito is “extreme” when he was confirmed to his current position unanomously?

    Sweet. A new bar for promoting people in government.

    I suggest that when we need a new DHS head, we place Michael Brown in the position. He was already confirmed by Congress after all.

  80. 80
    Lines says:

    rayabacus, can you fill us in on your background? it appears you know how to find this stuff.

    What are your thoughts on Doe?

    Also, as for the undue burden issues, I feel those are less definable and less comparable than many would like, yet I don’t see how any type of notification isn’t an undue burden on the woman, nor do I see how marriage determines anything about the law, as marriage doesn’t grant increased constitutional rights to either a man or a woman. Does the status of marriage make the woman dependent upon a man in order to make decisions about her own body?

  81. 81
    Darrell says:

    I don’t have any other explanation as there is nobody that I have seen who at all supports their position other than the simple defense of the 1st amendment

    The ACLU has taken the position that NAMBLA has a “Constitutional right” to disseminate nude photos of little boys and to distribute literature on “how do seduce boys without getting caught or convicted”. You yourself are now defending that position claiming that it’s merely a “simple” defense of the 1st amendment. Excuse me, that that is an extreme kook position for you and the ACLU to take. The entire reason behind the ACLU defense is that two NAMBLA members had taken a child, kidnapped him and raped him and then killed him. During the course of their hearings, they said they recieved the information on how to do such things from the NAMBLA network. The parents wanted to sue for the list in order to find out who was providing such information. That is what you and the ACLU are defending.

    From the NAMBLA website:

    NAMBLA’s goal is to end the extreme oppression of men and boys in mutually consensual relationships by:

    building understanding and support for such relationships;
    educating the general public on the benevolent nature of man/boy love;
    cooperating with lesbian, gay, feminist, and other liberation movements;
    supporting the liberation of persons of all ages from sexual prejudice and oppression.

  82. 82
    Otto Man says:

    There are Jurists who view a case from an “ideological” viewpoint and make a decision based on that viewpoint and then work back from there to justify it. I call them “Legislating Judges” others call them “Activist Judges” and yes, they sit on both sides of the aisle. I don’t want them whether they are Liberal or Conservative.

    Sorry, I only caught what you meant on a second read. (Which is why I posted again right after that.)

    I agree with you that activist judges are a bad thing, and welcome your acknowledgment that they exist across the political spectrum. That said, I still find it infuriating that some conservatives (not you, obviously) insist that liberals are all activists and conservatives are not, because they use the sham of “original intent.”

    It’s been cited enough these past few days, but it bears repeating: The same conservative justices that are often held up by President Bush and his allies as the polar opposite of “activist judges” — Thomas, Scalia, etc. — are, more often than not, the ones who do the most “legislating from the bench.”

  83. 83
    Otto Man says:

    Anyone else disturbed at how well-versed Darrell is with the NAMBLA website?

  84. 84
    p.lukasiak says:

    Anyone else disturbed at how well-versed Darrell is with the NAMBLA website?

    anyone find it amusing that the Feds probably keep track of the IP addresses of those who visit the NAMBLA site, and now Darrell is on a list of suspected pedophiles?

  85. 85
    Darrell says:

    Why do you bring it up? Other than to prove you are a statist, and like the Soviets want to banish free speech.

    Yes, because protecting children from pedophiles is soooo much like the Soviets trying to banish free speech. Do you see what a complete loon you truly are? Do you see what an extremist you are?

    If a terrorist organization was teaching young Muslims how to kill, would we not want to know the names of those in that organization and take steps to stop it?

    Why should the protection of children be different?

  86. 86
  87. 87
    Darrell says:

    Otto Man Says:

    Anyone else disturbed at how well-versed Darrell is with the NAMBLA website?

    It’s because the ACLU’s defense of NAMBLA demonstrates how extreme that organization is. That Steve excuses and minimizes NAMBLA’s actions, demonstrates what an extremist lunatic he is

  88. 88
    rayabacus says:

    Also, as for the undue burden issues, I feel those are less definable and less comparable than many would like, yet I don’t see how any type of notification isn’t an undue burden on the woman, nor do I see how marriage determines anything about the law, as marriage doesn’t grant increased constitutional rights to either a man or a woman. Does the status of marriage make the woman dependent upon a man in order to make decisions about her own body?

    Reasonable people do and will disagree re whether any notification is an “undue burden” upon a woman’s right to choose. In Casey, the 3rd Circuit used O’Conner’s “undue burden” that she applied to the Minor Notification, trying to determine how that applied to an “adult woman”. An analogy would be O’Conner’s “undue burden” being a barbell weighing X lbs. If the minor could properly press X weight, how could that weight be an “undue burden” for an adult woman, whose body is stronger.

    Marriage is not a Federal issue….yet. In some states, yes, marraige does change the legal status of a woman and therefore changes her rights. She obtains more rights. However I know of no State that restricts a woman’s right to choose based on marital status.

    I personally think that abortion is repugnant. I also support 100% a woman’s right to choose. It is her body. Being a male, what right do I have to dictate to a female on issues regarding her body? That being said, I do not think that the proper forum for deciding these issues reside in SCOTUS. State legislatures are skirting this hot button issue simply because it is too political. They are all a bunch of cowards.

    We should have some faith in the people. Almost 80% agree that abortion in the first trimester should be available on demand. About that same percentage regard “partial birth abortion” should be denied.

  89. 89
    Steve S says:

    There are Jurists who view a case from an “ideological” viewpoint and make a decision based on that viewpoint and then work back from there to justify it. I call them “Legislating Judges” others call them “Activist Judges” and yes, they sit on both sides of the aisle. I don’t want them whether they are Liberal or Conservative.

    Justices like Antonio Scalia…

    So you can see why some of us are concerned that Alito may be like that. Scalia was also confirmed by a large majority, which turned out to be a huge mistake.

  90. 90
    rayabacus says:

    I meant to add this. If you feel, and others, that a “right to privacy” which includes a woman’s right to choose should be Constitutional, then let’s petition the government for an Amendment to the Constitution stating just that. The ambiguity would be gone. Those outdated sexual mores laws in most states would be unconstitutional.

    I’ll sign up for that. All we have to do is make said petition availabe to that 80% of the voting populace that believes the Constitution contains a “right to privacy”.

  91. 91
    jg says:

    The parents wanted to sue for the list in order to find out who was providing such information. That is what you and the ACLU are defending.

    Set aside the children being raped and realize you want people to be able to sue others who weren’t involved in the crime. Its like suing gun manufacturers. You want a vague criminal facilitator statute. The ACLU is trying to prevent vague criminal facilitator laws from happening. You’re gullibal and easily led to conclusions like the ACLU is FOR child rape. John railed about this kind of thing yesterday but in that case it was libs whining that Alito condones child strip searches. You, and the libs from yesterday, are letting specifics inflame your emotions and causing you to miss the real point. Its also deflecting the issue so knock it off.

  92. 92
    Steve S says:

    The ACLU has taken the position that NAMBLA has a “Constitutional right” to disseminate nude photos of little boys and to distribute literature on “how do seduce boys without getting caught or convicted”.

    Really? That’s what is on their website? Now disseminating nude photos of little boys is child porn, and that’s illegal because it infringes upon the rights of the child. The ACLU would be the first up to defend that child, and I think you know that.

    I would not know what nambla has on their website as I haven’t gone there. Instead I looked up the history of NAMBLA on wikipedia. It appears that the group is rather extreme and advocates against age of consent laws from the misguided belief that these laws are intended to prevent people from realizing their sexuality.

    Now there’s a difference between advocating for a position, and then actually committing a crime.

    For instance, I’m a believer that we probably ought to legalize drugs. On the other hand, I have never used any drugs in my entire life. No one puff of weed, not even tobacco. Hell I’ve never been fall down drunk.

    You’re making the ridiculous argument that my advocating for decriminalizing drugs makes me a drug abuser, or even a defender of drug abuse. But I’m quite clearly not. Not only have I not used drugs, I’m also a vocal advocate against their use because I believe they dumb you down.

    That Steve excuses and minimizes NAMBLA’s actions, demonstrates what an extremist lunatic he is

    If defending the Bill of Rights makes me an extremist, then so be it. That’s what I am.

    Moderation in the pursuit of liberty is no vice!

  93. 93
    Lines says:

    Don’t current court rulings already uphold that there is a right to privacy? I’ve always understood that Roe v Wade + Griswold basically are the SCOTUS guarantee that the implicit right to privacy exists within the Constitution. Why make an amendment that would be impossible to pass, as well as costly, when its already there?

  94. 94
    jg says:

    There’s already an amendment, number 9. If we really need to specifically spell out eaach and every right we have we’re fucked. The Constitution sets the limits of government, it doesn’t design our freedoms.

  95. 95
    rayabacus says:

    Don’t current court rulings already uphold that there is a right to privacy? I’ve always understood that Roe v Wade + Griswold basically are the SCOTUS guarantee that the implicit right to privacy exists within the Constitution. Why make an amendment that would be impossible to pass, as well as costly, when its already there?

    There is an inferred or, if you prefer, implicit right to privacy derived from previous rulings such as Roe. Why take the chance that those rulings could be overturned sometime in the future? A Constitutional Amendment would put that right explicitly in the Constitution. I don’t think it would be either impossible to pass or be costly.

    The structure of the Constitution is such that it “evolves” or “lives” through the Amendment process. The framers allowed for the changing society and technology by providing a method to alter the Constitution. If we, the people, want to insure that some issue (be it abortion, pro gay marriage or anti gay marraige or even Social Security) be guaranteed to us, all we have to do is convince a sufficient number of our fellow citizens to “think our way” and amend the Constitution.

    “Right to Privacy” is settled law now, based on SCOTUS precedent only. For those of you that are concerned about an evolving SCOTUS that could overturn said precendent, an Amendment is the answer.

  96. 96
    Otto Man says:

    Don’t current court rulings already uphold that there is a right to privacy? I’ve always understood that Roe v Wade + Griswold basically are the SCOTUS guarantee that the implicit right to privacy exists within the Constitution. Why make an amendment that would be impossible to pass, as well as costly, when its already there?

    Yes, but those rulings are based on the assumption that specific guarantees in the Constitution rest on an assumed right to privacy.

    Because there are guarantees that the government can’t interfere with what you read or say or with whom you meet (the First Amendment), that the government can’t force itself into your home to meet its own needs (the Third) or investigate your life (the Fourth), and that the government is limited in its abilities to arrest and prosecute you for crimes (the Fifth), then there’s presumably a right to privacy behind all that. Couple that with the guarantee that there are rights held by the people beyond what’s spelled out in the Constitution (Ninth), and the argument goes that a right to privacy is already there.

  97. 97

    rayabacus’ first comment is the smartest thing I’ve read on this blog in a long time. He gets the point that Broder and his fellow travelers miss: it’s not the judge’s job to decide if a law is good or bad, but merely if it’s legal. Broder says Alito has conservative views on social issues, which is a completely absurd and irrelevant point. He may believe in man/boy bestial sex for all we know, and he may believe in keepin’ ’em barefoot and pregnant. His legal opinions simply reflect a legal philosophy, not some set of social values.

    He’s a rigorous judge, and he should be confirmed even though the idiots and the demagogues can be counted on to attribute all sorts of views to him that he doesn’t hold and that wouldn’t influence his judgment (note spelling) even if he did hold them.

  98. 98
    DougJ says:

    There’s already an amendment, number 9.

    Oh, really? Last time I checked there were only eight amendments, you ACLU-loving left-wing nut. Maybe the ACLU got the black-robed tyrants to put in another one protecting murderers and sex offenders.

  99. 99
    Darrell says:

    You’re gullibal and easily led to conclusions like the ACLU is FOR child rape

    No, I do not think the ACLU is FOR child rape. I think they are advocating the position that free speech trumps community safety. That free speech trumps everything.

  100. 100
    Darrell says:

    Its also deflecting the issue so knock it off.

    Sorry, that was my last post on the subject (in this thread) as I wanted to responed to your ridiculous assertion that I thought the ACLU is for child rape..

    back on topic, ryabacus’ comment was dead on

  101. 101
    Fledermaus says:

    I just want to second p.lukasiak’s point way far above that Broder is, indeed, an ass. A tired old hack who until recently considered getting a Wasington baseball team the most important issue facing the nation.

    Seriously David, just retire already.

  102. 102
    rayabacus says:

    Justices like Antonio Scalia…

    So you can see why some of us are concerned that Alito may be like that. Scalia was also confirmed by a large majority, which turned out to be a huge mistake.

    I missed this comment. I like Scalia’s opinions (most of them). They are short, succint and rooted in the law. If it is not in the Constitution, the States need to decide it or the Constitution needs to be amended. I see nothing wrong with that kind of reasoning. When SCOTUS starts to “reach” for a Constitutional meaning we end up with precedent building upon precedent, each one reaching a step farther until we end up with decisions like Kelo.

    Let the States or our Federal Legislature deal with the issues that they are supposed to deal with.

  103. 103

    Let the States or our Federal Legislature deal with the issues that they are supposed to deal with.

    Indeed. If the Supremes had refrained from legalizing abortion in Roe and left the matter to the states as it should be, by now abortion would be legal in most states and we wouldn’t have all this poison around judicial nominations.

    In its haste to enact a new right, the Blackmun court created a monstrous conflict.

  104. 104
    Perry Como says:

    I liked Scalia’s decision in Raich. Hacktacular!

  105. 105
    rayabacus says:

    What are your thoughts on Doe?

    I missed this too. Doh.

    I could readily disagree with the conclusion that Alito came to on this case. If the Left has a cogent arguement re his decisions, this would be the one that could be highlighted. This was, quite simply, a case about the scope of a warrant, and whether the police could be sued if they exceeded the scope of the warrant.

    I think it’s reasonable to conclude that the officers meant to request permission to search all occupants of the house. (the attached affadavit) But I don’t think it’s 100% clear that the Judge meant to grant that permission.

    I would have sided with the Majority on that issue. However I would have sided with Alito on the “qualified immunity” question. I would not have allowed them to be sued for damages.

    As Alito noted, the law is clear that “qualfied immunity” “provides ample protection to all but the plainly incompetent or those who knowingly violated the law.” I don’t see the police fitting either description.

    You know, reasonable people can reach either conclusion.

  106. 106
    Zifnab says:

    Indeed. If the Supremes had refrained from legalizing abortion in Roe and left the matter to the states as it should be, by now abortion would be legal in most states and we wouldn’t have all this poison around judicial nominations.

    Abortion would be legal in the states, marijuna would be decriminalized, and evolution would be freely taught in schools. Because it’s a well know fact that, when left to the states, everything goes fine and dandy.

    The truth of the matter is that even if Roe v. Wade does get overturned, you’ll end up with a pre-Civil War Masion-Dixon line with all sorts of interesting legal questions like – if a girl gets pregnant in a Life state, can she get an abortion in a Choice state? or Can a husband prevent his wife from leaving a state if he has reasonable cause to believe she will get an abortion to circumvent some sort of notification clause? You’ll have border town abortion clinics, deregulation of doctors who perform the operations, birth-control free states, morning-after pill drug busts… yes, just overturn Roe and I’m confident our nation will be a much better place.

  107. 107
    Steve S says:

    rayabacus writes:

    When SCOTUS starts to “reach” for a Constitutional meaning we end up with precedent building upon precedent, each one reaching a step farther until we end up with decisions like Kelo.

    The line from the 5th Amendment simply states: “nor shall private property be taken for public use, without just compensation.”

    So it says you can’t take private property for public use without paying someone. And that’s not what happened with Kelo. Your complaint is not that they didn’t provide just compensation. Your complaint is that you don’t like the definition of “public use”. But nowhere in the Constitution does it give a definition. It’s basically leaving that up to the legislature to determine.

    So the issue here isn’t one of constitutionality, the issue is you didn’t like what the legislature did. Great, I didn’t either. And many legislatures have now, because of pressure from Kelo, written into their laws definitions of public use for future generations to look back on. That’s the way the system should work.

    That’s why I can’t take you moonbat’s seriously… you just make shit up in your attempts to articulate a supposed ideology, and then you aren’t even consistent.

    Constructionist ideology originated as a result of the Civil Rights laws. Supposedly you guys thought that the Constitution allowed for discrimination against people of color. Even though we had some 24 amendments or so, many of which said “No, in fact, you can’t do that.”

    It’s a quaint argument, but as long as constructionist ideology is used to argue against freedom and liberty… you are on the wrong side of the founding fathers original intent and as such your argument is completely bumpkiss. Always they argued for advancing liberty, and advancing freedom, not curtailing it.

  108. 108
    Steve S says:

    “Right to Privacy” is settled law now, based on SCOTUS precedent only.

    Not to mention the 9th amendment.

    As I said, the founders believed in Liberty. They knew they had not thought of everything, but were limited in their creativity by what they experienced under British rule.

  109. 109
    Steve S says:

    However, I will say I do generally agree with rayabacus on the Doe decision. Alito’s background was as a prosecutor, so he favored the police arguments. That’s not always a bad thing, as I think too many criminals get off on technicalities.

    However, I think it’s also important to protect the sanctity of our justice system by not protecting sloppy police work.

    There’s a middle ground in there… and I don’t believe Alito was justifying the strip searching of a 10 year old girl for fun and pleasure.

  110. 110

    Abortion would be legal in the states, marijuna would be decriminalized, and evolution would be freely taught in schools. Because it’s a well know fact that, when left to the states, everything goes fine and dandy.

    Indeed, federalism can be messy; it’s a system that doesn’t guarantee the trains will run on time. I live in a state with a high sales tax and no state income tax, right across the line from a state with a high income tax and no sales tax. Since I work in the income tax state, I get to pay their taxes even though I have no vote in how they spend my money. That’s tough.

    But both of these states decided to do things the way they do them without Big Brother in Washington, DC telling them they had to raise money one way or the other.

    It’s called “freedom” and it’s sometimes messy.

    Before Roe, abortion was already legal in New York, California, and one other state and headed for legalization in several others. The big secret is that just about everybody wants first trimester abortions to be legal, and lots of folks don’t have a big problem with pot either. And when you allow states to experiment with their own laws on abortion, pot, marriage, and evolution you at least get some data to help you determine what works and what doesn’t.

    And at the end of the day we want a government that works, don’t we?

  111. 111
    Mike says:

    “Otto Man Says:

    Ginsberg and Breyer were both recommendations from Orrin Hatch, the ranking Republican on the Judiciary Committee. That’s why they sailed through—they already had the stamp of approval of the opposition party.”

    This was a clear case of Republicans being far more reasonable than Democrats apparently are capable of doing. Thanks for pointing that out. Does’t make Ginsberg any less of a flaming liberal however.

  112. 112
    rayabacus says:

    Your complaint is that you don’t like the definition of “public use”

    You’re wrong. I like the definition of public use quite well as it was intended in the Constitution. I don’t like how “public use” as interpreted by the courts has evolved.

    That’s why I can’t take you moonbat’s seriously… you just make shit up in your attempts to articulate a supposed ideology, and then you aren’t even consistent.

    You want to call me names, OK. Do you think that by doing so and yelling that that makes your arguement more cogent? I don’t know where I “just made shit up” and where I am not consistent. O, sage one, that can call names better than I, would you care to point my humble errors out to me?

    It’s a quaint argument, but as long as constructionist ideology is used to argue against freedom and liberty… you are on the wrong side of the founding fathers original intent and as such your argument is completely bumpkiss. Always they argued for advancing liberty, and advancing freedom, not curtailing it.

    Pray tell, O wise one, where am I argueing against freedom and liberty in my Originalist ideology?? What I see in Kelo is the exact oppossite of freedom and liberty. Nothing more sacred to the framers than a man’s property.

  113. 113
    don surber says:

    up continues to be down for broder

  114. 114
    Perry Como says:

    This was a clear case of Republicans being far more reasonable than Democrats apparently are capable of doing. Thanks for pointing that out. Does’t make Ginsberg any less of a flaming liberal however.

    I could have sworn Harry “I just cockpunched Bill Frist” Reid supported the Meirs nomination. In fact, I don’t remember a single high profile Democrat criticizing her (I could be wrong, I just don’t remember).

    It was obviously the obstructionist Democrats that made Ms. Meirs withdrawl her nomination. DAMN YOU LIBERALS! DAMMMNN YOUUUU!

  115. 115
    Sojourner says:

    One thing that is overlooked when it comes to the abortion issue and original intent – abortion was legal when the Constitution was written. Is that original enough for you?

  116. 116
    Tulkinghorn says:

    The Irascible Richard Bennett Says:

    Let the States or our Federal Legislature deal with the issues that they are supposed to deal with.

    Indeed. If the Supremes had refrained from legalizing abortion in Roe and left the matter to the states as it should be, by now abortion would be legal in most states and we wouldn’t have all this poison around judicial nominations.

    In its haste to enact a new right, the Blackmun court created a monstrous conflict.

    FWIW, I know a prominent leftist law prof who was very active in the ACLU during the early 70s who agrees with you on this point 100% According to him, the smarter activists were livid and outraged that the SCOTUS had made the state-by-state work to bring about abortion rights completely irrelevant, and subject to a reversal by nothing more than a later SCOTUS reversing Roe.

    He is really quite bitter about it to this day, as he felt they really were in the process of winning in most states.

    As for the acrimony over the last thirty years, Roe has politicized the court tremendously and undermined the ability of the Senate to function.

  117. 117
    jg says:

    If the Supremes had refrained from legalizing abortion in Roe and left the matter to the states as it should be, by now abortion would be legal in most states and we wouldn’t have all this poison around judicial nominations.

    I find it hard to believe that there wouldn’t be an immediate call to make abortion illegal at the federal level. The people who think we need a constitutional amendment to stop gay marriage and the out of control flag burning won’t let baby killing go unchallenged. ‘States rights’ is the drug they feed you.

  118. 118
    jg says:

    I think they are advocating the position that free speech trumps community safety. That free speech trumps everything.

    You THINK they are advocating that position. Any chance you’re wrong. Just seeing it the wrong way because it involves pedophiles and you’re emotions are a little fried?

    I think they are advocating that laws can not be enacted that infringe on the first amendment. IN this case they appear to be on the wrong side but they will fight this same issue of someone wanted access to a republican donor mailing list. Despicable people have the right to be despicable.

  119. 119
    a guy called larry says:

    DAMN YOU LIBERALS! DAMMMNN YOUUUU!

    You sing that very smoothly, Perry.

  120. 120
    Steve S says:

    You’re wrong. I like the definition of public use quite well as it was intended in the Constitution. I don’t like how “public use” as interpreted by the courts has evolved.

    Where is this definition in the Constitution? Are you just making this definition out of hot air? Fabricating it from clay?

    The Kelo decision isn’t about interpreting “public use”… they quite clearly left that up to the legislature. It’s not defined in the Constitution. Now other rights are detailed in that regard, such as the first Amendment which clearly talks about expressing grievances of your government.

    So pray tell, where is your definition of “public use”? You claim you want to interpret the Constitution as it is written, but you keep wanting to insert hidden definitions and meanings.

    Originalist ideology is crap. It always has been, always will be. It’s an excuse for a particular viewpoint of the world, but it primarily relies upon taking emotional arguments and then back pedaling to find a legal reason. That’s my point. How do I know this?

    Because you project your weakness against others when you accuse them of doing what you yourself do.

  121. 121
    Steve S says:

    FWIW, I know a prominent leftist law prof who was very active in the ACLU during the early 70s who agrees with you on this point 100% According to him, the smarter activists were livid and outraged that the SCOTUS had made the state-by-state work to bring about abortion rights completely irrelevant, and subject to a reversal by nothing more than a later SCOTUS reversing Roe.

    I agree with this. It’s why I don’t fear an activist justice overturning Roe. Doing so would completely destroy the Republican party by driving all the moderates out.

    As for the acrimony over the last thirty years, Roe has politicized the court tremendously and undermined the ability of the Senate to function.

    Naw. The politization occured during the 1950s when the courts started upholding Civil Rights acts.

    All of these arguments, Originalism, the commerce clause, the fairness doctrine, and such, that’s where they go back to. The south felt that they ought to be able to discriminate against people of color, and they were pissed off because te uppity northerners passed an act through Congress and then the SCOTUS said Congress did have the authority to make it stick.

    Abortion wasn’t a political issue until the 1984 election, ten years after Roe.

  122. 122
    Tulkinghorn says:

    ‘States rights’ is the drug they feed you.

    As a Democrat I am extremely uncomfortable basing any argument on states rights. I don’t hear too much about it from the conservatives either — the critical issue is the reach of the commerce clause, which has not been consistently applied yet by any political faction.

    More to the point, Roe planted the seeds for its reversal. If a substantive due process argument gives a right, a new reading of substantive due process can take it away. live by Griswold, die by Griswold. A truly leftist critique of the Roe’s precedents should make feminists uneasy.

  123. 123
    Tulkinghorn says:

    As for the acrimony over the last thirty years, Roe has politicized the court tremendously and undermined the ability of the Senate to function.

    Naw. The politization occured during the 1950s when the courts started upholding Civil Rights acts

    The civil rights movement created the polarization and realignment, but abortion, and specifically Roe, has been sustaining it. As long as there is a chance of its reversal the most radical wings of both parties are worked up into a froth and have outsized influence in the parties.

  124. 124
    Zifnab says:

    As a Democrat I am extremely uncomfortable basing any argument on states rights

    I mean, that’s the big joke isn’t it? State’s Rights doesn’t somehow give a citizen more control or freedom, it just takes the power from a federal Congress and gives it to a state Congress. You’re no less impossed upon – same chains, different master. And, from my view sitting in Texas, state legislatures are notoriously more easily influenced (ie. cheaper to strongarm/buy off) than their nationwide counterparts.

    Why any individual – Republican or Democrat – would feel safer with the abortion debate in the hands of their local congressmen and judiciaries is totally beyond me.

    From a strategic perspective, I suspect that by-and-large the abortion issue could have done better without Roe granting a sweeping, but shacky nationwide victory trivializing state precidents. However, to believe that the abortion debate would have just disappeared with the Roe case is deeply wishful thinking. I suspect we’d just be looking at federal anti-abortion legislation being run through Congress Terry Shaivo style if Roe did not exist today. I mean, when debates over evolution in textbooks still rage to this day, the dead baby dilemma can be expected to haunt this nation for generations to come regardless of who ‘wins’ this round of culture wars.

  125. 125

    Congressional jurisdiction on abortion is limited to federal facilities. If there is no abortion right in the Constitution, the jurisdiction goes to the states, not to Congress.

  126. 126
    John S. says:

    Congressional jurisdiction on abortion is limited to federal facilities. If there is no abortion right in the Constitution, the jurisdiction goes to the states, not to Congress.

    Except when the administration finds a way to supercede the jurisdiction of the state over say the use of FDA (federally) approved materials.

    Let’s say the abortion issue does go back to the state, and the state decides to make it legal. Can we count on the federal government to not challenge the authority of the state based on the same principle they are trying to push in Oregon?

    You may be confident that the states would have final say, but my confidence in any Republican administration not to challenge them every step of the way isn’t exactly bubbling over.

  127. 127
    rayabacus says:

    So pray tell, where is your definition of “public use”? You claim you want to interpret the Constitution as it is written, but you keep wanting to insert hidden definitions and meanings

    My definition of public use would be as the framers intended. Thomas in his dissent says it best.

    The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries).

    Granted, another sense of the word “use” was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.

    Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. (“Congress shall have Power To … provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L. J. 339, 368 (2000) (hereinafter Sales) (noting contrast between, on the one hand, the term “public use” used by 6 of the first 13 States and, on the other, the terms “public exigencies” employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term “public necessity” used in the Vermont Constitution of 1786). The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.

    Read the entire dissent and O’Conner’s also.

    Originalist ideology is crap. It always has been, always will be. It’s an excuse for a particular viewpoint of the world, but it primarily relies upon taking emotional arguments and then back pedaling to find a legal reason. That’s my point. How do I know this?

    Because you project your weakness against others when you accuse them of doing what you yourself do.

    You may well hold that opinion. But that is all it is, your opinion. I’m not “backpedaling” from anything. You are attempting, as five other justices did, to apply meaning that the framers did not intend to the words “public use”. And you sir, are the emotional one.

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