All Alito, All the Time

We are about to enter the silly phase of the Alito nomination:

Moving beyond Judge Alito’s judicial record, a coalition of liberal groups is preparing commercials attacking his integrity and credibility instead, several people involved in the effort said Monday. They spoke only after being granted anonymity because the plans are supposed to be confidential until their formal announcement on Wednesday.

Conservatives, for their part, are capitalizing on ethnic pride to rally Italian-American support for Judge Alito with public events and newspaper advertisements. The efforts are aimed particularly at the Northeastern States, where some moderate Republican senators have expressed doubts about his confirmation.

And in Arkansas, home to two moderate Democratic senators whose votes are considered to be in play, another group, the Judicial Confirmation Network, is running Christmas-themed commercials beginning this week on African-American gospel radio stations. In them, the Rev. Bill Owens, a black pastor, urges support for Judge Alito to protect public displays of Nativity scenes and menorahs, and to uphold the right of schoolgirls to “draw pictures of our Savior, Jesus Christ, for class projects.”

I can’t wait for these hearings. In all seriousness, I am leaning towards opposing Alito, who seems to me to be little more than another right-wing statist.

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76 replies
  1. 1
    Steve says:

    Executive power is the big issue in play, far bigger than abortion, and it’s an extremely timely moment for that national debate to occur.

    Don’t you think “national debate” is an annoying cliche, by the way? What is a national debate these days, anyway, except two predetermined sides shouting talking points right past one another?

  2. 2
    The Other Steve says:

    You’d think in a country with 270 million people, where at least 20% are registered Republicans… they could find a qualified normal person who would be a good justice.

    I just don’t get it. Whatever happened to men like Earl Warren or Warren Burger? I know they’re still around, why not nominate them.

  3. 3
    The Other Steve says:

    Don’t you think “national debate” is an annoying cliche, by the way? What is a national debate these days, anyway, except two predetermined sides shouting talking points right past one another?

    SHUT UP! SHUT UP! SHUT UP! You don’t know what you’re talking about you moonbat!

  4. 4
    demimondian says:

    I read your comment as describing Judge Alito as a “right wing satirist”, and thought “DougJ is a Federal Judge?”

    Then I realized you’d said “statist”. Damn.

  5. 5
    DougJ says:

    I find his opposition to the “one man, one vote” principle terrifying. You should too, Other Steve. There are plenty of other Republican justices I would have supported (as I supported John Roberts) — Wilkerson is the first that comes to mind, but, frankly, I know very little about federal justices

  6. 6
    Gary Sugar says:

    You’d think in a country with 270 million people, where at least 20% are registered Republicans… they could find a qualified normal person who would be a good justice.

    I’m pretty sure Bush wants the most right-wing nominee he can get away with.

  7. 7
    fwiffo says:

    Earl Warren is the ultimate boogeyman for the right. The last thing on Earth they want is another Warren court. I, on the other hand, think it would be about the best thing that could happen to this country right about now. It won’t though – there aren’t any Republicans like Eisenhower anymore. Heck, even under Ike, Warren was more-or-less a big goof-up.

  8. 8
    Bill Arnold says:

    The betting crowd thinks he’s a shoo-in. On tradesports.com the odds for Alito confirmation are 90/91 percent, with 50/50 odds somewhere in the low 60s votes to confirm.

    Would be nice to see some tough questioning anyway. He deserves it, some of his opinions strain logic IMO.

  9. 9
    Pooh says:

    Doug, not to defend Alito (who on balance I oppose, as he appears to be moving into Borkian-territory on Executive powers), but I think his opposition to 1M1V is more practical then ideological – the intricacies of how to implement that ideal in any sort of sensible way are mind boggling, and IIRC his dad did that sort of thing for a living so he saw what a bear it is first hand.

  10. 10
    Retief says:

    How is it that the man consistently and finds good faith interpretations of the constitution and precedent that lead him to oppose any and all excercies of federal Congressional power and also finds good faith applications of the constitution and precedent that constantly lead him to support any and all application of federal executive power?

  11. 11
    Lines says:

    Talk about keeping TWOC alive. This is just good troll territory.

    “Little girls have been stopped from drawing our Lord and Savior! What next? No spaghetti thursdays?!!!!”

  12. 12
    KC says:

    Leaning against Alito is really a smart thing to do. His nomination, like the Miers one, is really about executive power through and through.

  13. 13
    Gratefulcub says:

    Those that are against confirmation are bigots against Italian Americans

    Get Alito confirmed to save christmas

    Don’t confirm Alito, he wants to own your uterus

    He thinks it is ok to strip search 10 year old girls

    Who said debate in this country was dead?

  14. 14
    Gratefulcub says:

    was is dead

  15. 15
    my cat says:

    John’s right. Alito needs to be opposed but not on the grounds of lack of intergrity or even opposition to abortion. His opposition to one-man-one-vote should be the real issue.

  16. 16
    KC says:

    I think of biggest consequence will be his executive power stances. That’s where the real money’s at. Clearly, Bush wanted Miers on the court because he needed a loyalist. He probably nominated Alito for the same reason–loyalty. We could be living in a country wherein the policy powers of the government are expanded in ways that would make even John Birchers’ heads spin.

  17. 17
    Zifnab says:

    Unfortunately, it’s going to be a hard sell to oppose Alito if for no other reason than Republican pride. They already mothballed one nominee who was supposed to be a shoe-in. The White House has an ’06 election looming and the real possibility of losing a number of key seats in the Senate and in Congress. They have to make the deal and make it now.

    For this reason alone, it’s going to be very difficult to swing even moderate Republicans off from Alito and there will be an incredibly hard push to contested Democrats that they break ranks. If the President has any political muscle left, he’s going to use it for Alito. After all, half the reason Bush was even elected was for the Supreme Court.

  18. 18
    The Other Steve says:

    Frankly, I think Alito will be a good thing for the Democrats.

    Does Alito support Sharia Law, and does he feel it would be Constitutional for Congress to impose this on America? That’s the real question at play here with the wingnuts.

  19. 19
    Steve says:

    It’s odd to see Congressional Republicans fighting to the death to increase executive power at the expense of Congress. We’ll see if they all continue to hew to that line.

  20. 20
    Otto Man says:

    Heck, even under Ike, Warren was more-or-less a big goof-up.

    As Eisenhower put it after the Brown decision, he thought appointing Warren was “the biggest damfool mistake I ever made.”

  21. 21
    Tractarian says:

    Unfortunately, it’s going to be a hard sell to oppose Alito if for no other reason than Republican pride. They already mothballed one nominee who was supposed to be a shoe-in. The White House has an ‘06 election looming and the real possibility of losing a number of key seats in the Senate and in Congress. They have to make the deal and make it now.

    Hmmm, I don’t get your logic. Bush and the Republicans are in political trouble and that’s why Alito will be confirmed? I disagree. For every Republican senator swelling wtih pride, I’ll give you two that are facing electoral challenges from the left. Considering how many moderate Rs have recently been eager to criticize the admin (Collins, Graham, Hagel, not to mention McCain), I think opposing Alito will not be a very hard sell at all.

    BTW, unless you were joking, Miers was never a “shoo-in”.

  22. 22
    Otto Man says:

    It’s odd to see Congressional Republicans fighting to the death to increase executive power at the expense of Congress. We’ll see if they all continue to hew to that line.

    I predict a change will come as soon as the president’s a dirty demmycrat.

  23. 23
    SeesThroughIt says:

    Unfortunately, it’s going to be a hard sell to oppose Alito if for no other reason than Republican pride.

    That’s pretty much the deciding factor, and not just for this nomination, but for a great many things happening in Washington. It’s kind of sad, really.

  24. 24
    Pooh says:

    BTW, unless you were joking, Miers was never a “shoo-in”.

    Yep. The initial reactions were all from one of three categories:

    1) “Who?”

    2) “Seriously though, who did he nominate?”

    3) “BWAHAHAHAHAHA! Wait, do we oppose her because she’s unqualified or support her because she’s unqualified?”

  25. 25
    KC says:

    SeesThroughIt, I really hope that you and Zifnab are wrong. I want to say you are, but hope is all I can muster after watching the GOP for the last five years.

  26. 26
    Pooh says:

    Just as follow-up on my earlier point on the OPOV thing, here is Prof. Bainbridge on the subject today. Yes, Bainbridge is very conservative, but redistricting is a tough, highly techinical area of the law and reasonable people can and do differ.

    My theory on judicial confirmation is generally you wins your elections you gets your choices. Until those choices turn out to be unqualified (TY, Harriet) or so fundamentally flawed in an aspect of their jurisprudence as to be a Very Bad Thing (which Alito’s executive deference certainly hints at).

  27. 27
    Steve says:

    I don’t get this whole “elections have consequences” meme. Of course, the President gets to nominate the Supreme Court. He gets to do a ton of things, and people who disagree have the right to disagree. When people argue about the war, no one says “Sorry, elections have consequences, and you should have elected someone else if you didn’t want this war.” So why should the same argument hold any water with regard to Supreme Court nominations?

    I don’t recall many Democrats taking the position that “elections have consequences” when Bork was the nominee. He was scary and they opposed him. What’s wrong with opposing Alito, if you think he would be bad for the country?

  28. 28
    The Other Steve says:

    Just as follow-up on my earlier point on the OPOV thing, here is Prof. Bainbridge on the subject today. Yes, Bainbridge is very conservative, but redistricting is a tough, highly techinical area of the law and reasonable people can and do differ.

    You know. I could generally agree with the points he makes, and even his claim that for every social ill there is a consitutional argument to be made is a bad thing.

    If he had an alternative answer to solving those social ills.

    Instead he simply appears to be an obstructionist against progress.

  29. 29
    The Other Steve says:

    I don’t recall many Democrats taking the position that “elections have consequences” when Bork was the nominee.

    I don’t recall many Republicans taking the position that “elections have consequences” when they opposed nearly all of Clinton’s nominees.

    Sometimes it’s best to just ignore the arguments of the right, when they’re simply being used to justify their own bad behavior.

    If Alito is as bad as Thomas, i.e. a partisan hack with allegiance to ideology rather than the law, then he should be opposed. I won’t know until I hear some answers to questions at a hearing.

  30. 30
    Eural says:

    Just from what I hear from my rural Southern Republican friends (one of Bush’s main “bases” for votes) – its all abortion all the time and who cares what Alito thinks on any other issue. And he’s Bush’s/God’s gift to the conservative base who have and will continue to show their loyalty for that one single issue. Kinda scarey trying to argue with someone who thinks like that (try a roomful or two over Christmas!).

  31. 31
    Anderson says:

    FWIW, it’s claimed that Eisenhower never said that about Warren:

    The “damn-fool mistake” comment has been traced to an unreliable source, a political enemy of Warren’s. Sherman Adams, Eisenhower’s chief of staff, and Brownell, his closest adviser on civil rights, insist they never heard Eisenhower say anything of the sort. Adams said that Eisenhower knew Warren was “liberal” and, on racial issues, would tend “to be more in accord with Eisenhower’s views than would a justice picked from the South.” Brother Milton Eisenhower said the president was “very fond of Gov. Warren.”

    Alas, my source for that item doesn’t provide any authority.

  32. 32
    Steve says:

    The Republicans didn’t literally oppose “nearly all” of Clinton’s nominees, particularly his Supreme Court nominees, but the point is well taken. It’s not so much that I have a problem with the GOP arguing the President is entitled to his choice – why shouldn’t they make that argument? – but that I find it amazing that so many Democrats apparently concede the point.

  33. 33
    Pooh says:

    I’m not a righty, however, I am a lawyer, and I think that politicizing the judiciary sucks. For that reason I support pretty wide ranging deference to nominees (except on competence and integrity issues which are obviously non-negotiable). Of course, I’m tilting at windmills on this.

    My point was that it was not abortion, or OPOV which tipped me against Alito, but the executive powers issue (which was a point people had been making for a while which I thought was overblown until recently…)

  34. 34
    Steve says:

    I think a general policy of deferring to politicians results in a more politicized judiciary, rather than a less politicized one. The President is a politician, and if he knows he has the “right” to get his pick confirmed, why shouldn’t he nominate the most partisan Republican possible?

    If a nominee gets rejected in the Senate, the reason will invariably be (1) lack of qualifications or (2) too far to one side or the other ideologically. In neither case is the goal of a competent, non-politicized judiciary compromised. Your suggestion basically results in less politicized confirmation hearings but a more politicized judiciary.

  35. 35
    Pooh says:

    Steve,

    Your point is well taken, though I might suggest that politicized confirmation hearings result in politicized judiciary (as well as adding to the credence of the school of Legal Realism, which I find abhorrent).

    Plus the cases where a judges politics matter tend to be few and far between. And real people with real cases get screwed because there aren’t enough judges to hear their cases in an expeditious manner.

  36. 36
    Steve says:

    Steve Says:

    The Republicans didn’t literally oppose “nearly all” of Clinton’s nominees, particularly his Supreme Court nominees, but the point is well taken.

    Pooh Says:

    Steve,

    Your point is well taken…

    This is the sort of thing that happens when two lawyers have a discussion. I predict the imminent death of the thread.

  37. 37
    Pooh says:

    I could call you a pussy, that might spice things up ;)

  38. 38
    Krista says:

    Heaven forbid that civility exist for..oh…5 postings. :)

  39. 39
    Nat says:

    My theory on judicial confirmation is generally you wins your elections you gets your choices. Until those choices turn out to be unqualified (TY, Harriet) or so fundamentally flawed in an aspect of their jurisprudence as to be a Very Bad Thing (which Alito’s executive deference certainly hints at).

    I agree with you in principle (and I detest most of the judges on the court and most of Bush’s candidates for nomination), but here’s a third exception that I think is necessary: when you have a giant conflict of interest and are (in essence) the defendant in multiple cases before the Court.

    Granted, the executive branch gets dragged into the Court with some regularity, but they’re currently there as a direct result of Bush’s policies, and Bush gets to appoint judges who will end up ruling on his actions as president. This was wrong when FDR tried it, and it’s wrong now. (Not that I see a way around this, constitutionally or practically.) And Bush’s unsuitability to pick new justices in this regard was spectacularly proven by his nomination of Miers – many of whose defenders (Hewitt et al.) pointed to exactly this conflict of interest as a reason in support of confirmation. Ugh.

  40. 40
    Zifnab says:

    Miers was never a “shoo-in”.

    Miers never was. But until Bush opened his mouth, it was generally assumed the SC nomination was going to be a general melee of Republicans and Democrats with Frist finally throwing down the gauntlet and the Democrats qualling before his political majesty. The Republicans had all the political clout they needed to pass a nominee they liked. They just didn’t like Miers.

    But the skeletons in Miers closet were dirty little liberal bones. Alito is solid conservative.

    I think a general policy of deferring to politicians results in a more politicized judiciary, rather than a less politicized one. The President is a politician, and if he knows he has the “right” to get his pick confirmed, why shouldn’t he nominate the most partisan Republican possible?

    What I don’t get is how you plan to depoliticize the Judiciary. Either you select your judges by appointment or you select them by election. I don’t see too many other options. And if you think appointments are partisan you should come down to Texas for a bit and watch a judge try to get elected.

    If you hold political office, you’re in politics. I don’t see any way out.

  41. 41
    Al Maviva says:

    I’m with you, Pooh. President gets his picks unless they are of bad character. I’d rather have a smart and clear textualist like Breyer – who takes precisely the opposite course from what I would choose whenever there is a values choice to be made – than to have an unpredictable, muddled numbnuts like Kennedy on the Court, who sometimes rules with me, sometimes not, but always writes a screwball opinion. His jurisprudential high water mark thus far is the constitutional right of “defining the mysteries of life for one’s self.” What the hell kind of a legal principle is that?

    Sadly, the lay focus is on a handful of social cases each term, but the 70 or so other cases the Court hears, the routine, workmanlike cases that really shape most of the law, have to be put together properly. I can accept the results of the democratic process – some cases that cut against my policy preferences – if the rest of the decisional law is well structured and clearly written, and useful as a predictive tool telling my client about how a court will rule in the future. Politicized, results oriented judging chaps my ass, whether it’s Ginsburg or Harriet Miers – and I was screamingly opposed to her because she didn’t seem to have the mental horsepower to be anything other than a mere decider based on her published work product. I’d rather go down in flames, than have to suffer through a Lochner or another Griswold. Emanations of penumbras and constitutionalized unenumerated rights like “freedom of contract”, my butt… It’s not about standing in the way of progress, so much as it is preserving a workable method for arbitrating disputes that we can rely on prospectively, and results oriented judging of any stripe reduces the legal process to a question of who holds the high ground for the time being. Might as well just have Congress try cases, if results are what matters most.

  42. 42
    RTGthe3RD says:

    As long as Alito both approves of Bush’s necessary NSA spying program and also swears to defend America from the godless ACLU secularists, then I don’t care how he is confirmed. The liberal Supremes have taken this country so far down the tubes with their ridiculous views of the Constitution that we are forgetting our Judeo-Christian foundations.

    The last time I checked this was still “One Nation, Under God”. Let’s keep it that way.

  43. 43
    Pooh says:

    Al, you’re a conservative I like when you post here. Find-Replace a couple words or names in the first paragraph and I could have written the exact same thing.

    Sadly, the lay focus is on a handful of social cases each term, but the 70 or so other cases the Court hears, the routine, workmanlike cases that really shape most of the law, have to be put together properly. I can accept the results of the democratic process – some cases that cut against my policy preferences – if the rest of the decisional law is well structured and clearly written, and useful as a predictive tool telling my client about how a court will rule in the future.

    This is exactly right.

    RTG, that is either the most obvious troll ever, or the meaning of ‘rule of law’ has escaped you. (DougJ has already denied being you, but I wouldn’t put it past him)

  44. 44
    RTGthe3RD says:

    Ha! A liberal lecturing me about the “rule of law”. Since when have you guys ever had any respect for the law? Oh that’s right, there is a Republican in office so now the law matters.

    And for Pete’s sake I am not some troll! What the hell is wrong with you people? Why are you all so paranoid?

  45. 45
    eileen from OH says:

    All I know (well, not all I know, but a significant part) is that if the Dem committee members waste most of their time pontificating/blah-blah-blah-ing/and waxing non-eloquent in their opening “statements” I will kick in the tv screen with my little pointy-toed shoes. Especially when they go on to ask one or two questions and then lament that they are out of time. (I won’t mention names but they rhyme with Driden and Flumer.) There’s a LOT of questions that need to be asked and Alito (unlike Roberts) DOES have a paper trail.

    I wish someone would give these guys a clue – no one is impressed by their “performance” or gives a fried fart what THEY think – they want to hear what the nominee has to say.

  46. 46
    SeesThroughIt says:

    RTG, that is either the most obvious troll ever

    Seriously. That was way too ham-fisted to be effective. I guess it could kind of work as satire, but even then, it’s shoddy work.

  47. 47
    demimondian says:

    DougJ has already denied being you, but I wouldn’t put it past him.

    Has he? I don’t think he’s RTG, but I’ve never heard Doug himself claim that.

  48. 48
    The Other Steve says:

    muddled numbnuts like Kennedy on the Court, who sometimes rules with me, sometimes not, but always writes a screwball opinion.

    I think it’s interesting… that along with Scalia and Thomas, Kennedy is the most “activist” member of the court. That is, he consistently rules against precedent and the will of Congress.

    Sadly, the lay focus is on a handful of social cases each term, but the 70 or so other cases the Court hears, the routine, workmanlike cases that really shape most of the law, have to be put together properly.

    I agree. Which is why I’m just baffled we can’t find reasonable Republicans with intelligence like Warren or Burger any more.

    Emanations of penumbras and constitutionalized unenumerated rights like “freedom of contract”, my butt…

    Unenumerated rights are protected from the 9th amendment.

    As a libertarian minded individual, I believe people should be allowed to run their own lives and not have Government intruding on it, unless and only if your actions inflict harm on another person.

    The silliest cracker jack comment I heard recently was from a friend of mine who claimed that overturning a law which prevented people from doing things which don’t harm other people, was infringing upon the rights of the people who want to oppress those other people. It was evidence that the right-wing noise machine is able to enforce mind control over otherwise intelligent individuals.

    But that is where the Republican party has been taken… Ever since the ’64 civil rights bill where Goldwater got up there and declared that Southern White folks were being discriminated against cause they could no longer beat up on colored folks for fun on sunday.(*)

    (*) Goldwater didn’t exactly say that, but that was exactly how his support was taken in the south and he later regreted ever aligning himself with those rednecks.

  49. 49
    Pb says:

    RTGthe3RD,

    One nation, under God, since 1954. And you have McCarthy to thank for it, too.

    To the rest of you–a bad troll is indistinguishable from an earnest idiot.

  50. 50
    demimondian says:

    Unenumerated rights are protected from the 9th amendment.

    “Penumbras” aren’t a part of the unenumerated rights battle. The term entered the legal lexicon as a curse in Griswold v. Conneticut, in which Justice Douglas, writing for the majority, wrote

    In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U.S. 624), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

    The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

    If you understand what those two paragraphs mean, you’re one up on me. I’ve always taken them to mean “We think that should be a right to birth control within a marital bond. We think it’s hidden right next to the Iraqi weapons of mass destruction, but we can’t quite tell.”

  51. 51
    Pooh says:

    Dem, the simplest way to think about it is the the ‘penumbras’ are sort of a “Neccesary and proper” clause for the bill of rights – things neccesary to enjoy the enumerated rights are also protected. Whether you buy that or not, well that’s an open question (I suspect that Al and I would answer exactly opposite…)

    Having done some study in the area, we probably would have been better off had the BoR contained some sort of explicit privacy guarantee rather than a collection of stuff from the 1st, 2nd, 4th, 5th 8th, 9th and 10th amendments.

    Speaking of activist judges, Al, talk to me about this knucklehead:

    You see, my fellow Alabama justices freed Adams from death row not because of any error of our courts but because they chose to passively accommodate — rather than actively resist — the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
    . . .
    State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are “precedents.”

    (Emphasis mine) This is in an Op-ed in the local paper, which is less then best practice from a sitting judge, as well.

  52. 52
    Shygetz says:

    I always thought that the Supremes were afraid of invoking the 9th amendment because it would open up a can of worms, with people using it to defend all types of behavior. For those among us who are legal scholars, has the 9th amendment ever been referred to by the Supremes in a ruling?

  53. 53
    moflicky says:

    other steve,

    I don’t recall many Republicans taking the position that “elections have consequences” when they opposed nearly all of Clinton’s nominees.

    I don’t recall republicans opposing any of Clinton’s SCOTUS nominees.

    and I also don’t recall republicans opposing anywhere near the number of Clinton’s other judicial nominees compared to bush nominees opposed by dems.

    perhaps you can back that up and enlighten me?

  54. 54
    demimondian says:

    Pooh — oh, I know what a penumbra is. I happen to particularly dislike the wording of Griswold.

    As to disagreeing about them, most attorneys, constructivist or not, acknowledge that there is some domain of extensibility. In _reductio ad absurdum_, if I’ve got the right to speak, but not the right to a tongue, then I don’t *really* have the speak, now do I? In the case of Griswold, I think the problem is that Douglas stetched the “penumbra” too far.

    The outcome of Griswold was right — the states have no business banning birth control. The reasoning was right — if people have a right to privacy, then that’s why. The problem is that the hypothesis was wrong — there’s no clear reason that we do have a right to privacy. Douglas was trying to find natural rights in the Constitution…which brings us back to the question of weapons of mass destruction in Iraq.

    Shorter Demi: I agree with you that a Constitutional amendment would have been better.

  55. 55
    Steve says:

    It’s easy to find natural rights in the 9th Amendment, unless you think it’s just an inkblot on the Constitution. There is no way the people who ratified the Constitution thought the government would be able to regulate the most intimate details of their family life, and the 9th Amendment expressly rebuts the argument that “if the Constitution doesn’t explicitly say so, there’s no such right.” Does anyone really think a Constitutional amendment would be necessary, for example, to overturn a law saying each family may only have two children?

  56. 56
    demimondian says:

    Steve — Pooh has already beaten you up over that. The ninth amendment cuts both ways. What rights and powers are actually unenumerated in the Constitution? The right to pray out loud in school? The right to refuse to salute the flag? if you and I have all rights unenumerated (blah blah blah) and you and I disagree about what they are, then which of us is right? Who decides? Yup — the courts decide, and then you’re back where you started.

    The courts do not consist of stupid people. If something’s obvious to you, and yet the courts have not codified it, you’d do better to assume that they’ve had a good reason for that refusal decide than that you’re smarter than any of them. I’m not smarter than Antonin Scalia, and I’m not smarter than Ruth Bader Ginsberg, and I’m certainly not smarter than Steven Breyer. If they all disagree with me…you know what? I’m probably wrong.

  57. 57
    Steve says:

    Ok, but Griswold is the law, and not seriously open to dispute. The courts don’t all disagree with me, they agree with me. The only thing in dispute is where in the Constitution the right in question is located.

    I guess I pretty much missed where Pooh beat me up or proved the 9th Amendment means nothing.

    I never said the 9th Amendment means that we all have every right that we could ever conceive of. I was responding to the argument that the result in Griswold requires a Constitutional amendment.

  58. 58
    Pooh says:

    Steve, that’s bootstrapping, and I think you know it.

    Personally, I think some sort of ‘privacy’ right is easily discernable within the enumerated rights, bolstered by the 9th. I think were we ran into problemss was the Roe decision itself, which is so obviously legislative that people, with some justification, tossed a nutty. One wonders how things would be different if we had skipped straight to Casey.

    That being said, I think it would be better if there were an ammendment guaranteeing the right to privacy (for an example, see Art. I, sec 22 of the Ak Constitution). I don’t think Nino is going to tell you he thinks privacy is bad, he’s just going to say its not in the constitution.

  59. 59
    Steve says:

    I’m not sure what you mean by bootstrapping.

    I agree that a privacy amendment would be the best possible solution, although it still wouldn’t lead to agreement on many issues. Abortion is not a privacy issue to some, after all, it’s a murder issue. Even birth control is a murder issue to some, I guess. The issue you face with an amendment is exactly the issue the Framers faced in trying to get the original Constitution ratified – you need to be somewhat vague in order to get everyone to agree, but then you run the risk that the vagueness may work against you down the road.

    Anyway, to try and clarify, I was responding to demi’s argument that Griswold reached a desirable result but that you really can’t find it anywhere in the Constitution. I belong to the school that says we’d have a better body of jurisprudence if the Court had grounded some of the unenumerated rights in the 9th Amendment. It wouldn’t eliminate all controversy, but it would take away some of the sense that the Court is just making stuff up as it goes.

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    demimondian says:

    I actually think that the error is in Griswold, much as I love the result. Roe follows pretty much inevitably from the Griswold’s reasoning along with some basic developmental neurobiology.

    I don’t see a broad right to privacy in the Fourth, the Fourteenth, and the Ninth. Yes, it’s implicit there, but it seems to me to be straining at the limits of credibility to say that there’s a broad right to privacy in any context on such shaky ground. A narrow right in some contexts? Surely — but a broad right?

  61. 61
    Pooh says:

    Steve by bootstrapping I mean you essentially arguing that Griswold was right because its the law.

  62. 62
    SeesThroughIt says:

    As a libertarian minded individual, I believe people should be allowed to run their own lives and not have Government intruding on it, unless and only if your actions inflict harm on another person.

    That’s pretty much how I feel. Huh. I guess I’m a Libertarian in that regard.

    The silliest cracker jack comment I heard recently was from a friend of mine who claimed that overturning a law which prevented people from doing things which don’t harm other people, was infringing upon the rights of the people who want to oppress those other people. It was evidence that the right-wing noise machine is able to enforce mind control over otherwise intelligent individuals.

    Geez, that’s frightening. But then again, in a country where the massively-majority Christian population can not only run with the absurd “Christian persecution” meme but actually get some success with it, it’s hardly surprising.

  63. 63

    if you and I have all rights unenumerated (blah blah blah) and you and I disagree about what they are, then which of us is right? Who decides? Yup—the courts decide, and then you’re back where you started.

    I thought that there already was philosophical agreement on the unenumerated rights issue. Doesn’t it basically follow the lines of: do what thou whilt, until you violate the enumerated rights of another?

    Better put, Your unenumerated rights end where my enumerated rights begin.

    I could very well be wrong here but this is what I always thought.

  64. 64
    Darrell says:

    I am leaning towards opposing Alito, who seems to me to be little more than another right-wing statist.

    What specifically has Alito ruled on which is so egregious as to disqualify him in your opinion from the SCOTUS?

  65. 65
    Pooh says:

    The general deference to executive authority. Opposition to One man one vote. Rulings that make prosecution of employment discrimination more difficult. And that pesky Roe thing. (And that’s just off the top of my head.) Individually, none of these are terrible (I find his Casey opinion more convincing than the majority – it’s not his fault that the Court changed the law in the course of that appeal), but taken together…and especially the ‘executive deference’ thing.

    Not to speak for John of course…

  66. 66
    Steve says:

    I don’t think there is a broad right to privacy. I just think there are certain personal matters that are so clearly fundamental as to be protected from government interference, such as the decision whether or not to raise a family. If the government really did make it illegal to have more than two kids, wouldn’t we all agree that it’s unconstitutional?

    I don’t dispute that reasonable people can debate over whether to draw the line. But really, there are only two choices: (1) some rights that aren’t enumerated in the Constitution are nevertheless protected from government interference, or (2) no rights are protected from government interference unless they’re specifically enumerated. I don’t see how a third choice can logically exist. And I think the plain text of the Ninth Amendment shows that (2) can’t be a valid argument.

  67. 67
    Darrell says:

    Opposition to One man one vote.

    Alito opposes one man one vote, huh? thanks for your ‘expert’ legal opinion

  68. 68
    demimondian says:

    Steve: the problem is that Griswold did aver a broad right to privacy. I happen to agree, but I don’t think my agreement is Constitutionally based; even the most radical of legalists among us believes in natural rights.

    That’s why I want the right written down — I do think it’s there, but, damn it, I don’t udnerstand it.

    (And, Pooh, don’t get me started on Casey and Alito.)

  69. 69
    demimondian says:

    I thought that there already was philosophical agreement on the unenumerated rights issue. Doesn’t it basically follow the lines of: do what thou whilt, until you violate the enumerated rights of another?

    No, not really. There are a slough of unenumerated rights to *not* do things, for instance, and we don’t protect those. (E.g. do I have a right to not maintain my car? Not if I want to drive it…but whose enumerated rights are violated by my driving an unsafe vehicle? I certainly don’t have the right to hit you with my car, but that’s not something which follows inevitably from an unwillingness to maintain my car.)

  70. 70
    Andrew J. Lazarus says:

    I figured we might as well have Alito (given the disaster on November 2004) until I read of his membership in the bigoted Concerned Alumni of Princeton. Details in this diary.

  71. 71
    Pooh says:

    Demi, I’m not saying I liked the result Alito reached in Casey as a prudential matter, but his reading of the law and facts were certainly not tendentious. In other topics, can you post a link to that script? I feel I need to change my BJ experience.

  72. 72
    demimondian says:

    Pooh:

    Here’s the basic script. Here’s a slightly better one.

    (Remember, you need to be running Firefox w/ Greasemonkey to use them.)

  73. 73
    ImJohnGalt says:

    Goddamn, Demi, that rocks. My blood pressure went instantly down. The second link appears to be broken, however, although the script at the first one seems to work fine.

    Thanks!

  74. 74
    demimondian says:

    Hey, no thanks are due me — thank Perry. (And the correct second link is here. D’oh!)

  75. 75
    Tulkinghorn says:

    Pooh Says:

    –snip–

    I think were we ran into problemss was the Roe decision itself, which is so obviously legislative that people, with some justification, tossed a nutty. One wonders how things would be different if we had skipped straight to Casey.

    Casey is just as legislative, just without the ‘trimester’ system. As far as I know, the ‘undue burden’ test exists only in Casey, and is not found in any other branch of constitutional law. How is a special test like that anything but legislative?

    O’Connor has repeatedly acted as the decision-maker on the court, but the clarity and quality of these decisions leave a lot to be desired.

    Still, she is a model of restraint compared to Margaret Marshall.

  76. 76
    demimondian says:

    I view the Casey tests as largely orthogonal to the Roe test. Casey talks about what requirements the State can impose; Roe relates the stages of fetal development to the basic stages of early experience.

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