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January 10, 2006 6:59 AM   Subscribe

Learn a bit about Alito, and then go along on an audio joy ride as Alito is grilled by our representatives. Listen now.
posted by stilgar (546 comments total)

 
Anybody got some highlights?
posted by delmoi at 7:03 AM on January 10, 2006


well i am listening right now and i can tell you the republicans are giving the illusion of tuff questions while really just letting Alito say over and over "i agree" and the democrats are dropping some bombs to which Alito is giving rather short answers to. but its not over when it is i might post links to a transcript here. Alito so far did have one little freudian slip and said "if any issues of roe vs wade come before me to be struck down, err i mean upheld..." i thought that was interesting
posted by stilgar at 7:07 AM on January 10, 2006


I got yer highlights right here.

That's from yesterday, I assume there'll be more liveblogging it today. See also here.
posted by ibmcginty at 7:07 AM on January 10, 2006


SCOTUSblog is liveblogging the hearing, as is Alito himself, via blackberry, which he has hidden under the table.
posted by monju_bosatsu at 7:10 AM on January 10, 2006


That Alito blog is hilarious. Is it the same person who does all these immitator blogs? Because they all seem to have the exact same writing style...
posted by antifuse at 7:16 AM on January 10, 2006


Delmoi, we're liveblogging today's hearing at Victory06.org. Some highlights of the opening remarks from yesterday are also available.
posted by tozturk at 7:26 AM on January 10, 2006


The ACLU has announced opposition to Alito (only the third nominee ever they've opposed). They also have a report on him from last month.
posted by sohcahtoa at 7:31 AM on January 10, 2006


Ug, I'm disgusted. I checked in as they're discussion 'Womens' rights' - and the discussion is about women being able to go to college - as if this is the length and breath of female rights - and ha ha, isn't it funny how Alto came to appreciate the "benefits" of going to women in college. I'm going to yack.
posted by eatdonuts at 7:42 AM on January 10, 2006


Dude, the republican 'questioners' are ridiculous. They're acting like his lawyers!

"Evil Dem says so and so about you. I think that's ridiculous. What do you think?"
Alito: "I would never think such a thing."
"I thought so."
posted by Firas at 7:44 AM on January 10, 2006


eatdonuts: no, it's more insidious than that—nobody seriously opposes women going to college, so the criticism of him is being framed as such and avoiding the actual criticism. Urgh.
posted by Firas at 7:45 AM on January 10, 2006


Fira, yes - I got that. I had to turn it off. I wondering how soon this country is going to make me wear a red dress, call me 'handmaid,' and shuffle me off home to home with my head covered and my legs opened. Ok, maybe it's a bit over-reacting, but there are no words to express my absolute loathing of the Amerikkkan administration right now.
posted by eatdonuts at 7:49 AM on January 10, 2006


Bah. Mere formalities. Unless Jesus Christ himself descends onto Capitol Hill, carrying 8x10 glossies and video of Alito enjoying a lunch of ground infant on toast with his good friend Osama, the appointment is a lock.
The Repubicans will let the Dems pretend to vent their spleens for a week, so it looks good, then lock arms and confirm. Done deal. I hear they're already setting-up the "Welcome, Sammy" kegger over at Thomas' place.
posted by Thorzdad at 7:50 AM on January 10, 2006


Alito IS that bad.
Just listen to the right wing nuts?
Crickets and hurrahs?
Yup.
That's all you need to know.

Predictions: Will he be confirmed or not?

Assume he is confirmed. Where will the damage hit first?
posted by nofundy at 7:51 AM on January 10, 2006


I hear they're already setting-up the "Welcome, Sammy" kegger over at Thomas' place.

God, I hope they spring for some decent beer this time. Dave was in charge of getting the keg last time, and that was just a debacle.
posted by monju_bosatsu at 7:53 AM on January 10, 2006


Thanks for the Alito blog link monju. It's hilarious!
posted by nofundy at 7:55 AM on January 10, 2006


Well, Alito was in some racist/sexist group at princeton at one point, the details of which he "dosn't remember".
posted by delmoi at 7:59 AM on January 10, 2006


A Princeton student paper article about the "Concerned Alumni" of Princeton" that you mention Delmoi

From within:
Interviews with several alumni who were students in the 1970s paint a picture of Concerned Alumni of Princeton (CAP) as a far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.

The group, which published a magazine in which students wrote nostalgically about the days before coeducation, was frowned upon by Nassau Hall.

posted by tozturk at 8:04 AM on January 10, 2006


Well, Alito was in some racist/sexist group at princeton at one point, the details of which he "dosn't remember".
posted by delmoi at 9:59 AM CST on January 10


So was Bill Bradley. Is he a racist or sexist, too? Or is another reasonable explanation that the group had various issues which appealed to various people, and that it didn't exist solely as a racist/sexist group. If the latter is possible, then that might explain Bradley's membership and comport with Alito's view that he joined the group because it opposed the removal of ROTC from campus.

Of course, that explanation has less appeal than calling the group a racist and sexist group as if it was the KKK when the goal is to try to tar someone.
posted by dios at 8:04 AM on January 10, 2006



Of course, that explanation has less appeal than calling the group a racist and sexist group as if it was the KKK when the goal is to try to tar someone.


I have a bigger problem with Alito consistently saying he wasn't a member of CAP, or, if he was, he doesn't remember his time with the group, even though today he's defending his reasoning for joining it in the first place.

He's obviously lying about it.
posted by mr.curmudgeon at 8:09 AM on January 10, 2006


Alito is really bad (i'm watching on CNN)...he's very coached but not at all comfortable being there, and his bland mushiness, is wavering (i wonder when his temper will come out?). Very, very coached, down to which cases will counter the charges of always siding with those in authority instead of regular people, but even then he only talked about 2 murder appeals, instead of any rights cases. to the lies about strip-searching that little girl, which was based on some weird unfounded assumptions about dealers and their families. (some might call it judicial activism, even.)

It's so weird to me how conservatives always run away from their views and beliefs when it comes to getting jobs in Govt. They always lie about stuff, as Alito did previously, and now. Say what you will about Ginsburg, she didn't run away from being a feminist or belonging to certain organizations or working towards certain causes. Why does Alito?

And he said he'd have an open mind about abortion--bullshit! based on what? it's just another lie. He wouldn't have been picked if he truly did have an open mind about abortion. Bush only picks people for jobs for 2 reasons: they're personal friends or cronies in his circle, or they are true believers.
posted by amberglow at 8:09 AM on January 10, 2006


Listening to this, you can immediately see an interesting dynamic. Questions are designed for soundbites. These questions are not offered to bring about a dialogue; these questions are not really interested in the answers. But they are asked for use as soundbites. For instance, Leahy wanted to make sure that everyone knows that a 10 year old girl was strip searched; he wasn't interested in the explanation of the case or the basis for decision or the point that Alito said in his opinion he thought it was undesireable. It's all for the red meat sound bites.

This is a show. That is disappointing. It would be nice to have a real national debate about judicial philosophy. Instead Leahy tried to snipe about possible characterizations of various things; Republicans tried to get the counter-explanation out there. Not much insight here.
posted by dios at 8:12 AM on January 10, 2006


He's obviously lying about it.
posted by mr.curmudgeon at 10:09 AM CST on January 10


So you believe that Alito is a racist and sexist and believes women and minorities shouldn't go to school.

You believe that?
posted by dios at 8:13 AM on January 10, 2006


dios, I tend to be a little less sanguine about Alito's membership in CAP. I believe that he joined because of the ROTC's expulsion from the Princeton campus, but he had to know about CAP's position on other issues. I wouldn't join a group that had opposed the admission of women and minorities to the university, even if it had promoted views on other issues I agreed with. Maybe CAP had shed that image by the 1970s, but that certainly hasn't been argued.

I have a bigger problem with Alito consistently saying he wasn't a member of CAP, or, if he was, he doesn't remember his time with the group, even though today he's defending his reasoning for joining it in the first place.

Absolutely. It was an important point in his application to work in the DOJ, but now he can't even remember being involved? That just smells fishy.

And he said he'd have an open mind about abortion--bullshit! based on what? it's just another lie. He wouldn't have been picked if he truly did have an open mind about abortion.

You do know that he's ruled in favor of abortion rights several times before, right?
posted by monju_bosatsu at 8:14 AM on January 10, 2006


to the lies about strip-searching that little girl, which was based on some weird unfounded assumptions about dealers and their families.
posted by amberglow at 10:09 AM CST on January 10


amberglow, you seem to have a problem with Alito's opinion in that case. Could you please explain why Alito's opinion was wrong in that case in your own words without linking to someone on the web who doesn't like Alito. I'd be interested in hearing why you think Alito's opinion was wrong.
posted by dios at 8:15 AM on January 10, 2006


So was Bill Bradley. Is he a racist or sexist, too?

Oh no, not bill bradley!?
posted by delmoi at 8:20 AM on January 10, 2006


I tend to be a little less sanguine about Alito's membership in CAP. I believe that he joined because of the ROTC's expulsion from the Princeton campus, but he had to know about CAP's position on other issues. It was an important point in his application to work in the DOJ, but now he can't even remember being involved?
posted by monju_bosatsu at 10:14 AM CST on January 10


I don't know that it was established in anything other than Leahy rhetoric that it was "an important point in his application to work in the DOJ." I don't know if it was or wasn't. But I'm certainly not going to take Leahy's characterization of it unless I see something otherwise. My guess is that it was one of the things on his resume. I list all the organizations I have been in on my resume. That they are listed there is hardly saying that I am arguing they are "important" in the analysis of me.

As for being sanguine, the question for me is twofold: (1)is it possible that Alito could join a group for a particular reason and that the group could also be chacterized as holding other views he doesn't hold? (2) Do I think that he is a racist and a sexist or does his disavowal suffice?

Seems to me that the answer to (1) is yes and the answer to (2) is no, I don't think he is and I think his disavowal is sufficient.

By all accounts, this is a good man. How do we square that with this allegation that he is a closet racist and sexist?
posted by dios at 8:21 AM on January 10, 2006


to the lies about strip-searching that little girl, which was based on some weird unfounded assumptions about dealers and their families.

It dosn't really parse as a lie to me. In both cases (before and today) he said he didn't like it. People on the right lie often enough without Lefties needing to make up new ones out of thin air like that.
posted by delmoi at 8:23 AM on January 10, 2006


So you believe that Alito is a racist and sexist and believes women and minorities shouldn't go to school.

No one is saying he didn't think women and minorities shouldn't go to school, just that he didn't want them at his school. Duh.
posted by delmoi at 8:24 AM on January 10, 2006


So you believe that Alito is a racist and sexist and believes women and minorities shouldn't go to school....You believe that?

I have no idea. What *is* apparent is that he's not being consistent with his story on the issue.

If he can't remember ever belonging to the group, how can he remember his reasons for joining?

If he can't be trusted to answer a simple question about his time with CAP, how can he be trusted to answer truthfully about anything else?
posted by mr.curmudgeon at 8:24 AM on January 10, 2006


Sure, dios. What is Alito's statement that ...In sum, the District Court erred in
denying the defendants’ motion for
summary judgment. I share the majority’s
visceral dislike of the intrusive search of
John Doe’s young daughter, but it is a sad
fact that drug dealers sometimes use
children to carry out their business and to
avoid prosecution. I know of no legal
principle that bars an officer from
searching a child (in a proper manner) if a
warrant has been issued and the warrant is
not illegal on its face. Because the warrant
in this case authorized the searches that are
challenged – and because a reasonable
officer, in any event, certainly could have
thought that the warrant conferred such
authority – I would reverse.
...


It's not a fact at all, and to use that as any basis to make a ruling without proof of such facts, or previous court cases, or laws, is absurd. The cops were wrong and the warrant was not including the whole family. He does not realize that, and uses unproven assumptions. Her name was not on the warrant, the warrant was for a specific person alone, and a search warrant on a residence does not include strip searching every single person in that residence, unless every single person is named. The other judges understood that--why didn't Alito?
posted by amberglow at 8:25 AM on January 10, 2006


By all accounts, this is a good man. How do we square that with this allegation that he is a closet racist and sexist?
posted by dios at 11:21 AM EST on January 10 [!]


Which accounts are these? I'm sure that for any person X, I can find a group of people that like him or her. That's not a convincing argument, Dios.
posted by unreason at 8:26 AM on January 10, 2006


I don't know that it was established in anything other than Leahy rhetoric that it was "an important point in his application to work in the DOJ."

I'm not relying on Leahy's characterization. I've read the application, and it seems pretty clear to me that Alito himself characterized his membership as significant, or at the very least, relevant. It just seems odd to me that he now claims not to remember being a member at all. I don't believe that he is a closet racist or sexist, but it does seem like bad judgment to join a group with such views if you yourself don't hold them. It's not a deal breaker for me, I'm just sayin'.
posted by monju_bosatsu at 8:26 AM on January 10, 2006


It's so weird to me how conservatives always run away from their views and beliefs when it comes to getting jobs in Govt.

This is quite true, amberglow. They can never seem to answer difficult questions put before them without a) giving a non-answer, b) changing the question, or, c) lambasting imaginary liberal strawmen in a shrill, huffy way.
posted by Rothko at 8:26 AM on January 10, 2006


Thorzdad: ... Unless Jesus Christ himself descends onto Capitol Hill, carrying 8x10 glossies and video of Alito enjoying a lunch of ground infant on toast with his good friend Osama, the appointment is a lock.
Only if it's a pre-birth infant. Nobody cares what you do with the buggers once they're out of the womb.
posted by lodurr at 8:27 AM on January 10, 2006


I list all the organizations I have been in on my resume. That they are listed there is hardly saying that I am arguing they are "important" in the analysis of me.

But you know what organizations they are, and why you listed them. Why doesn't Alito? Why is it on his resume? When he's asked about it, he suddenly doesn't know? Is he just padding his resume?
posted by amberglow at 8:28 AM on January 10, 2006


Well, at least we know that Dios isn't really Alito now.
posted by delmoi at 8:29 AM on January 10, 2006


Kennedy's up now, about "I believe very strongly about the supremacy of the Executive Branch of Govt", which Alito is now rueing his phrasing, saying it's misleading and incorrect--one of many backpedals.
posted by amberglow at 8:29 AM on January 10, 2006


At the least, Alito has a sloppy memory and lacks attention to detail in his personal ethics. I'll buy that he means well, but he does seem to forget his promises and not pay attention to his financial dealings. (That is, if I read the situation charitably...)
posted by lodurr at 8:29 AM on January 10, 2006


If he can't remember ever belonging to the group, how can he remember his reasons for joining?

That isn't what he said.

He said he can't recall specifically his thought process in joining the group or why he put it on his resume.

What he did say is that he recalls he was upset about ROTC at the time, and that was an issue that he was very concerned with. He believes he joined because of that issue. He also said he didn't recall being involved much. I know in my own personal experience, I joined several groups and rarely participated in them. In law school, I was a member of the American Constitution Society and the Federalist Society because I was interested in constitutional issues and having invitations to go speeches. I don't recall finding out everything about both groups, and one would be certainly wrong to suggest that I adopt every one of their issues myself.
posted by dios at 8:31 AM on January 10, 2006


He said he can't recall specifically his thought process in joining the group or why he put it on his resume.

He also said he couldn't remember any details about being in the group, not one.
posted by delmoi at 8:32 AM on January 10, 2006


I've read the application, and it seems pretty clear to me that Alito himself characterized his membership as significant, or at the very least, relevant.

That's interesting. Where did you see it? I haven't seen it.
posted by dios at 8:32 AM on January 10, 2006


Is he just padding his resume?

Who doesn't?
posted by dios at 8:33 AM on January 10, 2006




It's not a fact at all, and to use that as any basis to make a ruling without proof of such facts, or previous court cases, or laws, is absurd. The cops were wrong and the warrant was not including the whole family. He does not realize that, and uses unproven assumptions. Her name was not on the warrant, the warrant was for a specific person alone, and a search warrant on a residence does not include strip searching every single person in that residence, unless every single person is named. The other judges understood that--why didn't Alito?
posted by amberglow at 10:25 AM CST on January 10


amberglow, that is a very, very superficial analysis.

What do you make of the affidavit? How do you figure it into the typical deference to reading warrants broadly?

Moreover, do you think his analysis is correct or incorrect that there is no rule of law which prohibits the searching of a 10 year old?
posted by dios at 8:36 AM on January 10, 2006


I don't recall finding out everything about both groups, and one would be certainly wrong to suggest that I adopt every one of their issues myself.

This would be like Alito suggesting that it is okay to join the KKK for the free monthly BBQ, and that he had no idea they burned crosses.

Not knowing, say, what's served at the meeting's luncheon is one thing, claming ignorance of the main credo of a group — as a way to disconnect oneself from membership — is quite another.
posted by Rothko at 8:36 AM on January 10, 2006


and he also lied about the Mitchel wire-tapping thing. What he said at the time was: In a seven-page memo dated June 12, 1984, Alito agreed with Mitchell that executive branch officials should be immune from civil lawsuits, even when their actions are unconstitutional.

But he also suggested that the Reagan administration should be careful about using Mitchell's case to push its views.

'I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here," Alito wrote, noting that the high court would hear the case without then-Supreme Court Justice William Rehnquist -- a White House ally who would have to recuse himself because of close ties to Mitchell. ... 'There are strong reasons to believe that our chances of success will be greater in future cases," Alito added. 'In addition, our chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era." ...

posted by amberglow at 8:36 AM on January 10, 2006


Moreover, do you think his analysis is correct or incorrect that there is no rule of law which prohibits the searching of a 10 year old?

What's the diffrence? The girl wasn't on the warrent and that's what the majority of the judges found.
posted by delmoi at 8:37 AM on January 10, 2006


Who doesn't?

I don't. And I would never hire someone to work in my office who had presented a doctored resume.
posted by Rothko at 8:39 AM on January 10, 2006


The girl wasn't on the warrent and that's what the majority of the judges found.
posted by delmoi at 10:37 AM CST on January 10


What do you make of the affidavit and the typical deference given to broad reading of warrants to effect their purposes?
posted by dios at 8:39 AM on January 10, 2006


I don't pad my resume either, fwiw.
posted by delmoi at 8:40 AM on January 10, 2006


amberglow, that is a very, very superficial analysis.

What do you make of the affidavit? How do you figure it into the typical deference to reading warrants broadly?

The search warrant: (p.3) The warrant was attached to a
separate printed face sheet, entitled
“Search Warrant and Affidavit.” That
form contained boilerplate introductory
language, followed by open blocks for
someone to type information. The first
block asked for the identity of the “items
to be search for and seized.”
The
following blocks asked, in turn, for a
“[s]pecific description of premises and/or
persons to be searched”; the “[n]ame of
owner, occupant or possessor of said
premises to be searched”; a description of
the nature and date of the statutory
violations; and for the basis of “[p]robable
cause belief.”


and this, by the other Judges (p.6): Theface of the searchwarranthere,
however, does not grant authority to
search either Jane or Mary Doe. The
block designated for a description of the
personor place to be searched specifically
names John Doe, and identifies and
describes his residence. Nothing in that
portionof the printed warrant refers to any
other individual, namedor unnamed, to be
searched.

posted by amberglow at 8:43 AM on January 10, 2006


amberglow, you didn't address the affidavit or the magistrate's incorporation of it. This is an issue which was determinative in the matter. Quote the warrant all you want. Until you address the affidavit, you aren't offering a critique of Alito's opinion.
posted by dios at 8:45 AM on January 10, 2006


His 1985 job application is here, and the reference to CAP is on page three. You will see that the reference is not just on a resume or list of organizations. It's included in a short written statement in which Alito highlights certain activities in order to burnish his conservative credentials.
posted by monju_bosatsu at 8:47 AM on January 10, 2006


the language ofthe warrant is inconsistent
with the languageof the affidavit, because
the former does not grant what the latter
sought—permission to search “all
occupants” of the house. That is not a
discrepancyas to form; it is a difference as
to scope. And it is a difference of
significance. A state magistrate reviewing
a search warrant affidavit might well draw
the line at including unnamed “all
occupants” in the affidavit because
Pennsylvania law disfavors“alloccupant”
warrants. See Commonwealth v. Gilliam,
560 A.2d 140, 142 (Pa. 1989).
Thus, the
circumstances of this warrant are a far cry
from those in the category of warrants
which can be “clarified” by a separate
affidavit

(page 8)
posted by amberglow at 8:49 AM on January 10, 2006


Thanks monju_bosatsu.
posted by dios at 8:50 AM on January 10, 2006


Thanks, monju. So he did know then precisely why he joined CAP, but he is now unaware of his reasoning when asked by bipartisan Senators.
posted by Rothko at 8:53 AM on January 10, 2006


from monju's link: I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.
posted by amberglow at 8:53 AM on January 10, 2006


Let's be clear and fair: I don't think anyone is suggesting that Alito "padded" his resume. I think they're suggesting he edited it to stress (or de-stress) certain points.

That, in fact, is something that resume coaches tell their clients to do all the time. And I daresay that most successful job seekers do it.

The ethical issue, for me, comes up with regard to the fact that as an appointed official in an ethically loaded post, it's very important that Alito be clear and exhaustive now. He's not out there trying to get someone to hire him -- he's already been selected. Now, he's in the reference check stage. This is much more analogous to fudging your references than it is to padding your resume.

FWIW, I don't like the buy because I just don't see him as having any fiber -- he's wishy-washy at an ethical level, at best, but I'd be very surprised to find out that he'd actually broken any laws and even more surprised to find that he thought he'd made any ethical slips. The latter, because I just don't think he really has a strong moral compass of his own. He knows what the rules are, and when he remembers them, he follows them, to whatever letter is convenient.

He's getting approved. We can count on that. No way in hell is the administration backing down after the Miers flameout. And then we're stuck with some namby-pamby power-worshipper on the court for thirty more years.
posted by lodurr at 8:53 AM on January 10, 2006


amberglow. I am aware of Chertoff's opinion. I asked you to make your argument in your own words. Because here is the thing: 2 vs 1 opinions don't mean that one side is right and the other side is a lying scumbag, especially on a technical point of law. Reasonable people can disagree. So I am asking you to make the argument in your own words and not cut and paste or link somewhere else. You asserted that there was something hideous about his opinion and I want to see if you have a basis for that, or if you are just accepting a characterization of it from someone else.
posted by dios at 8:53 AM on January 10, 2006


Anyone happen to know what his views are on extraordinary rendition, enemy combatants, etc.? Do they fall in line with his equivocation on the extent of executive power with the domestic spying?
posted by Firas at 8:55 AM on January 10, 2006


(An equivocation I see as a confirmation of his bias towards judicial restraint, letting the prez do whatever the hell he wants.)
posted by Firas at 8:57 AM on January 10, 2006


(bias in favour of judicial restraint, i mean)
posted by Firas at 8:57 AM on January 10, 2006


Who doesn't?

Ah, the soft bigotry of low expectations.
posted by Armitage Shanks at 8:59 AM on January 10, 2006


dios: What if amberglow just restates Chertoff's opinion in his own words? Woudl that be sufficient, if that's what amberglow's opinion is -- or if that's what it's based on? And if not, why not?

Point being, the originality of an opinion has no real bearing on its merit. The fact that a lot of other people think murder is bad wouldn't mean that my opinion is interesting if I say it's good.
posted by lodurr at 9:00 AM on January 10, 2006


Isn't an affidavit simply what you submit to the judge in order to get the warrant, written by the police themselves? Why would that have any legal barring at all?

That's like saying, "Well, the police really wanted to search everyone before they went, and even though they didn't get a warrant to do that, they still should have been able to do so"
posted by delmoi at 9:01 AM on January 10, 2006


11:40 Kennedy reminds Alito that Chertoff took exception, describes Chertoff's dissent as eloquent. Describes various studies of Alito's record, study indicating that Judge Alito rules against individuals 84% of the time. Returns to McCain anti-torture amendment, says nice things about McCain.
posted by delmoi at 9:03 AM on January 10, 2006


Grassly is asking questions a third grader could answer.
posted by delmoi at 9:05 AM on January 10, 2006


You asserted that there was something hideous about his opinion and I want to see if you have a basis for that, or if you are just accepting a characterization of it from someone else.

There is something very hideous about strip searching 10-year-olds who have done nothing wrong. If you don't see that, i'm sorry for your humanity. There was no legal basis to do so, and there was no human basis to do so. You and Alito don't get that. Thankfully, most of the judges did get it, except for Alito. It's abhorrent and illegal. That's my opinion. When you put that case together with the marshall's actions in the farm thing, and the girl eating fries on the subway, you have a pattern of not caring about people. Apparently you and Alito share that pattern? I'm not a lawyer, but i know that the police and authority figures are not always right--why doesn't Alito?
posted by amberglow at 9:05 AM on January 10, 2006


Er, the girl eating fries on the subway was Roberts.
posted by delmoi at 9:08 AM on January 10, 2006


amberglow, the constant banging on the fact that it was a 10 year old girl is sensationalism—I would have hoped you would see through it. She's a citizen like any other.
posted by Firas at 9:09 AM on January 10, 2006


ok, scratch the girl eating fries. : >

Firas, citizens have basic Constitutional rights (something about no unneccessary search and seizure, i believe?). Those rights were violated. Further, to subject a little girl to that is abhorrent and cruel. It's only sensational because children need to be protected, not treated like criminals or dealers. It's simple--it's more wrong because an innocent child was subjected to it. This wasn't a buddy of the dealer who was known by the cops--this is a kid. People who don't have a problem with it are the problem.
posted by amberglow at 9:14 AM on January 10, 2006


people, the whole Princeton alumni thing is a distraction in the vein of Anita Hill or swift boats. Just ignore it and focus on the real important issues at stake here.
posted by Saucy Intruder at 9:15 AM on January 10, 2006


12:13 Grassley says that some constitutional provisions are so vague that some judges think they can do whatever they want; wants to know what Alito thinks of this approach. Alito rejects this approach. Says constitution contains general principles, but judiciary has to be very careful not to inject its own views.
Hur hur, what a suprise.
posted by delmoi at 9:16 AM on January 10, 2006


the constant banging on the fact that it was a 10 year old girl is sensationalism—I would have hoped you would see through it. She's a citizen like any other.

I agree she's a citizen like any other in that she is entitled to the same protections under the fourth amendment. But it's glossy to say she's a citizen "like any other"...she's a minor, first of all. She cannot vote or enter into legal contracts, for example.

But technicality and semantics aside...that's as ridiculous as saying there's no issue with putting four-year-olds on the no fly list because they could be terrorists like any other.

To endorse a strip search of anyone without probable cause, who's not included in the warrant, is to treat them more like a subject than a citizen. It's particularly egregious in the case of an innocent child.
posted by edverb at 9:16 AM on January 10, 2006


There is something very hideous about strip searching 10-year-olds who have done nothing wrong.

That is not the function of a judge. They only interpret law. Unless you have a legal argument to show that his opinion is legally indefensible, then I suggest you don't endeavor to question the legal sufficiency of his opinion.


Why would that have any legal barring at all?

It is standard practice that affidavit's can be incorporated by the magistrate. And in this case, the magistrate explicitly incorporated an affidavit. The question is to what extent did he and what standard of review is applied to such an incorporation.

The point being is that this a very technical point of law. The analysis that "is it wrong to strip search a 10 year old" is a legally ignorant way to analyze this lawsuit. Of course, Kennedy knows that most people don't understand the law or the function of judges, so this plays with people (like amberglow is showing here).

What if amberglow just restates Chertoff's opinion in his own words? Would that be sufficient, if that's what amberglow's opinion is

It is fine to state a policy position: we shouldn't strip search 10 year olds. It is fine to say that one agrees with Chertoff's opinion (if one understands it). But if you want to argue that Alito's position is legally indefensible, then you need to prove it. Showing that Chertoff reached a different opinion is not an argument that Alito's opinion is legally indefensible. To use the irrelevant issue that it was a 10 year old is not a legal critique of Alito's opinion.

Here is the thing: that it was a 10 year old is irrelevant to the legal analysis here. The legal analysis turns on how incorporation language and an affidavit are reviewed by appellate court with the given precedent of deferential review. If you want to criticize Alito's opinion, then you have to do on that ground, and if you want to say it is horrible, then you need to make a legal argument why it is legally indefensible. To talk about how abhorrent you found the search is not a legal critique.

Those that think Alito should have disallowed it because it is a 10 year old are people who do not understand the function of the judiciary or the separation of powers, and I submit that such people probably shouldn't be offering critiques of judges if they believe such things.
posted by dios at 9:16 AM on January 10, 2006


WTF is wrong with Grassley?

Grassley, in effect: "Do you think judges should have total power to overrule the other to branches?"
Alito: "No".

Grrr.
posted by Firas at 9:17 AM on January 10, 2006


I think the dems will filibuster this. The republicans are so weak right now it's not even funny. (Of course by "not funny" I mean "very funny")
posted by delmoi at 9:18 AM on January 10, 2006


Once again, an appeal to authority.
posted by Rothko at 9:19 AM on January 10, 2006


But it's glossy to say she's a citizen "like any other"...she's a minor, first of all.

There is no Fourth Amendment extension to minors that is different from adults. There is no legal basis to differentiate between minors and adults under the Fourth Amendment. In that analysis, it is no different if she was 10 or 90 or 40 or male or female or pregnant or sick or asian or bisexual or anything of the like. Fourth Amendment analysis applies equally to all.
posted by dios at 9:20 AM on January 10, 2006


Shorter version of Dios: If you're not a lawyer, you're unqualified to have an opinion.
posted by edverb at 9:21 AM on January 10, 2006


Dios: perhaps you could describe, in your own words, why anyone would want to look at the text of the affidavit in order to determine the scope of the warrant? Is there case law on this? It doesn't make any sense to me.
posted by delmoi at 9:22 AM on January 10, 2006


Does this exclude him, though, edverb?
posted by Rothko at 9:22 AM on January 10, 2006


There is no Fourth Amendment extension to minors that is different from adults.

Coulda sworn that's exactly what I said.
posted by edverb at 9:22 AM on January 10, 2006


Now Grassley is saying that the fact that people are interested in the court (blogging about it&hellip) is evidence that the court has overstepped its bounds in the last few decades?

Whew. I'm glad he's gone now.
posted by Firas at 9:25 AM on January 10, 2006


Saucy Intruder: the whole Princeton alumni thing is a distraction in the vein of Anita Hill or swift boats.

No. CAP was a notorious organization at the time it was on his resume in that 1985 job application. It wasn't just opposed to allowing women and minorities on campus, it degenerated into a minority-baiting group by that time, and disbanded shortly thereafter.

That Alito joined it, and that he won't give an honest explanation of why he (1) joined and (2) thought it a good idea to put it on his resume, are genuine cause for concern.
posted by ibmcginty at 9:25 AM on January 10, 2006


Shorter version of Dios: If you're not a lawyer, you're unqualified to have an opinion.
posted by edverb at 11:21 AM CST on January 10

Not at all edverb. I am saying that if you want to make a legal challenge, then do so on legal basis.

Policy opinions do not reflect upon a legal analysis by a judge. So if you want to attack a legal opinion as legally indefensible, then you need to do so on the grounds it is proffered. This requires an understand of the function of the judiciary, the statute at issue, and the procedural posture of the case.

There is more leeway on purely consitutional issues. What the establishment clause means or the free speech is something that is easy to opine on for lay persons with policy positions. But when you are criticizing a technical interpretation of a statute, then you need to do so from that technical position. "That just is legal" is a rather hollow condemnation if one doesn't understand the legal issue.
posted by dios at 9:25 AM on January 10, 2006


If the Preznit is so deeply concerned about activist judges, why did he select one? (pg. 2 of 8 from monju's link)
posted by moonbird at 9:26 AM on January 10, 2006


I don't think that it's wrong to search children if their names are on a warrant. But I don't think people whose names are not on warrants should be searched. I still want to know why Dios thinks an affidavit affects the scope of a warrant.
posted by delmoi at 9:26 AM on January 10, 2006


Firas:WTF is wrong with Grassley?

Grassley, in effect: "Do you think judges should have total power to overrule the other to branches?"
Alito: "No".

Grrr.


What you said. What kind of balance is that? Alito's confidence in the executive topples the oroginal intent of a three-tiered system of check-n-balances.
posted by moonbird at 9:28 AM on January 10, 2006


I still want to know why Dios thinks an affidavit affects the scope of a warrant.
posted by delmoi at 11:26 AM CST on January 10


Because it is well-established that affidavits can be incorporated into warrants to define their extent. And in this case, it was explicitly incorporated by the magistrate. Whether the affidavit was incorproated is not the grounds for attack. It was to what extent it was incorporated based on the magistrates issue.
posted by dios at 9:30 AM on January 10, 2006


I still want to know why Dios thinks an affidavit affects the scope of a warrant.

Because 10 year-olds everywhere need a full body cavity search at least once in their lives. Lets 'em know who's in charge.
posted by Rothko at 9:31 AM on January 10, 2006


Biden is up. Asking about CAP again.
posted by delmoi at 9:31 AM on January 10, 2006


Here's a convincing article on why Alito's CAP membership, his highlighting of it in the 1980s, and his Reaganesque memory lapses on it today, are a legitimate issue:

"CAP was dedicated to finding outrages that it took to be caused by the horrible fact that women and minorities were being admitted to Princeton. The need to find outrages generally came first; any encounter with facts came later. For this reason, CAP tended to attract not conservatives per se, but the sort of conservative who is forever getting deeply hysterical about some perceived threat to a supposed previous golden age, who sees such threats everywhere, and who is willing to completely distort the truth in order to feed his (and it generally was 'his') obsessions."
posted by ibmcginty at 9:33 AM on January 10, 2006


Hm, I like the way Biden is taking it. Why didn't Grassley respnod to Alito's "well, judges should not shape society" with "well, do you support Brown vs Board of Education?" Oh I knew, because he's a hack presenting the veneer of sophistication.
posted by Firas at 9:34 AM on January 10, 2006


The problem with Alito is that he has a pattern. And taken as a whole he seems either A) foolish and forgetful and inept, in which case he shouldn't be a supreme court justice, or B) a right wing nut job who will do all sorts of horrible things to civil/womans/minority rights. He just smells like the kind of person we don't need right now.
posted by stilgar at 9:36 AM on January 10, 2006


delmoi, both the majority and dissent in Doe v. Groody agree that a warrant may incorporate a supporting affidavit. In Groh v. Ramirez, 157 L. Ed. 2d 1068, 124 S. Ct. 1284 (2004), the Supreme Court acknowledged that the most Circuits have concluded that a warrant may do so, although it concluded in that case that the affidavit had not been incorporated:
We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting appli- cation or affidavit if the warrant uses appro- priate words of incorporation, and if the sup- porting document accompanies the warrant... But in this case the warrant did not incorpo- rate other documents by reference, nor did either the affidavit or the application (which had been place under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.
Id. at 157. In Doe v. Groody, the issue that divided the panel was the degree of technical precision that should be demanded in determining whether a warrant adequately incorporates an attached application or affidavit. Indeed, if the majority had concluded that the affidavit had been properly incorporated, then the search of the 10-year old girl would have been perfectly legal.

Also keep in mind that Doe is an appeal from a denial of summary judgment based on qualified immunity. When police officers act reasonably and within the scope of their duties they are entitled to qualified immunity from prosecution. In this case, the real question is whether the police officers acted reasonably in light of clearly established law. ALito concludes:
The appellants in this case did not exhibit incompetence or a willingness to flout the law. Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises where: (1) that is what the application sought; (2) the affidavit asserted that there was probable cause for such a search; (3) the warrant expressly incorporated the affidavit on the issue of probable cause, (4) the language of the warrant was drafted to confer authorization to search all occupants, and (4) the magistrate signed the warrant without modification.
Is he right? Reasonable minds can differ on whether the warrant effectively incorporates the affidavit. The majority concluded that the difference in the scope between the warrant and the affidavit was significant enough to disregard the language in the warrant incorporating the affidiavit. Alito disagreed. You might not like the result of Alito's analysis, but it's not clearly wrong.
posted by monju_bosatsu at 9:37 AM on January 10, 2006


'Who doesn't pad his resume?' Is this the standard you American power worshippers have let yourselves sink to? Not wanting anyone smarter or more honest than you in power because it might make you look bad? An entire country run by that kid in class who sneered at the kids who did their homework. What a sight.
posted by Space Coyote at 9:38 AM on January 10, 2006


This requires an understand of the function of the judiciary, the statute at issue, and the procedural posture of the case. [...]But when you are criticizing a technical interpretation of a statute, then you need to do so from that technical position. "That just is legal" is a rather hollow condemnation if one doesn't understand the legal issue.

Dios, upthread you dismissed Amberglow for cut-n-pasting Chertoff's opinion. You wanted Amberglow's reasoning, not Chertoff's. OK, so Amberglow offered an opinon.

Then, when Amberglow offers an opinion, you dismiss that too, on grounds that it's not written by a lawyer, basically.

A tidy little box of dismissal. You often try to stuff people into this little box of your own creation. It's like you're looking for reasons to reject a position, not on merit, but impassable criteria of your own devise.

Which is not to say I don't enjoy hearing you "hold court" on matters of legal analysis...I do. Though we often disagree, I often find your countrerarguments stimulating and thought provoking, and I could probably learn a thing or two in the process. But this ain't court my man. When you start applying that hurdle for others to clear is where I start to reject your counterarguments. Law school is not a pre-requisite for having an opinion.
posted by edverb at 9:38 AM on January 10, 2006


Hmm, thanks Monju.
posted by delmoi at 9:40 AM on January 10, 2006


edverb: That is not what I did. amberglow suggested that the opinion was legally wrong. I asked him to make his legal argument. Providing me with the majority opinion is not a legal grounds. My point behind that was to show that he, in fact, had no legal grounds to say what he was saying. Rather, he was merely relying on someone else's interpretation of Alito and assertions regarding the opinion.

If he, personally, had a real reason to say that Alito's opinion was legally incorrect, I really wanted to hear it. That he was in the dissent is not an indication that he is clearly wrong. I merely asked amberglow to make a legal argument if that is what he wants to do. I have no problem with him saying that it is wrong to search 10 year olds, and if he believes that, then I encourage him to talk to his legislator about making such a law. But that isn't what he was doing. He was arguing that Alito was lying and clearly legally wrong. I submit that he has not shown that at all beyond his mere blustering.
posted by dios at 9:45 AM on January 10, 2006


Seems like biden is just pontificating.
posted by delmoi at 9:52 AM on January 10, 2006


Biden has to be the first non-moronic questioner in this hearing. This is what the whole thing should be like.
posted by Firas at 9:53 AM on January 10, 2006


Biden hasn't let Alito talk.

It is about 90% Biden during his time.
posted by dios at 9:53 AM on January 10, 2006


delmoi: well, I guess, in a sense he hasn't teased anything interesting out of Alito. But it's a nice change from the softballs about judicial temperament.
posted by Firas at 9:54 AM on January 10, 2006


Firas, still it's rather dull. Everyone already knows what biden thinks. I think Kennedy did a better job.

I'm not listening to this, since I don't have a soundcard, just reading the summary on scotusblog.
posted by delmoi at 9:59 AM on January 10, 2006


Hm, Kyl is up.
posted by delmoi at 10:01 AM on January 10, 2006


Resume padding is for people who don't make the grade in the first place.

Also, what SpaceCoyote said.
posted by shawnj at 10:05 AM on January 10, 2006


I made a point of listening to most of the John Roberts hearings, but I've been too busy to tune in for the Alito Show.
posted by grabbingsand at 10:09 AM on January 10, 2006


Depends on your definition of 'padding', doesn't it? I for one wouldn't prepare a resume that screams 'unremarkable'.
posted by Firas at 10:10 AM on January 10, 2006


Resume padding is a nice way to avoid calling a crony a liar.
posted by Rothko at 10:11 AM on January 10, 2006


If this dosn't work out, I hope he nominates Jenna.
posted by delmoi at 10:11 AM on January 10, 2006


really, dios, listen to edverb and learn to have a discussion like a human being.

You said:
amberglow. I am aware of Chertoff's opinion. I asked you to make your argument in your own words. Because here is the thing: 2 vs 1 opinions don't mean that one side is right and the other side is a lying scumbag, especially on a technical point of law. Reasonable people can disagree. So I am asking you to make the argument in your own words and not cut and paste or link somewhere else.


I then made my argument. You then changed the rules and lied about what you said--you did not say I asked him to make his legal argument. Either get over yourself or go away. Normal human beings don't do what you just did, and it's not how you discuss things.

/derail over.
posted by amberglow at 10:12 AM on January 10, 2006


Being a bit quick to the draw, aren't you? Is calling yourself an 'active member' of an organization when you were in fact 'just a member' all that egregious?
posted by Firas at 10:12 AM on January 10, 2006


delmoi: ha!
posted by Firas at 10:12 AM on January 10, 2006


I submit that such people probably shouldn't be offering critiques of judges if they believe such things.
posted by dios at 12:16 PM


Shorter shorter demigod:
STFU!

Shorter devil:
How dare you question Dear Leader!

I'm a lawyer so you can just shut up!

No, you may not express an opinion!

Longer dios:
I can say whatever I want, you, however, must link to legal cases and prove each detail of what you say. And I reserve the right to dispute your assertions even then, based solely on my valued opinion.

Alito sucks and so does his Master.
posted by nofundy at 10:16 AM on January 10, 2006


nofundy, I am intrigued by your ideas, and should like to subscribe to your newsletter.
posted by monju_bosatsu at 10:34 AM on January 10, 2006


i think the whole thing about the 10 year old girl is a very technical legal question that doesn't hold much significance in a debate over a candidate's qualifications or prejudices

truth is, there wouldn't be as much likelihood that 10 year olds would be searched in this country if it wasn't for our drug laws ... and that is not a question for our judges to determine, but for our representatives ... (at least, that's how judges have seen it so far)

the democrats need to come up with better cases and arguments than this one
posted by pyramid termite at 10:42 AM on January 10, 2006


pyramid: You're over-estimating the American public.
posted by delmoi at 10:52 AM on January 10, 2006


I like you too monju.
I really do appreciate your input on threads.
posted by nofundy at 10:55 AM on January 10, 2006


The frustrating thing is that Democrats have to resort to things like going on about strip-searching 10 year olds, affiliation in college organizations, issues about business holdings, etc., because as the Republicans have ably demonstrated over the last decade, they'll give no quarter: no issue is too below them to make a scandal out of. It's easy to tut-tut on a website about it, but when you're a senator/congressperson on the embattled side you can't pick from a high-minded playbook. It's not a coincidence that the Republicans keep getting into 'problems' after Bush's second election: the other party stopped pussyfooting.
posted by Firas at 11:05 AM on January 10, 2006


Firas, that's fine if your goal is purely political; i.e., to look tough by attacking what is quickly becoming an unpopular and extreme administration. It doesn't tell you much, however, about whether Alito will make a good Justice or not. From my decidedly non-political perspective, I think Alito has been a good judge and would make a good Justice. I'm not saying that ethical issues shouldn't be explored, just that they should be given appropriate weight and not obscure Alito's judicial qualities.

What's going to be really interesting is the testimony of the seven current and former 3d Circuit colleagues of Alito. It's rare for sitting judges to testify during a confirmation hearing, and to have seven of them testify is, as fair as I know, unprecedented. I'll be interested to see how the Senators handle heavyweights like Becker and Aldisert.

nofundy, sorry about that crack. I just think people get overheated when dios comments more because of his reputation than the content of his comments. He's making the same argument I am, but nobody's bashing me for it.
posted by monju_bosatsu at 11:20 AM on January 10, 2006


I'm a lawyer, therefore I feel qualified to say that dios is a disingenuous asshat.

Courts look past the "technical" issues of cases to the underlying facts all the time. If the technical rendering of the law will lead to a repugnant outcome, courts will find a way to avoid that outcome. Call it pretextual if you will, but it's a recognized (and necessary) aspect of American jurisprudence. Judges who hide behind the law and refuse to accept the potential human toll of their decisions don't deserve to be judges.

And since I already went ad hominem in the first line, let me add that I'm guessing dios is third-tier law school, at best. Not surprised he thinks "everyone" pads resumes.
posted by ereshkigal45 at 11:24 AM on January 10, 2006


pyramid: You're over-estimating the American public.

sigh ... but it's so hard to underestimate them ...
posted by pyramid termite at 11:32 AM on January 10, 2006


I'm a lawyer....

Really? Are you sure?

Courts look past the "technical" issues of cases to the underlying facts all the time.

The "technical" issues? Like the law? Like the text of a statute passed by Congress? Those issues?

Look, certainly a good judge should have a measure of compassion and a sensitivity to the facts of particular cases, but that doesn't change the fact that the judge's job is to apply the law. Where there is legitimate room in the law for improvement or change, the judge should consider the human impact of his or her decision. But when the law is clear, the judge should not shrink from his or her duty to apply it, even where the outcome may be harsh.
posted by monju_bosatsu at 11:33 AM on January 10, 2006


Yeah, monju_batsu. I'm lying about being a lawyer. Gee. I'm so stoopit I forgot my profile contains a link to my blog.

If you dig deep, you'll find the details in your link. Or, I'd be happy to send you my California Bar membership number if you want to verify my standing. Email address in profile.
posted by ereshkigal45 at 11:46 AM on January 10, 2006


the basic fact is that Supreme Court Justices affect our lives in many ways, and stay on the bench til they die. Their ethics are a concern--a big concern. The law has been wrong in the past, and will be proven so again in the future.
posted by amberglow at 12:04 PM on January 10, 2006


ereshkigal45: I didn't suggest that you were lying; it just seemed odd given the content of your comments around here and your blog. I don't need you bar membership number. Also, you seem to have ignored the rest of my argument.
posted by monju_bosatsu at 12:05 PM on January 10, 2006


Well, Dios legal style tends to involve a lot of basic, black and white assertions followed by, some nattering on his part, waiting for other people to do research, in which case he can maybe spout some specifics.

A perfect example is up thread where I challenge him about using affidavits as part of a warrant. Dios first ignores me, then simply states "It's accepted!" which is hardly compelling. OTOH, monju is able to clearly explain the law and point to parts of the decision.

Dios works (or claims to work) litigating medical malpractice cases (representing hospitals, natch) which means he really only needs to focus on a specific aspect of the law, and (I would imagine) mostly knowing a lot about medicine. I mean the doctor either screwed up, or he didn't. I suppose there could be some issues about discovery or whatever and even then, it's all civil, hardly touching on criminal or constitutional issues, I would imagine.
posted by delmoi at 12:20 PM on January 10, 2006


I disagree with Alito's comments he just made to Kohl vis-a-vis Bork and the one person, one vote issue... but that doesn't change the fact that he is clearly qualified even though I disagree with him.

What's going to be really interesting is the testimony of the seven current and former 3d Circuit colleagues of Alito.
posted by monju_bosatsu at 1:20 PM CST on January 10


That should be interesting, but the Senators to show rather conclusively that they have no shame, so they will probably just lecture the judges as well. After all (as I said in my first comment in this thread) this is all about the Senators and their attempts to make talking points and sound bites. They don't care what Alito or any other witness has to say.

You then changed the rules and lied about what you said--you did not say I asked him to make his legal argument.
posted by amberglow at 12:12 PM CST on January 10


amberglow: now I am a liar? I'm beginning to question whether you know what that word means since you call Alito a liar, and now I am liar even though I clearly asked you above to explain your critique in your own words to support your decision that his opinion was wrong and that the action at issue was illegal. You have still failed to show that you have one.

And since I already went ad hominem in the first line, let me add that I'm guessing dios is third-tier law school, at best.
posted by ereshkigal45 at 1:24 PM CST on January 10


Rofl. That is funny. Is it possible to get any more petty? If I correct you, does that make you clearly wrong?

posted by dios at 12:20 PM on January 10, 2006


ereshkigal45: I didn't suggest that you were lying; it just seemed odd given the content of your comments around here and your blog.

Maybe you didn't mean to suggest that, but you certanly came across that way.
posted by delmoi at 12:20 PM on January 10, 2006


Anyway, just got back from a refreshing nap. I'm going to read scotusblog for a bit here.
posted by delmoi at 12:22 PM on January 10, 2006


Also, you seem to have ignored the rest of my argument.

Yes, I did, didn't I. Frankly, it didn't seem worth addressing. The law is rarely clear, and mechanical application of the law is almost never appropriate. If those things weren't true, we wouldn't give a shit about who had the responsibility of interpreting it.

As for your intent in posting the link, what other motivation could you have had other than to suggest that I was making myself out to be more than I am? Is it really such a stretch of the imagination to imagine that someone could be both a lawyer and a bookseller? I have two jobs. And I believe I have mentioned both in the past if you've bothered to look at "my comments around here."
posted by ereshkigal45 at 12:22 PM on January 10, 2006


What the hell is your obession with what I do for a living delmoi? You've made, in my best guess, at least a dozen comments concerning what I do for a living. It's irrelevant. Either what I say is right or is not. You don't want me to argue from authority, but you seem emminently concerned with whether I, in fact, have the bona fides to argue from authority. I don't argue from that.

I could have provided the exact same argument that monju did. I didn't because I didn't want to waste my time. The times I have spent going out and citing people to specific cases and laws, people just say I am wrong anyhow and don't bother to read or consider the legal opinions. And, in fact, I will make an accusation directly against you delmoi: had I made the exact comment that monju made, you would have rejected it or asked me to further prove it, and you would not have accepted it as you did with monju. I can say this because you have done this in the past. So don't bother lecturing me about whether I try hard enough to prove my legal conclusions to you when you don't even bother to consider them anyhow.
posted by dios at 12:25 PM on January 10, 2006


I questioned whether ereshkigal45 was a lawyer before seeing the blog based upon this:

"If the technical rendering of the law will lead to a repugnant outcome, courts will find a way to avoid that outcome."

This may happen but it is certainly not what a judge is supposed to do. It's called "legislating from the bench" or "judicial activism".
posted by Carbolic at 12:31 PM on January 10, 2006


What the hell is your obsession with what I do for a living delmoi? You've made, in my best guess, at least a dozen comments concerning what I do for a living. It's irrelevant. Either what I say is right or is not. You don't want me to argue from authority, but you seem emminently concerned with whether I, in fact, have the bona fides to argue from authority. I don't argue from that.

Other people made an issue to of it, and responded with my thoughts. Relax.

I could have provided the exact same argument that monju did. I didn't because I didn't want to waste my time. The times I have spent going out and citing people to specific cases and laws, people just say I am wrong anyhow and don't bother to read or consider the legal opinions.

Well, technically we're all waiting our time here, no?

And, in fact, I will make an accusation directly against you delmoi: had I made the exact comment that monju made, you would have rejected it or asked me to further prove it, and you would not have accepted it as you did with monju.

Well, that may be the case, I don't know. I definitely tend to give monju more credit for his answers because I've noticed him being incorrect less often then you. In fact, I can't recall a single instance of him being corrected on a legal issue. Is that because things posted by your account are more heavily scrutinized then his? Maybe. If you want people to take you seriously, you should start off with the substantive analysis rather then off the cuff remarks which have a tendency to agitate people and are frequently wrong.
posted by delmoi at 12:37 PM on January 10, 2006


Seems like Kohl got some good questions in.
posted by delmoi at 12:42 PM on January 10, 2006


Carbolic, please define "judicial activism" for me.

How many people here have drafted legislation? No matter how carefully you draft, there will *always* be room for argument about the meaning of the law. It's the job of the courts to resolve those ambiguities. It is absolutely *not* inappropriate for a court to look at the way a particular law is applied and determine that the outcome is not what was intended. That's not "judicial activism."
posted by ereshkigal45 at 12:45 PM on January 10, 2006


The law is rarely clear, and mechanical application of the law is almost never appropriate. If those things weren't true, we wouldn't give a shit about who had the responsibility of interpreting it.

That's certainly true, but the ways in which the law is unclear is often very different from the political or sentimental reasons some people seem to be suggesting in this thread. An example of this is the argument that the search in Doe v. Groody was unconstitutional because it was a 10-year old girl. Having compassion for the girl doesn't really have much to do with deciding whether an affidavit was properly incorporated into the warrant, unless you are only interested in outcome-based (read: lawless) jurisprudence. I'm not arguing that "mechanical" decision making is often appropriate, only that the nuanced decision must be made on factors other than pure sentiment.

In some cases, that kind of compassion is directly relevant to the standard by which the court is to decide a case. For example, when deciding "in the interests of justice" to equitably toll the statute of limitations for a habeas petitioner because a rule of procedure prevented him from filing before the time period ran out. In most cases, however, it's not. That doesn't make it mechanical.

Lastly, I apologize for insinuating that you might not be a lawyer. I was obviously mistaken. Employment as a lawyer, however, does not justify calling dios, or anyone else, for that matter, a third-tier asshat.
posted by monju_bosatsu at 12:46 PM on January 10, 2006


By the way, I personally don't see why the commerce clause should be able to affect personal construction of machine guns, or growing pot for that matter.
posted by delmoi at 12:50 PM on January 10, 2006


Feinstein is doing great--she's the one that belongs on the Supreme Court. (he's afraid of her too--his voice is very shaky)

dios, enough with you--Alito was wrong in that case, and the other justices told him so. I know he was wrong too. I gave my reasons why, and you're just being an ass. No one can win with you because you cheat and change your parameters all the time, in every thread you engage in--you must be some lawyer. Go to some legal community if you're only interested in legal opinions---this is not that place.
posted by amberglow at 12:53 PM on January 10, 2006


Thank you for the apology, monju. Inspired by you, and in the same spirit, I apologize to dios for the ad hominem attack.
posted by ereshkigal45 at 12:53 PM on January 10, 2006


delmoi, because it was a foreign gun not made here, it had to be imported in the first place, thus it's interstate.
posted by amberglow at 12:54 PM on January 10, 2006


Yeah, I just read that. I thought the case was about hand-made machine guns, though.
posted by delmoi at 12:55 PM on January 10, 2006


amberglow, you haven't presented any legal argument of why Alito is wrong. In fact, you show a giant lack of understanding because you think that the majority opinion is an indication he is wrong. That is not correct. Both a majority and dissenting opinions can be legally valid, but only be a difference of emphasis or opinion on an interpretation. It doesn't make the other person wrong. That you don't understand that is one thing; your bullheaded ipse dixit that you know he is wrong is the main problem here. All I am asking you is this: if you have a policy dispute then state that. If you want to state you have a legal critique, then have one, and don't cloud it in the rhetoric of policy.
posted by dios at 12:57 PM on January 10, 2006


Feinstein is making the standard false claim about the criticism of Roe. She is arguing that criticism of Roe is necessarily opposition to abortion. The statement "there is no right to an abortion in the Constitution" by Alito in 1985 is certainly not terribly controversial since the majority in Roe acknowledged that. Roe was about a right to privacy that might encompass abortion.
posted by dios at 1:03 PM on January 10, 2006


and dios: try linking to establish fact. you just pronounce without any backup. Prove that it's well established that affadavits count, don't just pronounce that it is. Prove that what you say is so.
posted by amberglow at 1:03 PM on January 10, 2006


don't bother lecturing me about whether I try hard enough to prove my legal conclusions to you when you don't even bother to consider them anyhow.
posted by dios at 12:25 PM PST on January 10 [!]


This is just like the confirmation hearings!
posted by Balisong at 1:03 PM on January 10, 2006


He seems to be pretty protective of Roe v. Wade, no? I'm not sure what the worry on that end is about.
posted by Firas at 1:04 PM on January 10, 2006


Opposition to abortion is not just about overturning Roe. It's also about putting more and more restrictions on it, thus rendering it unobtainable in real life, whether it remains legal or not. President Bush's new Supreme Court nominee has a clearer track record on abortion and would become a tie-breaking vote in deciding how far the government can go to restrict women's access to the procedure.
It is not guaranteed that conservative judge Samuel Alito would vote to overturn Roe v. Wade, the court's landmark ruling ensuring a woman's right to abortion. However, he has sharply different views from the justice he was picked to replace, Sandra Day O'Connor, and could shift the court to the right on the issue.
O'Connor has provided the fifth vote to limit government power to restrict abortions. Under her standard, limits that impose an "undue burden" on women must be struck down.
Alito's voting record is more like that of Justice Antonin Scalia, who contends the undue burden standard is hopelessly unworkable. Scalia also would like to overturn Roe. ...

posted by amberglow at 1:07 PM on January 10, 2006


Ok, maybe not so protective, then.
posted by Firas at 1:10 PM on January 10, 2006


Alito's voting record is more like that of Justice Antonin Scalia, who contends the undue burden standard is hopelessly unworkable. Scalia also would like to overturn Roe.

See, that's just false. In fact, in his partial dissent in Casey, Alito applies precisely this undue burden standard that Scalia believes is unworkable.
posted by monju_bosatsu at 1:13 PM on January 10, 2006


and dios: try linking to establish fact. you just pronounce without any backup. Prove that it's well established that affadavits count, don't just pronounce that it is. Prove that what you say is so.
posted by amberglow at 3:03 PM CST on January 10


Ha! So says you who won't address the issue at all.

But fine. I'll put the ball back into your court. In addition to Groh v. Ramierez, the leading opinion that is addressed in the Chertoff opinion that you relied upon and that monju cited above, there are plenty of other cases noting it. See, e.g., United States v. McGrew, 122 F.3d 847, 849 (9th Cir. 1997)("The well settled law of this circuit states that a `search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit therein.' "); United States v. Dale, 991 F.2d 819, 846 (D.C. Cir.) (same), cert. denied, 510 U.S. 1030 (1993); United States v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992)(same), cert. denied, 507 U.S. 988 (1993); United States v. Beaumont, 972 F.2d 553, 561 (5th Cir. 1992)( "Where a warrant contains only the barest of generalized statements the particularity requirement is satisfied by reliance on an affidavit when the affidavit is incorporated by reference into the warrant."), cert. denied, 508 U.S. 926 (1993); United States v. Blakeney, 942 F.2d 1001, 1024 (6th Cir. 1991)(incorporated affidavit may be read as part of the warrant so long as the one accompanies the other during the search and warrant is incorporated by reference), cert. denied, 592 U.S. 1035 (1992); United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990)(same), cert. denied, 498 U.S. 1094 (1991).
posted by dios at 1:20 PM on January 10, 2006


Alito, "supposedly", was one of the main architects of the "peicemeal" dismantling of Roe v. Wade during his tenure in the Regan Whitehouse, IIRC. Putting more and more restrictions on it until it's basically choked out of existence.
posted by delmoi at 1:24 PM on January 10, 2006


Man, I need to get me one of those westlaw accounts.
posted by delmoi at 1:30 PM on January 10, 2006


delmoi, because we're taking primarily about CTA decisions, you should be able to get them all through findlaw.
posted by monju_bosatsu at 1:32 PM on January 10, 2006


ah, thanks monju.
posted by delmoi at 1:36 PM on January 10, 2006


Sessions is being silly. The Rehnquist Court was liberal?!
posted by Firas at 1:37 PM on January 10, 2006


What's interesting is that in McGrew the warrant was thrown out because it mentioned an attached affidavit, yet, no affidavit was actually given to the defendant. Heh.
posted by delmoi at 1:38 PM on January 10, 2006


Isn't sessions the guy who wanted a 5 year mandatory minimum sentence for anyone who was aware of marijuana deals and failed to report.
posted by delmoi at 1:38 PM on January 10, 2006


I like how these senators (sessions and dewine) keep pointing out how they don't think Roe is precedent, but refused to ask Alito about it.
posted by delmoi at 1:41 PM on January 10, 2006


They'll start again at 4:50? How long is this going to go on?
posted by delmoi at 1:47 PM on January 10, 2006


I think they should make them go until either the nominee or half the senators drop, and at that point the senators left standing have to vote on confirmation.

Oh, and feats of strength.
posted by monju_bosatsu at 1:50 PM on January 10, 2006


Well I am convinced that Alito is no good...but during the day I realize that no one (but us crazy mefites) sit around listening and thinking about this all day. These guys are just talking in sound bites so that tonight we can get a few small clips on the news and everyone will start talking about this or that. The fact is liberals have never been wrong on any major social issue. and conservatives are constantly coming down on the wrong side of these issues. I have no idea why in a land of freedom gays blacks women etc don't get a better deal, well I do know why but (money and power) but it just seems so wrong that Alito would have ever been a judge in the first place, let alone nominated to this high post. I am so ashamed by our leaders sometimes.
posted by stilgar at 1:56 PM on January 10, 2006


Bit of a derail, but does anyone know how long the practice of bringing in a potential SCOTUS judge's family has been in effect? It's sad and tedious, really--these guys are being measured for a lifelong appointment and we need to hear about little Suzy winning the swimming championship for her high school.

Gotta be either a Reagan- or Clinton-era thing.

(Maybe I'm just jealous that my nomination would be derailed by the lousy, no-good children I'm planning on having someday.)
posted by bardic at 1:59 PM on January 10, 2006


They'll start again at 4:50? How long is this going to go on?

Til 6 i think. Feingold's up next--he'll be good too. They didn't schedule many days to discuss Alito at all, so i'm hoping they go long (but the GOP won't allow it)

again, dios, i said to link. (it's that process where you find the url of a case or decision and link to it so that others can actually read it. it's very useful to all of us who don't have access to private databases nor to lawbooks.)
posted by amberglow at 2:01 PM on January 10, 2006


ooo-Feingold's asking who coached him and what did they say.
posted by amberglow at 2:07 PM on January 10, 2006


amberglow: check findlaw, to which I linked above.
posted by monju_bosatsu at 2:07 PM on January 10, 2006


Feingolds getting a little fiesty. Lets hope he keeps it up.
posted by stilgar at 2:08 PM on January 10, 2006


and Alito lied.
posted by amberglow at 2:09 PM on January 10, 2006


again, dios, i said to link.

Oh, ffs. Nope. Not going to waste my time making things easier for you. If you don't accept that is what those cases say, then feel free to google them or go to findlaw and read them. Then you can come back and report your findings.

As I mentioned/predicted in a comment above directed to delmoi, even if I take my time to provide caselaw to back up what I said, people still don't accept it. Now you want links. Well, what will happen if I provide a link? You will just say the cases are incorrect or wrong or don't apply or some other nonsense.

I am not going to play your game, and I'm not going to spend my time trying to find the source on the premise that if someone else says it, then it might be valid. Linking is to often an attempt to let someone else's words make your arguments for you. I make my own arguments. I don't rely on what someone else says, so I don't waste my time trying to find links to back up what I said. I provided case law. Either you accept that I represented the cases correctly or you don't. If you don't then feel free to research them and let me know otherwise.
posted by dios at 2:11 PM on January 10, 2006


Re. trotting the family out like show-horses: I think it started with Thomas. He brought his wholesomely attractive younger wife out to show that he had her support in his battle against that slanderous harradan, Anita Hill. That was in the cotext of the Bork failure, which happened in no small part because Bork was such a prickly and unlovable SOB. Minor lapse for Souter, who I think everyone just assumed was gay.
posted by lodurr at 2:12 PM on January 10, 2006


and Alito lied.
posted by amberglow at 4:09 PM CST on January 10


I do not think that word means what you think it means.
posted by dios at 2:13 PM on January 10, 2006


Republicans know that banning abortion would spell the end of their party as a viable governing party. Keeping it as an election issue is absolutely critical to keep their base stirred up and pissed off and voting reliably against their best interests.

The real issue with Alito is that he believes that the President can ignore laws he doesn't like.
posted by Space Coyote at 2:21 PM on January 10, 2006


this is not buyable at all from him about Vanguard--he lied.
posted by amberglow at 2:24 PM on January 10, 2006


The real issue with Alito is that he believes that the President can ignore laws he doesn't like.
posted by Space Coyote


Where did you get this? He has explicitly said otherwise on mulitple occasions today that he thinks the President is constrained by the law and has shown cases where he opposed executive power.
posted by dios at 2:26 PM on January 10, 2006



I am not going to play your game,


But we're supposed to play yours. Guess what? You don't get the benefit of the doubt any more than anyone else. And it's not a game--it's how we prove that what we say here is so.
posted by amberglow at 2:26 PM on January 10, 2006


lied how, amberglow?
posted by monju_bosatsu at 2:27 PM on January 10, 2006


this is not buyable at all from him about Vanguard--he lied.
posted by amberglow at 4:24 PM CST on January 10


Do you have evidence? Was the ABA, all of the ethics evaluation, and the rest just wrong when they said it was an innocent mistake and he recused himself?

And this is now the fourth time you have accussed someone of lying in this thread. What is your definition of this word?
posted by dios at 2:28 PM on January 10, 2006


For more background on the Vanguard issue, read the opinion letter [pdf] of the legal ethics expert Sen. Specter engaged to assist the Judiciary Committee. Conclusion: no violation of the ethics rules.
posted by monju_bosatsu at 2:34 PM on January 10, 2006


again, dios, i said to link. (it's that process where you find the url of a case or decision and link to it so that others can actually read it. it's very useful to all of us who don't have access to private databases nor to lawbooks.)

It's not that simple. Anyway, I was able to find the first case dios referenced by looking it up on find law (via the link monju posted). He's probably using some custom database or something to look up cases.
posted by delmoi at 2:45 PM on January 10, 2006


At least the Meirs Nomination proved that bush really didn't have a litmus test, if you think about it.
posted by delmoi at 2:55 PM on January 10, 2006


5:55: Could Congress set a super-majority requirement for judges? Alito says he shouldn't answer. Graham says he is glad Alito doesn't answer. Sigh.

Heh.
posted by delmoi at 2:58 PM on January 10, 2006


This is an unfair question&hellip
posted by Firas at 3:03 PM on January 10, 2006


Gah! I mean "This is an unfair question…"
posted by Firas at 3:03 PM on January 10, 2006


'This' being 'whether the constitution protects the right to abortion', asking for a yes or no answer—what would the nominee say? He has to appease both Bush's base and the pro-choice legislators.
posted by Firas at 3:10 PM on January 10, 2006


Nice sticking in the fork and twisting it by Schumer; he did his homework.
posted by Firas at 3:18 PM on January 10, 2006


schumer's showing now how Alito rarely, if ever, follows stare decisis, so why should we believe him now?
posted by amberglow at 3:20 PM on January 10, 2006


Feingold and Alito --... In the process, however, he pursued an unusual line of questioning that made Alito visibly uncomfortable. He asked Alito whether the subject of the eavesdropping and its legality came up during his rehearsals for the nomination.
After some hesitation, Alito, who was taken aback, said that the general area of wiretapping and foreign intelligence did come up.
Who was present during these practice sessions, asked Feingold.
"Nobody at these practice sessions has ever told me what to say," Alito stated, answering an unasked question, somewhat defensively.
Feingold said he only wants to know if Alito got any feedback on the subject or any suggestions from the administration on how to answer these questions.
"Not on the substance," said Alito.
Alito was then looking uncomfortable. "Nobody actually told me what the president was asserting. . . . I found the letter [the administration's justification] on the Internet, myself."
Feingold asked whether it isn't inappropriate for members of the administration to be giving him advice on this subject.
...

posted by amberglow at 3:38 PM on January 10, 2006


Cornyn is just laying out a case for him. I'm with Dios, despite disagreeing with him politically; this whole process is a sham for the legislators to go through the motions. Much like an oral argument in court, for that matter.
posted by Firas at 3:51 PM on January 10, 2006


Well, Alito looks like he just got back from a colonoscopy done by someone who never did it before.

Cornyn is of course doing that--the stuff about how he's compared to O'Connor and Scalia, but that they're sometimes more deferential to presidential power or not conservative in every single case--bleh. That slip was funny tho--he just called him Scalia.
posted by amberglow at 4:01 PM on January 10, 2006




Alito, Iraq, NSA spying, the list goes on. Time for a change in management:



posted by caddis at 4:54 PM on January 10, 2006


more on alito: Troubling times, a troubling nominee
posted by amberglow at 5:17 PM on January 10, 2006


He has lied about CAP, and perhaps other stuff. More so than anything else, a failure of integrity during the hearings will kill him. Roberts was a boy scout, and Alito is looking like the punk kid down the block willing to say anything to keep from being found out. When will people learn that it is not the crime but the cover-up that puts you into hot water. The public forgives a repenter and hates the unrepentant liar. If he had admitted his involvement, rather than feigning a bad memory, said that he has matured and changed since his days in CAP, it would be a non-issue. Now it raises the much more important issue of his integrity. Fool.
posted by caddis at 5:36 PM on January 10, 2006


lied how, amberglow?

I won't speak for amberglow, monju, but one of your own comments provides clear, unequivocal evidence that Alito chose to lie to the Senate at today's hearings.
posted by Rothko at 6:15 PM on January 10, 2006


Yeah, sure. I love the "I approach abortion with an open mind" positioning. Very clever.
posted by ParisParamus at 6:29 PM on January 10, 2006


Given the discussion in the press about CAP in the past few weeks and his inclusion of it on his job application, it is hardly as if the whole thing has slipped his mind, or his recollection has not been refreshed. He's trying to put a spin on it that in the end makes him look dishonest. I don't think "lie" is an unfair term to describe it.
posted by caddis at 6:29 PM on January 10, 2006


rothko: I was asking about the Vanguard question, to which amber was referring. As for the CAP issue, I don't see clear, unequivocal evidence of lying, althugh it does smell fishy to me.
posted by monju_bosatsu at 6:35 PM on January 10, 2006


If only the people Senators and others who do/might oppose him weren't so loathsome...
posted by ParisParamus at 6:37 PM on January 10, 2006


What caddis said. The CAP thing would be a complete non-issue if he'd just come clean and said hey, it was the 80's, a highly polarized time on campuses, I was younger (35 ain't a spring chicken though) and the organization I was a part of over-reached (Bradley and Bill fucking Frist were smart enough to do this, and the latter is hardly a model of discretion). I don't doubt the guy's legal chops, but simple PR issues like this strike me as problematic--yes, yes, it's all about the law and not about personality--bullshit. If a guy can't figure out basic life skills like this (Roberts comes to mind as a counter-example) then yeah, I have to question his readiness for the big time.

On top of that, he looks and sounds like a world class weenie--too cowardly to even stand on his record. Weren't the Republicans supposed to be grooming conservative judges for the last few decades? After Roberts, the pickings look mighty slim.
posted by bardic at 6:37 PM on January 10, 2006


Paris: I agree, but you left out the ones that agree with him as well. They're all posturing twits trying to score points. I'd give a tad more credit to the Dems for at least trying to be critical--it is their job to interview these guys. The Reps seem to simply repeat the mantra that he's a nice guy and has at least two or three black friends. What a mensch.
posted by bardic at 6:40 PM on January 10, 2006


As for the CAP issue, I don't see clear, unequivocal evidence of lying, althugh it does smell fishy to me.

I find Alito's answers on the subject to meet the definition of lying as described aptly in Frankfurt's On Bullshit.
posted by Rothko at 7:28 PM on January 10, 2006


Bardic, most politicians are twits, MOST. That's a given. Would I like President Bush as much as I do (or at all), if I didn't think John Kerry was 10-27x a bad? One needs to go beyond the static, in-isolation analysis...like:

"Hmmm, the Democrats are saying the economy is bad, but the figures all say its good or great....hmmm...who is BS'ing more....The Democratics supported the Iraq War until it wasn't a cake walk, and then they pretended they never did...Alito is against womens reproductive rights, but the worst they can pin on him is thinking it Constitutional to require that the father be notified...hmmm....who is really BS'ing...
posted by ParisParamus at 7:47 PM on January 10, 2006


I'll be happy to have this conversation again in a few years when Hillary is appointing SCOTUS judges.
posted by bardic at 7:54 PM on January 10, 2006


My problem with Alito's resume padding is that we saw how that played out with Bush-appointee Mike Brown crashing both FEMA and New Orleans into the drink — and Alito would be appointed for life, with a number of important cases lined up in front of him.
posted by Rothko at 8:05 PM on January 10, 2006


I was asking about the Vanguard question, to which amber was referring.

He lied about Vanguard-... For example, when he was nominated to a federal appeals court in 1990 he promised the Senate that he would recuse himself from any case involving the investment firm Vanguard because of his substantial investments with the company. In 2002, he ruled on a case involving Vanguard anyway.

Instead of taking responsibility for his actions, Alito has made excuses. In a letter sent to Alito yesterday, Sen. Ted Kennedy documented six different excuses Alito has floated to avoid taking responsibility. Here’s a summary: ...

posted by amberglow at 9:09 PM on January 10, 2006


And from the link to Kennedy's release: ...The "Initial Service" Explanation Your November 10th letter suggests that your 1990 commitment to the Judiciary Committee to "disqualify myself from any case involving the Vanguard companies" was only a temporary one which you could dissolve at any time, and did not apply after your "initial service" as a judge. (a) However, neither the question we asked about the "procedure you will follow" to resolve potential conflicts of interest, nor your answer in 1990, had any time limitation. If your financial interest in the Vanguard companies had ended, no one doubts that your recusal plans would have changed. But your Vanguard investments rose from about $80,000 in four Vanguard funds, at the time of your commitment, to what is now over half a million dollars in 12 Vanguard funds, so this was clearly not a temporary or disappearing financial interest. (b) Moreover, your answer to Question 23 of the Committee's Questionnaire makes clear that when the passage of time justifies a change in your recusal practices, you specifically notify the Court's Clerk of that fact, as you did when you adjusted your recusal practice in cases involving your former office. You have not provided evidence of any such justification or notification before the 2002 Vanguard case. (c) In fact, the evidence is to the contrary, Appendix 4 of your response to the Committee Questionnaire shows clearly that your "standing recusal list" continued to include the Vanguard companies during the entire period of your judgeship, up to the present. In fact, you were recused in 2005 in cases involving Vanguard Group, Inc., and Vanguard Fiduciary Trust Company, two of the same Vanguard parties named in the earlier Vanguard case that you failed to recuse yourself in. ...
posted by amberglow at 9:12 PM on January 10, 2006


Well, it looks like we have a new Supreme Court Justice.

Sorry, folks.
posted by ParisParamus at 9:39 PM on January 10, 2006


Amber, did you read the opinion of the legal ethics expert retained by Specter?
posted by monju_bosatsu at 9:41 PM on January 10, 2006


monju, the issue is not whether any judge would have been justified in not recusing themselves, but whether it was wrong for this judge, who pledged under oath during his confirmation hearings to recuse himself from any cases involving Vanguard, to later ignore that pledge and fail to recuse himself in the Vanguard case. Even if it is not unethical, it calls into question whether the Senators can rely upon the information he gives them during these hearings. It goes to his honesty and integrity.
posted by caddis at 11:07 PM on January 10, 2006


caddis is right. He told the senate that he would recuse himself from Vanguard cases, and he didn't. So how do we know he'll keep his word regarding cases involving whatever it is he's talking about today?
posted by delmoi at 6:49 AM on January 11, 2006


And it also goes back to respect for the 3 branches of Govt., and checks and balances--if this is how lightly he took his sworn statement to the Senate then, and how easily and repeatedly he changes his story when called on it, what kind of respect does he have for them now? In the future? Is it just about getting confirmed, and damn the truth, or what?
posted by amberglow at 7:39 AM on January 11, 2006


I can't believe some of the comments that are trying to suggest this guy isn't qualified for the job. I have listed to all of the hearings, and Alito amazes me with his capacity to speak at great length and depth about amazingly complex legal questions, without notes, without pauses to think, without stutters, and without losing his cool.

His answers have been clear on everything except the CAPs issue which is convoluted, and I agree with monju that it sounds fishy. On everything else he has given exceptional answers on the law and been forthright.

I would have answered some questions differently if I was him, but I certainly couldn't even imagine being as knowledgeable as he is about all of these areas. Of course, the topics aren't as exhaustive of all areas of the law, but I get the impression that one could ask him about any area of the law, and he could comment intelligently on it.
posted by dios at 7:40 AM on January 11, 2006


Vanguard issue is a pathetic attempt to find ANYTHING to throw against this man who is otherwise qualified.

He was cleared by the ABA and found to be of impeccable ethics. Ethics experts have said he did nothing wrong. He explained how he goes beyond the ethical requirements in his personal practice, and he explained how in this instance, while not violative of ethic rules, was not in line with his personal practice, so he recused himself and had the case reheard.

To try to turn that into a strike against him is the most vile and pathetic of partisan hackery.
posted by dios at 7:43 AM on January 11, 2006








Well, there is it is.

You haven't bothered to understand the issue other than what you read somewhere else, and here you are formulating your opinion.

After it was brought to his attention, he recused himself and the case was reheard. That you don't know that fact, renders your opinion on this topic suspect.

Regardless,there was no ethical reason to have the case reheard. This is a point you have wholly failed to address.

Nevertheless, Alito, going beyond the requirements of ethics in his personal practice, recused himself and had the case reheard, despite the fact he was under no ethical obligation to do so.

amberglow: you really need to quit using the word "lied" because it is clear your don't have the foggiest idea of what the word means. That someone says something that you think is wrong doesn't mean they are lying. Of course, that would require you to accept the fact that perhaps you don't know fully the issue.
posted by dios at 8:06 AM on January 11, 2006


amberglow, again, as monju has asked you multiple times: have you read this ethics evaluation and, if you have, can you explain in your own words why you think this analysis is wrong? I'd like you to evaulate it by yourself and hear your thoughts on it and not tell me what some guy on kos says about it.
posted by dios at 8:14 AM on January 11, 2006


I'm a little more forgiving, I think, about the Vanguard situation. Alito did tell the Senate that he would recuse in Vanguard cases, despite the fact that the ethical rules did not compel such recusal. Alito apparently discovered, however, that in practice recusing in every case in which Vanguard was a nominal party became unduly restrictive, and so he changed his mind. Frankly, I don't think that's a bad justification, and it's certainly not evidence that he lied in his first confirmation hearing. Also, note that when the issue was raised by the losing party in the specific case in question, he did, in fact, recuse himself and vacate the decision. The second panel to consider the case came to exactly the same conclusion he did the first time around.
posted by monju_bosatsu at 8:16 AM on January 11, 2006


I can't believe some of the comments that are trying to suggest this guy isn't qualified for the job. I have listed to all of the hearings, and Alito amazes me with his capacity to speak at great length and depth about amazingly complex legal questions, without notes, without pauses to think, without stutters, and without losing his cool.

I don't remember anyone saying he wasn't qualified. Just that he's too activist.
posted by delmoi at 8:34 AM on January 11, 2006


Alito apparently discovered, however, that in practice recusing in every case in which Vanguard was a nominal party became unduly restrictive, and so he changed his mind.

That wasn't testimony that I heard from him yesterday.

I recall him explained yesterday that the case came before him because of a mistake. monju_bosatsu, since you have worked for a federal judge, you would know better than I, but Alito explained that cases represented by counsel came out from the Circuit main office with all potential cases, the clients, and their attorneys. Alito would then go through and recuse himself from any cases he thought he needed to be recused from. That is how things were typically done. But this was a pro se case which he said didn't go through the same process, so he didn't have the opportunity to recuse himself in advance.

I have dealt with prisoner cases before who are generally pro se, and they always sue dozens of people for the same claimed injury and generally run rampant through the system filing all kinds of unncessary pleadings. My understanding is that in this pro se case, when Alito finally got the case without the initial screening, the case was whether a collateral lawsuit was properly dismissed by the District Court because it was part of a pending litigation. It wasn't even an issue that was the main litigation; the pro se person had filed another collateral challenge to an order. Alito apparently affirmed the slam dunk case, and I am willing to be it was done in a summary manner with little analysis of the merits or who the defendants were because it was a clear issue. One can't file another lawsuit to collaterally attack the judgment of a court. (The doctrine of collateral estoppel). When it was finally brought to his attention that there might have been a conflict, he recused himself and had the matter be reheard.

I do not recall him saying it was a conscious decision to not recuse himself in Vanguard matters. Indeed, I recall his testimony to be the opposite: he stated he has been more vigilant on all of his cases to make sure Vanguard isn't a party even though he is under no ethical obligation to do so.
posted by dios at 8:34 AM on January 11, 2006


You may be right; I was relying on my memory of something I read a few months ago. Let me go look at yesterday's transcript.
posted by monju_bosatsu at 8:36 AM on January 11, 2006


After it was brought to his attention, he recused himself and the case was reheard. That you don't know that fact, renders your opinion on this topic suspect.

No, he didn't. He complained and stated that he did "not believe that I am required to disqualify myself based on my ownership of the mutual fund shares."

He complained and stated he didn't think he had to recuse himself. He ended up having to recuse himself, despite his protestations to the chief administrative judge to the contrary.

Recusing yourself is not something you should be forced to do, after the conflict is brought to the court's attention. You're supposed to be well aware of any conflicts that would preclude you from hearing a case, especially if the company is actually named.
posted by amberglow at 8:37 AM on January 11, 2006


Dios, you accuse people of not listening to you, but now you're not listening to them. The issue isn't whether or not it was ethical to hear the case in general, it's whether it was ethical for him to hear the case after specifically swearing he would not in the senate.

I think the obvious answer is no. If Alito is as smart as people say, and he seems to be, he would not have forgotten to do that.

The ethical evaluation you linked too does not adress this point.
posted by delmoi at 8:39 AM on January 11, 2006


You're right, dios. Here's Alito's explanation of the Vanguard situation:
ALITO: She represented herself initially, and we take those very seriously. We give those just as much consideration, in fact more consideration in many respects than we do with the cases without lawyers because we take into account that somebody who is representing himself or herself can't be expected to comply with all the legal technicalities. But, for whatever reason, our court system for handling the monitoring of recusals in these pro se cases is different from the system that we use in the cases with lawyers, and maybe that's because recusal issues don't come up very often in pro se cases. But in any event, in a case with a lawyer, before the case is ever sent to us, we receive what are known as clearance sheets, and those are -- it's a sheet of -- it's a stack of papers, and it lists all the cases that the clerk's office is thinking of sending to us. It lists the parties in each case, and it lists the lawyers in each case, and it says, Do you need to recuse yourself in any of these cases? And this is the time when the judges -- and this is the time when I focus on the issue of recusal. And I look at each case, I look at the parties, I look at the lawyers, and I ask myself, Is there a reason why I should not participate in the case? Now, because this case, the Monga case, was a pro se case, it didn't come to me with clearance sheets. I just received the briefs, and it had been through our staff attorney's office. They take a first look at the pro se cases, and they try to make sure -- they try to translate the pro se arguments into the sort of legal arguments that lawyers would make, to help the pro se litigants. And they give us a recommended disposition and a draft opinion. And when this came to me, I just didn't focus on the issue of recusal. And I sat on the initial appeal in the case.

ALITO: And then after the case was decided, I received a recusal motion. And I was quite concerned because I take my ethical responsibilities very seriously. So I looked into the question of whether I was required, under the code, because I just wanted to see where the law was on this. Was I required, under the code of conduct, to recuse myself in this case? And it seemed to me that I was not. And a number of legal experts, experts on legal ethics, have now looked into this question, and their conclusion is: No, I was not required to recuse. But I didn't stand on that because of my own personal policy of going beyond what the code requires. So, I did recuse myself. And, not only that, I asked that the original decision in the case be vacated -- that is, wiped off the books -- and that the losing party in the case, the appellant, Ms. Monga, be given an entirely new appeal before an entirely new panel. And that was done. And I wanted to make sure she did not go away from this case with the impression that she had gotten anything less than an absolutely fair hearing. And then, beyond that, I realized that the fact that this had slipped through in a pro se case pointed to a bigger problem, and that was the absence of clearance sheets. So, since that time, I have developed my own forms that I use in my own chambers. And, for pro se cases now, there's -- I have a red sheet of paper printed up, and it's red so nobody misses it. And when a pro se case comes in, it initially goes to my law clerks. And they prepare a clearance sheet for me in that case and then they do an initial check to see whether they spot any recusal problem. And if they don't, then there's a space at the bottom where they initial it. And then it comes to me, and there's a space at the bottom for me to initial to make sure that I focus on the recusal problem. And in very bold print at the bottom of the sheet, for my secretary, it says: No vote is to be sent in in this case unless this form is completely filled out.

ALITO: So there are a number of internal checks now in my own office to make sure that I follow my own policy of going beyond what the code requires.
posted by monju_bosatsu at 8:39 AM on January 11, 2006


Hmm, that makes sense.
posted by delmoi at 8:45 AM on January 11, 2006


How long is Alito's recusals list, by the way?
posted by delmoi at 8:45 AM on January 11, 2006


He fails to mention his letter protesting recusal. He seems to give a slightly different answer each time this comes up. He looks like he is spinning, just trying to give the answer that will most easily be accepted, not being forthright. If he were running for Congress this would be less concerning. However, he is seeking to become a Supreme Court Justice, someone who should avoid even the appearance of impropriety. This stuff does not make him look good.
posted by caddis at 8:47 AM on January 11, 2006


And they give us a recommended disposition and a draft opinion. And when this came to me, I just didn't focus on the issue of recusal.

monju_bosatsu: can you comment on this? My understanding and experience is that this phrase translates roughly to: "my staff attorney recognized this is a bullshit case barred because of collateral estoppel and gave me a draft order that I signed without spending any time looking at the case."
posted by dios at 8:48 AM on January 11, 2006


However, he is seeking to become a Supreme Court Justice, someone who should avoid even the appearance of impropriety.

He goes beyond the ethical requirements!

He violated NO rule of ethics by hearing the case.

When you go beyond the base requirements for ethics, that seems to suggest that it is someone who is trying to "avoid even the appearance of impropriety."

Why did he write the letter saying it wasn't unethical? Because it wasn't. He wrote the letter showing why it was unethical. The Administrative Judge didn't force the rehearing because no rule of ethics had been violated. The Administrative Judge ordered the rehearing at the request of Alito when Alito recused himself.
posted by dios at 8:51 AM on January 11, 2006


He wrote the letter showing why it was unethical.

That was supposed to contain the word "not" before unethical.
posted by dios at 8:52 AM on January 11, 2006


Does anyone have the text of the complaint letter, so that we might read it for ourselves?
posted by delmoi at 8:58 AM on January 11, 2006


Hatch is not helping Alito right now--at all.

My understanding and experience is that this phrase translates roughly to: "my staff attorney recognized this is a bullshit case barred because of collateral estoppel and gave me a draft order that I signed without spending any time looking at the case."
Quite high praise for someone who wants to be Supreme Court Justice for life.
posted by amberglow at 9:08 AM on January 11, 2006


From Westlaw (Note: this is just ONE of TWENTY-TWO cases filed by this pro se litigant collaterally to the main lawsuit).

95 Fed.Appx. 463 (Table)

Briefs and Other Related Documents

(The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Third Circuit provides by rule for the reporting of opinions having “precedential or institutional value. An opinion which appears to have value only to the trial court or the parties is ordinarily not published.” The Federal Reporter tables are prepared from lists of cases terminated by judgment orders, unpublished per curiam opinions and unpublished signed opinions, indicating the disposition of each case, transmitted by the Court. Third Circuit Rules, App. 1, Internal Operating Procedures, Ch. 5, sec. 5.1, 28 U.S.C.A.)

United States Court of Appeals,
Third Circuit.
D. Dev Monga
v.
John C. Ottenberg, Berry, Ottenberg & Dunkless, Vanguard Group, Inc., Vanguard Fiduciary Trust Company, Vanguard/Morgan Growth Fund, Inc., Paul F. Sommer, Peter S. Brooks, Brooks & Lupan, Founders Funds, Inc., Investors Fiduciary Trust Company, Estate of D. Dev Monga, By its Executrix, Shantee Maharaj

NO. 01-1827

April 07, 2004

Appeal From: E.D.Pa., No. 95-cv-5235,
Hutton, J.; Superseding 43 Fed.Appx. 523
Affirmed.
C.A.3 2004.
Monga v. Ottenberg
95 Fed.Appx. 463 (Table)

Briefs and Other Related Documents (Back to top)

• 01-1827 (Docket) (Apr. 05, 2001)
END OF DOCUMENT
posted by dios at 9:12 AM on January 11, 2006


amberglow: do you have any idea the number of cases a judge hears or the typical process of reviewing appellate cases? Don't you think you should know that before you snark about it?
posted by dios at 9:13 AM on January 11, 2006


Hatch spending his whole allotted time trying to defend Alito proves that he's in trouble. This is hysterical--there would be no need for Hatch to do this in such length unless they were scared.
posted by amberglow at 9:15 AM on January 11, 2006


I don't know if this is the exact one that Alito heard (against, there are 22 cases in this incident) but it looks like this is the one that was appealed:
_______________

United States District Court, E.D. Pennsylvania.
D. Dev MONGA
v.
John C. OTTENBERG, et al.
No. CIV. A. 95-5235.
March 1, 2001.

MEMORANDUM and ORDER

HUTTON.
*1 Presently before this Court are Motion of Vanguard and IFTC to Dismiss This Action with Prejudice (Docket No. 70), Motion of Founders Funds to Dismiss with Prejudice (Docket No. 72), Plaintiff's Corrected Memorandum in Opposition to Vanguard's, IFTC's and Founders Motions to Dismiss (Docket No. 87), Reply Brief of Vanguard and IFTC in Support of Their Motion to Dismiss this Action with Prejudice (Docket No. 88), Reply of Founders Funds, Inc. in Support of its Motion to Dismiss this Action with Prejudice (Docket No. 89) and Plaintiff's Opposition to New Material Inappropriately Submitted by Vanguard and IFTC in their Reply Brief, and Plaintiff's Response to Misstatements of Fact and Law (Docket No. 90). For the following reasons, Defendants' Motions are GRANTED and this action is dismissed with prejudice.

STANDARD OF REVIEW

When considering a motion to dismiss a complaint for failure to state a claim under Rule 12(b)(6) FN1, this Court must “accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) ··· is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved.” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990) (citing Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988)); see also H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). A court will only dismiss a complaint if “ ‘it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” H.J. Inc., 492 U.S. at 249-50. Nevertheless, a court need not credit a plaintiff's “bald assertions” or “legal conclusions” when deciding a motion to dismiss. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). The Federal Rules of Civil Procedure do not, however, require detailed pleading of the facts on which a claim is based. Instead, all that is required is “a short and plain statement of the claim showing that the pleader is entitled to relief,” enough to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2) (West 2000).

FN1. Rule 12(b)(6) provides that “[e]very defense, in law or fact, to a claim for relief in any pleading ··· shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ··· (6) failure to state a claim upon which relief can be granted····”Fed.R.Civ.P. 12(b)(6).

DISCUSSION

This action was commenced by D. Dev Monga (“Monga”) on November 25, 1995. It is the third action filed arising from the same dispute between Monga and a receiver appointed by the Massachusetts Superior Court, John C. Ottenberg (“Ottenberg”), concerning the collection by Ottenberg of Monga's assets for distribution to judgment creditors and his now defunct corporation. See Massachusetts Superior Court Civil Action No. 89-2951. Among the assets in dispute are certain roll over Individual Retirement Accounts with Founders Funds, Inc., of which Vanguard and IFTC are the respective custodians. The action in the above captioned case, a second action also filed in the Eastern District of Pennsylvania (Civil Action No. 95-6637) and the Massachusetts Superior Court action all arose from the same factual background and raised essentially the same issues.
The Eastern District of Pennsylvania Action No. 95-6637 was dismissed on April 18, 1996 by the Honorable James T. Giles. In March of 1996, Monga was diagnosed with cancer. As a result of Monga's illness, all proceedings in the instant action were stayed and this case was placed in the Suspense Docket on June 13, 1996. See Order entered June 13, 1996. Monga died on August 23, 1996. Since then, his widow and the executrix of his estate, Shantee Maharaj (“Maharaj”), has pursued the Massachusetts litigation.
*2 On August 1, 2000 the Massachusetts Superior Court entered its Judgment on the Receivership, distributing the receivership estate among Monga's creditors and discharging Ottenberg as Receiver. See Judgment on Receivership, entered August 1, 2000.
During a recent hearing before the Massachusetts Superior Court, Ms. Maharaj stated her understanding that the “complaint [in the Pennsylvania action] was ··· voluntarily dismissed in 1998 ···” and that “litigation in other jurisdictions [had been] barred [by the Massachusetts Superior Court]····” See Transcript of excerpt from hearing held on June 22, 2000, at pp. 1-19, 1-21.
In addition, Ms. Maharaj has been “permanently enjoined” by the Massachusetts Superior Court “from instituting or prosecuting against Vanguard, IFTC, or any of them, any proceeding in any state or United States court or administrative tribunal regarding the Monga IRA Accounts.” See Memorandum of Decision and Orders on Pending Motions, October 8, 1998, at 19. Also, in that same Order of the Massachusetts Superior Court, Ms. Maharaj was “permanently enjoined from instituting or prosecuting against Founders Funds, Inc., any proceeding in any state or United States court or administrative tribunal regarding the Monga IRA Accounts.” See id, at 20.
Accepting all facts and all reasonable inferences in Plaintiff's Complaint as true, the Court holds that Plaintiff is not entitled to relief.
An appropriate Order follows.

ORDER

AND NOW, this day of February, 2001, upon consideration of Motion of Vanguard and IFTC to Dismiss This Action with Prejudice (Docket No. 70), Motion of Founders Funds to Dismiss with Prejudice (Docket No. 72), Plaintiff's Corrected Memorandum in Opposition to Vanguard's, IFTC's and Founders Motions to Dismiss (Docket No. 87), Reply Brief of Vanguard and IFTC in Support of Their Motion to Dismiss this Action with Prejudice (Docket No. 88), Reply of Founders Funds, Inc. in Support of its Motion to Dismiss this Action with Prejudice (Docket No. 89) and Plaintiff's Opposition to New Material Inappropriately Submitted by Vanguard and IFTC in their Reply Brief, and Plaintiff's Response to Misstatements of Fact and Law (Docket No. 90) IT IS HEREBY ORDERED that said Motions are GRANTED and this action is dismissed with prejudice.
E.D.Pa.,2001.
Monga v. Ottenberg
Not Reported in F.Supp.2d, 2001 WL 253648 (E.D.Pa.)
posted by dios at 9:15 AM on January 11, 2006


My understanding and experience is that this phrase translates roughly to: "my staff attorney recognized this is a bullshit case barred because of collateral estoppel and gave me a draft order that I signed without spending any time looking at the case."

I don't know any of the details of the case, but your characterization is consistent with the resolution the case. In 2002, Alito was on the panel that decided the case, Monga v. Ottenberg, 43 Fed. Appx. 523 (3d Cir. July 20, 2002) (unpublished). The order states, in it's entirety:
Affirmed.
After the order was vacated and reconsidered by a new panel, that panel issues a new order, Monga v. Ottenberg, 95 Fed. Appx. 463 (3d Cir. April 7, 2004) (unpublished). The new order states, in its entirety:
Affirmed.
Although I don't know the details of how this case, or any other case in the Third Circuit, was handled, this is entirely consistent with the approach to summary cases with which I'm familiar. An appeals court has basically two calendars: an oral argument calendar, and a summary calendar. Cases which are more complex or which might benefit from oral argument are placed on the oral argument calendar, while cases which are straightforward and appear to be easily resolved under existing law are placed on the summary calendar. There is no oral argument for cases on the summary calendar. Often the staff attorneys office will write a short memo and recommendation on the case, and then pass the case on to the panel for review. These cases are then typically divided among a panel of three judges. Sometimes the summary cases go straight to the judge, but often the cases are reviewed by the judge's law clerks. The clerks examine the case and either draft a short opinion for the judge's review, or recommend that it be moved to the oral argument calendar.

Again, I have no information on how this particular case was handled, but it's consistent with the practice described above. A staff attorney or clerk probably reviewed the appeal and did the relevant legal research, concluded that it was entirely without merit, and drafted the summary affirmance. The judge, I suspect, didn't spend a lot of time on the case.

amberglow wrote, "Quite high praise for someone who wants to be Supreme Court Justice for life."

That's how the system works, amberglow. Cases that are obviously without merit don't get much consideration, in favor of the cases which involve hard decisions. Given the two one-word orders issued in the Monga case, I suspect it wasn't a particularly tough decision.
posted by monju_bosatsu at 9:17 AM on January 11, 2006


Bush: He's got the----intellect---ahh-to bring--a lot-a lot of class to that court.

With such a stirring endorsement, there is no need to have the hearings....Class to the Court - what MORE could matter?
posted by rough ashlar at 9:17 AM on January 11, 2006


amberglow: do you have any idea the number of cases a judge hears or the typical process of reviewing appellate cases? Don't you think you should know that before you snark about it?

I don't have to have any idea--and that's no excuse. If you swear to do something, you should do it. It's simple and clear. We the people know lies and spin and excuses when we see it--the GOP has taught us well.
posted by amberglow at 9:17 AM on January 11, 2006


monju, you made a stirring case for rule of law and written word up above (and bitchily accused someone of not being a lawyer). Now you're bringing up all the messy practicalities of the law--which is it? What should we laypersons expect form our judges? Inquiring minds want to know.
posted by bardic at 9:20 AM on January 11, 2006


Alito's spinning it again, right now.
posted by amberglow at 9:21 AM on January 11, 2006


Kennedy: "when did you think it stopped?" (the "initial period of service" spin Alito's trying to pull now)
posted by amberglow at 9:22 AM on January 11, 2006


ahem *from*

Yeah, Alito is defining what "oath" means right now. Not pretty.
posted by bardic at 9:23 AM on January 11, 2006


monju, you made a stirring case for rule of law and written word up above (and bitchily accused someone of not being a lawyer). Now you're bringing up all the messy practicalities of the law--which is it? What should we laypersons expect form our judges? Inquiring minds want to know.

Well, to be fair, I did apologize for my snark. I don't consider the process of review a "messy practicality." Some cases are simply without merit, and someone with experience in that area of the law can often spot that in five minutes. The fact that some cases are easy to decide and don't take much time or effort from the judge is not inconsistent with the rule of law.
posted by monju_bosatsu at 9:23 AM on January 11, 2006


As an aside, the Vanguard is a loser for the Democrats. If they really wanted to attack Alito, they would attack his pattern of deference to the Executive, and stick to it.
posted by monju_bosatsu at 9:25 AM on January 11, 2006


If you're going to spin, you have to have your entire story ready. He has to be able to answer when his "initial period of service" ended if he expects anyone at all to believe that his current excuse is at all viable.

Now, on to CAP, and ROTC--and he's trying to spin that one too and backpedal away from just ROTC. "You have no memory of being a member...you called CAP a Conservative Alumni Group. ... "I don't recall seeing the magazine" (which is not true bec it would have been sent to him regularly, as a member)

ooo--that really offensive quote now about blacks not knowing their place and homosexuals--"People nowadays just don't seem to know their place," fretted a 1983 Prospect essay titled "In Defense of Elitism."
"Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."
(Dinesh D'Souza)

And Bradley resigned publicly because of all this stuff.
posted by amberglow at 9:29 AM on January 11, 2006


monju, even if a case is without merit, his sworn statement about recusal should have still operated. It doesn't matter that the case was stupid.
posted by amberglow at 9:31 AM on January 11, 2006


So we agree that the personal values of a judge, not just her take on the law, are extremely important in making this sort of appointment.
posted by bardic at 9:31 AM on January 11, 2006


This is pathetic.

We have an eminently qualified judge. The ABA, a liberal group, agrees. We have a judge who has served as a respected appellate judge for over a decade, and who is called a superior intellect by the people questioning him.

And what does the opposition have to try to disqualify him?

1. An ethically valid hearing of a nonsense case which he recused himself from in an abundance of caution.

2. Mere membership over two decades ago in a group which may have made controversial comments over the years.

3. An ends view of one particular case to try to characterize it as endorsement of child strip searches.

That is all there is. This is just disgusting. The man is widely applauded as being a good man, an ethical man, and a great judge.

But partisan hacks are trying to destroy him with that weak nonsense. And that is all this is. This is clearly, and unequivocally a hack job. They should be ashamed of themselves and they are furthering the politicization and effective destruction of credibility of the Court.
posted by dios at 9:32 AM on January 11, 2006


It's astonishing to me that the Senators are so profoundly bad at examining Alito. While I'm skeptical about some of the claims against him, I think the Democrats have more than enough ammo to attack him, but their just wasting time bloviating. Yesterday, for example, Biden managed to ask only five questions in thirty minutes. That's just ridiculous. Alito is not as smooth a speaker as Roberts, and the Democrats should give him enough rope to hang himself.
posted by monju_bosatsu at 9:34 AM on January 11, 2006


Kennedy just looks like a hectoring prick. Alito has said he doesn't agree with any of the racist comments which may have come from members of the group. But Kennedy is trying to attribute those beliefs to him. What a hack Kennedy is.
posted by dios at 9:35 AM on January 11, 2006


"To try to turn that into a strike against him is the most vile and pathetic of partisan hackery."

Dios, actually, it's not that vile; just pathetic.

The man will be easily confirmed. Let the MefiMob vent. It will tire them out, and perhaps they'll have less energy to try and derail our efforts to fight terrorism.
posted by ParisParamus at 9:36 AM on January 11, 2006


monju_bosatsu: As an aside, the Vanguard is a loser for the Democrats. If they really wanted to attack Alito, they would attack his pattern of deference to the Executive, and stick to it.
You're probably right, but it's actually the Vanguard thing that bothers me more about him. Alito is an ethical cypher -- he seems to have a convenient memory w.r.t. these things. Put that together with his pattern of deference to power (in general, not specifically to the Executive), and the guy worries the hell out of me.

Put another way: He's a follower, not a leader. At least with Nino Scalia, you know what he thinks; even Clarence Thomas occasionally has his own ideas; I wonder if Alito really thinks anything at all.

None of that is sufficient grounds to deny him a position on the court, of course. We're stuck with the guy.
posted by lodurr at 9:37 AM on January 11, 2006


monju, even if a case is without merit, his sworn statement about recusal should have still operated. It doesn't matter that the case was stupid.

It did operate, just not until after the fact. I accept Alito's explanation that there was a mistake because of the process of screening pro se cases. When the issue was brought to his attention, Alito did recuse himself, despite not being required to under the ethical rules. Amber, you should listen to the same advice I had for the Senators. Drop the Vanguard and CAP issues, and focus on Alito's deference to the Executive. That's the issue that should raise real concern for Democrats and libertarian Republicans alike. Prof. Turley, for example, has written a number of editorials on this point.
posted by monju_bosatsu at 9:38 AM on January 11, 2006


...In his mid-30's, a seasoned Samuel Alito, already having served in a position of great responsibility for the U.S. government for several years, chose to affirmatively brag about -- rather than to apologize for -- his membership in CAP, and about his enthusiastic embrace of the early 1960's National Review, because he thought that, of all his many attributes and accomplishments, those things would serve to demonstrate his credentials for a high OLC post.
Second, and more surprising still, in the completed questionnaire that Judge Alito submitted to the Senate Judiciary Committee this week, he writes this about CAP (at page 7):
Concerned Alumni of Princeton . . . was a group of Princeton alumni. A document I recently reviewed [presumably his OLC application?] reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group. The group has no current officers from whom more information may be obtained.
... in 1985 he determined that this membership was one of the small handful of facts that most qualified him for one government post in which his job would be to impartially interpret the law; and 20 years later, when applying for a similar, if more important, legal post, he has no recollection of that membership other than from the 1985 application itself?
This seems very hard to believe. ...

posted by amberglow at 9:39 AM on January 11, 2006


now Hatch is just trying to shut Kennedy up.
posted by amberglow at 9:40 AM on January 11, 2006


Paris: you don't understand where I am coming from. I am not part of your war against Liberals. My complaint with this nonsense hackery is that it politicizes and ruins the credibility of the Court. They are trying to disparage this man who will be confirmed. So a year from now, we will have a qualified judge on the Court, but this bullshit posturing by assholes like Kennedy will cast a negative shadow upon a qualified and respected individual like Alito.
posted by dios at 9:40 AM on January 11, 2006


mmm, capilicious.
posted by delmoi at 9:46 AM on January 11, 2006


It's clear that Alito is hardly the sharpest knife in the drawer. At the level of the SCOTUS, being a law-tron 5000 is necessary, but not the only qualification. Alito demonstates a Miers-esque pattern of being a simple dullard with a hard-on for executive power. If you join a bigotted organization like CAP, just renounce it--admit your mistake, call it a youthful indiscretion, and move on. The Vanguard thing is wierd as well--I know Alito complained yesterday about his salary as a Federal judge, but just get a PR consultant on the phone for a few hours. These are not major issues in and of themselves, but his inability to deal with them knowing he'll be on national television is a sign of a glaring weakness.

He's a mediocre choice, that's all. As I mentionied up-thread, I am officially no longer afraid of the so called "decades of grooming" performed to inculcate conservative judges. Alito is bottom-of-the-barrel, and lacks the type of strong personality it would take to effectively mount activist attacks desired by the hard and center right. (Maybe Roberts got in line twice for anti-Warren court Mojo and left none for his lesser brethren).
posted by bardic at 9:50 AM on January 11, 2006


amberglow: .... (Dinesh D'Souza) ....
... fortunately for Dinesh, CAP had failed in its bid to cap [sic] minority admissions. Otherwise the editor of the Daily Princetonian in 1985 would have been Watson Hungerford III, a member of that "relatively homogenous group" of men that made up D'Souza's lauded "elite."
posted by lodurr at 9:52 AM on January 11, 2006


It's astonishing to me that the Senators are so profoundly bad at examining Alito. While I'm skeptical about some of the claims against him, I think the Democrats have more than enough ammo to attack him, but their just wasting time bloviating. Yesterday, for example, Biden managed to ask only five questions in thirty minutes. That's just ridiculous. Alito is not as smooth a speaker as Roberts, and the Democrats should give him enough rope to hang himself.

Bleh, Biden is a tool.

That said, you overestimate the American public. Not to mention the fact that they simply don't have time to delve deeply into his judicial philosophy in a few days. What they need is to give themselves an excuse with the public to filibuster.
posted by delmoi at 9:55 AM on January 11, 2006


monju, deference to the executive doesn't get people's attention like this other stuff, and deference to the executive doesn't tell us about him as a person and how he'll rule in cases regarding conflicts of interest (see Scalia and Cheney), and about affirmative action, minorities, women, and gay rights. There are going to be cases about all of these things in the coming years. There are also other issues of course--but his poor performance expressing and running away his views and actions regarding CAP and Vanguard are telling to all of us, and very important to those millions of us who are gay, or women, or minorities, or some or all of the above.

Alito is casting a negative shadow on himself, by his spinning and running away from past positions. He has no balls, and is saying whatever will get him confirmed--he's been coached well, but you can't make someone appear to be something he's not. I'll remind everyone of Thomas' statements on Roe v. Wade (he used the phrase "open mind" too) during his process, and his subsequent opposing statements once on the court.
posted by amberglow at 9:58 AM on January 11, 2006


Got to love a discussion of qui tam.
posted by dios at 10:01 AM on January 11, 2006


bardic, what's wrong with any of the genuinely conservative circuit court judges out there who write sound decisions but don't have that history of "networking" (read: ass-kissing) with the Republican power-structures? I hear about them all the time -- but it's usually in the context of a "conservative" judge making a "surprising" ruling (e.g., finding that "under god" isn't acceptable in the Pledge).

That snark aside, it seems to me that they shoudl be able to find plenty of sound Federal judges who are conservatives. But what they really want is the particular flavor of "conservatism" that they're lookng for, which (apparently) includes strong deference to the Executive and a love of power. They're looking for someone who's a member of their club.

The ideas and beliefs don't really matter to them. The ideas and beliefs are really just the clothing they dress in so they'll recognize one another more easily. What matters to them is the power.
posted by lodurr at 10:02 AM on January 11, 2006


What was Kennedy going on about sessions and appeals and what not? my NPR feed is spotty at best.

And what is going on now...they just don't want to go to lunch till everyone vents their spleen.
posted by stilgar at 10:03 AM on January 11, 2006


stilgar: there is just some nonsense posturing by Senators. Nothing of any importance is going on. If anything, it looks like the Democrats are trying to set up some challenge that the hearings weren't fair because Specter wasn't letting them bloviate as much as they want.
posted by dios at 10:05 AM on January 11, 2006


monju, deference to the executive doesn't get people's attention like this other stuff...

Well, it gets my attention, and given the recent revelations about the NSA and the President's signing statement on the torture bill, I think a lot of people are looking at that issue in a new light.

and deference to the executive doesn't tell us about him as a person and how he'll rule in cases regarding conflicts of interest (see Scalia and Cheney), and about affirmative action, minorities, women, and gay rights.


I don't think that's entirely true. First, I'm not sure if I care that much about him as a person, except to the extent it affects the outcome in cases. I'm not convinced that CAP and Vanguard tell us anything about how he'll vote in any kind of case. As for affirmative action, minorities, women, and gay rights, you'd be suprised by how many federal cases on these issues arise from agency action or involve interpretation of an agency regulation. Deference to the Executive is a theme that runs throughout the law, not just in the national security context.
posted by monju_bosatsu at 10:13 AM on January 11, 2006


Alito's America
posted by amberglow at 10:16 AM on January 11, 2006


We already know that Bush wouldn't have nominated him unless he thought Alito would be a rubberstamp, so that's already established, i think.
posted by amberglow at 10:21 AM on January 11, 2006


That is all there is. This is just disgusting.

Yea, Esp. when the man will bring all that Class to the Court.
posted by rough ashlar at 10:33 AM on January 11, 2006


I disagree, amber. Roberts, for example, is no rubberstamp. Roberts, like Rehnquist, is a defender of the independance of the judiciary, and will work hard, I think, both as a Justice deciding cases, and as the Chief Justice and administrative head of the United States courts to ensure that the courts retain their proper status as a co-equal branch. Alito, on the other hand, has shown much more deference to the Executive.
posted by monju_bosatsu at 10:34 AM on January 11, 2006


Great, Biden's up after lunch. Time for a nap.
posted by monju_bosatsu at 10:36 AM on January 11, 2006


i love how Alito can remember all these cases in fine detail including his dissents and how each case played out...but he cant remember anything about CAP? I smell a rat. Or at least a person who is being coy with the truth by "forgetting" when it is convenient.
posted by stilgar at 10:38 AM on January 11, 2006


Or maybe he just remembers important things and things which are a big part of his life, and he doesn't remember inconsequential things from his past.

That is a reasonable explanation. Of course it doesn't have the virtue of being an explanation to confirm prejudices against him from people desperate to find anything wrong with this man.
posted by dios at 10:47 AM on January 11, 2006


I don't know why you think that about Roberts--Bush would not have put anyone there who was going to give him any trouble.
posted by amberglow at 10:51 AM on January 11, 2006


So here is an article from the New York Times where author David Kirkpatrick reviewed the papers in the Library of Congress regarding CAPS that Kennedy is grandstanding about, and in that article, Kirkpatrick found no evidence in there that had anything at all to do with Alito.
posted by dios at 10:53 AM on January 11, 2006


I don't know why you think that about Roberts--Bush would not have put anyone there who was going to give him any trouble.

Like Bush I and Souter? Sometimes decisions have unintended consequences. Casting ever Bush nominee with Bush's philosophy would be a mistake.
posted by monju_bosatsu at 10:56 AM on January 11, 2006


Here is another copy of the article.
posted by dios at 10:58 AM on January 11, 2006


I don't know why you think that about Roberts--Bush would not have put anyone there who was going to give him any trouble.

Well, who knows about Roberts? He came across as a bit of a cipher, but all that the democrats could say about him was that he was relatively inexperienced (had only been a circuit court judge for five years) and that his wife was pro-life (but also a feminist, as she was a part of the group 'feminists for life').

For the record, I support the rule of law, of course, but I don't think you can say so simply that the law is fixed and perfect, and that any deviation is a failing of the judge in question. "reasonable people disagree" and how they disagree is important. The question is how will a scouts judge wiggle in that wiggle room, and I think Alito will wiggle the wrong way. My main worry is deference to authority, as with Monju, but I would hate to see Roe overturned as well, mostly to spite conservatives.
posted by delmoi at 11:12 AM on January 11, 2006


Biden gets perplexed way to easily.
posted by delmoi at 11:13 AM on January 11, 2006


god, this is the same schlock that we went through with roberts...we know why he cant say how he will rule... but why cant we hear his opinion. its not like he isn't going to use his opinion when deciding cases.
posted by stilgar at 11:30 AM on January 11, 2006


Kohl is good.
posted by amberglow at 11:43 AM on January 11, 2006


The answer that Alito is giving right now is exceptional (even though he is wrong about one person, one vote).
posted by dios at 11:49 AM on January 11, 2006


in 3 out of 4 cases, he ruled against individuals.
posted by amberglow at 11:53 AM on January 11, 2006


dios I am listening to this guy, he has an almost encyclopedic knowledge of all these law cases, he is often saying the case names before the senators that have it written down. don't try to tell me he cant remember something he thought was important enough to put on his job app. it just doesn't hold up to the smell test.
posted by stilgar at 11:54 AM on January 11, 2006


Spector messed up, totally.
posted by amberglow at 11:59 AM on January 11, 2006


in 3 out of 4 cases, he ruled against individuals.

So what? The cases that get appealed and are reviewed by the court are those that were dismissed already by the district court. Unless you're willing to say that the district courts are wrong 50% of the time or more, it's expected that most of those decisions would get affirmed.
posted by monju_bosatsu at 12:00 PM on January 11, 2006


amberglow, how do you utilize that information even though you admit you don't understand anything about the judicial process?

The vast majority of individual claims that go to trial are bad cases for the plaintiff. The reason? Because cases that have any merit at all get settled; the corporations pay if there is any legitimiate exposure. Everyweek I get the trial reports, and 90% of cases are Defense verdicts for this very reason.

So, fact #1: Most cases which go to trial are likely to be losers for the Plaintiff.

Fact #2: Most cases aren't appealed.

Of the cases that are appealed, you have to understand what the concept of standard of review is. You have to understand the difference between de novo review and abuse of discretion review. Of abuse of discretion review, very, very few cases are overturned on appeal. D

Fact #3: Most cases aren't overturned on appeal.

So, we know that the average appellate case is one where a Plaintiff lost at the trial level in a case it didn't really have merit in anyhow, and the review requires judges to only overturn in limited grounds.

Now, what on earth would be suprising to find out that any judge would rule against Plaintiff's 1 out of 4 times?
posted by dios at 12:09 PM on January 11, 2006


(Or what monju said)
posted by dios at 12:09 PM on January 11, 2006


stilgar, he did say he remembered that he was concerned about ROTC. He said he didn't recall be involved in the group. The only reason that it smells funny to you is if you assume that you think Alito joined it and was active in it. Do you think that? If you don't, then there isn't anything fishy about him not remembering specifics about the group.

The problem here is this: Alito is being asked to prove whether a conscious member of a racist group. If he doesn't know it was racist, and he wasn't anything other than a basic member, then how does he prove that to you in any way that passes your "fishy" test?

I'm confused what you think: do you think he was really a founding member and is lying about it? Do you think he is really a racist and is trying to hide that fact? What exactly are you expecting of him that can't be explained by his explanation?
posted by dios at 12:13 PM on January 11, 2006


Spector messed up, totally.
posted by amberglow at 1:59 PM CST on January 11


How? Why?
posted by dios at 12:20 PM on January 11, 2006


Alito is like a walking and breathing con law/civics lesson. Americans should be required to listen to him explaining these things (it would certainly do good for many Metafilterians).
posted by dios at 12:23 PM on January 11, 2006


[Appologies -- work intruded on my blogging duties. I think Alito was just explaining whether or not he would overrule Roe v. Wade and how he would rule on the President's authority to engage in warrantless electronic surveilance. But I may be mistaken... back to live coverage]
Oh, that's helpful. Thanks.
posted by delmoi at 12:25 PM on January 11, 2006


dios, you are easily impressed.
posted by bardic at 12:27 PM on January 11, 2006


Alito is squirming--he refuses to even say he agrees with Roberts that Roe is "well-settled"

He is not trustworthy at all. Feingold is hitting him rightly--he gave his view on "one man, one vote" and there are 4 live cases right now on that.
posted by amberglow at 12:33 PM on January 11, 2006


amberglow: can I get an answer please? I am curious.
posted by dios at 12:35 PM on January 11, 2006




"Kennedy explained he hasn't been to the gym since before Christmas."

Christmas, 1965?
posted by caddis at 12:47 PM on January 11, 2006


Ok. I am aware of this since I am watching.

I am asking you to explain how you think "he messed up, totally."

(In all respect, could you limit your dialogue with me to your own words? I don't give a damn what people at thinkprogres or kos or any other website says about things. I want to know what you think; I want you to explain your own statements in your own words.
posted by dios at 12:47 PM on January 11, 2006




What does this matter amberglow?

Explain why you think this matters one iota?
posted by dios at 12:54 PM on January 11, 2006


Spector messed up totally, on purpose, because he did not want to reveal that Alito's current spinning on CAP is a crock of shit. He denied Kennedy's request for supoenas, and today denied ever having received the letter asking for them. He lied about it on live tv and insulted Kennedy as well. He is supposed to be presiding over these hearings, but obviously is trying to help hide things about Alito. Read the letter that Kennedy sent, as part of official judiciary committee business.
posted by amberglow at 12:55 PM on January 11, 2006


This makes the CAP stuff a much bigger deal. You don't deny requests like that--it just makes it more of an issue. Spector messed up that way too.
posted by amberglow at 12:56 PM on January 11, 2006


amberglow, do you understand that there is nothing in these records? The NYT has already poured over them and there is nothing in there.

Kennedy is playing a game, and (not suprisingly) you seem to have bought it wholesale.
posted by dios at 12:56 PM on January 11, 2006


I don't limit my statements here, when there are facts and evidence readily available on the web--it's called proof. That link includes video as well. This is the internet--all facts and evidence are available to back up statements--try it sometime.
posted by amberglow at 12:58 PM on January 11, 2006


Do you or do you not believe the NYT story that there is nothing in the records?
posted by dios at 12:59 PM on January 11, 2006


If there is nothing in those records, then there's no earthly reason Spector denied Kennedy's official request, is there?
posted by amberglow at 12:59 PM on January 11, 2006


Well, there is. It's called "RELEVANCE."

If there is nothing in there, and if the issue is completely irrelevant to the issue of whether he is qualified as a judge, then there is a perfectly good reason not to subpoena the documents.

So, in other words, are you going to be accusing the NYT write Fitzpatrick of lying too? (The fifth person you have accused of doing so in this thread).
posted by dios at 1:02 PM on January 11, 2006


if i am going to put something on my resume, its because i think it will help me get the job, Alito is not stupid enough to not realize that the CAP group would help to impress the conservative people he was trying to get a job with. If he couldn't remember "anything" about the actions of the group and only had vague memories of ROTC he wouldn't have put it on his resume. don't be daft dios you know this as much as the rest of us. it doesn't prove he is a racist, it proves he will forget when it will work out for him and remember when it will get him a job.
posted by stilgar at 1:03 PM on January 11, 2006


dios, get your story straight. Yesterday you castigated people for not citing enough legal examples. Now you want first-person singular.
posted by bardic at 1:03 PM on January 11, 2006


But all that shows is that it was a conservative group. He put it on there because he was proud of being part of a conservative group that tried to fight various liberal projects, such as expelling ROTC from campus.

But what does that prove? He doesn't deny being in the group. He denies being actively involved in the running of the group.

What does this get you? He didn't make any racist statements. He explicitly disavowed the ones made by other CAP members.

So what in the heck are you looking for?
posted by dios at 1:05 PM on January 11, 2006


So what in the heck are you looking for?

Evidence of lack of character, which the CAP facts, as summarized by stilgar, amply demonstrate.
posted by ereshkigal45 at 1:13 PM on January 11, 2006


So he has no character if he was in CAP?
posted by dios at 1:16 PM on January 11, 2006


and the ROTC was already back on campus by the time he joined CAP. I linked to it above.
posted by amberglow at 1:16 PM on January 11, 2006


A "conservative group" would have tea parties and discuss the latest William F. Buckley novel, not spout hate and try to prevent women, ethnic minorities, and gays from attending Princeton. Jesus, I'm pretty far left, and even I don't equate conservative philosophy with bigotry. CAP is as fringe as it gets.

This all proves he's a fairly bright lawyer with a fairly weak moral character, willing to say things to get hired but not stand by them as principles (unlike Ginsburg, who wasn't ashamed of the liberal organizations she worked for and represented. Like Roberts before him, Alito doesn't have the guts to take pride in his own damn record).

I'll say it again--I hope he gets confirmed because he's the type of judge who will always follow the pack leader and never show the initiative to do the bidding of his far-right masters. I'm not super happy over his appointment, but it's clear that Bush doesn't know how to play this game very well. (Nor did his father re: Souter).

I hope you'll apply the same "objective" standard to Lani Guinier when she's up for Chief Justice.
posted by bardic at 1:24 PM on January 11, 2006


So he has no character if he was in CAP?

Oh, now you're just being disingenuously argumentative.

He has no character if he made a point of playing up his CAP connection to get a job earlier in his career, but now tries to disavow the CAP connection to get the ultimate job.
posted by ereshkigal45 at 1:31 PM on January 11, 2006


He has no character if he made a point of playing up his CAP connection to get a job earlier in his career, but now tries to disavow the CAP connection to get the ultimate job.
posted by ereshkigal45 at 3:31 PM CST on January 11


That is nonsense. There is nothing unethical about him saying he was a member of a conservative group when applying for a job in a conservative administration. It's called effectively marketing one's self.

He has admitted to being in the group. He hasn't denied it. He has said that he doesn't remember everything about the group, and he has disavowed any of the racist comments. There is nothing to tie his membership in this group to any sort of negative thing or any principle other than he was a member of a conservative group.

But it is exquisite bullshit to say that it was an inherently racist organization and suggest that it is the equivalent of the KKK. Bill Bradley was in the group. Presumably, as a former Democratic presedential canddiate, we can presume that he isn't an overt racist and wouldn't have been a member of an overtly racist group.

This is my point: this is a big bag of nothing. This is purely a disgusting and revolting hatchet job. You got nothing on this guy. So you are taking some group that he was a member of and trying to smear as much as possible on the vague hope it rubs off on him. Of course, he wasn't an active member and there is no testimony that he was or adopted or exhibited the views people are trying to ascribe to it.

There is testimony that he hired women and minorities in the justice department in direct contrast to the bullshit hatchet job that he is a closet racist and sexist.

This is nothing. And to try to play it like it is something is pathetic. This the farthest of reaches and is a digusting attempt to smear someone who has dedicated his life to public service and is widely considered to be an impeccable person.
posted by dios at 1:38 PM on January 11, 2006


He refuses to recuse himself from future Vanguard cases.
posted by amberglow at 1:40 PM on January 11, 2006


And the laws of ethics says he doesn't need to. So what's your point, amberglow?
posted by dios at 1:40 PM on January 11, 2006


Widely considered to be an impeccable person by whom? Certainly not most women or minorities or liberals. Who does that leave us? oh, that's right--the same people who think that promises under oath to the Senate can be broken, that the president can spy without warrant on Americans, that people can be detained indefinitely without charge or trial...
posted by amberglow at 1:42 PM on January 11, 2006


Certainly not most women or minorities or liberals.

Do you have any evidence of this at all?

They just discussed the ABA's interview of 300 or so of his associaties (women, minorities, liberals, etc) and they all said he is eminently qualified.
posted by dios at 1:44 PM on January 11, 2006


My point is that he will have less ethical standards on the Supreme Court than the ones he couldn't even abide by recently. That's not a good thing. If he promised under oath to recuse himself on a lower court, he certainly should do the same on a higher court.
posted by amberglow at 1:44 PM on January 11, 2006


In fact, the standards for the Supreme Court should be higher than lower courts.
posted by amberglow at 1:45 PM on January 11, 2006


300 associates does not equal "widely". We are a nation of 300 million.
posted by amberglow at 1:45 PM on January 11, 2006


Widely considered to be an impeccable person by whom?

By the people who know him.
posted by monju_bosatsu at 1:46 PM on January 11, 2006


hysterical--the GOP has to talk about Alito being a bigot.
posted by amberglow at 1:47 PM on January 11, 2006


he promised under oath to recuse himself on a lower court, he certainly should do the same on a higher court.
posted by amberglow


I guess you completely didn't understand the explanation he just gave about the difference between recusing yourself when you are a member of a circuit court that can be replaced on panel's of three, and the situation on the Supreme Court where you have 9 and only 9 members.
posted by dios at 1:47 PM on January 11, 2006


There is nothing unethical about him saying he was a member of a conservative group when applying for a job in a conservative administration. It's called effectively marketing one's self.

We're not talking about ethics here. We're talking about character. It really doesn't matter what views the group espoused or whether Alito demonstrably adhered to those views. The point is that he'll say whatever it takes to get a job. Then, it was puffing up his conservative credentials by claiming active membership in CAP. Now it's downplaying his potential extremism by denying active membership.

I expect more from a Supreme Court justice than a mere climber.
posted by ereshkigal45 at 1:48 PM on January 11, 2006


They have to talk about he is not a bigot because of the disgusting hatchet job being done by the people you are applauding who are accusing him of that.
posted by dios at 1:48 PM on January 11, 2006


CAP was as bad as everyone says. I remember. If Alito was a member it is not a good sign of his character. Lets see the records. When did he join? Does that jive with the claim about ROTC? If he did join while ROTC was out did he stay after they returned? What is he afraid of? If he told the truth about this then there is nothing to worry about in reviewing the records. Nevertheless, this group was extreme, and considered a joke, by even conservative alumni. Lets see the records. I doubt there is anything there, but lets see.
posted by caddis at 1:50 PM on January 11, 2006


too hysterical--he's comparing Ginsburg's job at the ACLU to Alito's association with bigots!
posted by amberglow at 1:51 PM on January 11, 2006


It seems to me that any questions about his judicial abiliites or his reasoning or knowledge or temperment have been completely discarded. This is all about trying to smear the man now. Disgusting.
posted by dios at 1:52 PM on January 11, 2006


dios: No one called Alito a KKK member--the recent comments haven't even called him a racist. People are simply saying that he had an opportunity to renounce his membership in CAP, and he didn't. He and his handlers decided to play this game in which he conveniently forgets a major part of his first major job application (his "big break", so to speak). It doesn't mean he's a racist as much as it means he's tone deaf, and just a bit dense, not at all unlike yourself. No wonder you love this rather unremarkable guy.

If you'd read other people's comments in this very thread, you'd know that Bradley left CAP in 1973 when he realized it wasn't a "conservative" group, but a downright bigoted one. Alito claimed his membership as a badge of honor as late as 1985. You can, I hope, see the difference--but it wouldn't surprise me if you didn't.
posted by bardic at 1:53 PM on January 11, 2006


Ginsburg answered questions directly and Graham thinks that this is a good comparison???? unbelievable.
posted by amberglow at 1:54 PM on January 11, 2006


Ginsburg was proud of her record, while Roberts and Alito either aren't, or their handlers have told them not to be.
posted by bardic at 1:59 PM on January 11, 2006


Biden being Biden.
posted by monju_bosatsu at 2:00 PM on January 11, 2006


Biden is out of his gourd. The hat thing was just--lame is far too weak an adjective.
posted by bardic at 2:02 PM on January 11, 2006


Schumer rocks! Alito has been totally inconsistent and evasive this whole time.
posted by amberglow at 2:03 PM on January 11, 2006


This summary at SCOTUSblog is hilarious:
4:43 Sen. Graham moves on to his years at Princeton. "The more I learn about Princeton... it's an interesting place. What's an eating club?"

Alito explains to the rednecks in the audience what a Princeton dining club.
posted by monju_bosatsu at 2:06 PM on January 11, 2006


Alito really is not that bright.
posted by amberglow at 2:07 PM on January 11, 2006


too hysterical--he's comparing Ginsburg's job at the ACLU to Alito's association with bigots!
posted by amberglow at 4:51 PM EST on January 11 [!]


To some, protecting the bill of rights is even worse than being a bigot.
posted by caddis at 2:08 PM on January 11, 2006


alito is sucking it up hard right now....
posted by stilgar at 2:08 PM on January 11, 2006


he's even trying to run away from his past "personally proud" statements against abortion.
posted by amberglow at 2:11 PM on January 11, 2006


Obviously Schumer is reading impaired.

"The Constitution does not protect the right to abortion" does not mean that the "The Constitution says that abortion is illegal in all instances."

So he is a complete hack to argue that such a statement means that a girl raped by her father could never have an abortion.

It is just more of the same bullshit about how if Roe is overruled then all abortion would then be illegal.
posted by dios at 2:12 PM on January 11, 2006


Alito is making no sense at all--he has past written statements on the record as him being against abortion without exception, and only now will he not talk. It's beyond ridiculous.

If this is how he's going to act, he's sunk.
posted by amberglow at 2:14 PM on January 11, 2006


So, dios, why didn't your brilliant Alito mention any of that? Schumer's not the hack in that room.
posted by amberglow at 2:14 PM on January 11, 2006


amberglow, with all due respect, I'm not going to waste my time discussing this issue with you when you are such a shrill partisan that you can call this man "not very bright."

That is so patently wrong that it shows you are beyond reason on this topic.
posted by dios at 2:16 PM on January 11, 2006


ah!!!! he's killing himself--he's saying that listing a racist organization was going to help him get a job in Reagan's administration!!!! hysterical!!!!
posted by amberglow at 2:17 PM on January 11, 2006


Why is it so hard for Schumer to understand that when you are applying to a conservative group, you will try to show conservative bona fides?
posted by dios at 2:17 PM on January 11, 2006


Dios, Alito's is being evasive, he has the ability to lay all the cards on the table and he is not doing that. It doesn't prove he is some racist demon, it simply shows he is not being truthful. It shows that something is wrong here, something that shows he is not up to the task of deciding the very important issues that will come before the court.
posted by stilgar at 2:19 PM on January 11, 2006


that was the moment when Alito sunk his own nomination--just now...for oh so many reasons. I love my senator.
posted by amberglow at 2:19 PM on January 11, 2006


stilgar: that is the point.

"He is not being truthful?"

How do you know that?

How do you know that he isn't being perfectly truthful?

You assume he isn't being truthful because you make assumptions about him.

It is not unreasonable that everything he said is accurate.

Can you not concede that it is possible he doesn't remember?
posted by dios at 2:21 PM on January 11, 2006


what in the sam hell is this guy talking about?! Turkey? Chickens? Can we say "CHANGING THE SUBJECT!!!" any louder.
posted by stilgar at 2:22 PM on January 11, 2006


Cornyn (who's under investigation for dealings with Abramoff/Reed/etc) is bringing up Isaac Bashevis Singer's grandson now, but unfortunately he's not up for a Supreme Court job. too hysterical!
posted by amberglow at 2:22 PM on January 11, 2006


...I defended People for the Ethical Treatment of Animals for using a quote of my grandfather's. Unlike me, my grandfather was a famous man, Isaac Bashevis Singer, who had escaped anti-Semitism in Europe in 1935 and won the Nobel Prize for literature in 1978.
My grandfather, a principled vegetarian, famously wrote: "In relation to [animals], all people are Nazis. For [them], it is an eternal Treblinka." Three years ago, PETA built a campaign around that quote, but critics charged that the words were not really Isaac's, only those of one of his characters. My Op-Ed article affirmed that from my personal knowledge Isaac felt that way — that the cattle-car reality of factory farming compared to the Holocaust. And I agreed with him.
In the era of the search engine, no good (or bad) deed goes unpunished. Then again, perhaps I should take pride in being ridiculed by a U.S. senator, John Cornyn (R-Texas). ...

posted by amberglow at 2:25 PM on January 11, 2006


I don't think he forgot...because he seems very smart, and has proven over and over again that he can remember a lot of things, small unimportant things, in the distant past. It just doesn't seem to add up that he would forget this rather large thing that he put on a job app...aside from all of this he just isn't the kind of person i would want on the bench. He seems like the kind of person who will push the court in a way i wouldn't like. I say this so you will know where i am coming from. I don't think Alito is the kind of person i would be a friend of...but i don't think he is an evil man, simply that he shouldn't be a judge on the highest court. But you are being bull headed on this single CAP issue, it is very reasonable to assume that he is saying what he thinks will get him this job, and that shows he is willing to change who he is to get jobs, and that shows a lack of character. And a man who is willing to do change what he believes just to get a job is a man who might not be the kind of person YOU will want on the bench. Have you thought of that?
posted by stilgar at 2:28 PM on January 11, 2006


Geez, Cornyn and Biden need to put together a comedy show. I could laugh at them all day long.
posted by monju_bosatsu at 2:29 PM on January 11, 2006


Again, Alito could kill the CAP thing in two seconds if he'd just say he saw the light and gave up on them (again dios, what's "conservative" about bigotry? Nobody is attacking him for his Federalist Society membership). It's just strange. "If I knew then what I know now, that CAP is anti-ethnic and anti-female, I would have renounced my membership. . . ." Hell, it'd make him look better. I don't get what's going--does he owe them something?

Now Alito is being praised for (gasp!) answering questions! Good god, now I just feel bad for the guy. The Dems are critical of his character, and the Reps are just downright condescending to his intelligence.

Alito: "I am who I am, and I'm my own person." Wow, that's touching. I say Congress makes him Queen of England while they're at it.
posted by bardic at 2:30 PM on January 11, 2006


Thats great, "its wrong to assume you are like anyone else" when right before he apologized for calling him scaliot....The only person to say it so far...
posted by stilgar at 2:33 PM on January 11, 2006


it is very reasonable to assume that he is saying what he thinks will get him this job, and that shows he is willing to change who he is to get jobs, and that shows a lack of character. And a man who is willing to do change what he believes just to get a job is a man who might not be the kind of person YOU will want on the bench. Have you thought of that?

Totally, and it also tells us that he's not telling the truth here either.
posted by amberglow at 2:37 PM on January 11, 2006


another break--and they're have to have more hearings bec of the supoena'd CAP docs.
posted by amberglow at 2:40 PM on January 11, 2006


"Paris: you don't understand where I am coming from. I am not part of your war against Liberals."

I'm not conducting a war against liberals. The Democrats at issue are not acting because they are liberal; they are acting because they used to be in power, and they are doing all the can to get back in the driver's seat.

I would disagree, but not be so zealous against real liberals. These people are not. Kennedy is more sleazy than he is Liberal.
posted by ParisParamus at 2:43 PM on January 11, 2006


the only real liberal there is Feingold.
posted by amberglow at 2:54 PM on January 11, 2006


Go, amberglow, go. It's lots of fun watching you put Dios' unfounded assertions to rest. Cronyism being what it is, Alito will sadly be approved, but at least we now know clearly where certain people really stand on ethical issues like outlawing women's reproductive choices, strip-searching children, allowing the President imperial powers, and lying about all it.
posted by Rothko at 3:23 PM on January 11, 2006


what is this guy doing, its lovely how Alito will at least play along with the right wing about abortion...he gives just enough answers that they think he might vote they way they want. its no different to say "abortion on demand is settled law" as what he is doing right now talking about tort law and killing a fetus in a car crash. yet he will say the second and not the first.
posted by stilgar at 3:28 PM on January 11, 2006


amberglow NPR is using the same quote you did...about the Nazi meat eaters.
posted by stilgar at 3:42 PM on January 11, 2006


Paris is a liberal, he just gets really bad info for some reason.
posted by delmoi at 4:13 PM on January 11, 2006


I just don't get Dios' love afair with this guy. He's no Roberts. Oh well.
posted by delmoi at 4:14 PM on January 11, 2006


Delmoi, I can't be put into words.
posted by ParisParamus at 4:23 PM on January 11, 2006


(or into prison)
posted by ParisParamus at 4:24 PM on January 11, 2006


Well, you don't own a TV, that makes you a Liberal!
posted by delmoi at 4:40 PM on January 11, 2006


Well, you can be a Liberal and a NeoCon at the same time, look at Liberman (or even Hillary, IMO).
posted by delmoi at 4:43 PM on January 11, 2006


But I am about to buy a tv for my girlfriend--so I am a weak, liberal sellout.

By the way, I don't know if HRC has a soul, much less a coherent political outlook. Lieberman, well, yes, but I have much more charisma!
posted by ParisParamus at 5:10 PM on January 11, 2006


On a slightly more serious note, I keep waiting for President Bush to appoint horrible, extremist people--where are they?! Someone's predictive analysis is off...
posted by ParisParamus at 5:38 PM on January 11, 2006


I agree Paris. Alito is a pure schlub.
posted by bardic at 6:22 PM on January 11, 2006


James Wolcott: The Crying Game--...Then Mrs. Alito suffered a case of the weepies that was so dramatically well-timed and patently maudlin that I was reminded of the classic stage direction in Private Eye (takes out onion, wipes away tear), and suddenly the proceedings turned into a soap opera with Fox News commentators arriving on cue to deplore the toll taken on innocent bystanders in these brutal proceedings. From their sympathetic clucks and disapproving tones you would have thought Alito had been subjected to a Stalinist show trial presided over by Randi Rhodes in a bad mood rather than honey-tongued Lindsey Graham asking Alito with tender solicitude, "Are you a bigot?"
...


also firedoglake--... Pure setup 101.
Somebody sat down last night and decided ol' Strip Search was coming off cold and vaguely sweaty and creepy. But how to soften him up, make him sympathetic, get the public on his side? Anyone with an IQ over 52 was doing an eye roll over that one, so it ought to have had some sort of GOP trademark stamp atop it.
Democrats are now effectively warned away from inching near the "B" word lest they look like cruel Snidely Whiplashes taunting Dainty Sensitive Nell.
...

posted by amberglow at 5:56 AM on January 12, 2006


Slate:--...But as trivial as the screaming over CAP may seem, it matters. Not because it proves the nominee hates women or minorities or criminal defendants or immigrants. That's a caricature of a conservative judge. It matters because CAP was code in 1985 for all the things Alito refused to write on his application and refuses to discuss before the committee now. Instead of being forthright about his convictions, Alito hides behind the fiction that there is only one way to decide cases. Instead of proudly bearing witness—as he has done throughout his career—to his opposition to the Warren Court's rulings, his disdain for the reasoning in Roe, his preference for states' rights, strong police powers, and "traditional values"—he pretends that all those amassed thoughts and ideas are irrelevant. He pretends—as do his supporters in the GOP—that every one of those thoughts has absolutely no bearing on how he decides cases. And that is just not true. ... But if we cannot have an honest conversation about Alito's legal views and preferences, his coded messages become doubly important.
...
It's now 5:15 and Chuck Schumer has led the judge to the brink of a big psychological breakthrough. In response to the umpteenth questioning about why he "plucked out and picked this one group to put on his application in 1985," Alito finally, truthfully responds: "I was applying for a position in the Reagan administration. My answers were truthful. I listed things relevant to obtaining a political position." ...

posted by amberglow at 6:08 AM on January 12, 2006


He's not answering a thing today at all--they told him to just stonewall, i bet.

he wouldn't even touch whether a president can simply invade syria or iran without congress.
posted by amberglow at 7:36 AM on January 12, 2006




I love how it is being suggested that there is something nefarious about prepping Alito for the hearings when it has been a consistent, open and well-known activity for some time.

Just another pathetic attempt to try to cast a negative light against someone when you have not one single legitimate judicial, jurisprudential or qualification challenge on the man.
posted by dios at 7:56 AM on January 12, 2006


and now it seems he doesn't even know what the hell is going on in current case law...maybe we don't want a judge who gets so forgetful all of a sudden.
posted by stilgar at 7:59 AM on January 12, 2006


dios you dont find anything wrong with telling alito what questions you are going to ask before hand? you dont find that even a little wrong?
posted by stilgar at 8:00 AM on January 12, 2006


I do think it's inappropriate for Graham to participate in Alito's preparation for the hearings. Preparation and moot hearings are perfectly fine with me, and has been a regular practice since the Senate began holding intensive confirmation hearings, but actual participation by a member of the Judiciary Committee? That's a little much, I think.
posted by monju_bosatsu at 8:03 AM on January 12, 2006


Senators Leahy and Kennedy have made some fundamental mistakes, and I'm going to try to correct them both:

1) Leahy: "Can the congress pass a law taking jurisdiction over first amendment issues away from the Supreme Court?" The real answer is, "Sure it can. And the Supreme Court can rule such a law (or any law you jackasses pass) unconstitutional."

2) Kennedy: "Can the congress pass laws that prevent the president from firing members of the executive branch?" Answer: ditto.

Basically, once I'm on the court, I am MUCH MUCH more powerful than you are. Each of you makes up 1% of the people that pass laws, and I make up over 11% of the people that can slap you silly for passing dumb ones.

Oh, please, PLEASE keep talking about Vanguard. I can answer this in my sleep now.
posted by monju_bosatsu at 8:07 AM on January 12, 2006




Can anyone answer why they persist with the fiction that their personal views don't matter? That's why they're picked by presidents--because their views match his.
posted by amberglow at 8:41 AM on January 12, 2006


Can anyone answer why they persist with the fiction that their personal views don't matter?

Because the GOP on the Judicial Committee don't want the public to know more about how Alito's personal views are sympathetic to, say, repealing Roe v. Wade and handing the government over to Emperor Bush. Else why was he coached to give certain non-answers?
posted by Rothko at 9:09 AM on January 12, 2006


amberglow, your question belies a lack of undrestanding about judges.

Judges are supposed to decide cases based on applying the law applicable to the case before them. Their personal views are supposed to be irrelevant to the inquiry.

Indeed, the whole complaint with "activist judges" is that a judge is applying their personal view of what the law ought to be instead of applying the law as it is.

Alito was picked because of his judicial philosophy; that is, the process that he uses to adjudicate cases.

He wasn't picked based on his personal views on abortion, gay issues, death penalty, etc. That might be how you would pick a judge, but that is an outcomes based view of judging which is an anathema to a judge like Alito.

Why should his personal view matter? He isn't there as a robed king. He is there to apply the law as it is.
posted by dios at 9:10 AM on January 12, 2006


amber, here's some insight on that issue from Brian Tamanaha, a law professor at St. Johns.
posted by monju_bosatsu at 9:12 AM on January 12, 2006


Further, when you ask a judge whether they believe X is right or wrong, you are asking the judge to prejudge the case.

So if the judge says, "I believe there is no right to qui tam under the law," then the judge is blocking out anyone who seeks their right to a day in court who trying to argue otherwise.

Lady Justice is supposed to blind. Every case is suppose to have its fair shot. Accepting those two princples, why on Earth would you demand that a judge make definitive statements on their view of the law before hearing a case?
posted by dios at 9:14 AM on January 12, 2006


And more specifically relating to Alito and Roe, some thoughts from Jack Balkin.
posted by monju_bosatsu at 9:14 AM on January 12, 2006


Accepting those two princples, why on Earth would you demand that a judge make definitive statements on their view of the law before hearing a case?

Because those two principles, even as you've formulated them, are normative and not descriptive.
posted by monju_bosatsu at 9:39 AM on January 12, 2006


Schumer is sly as a partisan. For instance, he knows what the principle of comity is, but he can pretend like it is irrelevant because he knows the average person at home doesn't understand it so he can do what the Democrats have done each time: pretend that the outcome is all that is important in the hopes that the dullards at home will think the opinion isn't right.

What's more, he knows that judges are forbidden by the canons of judicial ethics from commenting on particular cases before them. But he sets the trap and demands an answer he knows he cannot ethically get. Then he gets to beat the nominee over the head for not doing what he is forbidden from doing.

In the end, it was what this has been from the beginning: nothing more than an ability for the Senators to make their political points. Schumer, like the rest, doesn't care at all how Alito answers any question. Schumer has his view that he is going to portray Alito as, and nothing Alito says can change that because it is a political show.
posted by dios at 9:42 AM on January 12, 2006


Welcome to politics, dios.
posted by monju_bosatsu at 9:44 AM on January 12, 2006


Turning to the "unified executive" theory, Sessions asks a hard question: "There are only three branches, aren't there?"
posted by monju_bosatsu at 9:53 AM on January 12, 2006


Now here Durbin asks another question by a person who is intentionally and knowingly trying to mislead the issue.

He frames a false distinction:

How can you say the search of a veterinarian is wrong, but the search of 10 year old is acceptable?

This distinction suggest that the issue before Judge Alito in both cases was only whether a search was the right thing to do. He completely ignores the procedural stance, what the actual issue on appeal is, and what standard of review the judge is required to utilize. He tries to suggest it is only a question of policy and ignores both opinions and the very technical nature they tuned on. And he explicitly asks whether Alito considered the age of the girl. Of course not. Why should it matter? It doesn't matter under the Fourth Amendment, so why should a judge consider it?

And, of course, he uses the old "The majority disagreed." Yeah, the other two judges. Of course, "Two other judges disagreed" doesn't have the same ring to it since if one judge switched, Alito would be "the majority."

By the way, it sure as hell seems like the Democrats ditched the CAP issue today. Wonder why the decided to do that....
posted by dios at 10:01 AM on January 12, 2006


So then why do GOP presidents only pick people who agree with them on certain issues? why do Democratic presidents only pick people who agree with them? why don't conservative presidents ever pick liberal nominees? If it doesn't matter, then why does it matter? If their personal views are irrelevant, why do Supreme Court Justices get examined at all, especially since they don't talk about anything, and their personal views and paper trails are the only things to go on?

Durbin is good now, on how it's really people's lives at stake.
posted by amberglow at 10:02 AM on January 12, 2006


Turning to the "unified executive" theory

monju_bosatsu: I wanted to ask what you understanding of the unified executive theory and whether you think Alito has been clear in explaining it. I think he has, and I get the impression that the idea is being intentionally confused by the questioners with the idea of a unitary government where the President is above the other branches. It seems to me Alito has been repeatedly clear that it is not what the theory means.

By the way, this article by Ronald Cass at the end has an interesting take on it. Any thoughts on that?
posted by dios at 10:05 AM on January 12, 2006


from that Balkinization link: (and i don't think he proves his point at all--esp regarding the Supreme Court----... Against this general trend, however, some lower court judges appear to render decisions more highly correlated with their personal politics than others. That is precisely what makes Judge Alito's pattern of decisions a matter of concern. A recent NYT article which examined Judge Alito's decisions found that "with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases."

Assuming the report is correct, in these types of cases it appears that Alito has allowed his personal views freer reign, in contrast to the bulk of lower court judges who appear more restrained. This suggests the possibility that Justice Alito (if confirmed) may be like Douglas and Rehnquist in the sense that, in certain classes of cases, his decision can be predicted with 90+ percent accuracy simply by knowing who the parties are. That kind of judging is personal politics. ...
There is no doubt that judges have the power to issue decisions that are based on their personal views, and the skill to couch these decisions in legal argument (the law is indeterminate in this sense at least). And there is also no doubt that certain legal standards by their nature call upon value-based decisions or evoke personal responses from judges. ...

posted by amberglow at 10:15 AM on January 12, 2006


dios, it's not a false distinction at all--if you care about people and how they are treated by authority figures.
posted by amberglow at 10:16 AM on January 12, 2006


Then contact your legisltor and ask for a law banning searching of children.

You continue to show a lack of understand of the function of a judge vs the function of a legislature. Did you skip Politics 101?
posted by dios at 10:20 AM on January 12, 2006


also from that site: ...It's disturbing in itself that Alito, like John Roberts before him, will not take responsibility for or own up to his own beliefs. He's always claiming, "That was somebody else back then" - but without saying how or whether he has changed, except that he is now a judge. The argument that he was just saying whatever it was convenient for him to say in order to get a job doesn't sound too good coming from somebody who is now trying to get another job. There is something really slippery, or at least less than forthright, about his approach to his own record of actions and opinions.
Anyway, nobody can seriously suppose that Alito's beliefs will have no effect on his decisions, because they already have. His manifesto of 1985 is a pretty reliable road map not only to his work for the Reagan Justice Department, but to his decisions as an appellate court judge....
By all indications Alito is none of these. He is not "conservative" in any plausible sense of the word except in style. Unlike Scalia, with whom he is often compared, he is not given to announcing flamboyant declarations of principle or sweeping legislative-like rules, or lobbing rhetorical stink-bombs at his fellow judges. By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench. He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially - though of course as a Supreme Court justice he will have scope to modify even well-settled law.
But wherever there is running room - opened up by gaps in application, conflicts in precedents, ambiguities in statutes - Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent. There is nothing "restrained" about his opinions proposing to strike down one federal law banning machine guns for exceeding Congress's power under the Commerce Clause (U.S. v. Rybar, 1996); to strike down another mandating employers to grant medical leave to parents of newborn children for exceeding Congress's power under the Fourteenth Amendment (Chittister, 2000); and to construe regulatory and civil rights laws so restrictively as to frustrate their purposes. He is for "limited government" and "federalism" when those principles point to less regulation of business and religious expression; but for authoritarian government when it acts in the causes of protecting national security or law enforcement and regulating morals. He is in short a judge with an agenda, and the agenda is not "conservative" but right-wing-Republican. ...

posted by amberglow at 10:25 AM on January 12, 2006


Yet, Justice Alito, who appears to be opposed to abortion personally, had the opportunity to overturn Roe. But what did he do? He voted to uphold it.

How do you explain that amberglow (in your own words)?
posted by dios at 10:27 AM on January 12, 2006


Then contact your legisltor and ask for a law banning searching of children.
You continue to show a lack of understand of the function of a judge vs the function of a legislature.


And if a court struck down that law, as Alito has tried to do to other laws? As courts tend to do when they find laws unconstitutional or otherwise illegal? It's about the warrant and innocent bystanders, not the search itself. It's about following the law, and exceeding what you're allowed to do. If you get a warrant and you have cause to suspect other people, you make sure those other people are included--it's not hard, but their neglect in doing so and their actions in strip searching that kid was absolutely wrong--Alito didn't think so, and that shows a real lack of respect for the people affected.
posted by amberglow at 10:32 AM on January 12, 2006


We are back to this.

Again, you have acknowledged you don't understand the interplay of affidavits with warrants. You don't understand that affidavits can be incorporated into a warrant.

Instead, you just proclaim that it is necessarily "unconstitutional and illegal."

Do you feel any hesitation making such proclamations when you admittedly don't know the law?

Why aren't you just satisfied in saying "I don't think the law should be that way" which would be a proper explanation of your policy point of view?
posted by dios at 10:41 AM on January 12, 2006


He didn't have the opportunity, dios--his court needed a majority, which he didn't have. Once he enters the Supreme Court, that majority will then be there. He would be replacing the one vote that protected Roe and prevented the majority.
posted by amberglow at 10:42 AM on January 12, 2006


Both the affadavit and warrant needed to specifically list who they were for--they did not. There needs to be a compelling reason to suspect (and search) innocent people of anything, especially children who have no police record or who are not at all known. It's part of the constitution i believe--unnecessary search and seizure.

when's Peter Kirsanow testifying on Alito's behalf?
posted by amberglow at 10:45 AM on January 12, 2006


scotusblog: Alito explains that the Doe v. Brudy case was about the interpretation of the scope of a warrant. Alito read the warrant to permit search of everyone on premises, even though the specific space on the warrant for "person to be serached" was "John Doe" because warrants have to be given a practical interpretation -- you don't read it like a bond instrument. Attached to a warrant was the officers' affidavit that talked about the likelihood that the drugs could be in the possession of anyone on the premises.

If there's a specific name on a warrant then that's it. The officers should have worded it differently, saying something like "John Doe and family" or "John Doe and child". You don't get search affidavits; you get search warrants. And it's meaningless that anyone on the premises could have drugs when the guy named is a drug dealer, and you're getting a warrant to search him and his house. Anyone and anything in the house could have drugs--which means that the officers did not get the warrant worded correctly if they intended to search every single human in the house.
posted by amberglow at 10:53 AM on January 12, 2006


If there's a specific name on a warrant then that's it.

No. The affidavit said "other people on the premises." Affidavits have to be interpreted in a common sense manner. "Other people on the premises" includes the mother and the daughter.

Again, you are trying to draw a distinction between affidavits and warrants. If they are incorproated, then affidavit = warrant. This is a concept you are failing to grasp.

I really don't know how to make you understand this. The law is clear that affidavit can be incorporated as part of the warrant. You seem to think that the name on the warrant is the only one that can be searched. You are just plainly wrong, as I (and monju and others) have tried to show you above.

He didn't have the opportunity, dios--his court needed a majority, which he didn't have. Once he enters the Supreme Court, that majority will then be there. He would be replacing the one vote that protected Roe and prevented the majority.
posted by amberglow at 12:42 PM CST on January 12


*snort*

That is your response? You say he will vote to overturn Roe because of his politics. Given the opportunity, he didn't which proves your premise wrong.
posted by dios at 11:00 AM on January 12, 2006


You say he will vote to overturn Roe because of his politics. Given the opportunity, he didn't which proves your premise wrong.

You are not arguing apples to apples dios. As a lower court judge in tha face of Supreme Court precedent over ruling Roe is a fruitless act, unless done to give the Supremes the opportunity to do it themselves.
posted by caddis at 11:07 AM on January 12, 2006


Dios what i fail to grasp is why you think Alito is correct in these cases when two fully trained appeals court judges (on many occasions regarding many things) did not? you seem to know a lot about the law, i will give you that, but i bet they know more...
posted by stilgar at 11:09 AM on January 12, 2006


dios, on the "unitary executive," I've been following the SCOTUSblog live reporting, so I need to review the transcript to see exactly how Alito explained the theory. That being said, I think Ronald Cass understates the scope of some versions of the theory. It's true that the weak version of the theory merely states that Congress can't imbue an Article I or Article III entity with Article II powers, but the strong version of the theory argues that Congress can't restrict the President's exercise of his Article II powers by exercising its own Article I powers. In other words, the executive is unitary in the sense that it is insulated from intereference by the other branches. By that I mean that, under the strong version of the theory, the President could engage in activity in violation of otherwise Constitutional laws passed by Congress by invoking his "inherent" powers under Article II. The most pressing example of this is warrantless wiretapping by the NSA. Aside from the Fourth Amendment issues, may the President ignore the statute making such wiretapping illegal when he believes it's necessary? Some proponents of the unitary executive theory argues that he may.
posted by monju_bosatsu at 11:10 AM on January 12, 2006


what stilgar said. dios, you and Alito are right and the other judges are wrong?
posted by amberglow at 11:12 AM on January 12, 2006


Dios what i fail to grasp is why you think Alito is correct in these cases when two fully trained appeals court judges (on many occasions regarding many things) did not?

The law isn't always cut and dry. Many decisions at the Circuit level are decided by a two-to-one vote, and judges write dissents. Alito has actually dissented less often than many of his colleagues, writing dissents in only 1.5% of the cases in which he participated. Just because judges are "fully trained," or smart, or well-qualified, doesn't mean that they don't often disagree with each other. Indeed, most of the internal communication among judges on a panel is dedicated to understand and resolving differences of opinion about how a case should be decided.
posted by monju_bosatsu at 11:14 AM on January 12, 2006


well monju lets look at this from a wider point of view, on many occasions many other judges have voted to uphold a womens right to choose, i personally think Alito is not going to. He went so far as to write it down in plain English for the world to see. He falls into the "most judges don't agree" category on a lot of issues, so the law might not be cut and dry, and there may be lots of 2 to 1 cases, but if the vast majority of judges are against him on these issues nothing Dios whips out is going to convince me otherwise.
posted by stilgar at 11:17 AM on January 12, 2006


Dios what i fail to grasp is why you think Alito is correct in these cases when two fully trained appeals court judges (on many occasions regarding many things) did not? you seem to know a lot about the law, i will give you that, but i bet they know more...
posted by stilgar at 1:09 PM CST on January 12


You are not understanding a point that I made several times in this thread.

You question assumes that because 2 judges overruled, the 1 judge that affirmed was wrong. That isn't the case. It is perfectly possible that the opinion that Chertoff authored is legally correct, and that the opinion Alito authored is legally correct.

In legal issues, most of the times it is an issue where reasonable people can disagree.

So, it is fair to say that you agree with Chertoff. But it is unfair to say that Alito was necessarily wrong---unless you have a good legal argument to prove that he is wrong. Chertoff does not say that Alito was wrong. Chertoff and Alito just disagreed on a technical point regarding the extent to which an Affidavit was incorporated.

It is a foolish comment to say that the majority is right and the minority is wrong. Many times, the minority's opinion can end up becoming the majority opinion in another case. There is one specific instance where Alito was in the minority in dissent, but the Supreme Court ended up adopting Alito's position.

I'm trying to explain to you that you have to analyze each opinion on a legal basis and critique on a legal basis. A person is not wrong because he is the minority. You have to establish he was wrong independently.

Had one of the judges agreed with Alito on the technical point regarding the extent to which the affidavit was incorporated, would that make him right? No. Just like it doesn't make him wrong.
posted by dios at 11:19 AM on January 12, 2006


Who says that "the vast majority" of judges are against him? I don't think there's much evidence of that.
posted by monju_bosatsu at 11:20 AM on January 12, 2006


but if the vast majority of judges are against him on these issues nothing Dios whips out is going to convince me otherwise.
posted by stilgar at 1:17 PM CST on January 12


And a lot of judges upheld Plessy v. Ferguson. So were they right and the dissenters were wrong? A lot of judges upheld Bowers v. Hardwick and re-affirmed it on numerous occasions. Were they right and the dissenters wrong? A lot of judges upheld Lochner. Were they right and the dissenters wrong?

It is a fool's errand to judge legal opinions like you are.
posted by dios at 11:22 AM on January 12, 2006


on cspan, some guy is saying that Alito might have to recuse himself from cases in which the judges that will be testifying on his behalf had heard in lower courts.
posted by amberglow at 11:28 AM on January 12, 2006


The Democrats are desperate to keep the judges from testifying, because they know they'll pop the rhetoric balloon.
posted by monju_bosatsu at 11:34 AM on January 12, 2006


Yay! The ABA! Here are our dues at work, monju_bosatsu!
posted by dios at 11:35 AM on January 12, 2006


inconclusive?
posted by amberglow at 11:50 AM on January 12, 2006


monju, i think the guy on cspan was a reporter.
posted by amberglow at 11:50 AM on January 12, 2006


Right, but the reports are based on some of the questioning by Leahy (I think) regarding potential recusal.
posted by monju_bosatsu at 11:51 AM on January 12, 2006


the ABA was snookered by the ROTC lie?
posted by amberglow at 11:54 AM on January 12, 2006


Interesting parallels to Harlan's confirmation hearing, noted by Orin Kerr.
posted by monju_bosatsu at 11:57 AM on January 12, 2006


Kennedy's right--there have been many excuses given for the recusal thing. Is the ABA just a rubberstamp? Have they ever said a Supreme Court nominee is not qualified?
posted by amberglow at 12:00 PM on January 12, 2006


Hatch is wrong:
Vanguard is indeed owned by shareholders in its funds

posted by amberglow at 12:05 PM on January 12, 2006


More than 2,000 judicial nominees have been rated by the ABA -- 26 have been rated "not qualified," three of those were Republican nominees and 23 were Democratic nominees. The ABA also gives "qualified/not-qualified" ratings when the reviewing panel is split. Janice Rogers-Brown got a "qualified/not-qualified" rating.
posted by monju_bosatsu at 12:05 PM on January 12, 2006


but no Supreme Court nominees?
posted by amberglow at 12:09 PM on January 12, 2006


Not that I know of. Miers didn't make it to the end of the rating process, I don't think.
posted by monju_bosatsu at 12:13 PM on January 12, 2006


So amberglow, the ABA is lying? The 300 or so people who they intereviewed are lying?

Are you honestly suggesting that this guy is really not that bright, not that ethical, or a closet racist and that the ABA and the 300 or so people are just co-conspirators in an attempt to rubberstamp some nominee?

What would it take from you to acknowledge that you have no legal leg to stand to oppose Alito. Are you that much of a blind partisan?
posted by dios at 12:13 PM on January 12, 2006


thanks, monju--i didn't think they ever did.

the ABA admitted it wasn't told all the excuses Alito told Congress these past few days. the ABA just said they want to see the extra information/statements Alito didn't give them.

they were snookered, it seems to me. you're the one saying they're lying--i didn't say that. you're the one putting words in my mouth--so i wouldn't go around calling anyone else a blind partisan.
posted by amberglow at 12:17 PM on January 12, 2006


You called Alito "not very bright."

That makes you a blind partisan.

And I just figured you say they are lying since you seem to accuse everything that you disagree with as a lie.

Are these judges going to "lie" or be "snookered" too?

Or can you concede that their opinions can be valid?
posted by dios at 12:19 PM on January 12, 2006


so these judges are just going to read fan letters? "Alito's dreamy and supergroovy! I wish he was my boyfriend!"
posted by amberglow at 12:20 PM on January 12, 2006


Vanguard is indeed owned by shareholders in its funds.

Kind of. The Vanguard parent management company, the Vanguard Group, is indeed held by the Vanguard funds. However, the holders of funds do not receive proxy solicitations or participate in the management of the company. Instead, it is the funds' management that votes for the board of the Vanguard Group. In other words, individual holders of Vanguard funds do not participate in the management of the Vanguard Group.

Compare that to 28 U.S.C. § 455, which governs the disqualification of justices, judges, and magistrate judges. Subsection (b)(4) provides that a judge "shall also disqualify himself" when:
He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
"Financial interest," in turn, is defined as:
"ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: ... [o]wnership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
Because, as I understand it and as the discussion to which you linked explains, Alito, as an individual fund holder, does not participate in the management of the Vanguard Group, he does not have a "financial interest" within the meaning of the disqualification statute.
posted by monju_bosatsu at 12:23 PM on January 12, 2006


(emphasis added in that last quote)
posted by monju_bosatsu at 12:24 PM on January 12, 2006


You called Alito "not very bright."
That's a statement based on seeing him respond these past few days. His shifting statements when confronted and his inability--even though very thoroughly coached (with a member of that very Congressional panel there)--to effectively dismiss or render moot any of the many issues raised about his conduct and views and opinions and affiliations leads me to conclude he's not very bright. He has given multiple excuses for things that could have been dismissed easily. He did not immediately say how much he abhorred CAP's views on everything. He did not explain until only late yesterday that he was pandering to get a job in the Reagan administration (and even admitting that was really incredibly stupid--"hey, look at the racist organization i belong to! you guys will like that!"), etc.

All his responses and his lack of ability to respond--even when these issues must have been raised during his coaching shows he's not very bright. He might know the law but he's not bright. Even this unusual step of bringing sitting judges in to read fan letters shows that others were not 100% sure he would make it through--it's very telling about how even his supporters see him.
posted by amberglow at 12:27 PM on January 12, 2006


monju, why then did he promise under oath to recuse himself in the first place?
posted by amberglow at 12:29 PM on January 12, 2006


(emphasis added in that last quote)
posted by monju_bosatsu at 2:24 PM CST on January 12


Good thing you put that because I just going to e-mail you a copy of the Bluebook.

No, excuse me while I go back and hear these character and qualification opinions from respectful and good people who know him best "fanboy letters" (according to amberglow).

posted by dios at 12:29 PM on January 12, 2006


and why don't justices do the stuff senators and administration officials do, like divesting or blind trusts or something?
posted by amberglow at 12:30 PM on January 12, 2006


dios: You called Alito "not very bright."

That makes you a blind partisan.
Why? Really: Why does having an opinion on the judge's intellectual capabilities, and expressing that opinion in a relatively value-netural way (as opposed to, say, "dumb as a post" or "an idiot", which would be more in tune with the current level of political discourse in America) in and of itself mean that you're "a blind partisan"?

I think it's pretty clear that Alito isn't up to the intellectual standard of, say, John Roberts. He clearly lacks the argumentation skills to stand up to fairly milquetoast (albeit persistent) questioning. Does saying those things, in isolation from anything else you know about my position on Alito, indicate that I'm a "blind partisan"?

We've got a bunch of judges on the court who aren't very bright. The few Ginsberg opinions I've read have not impressed me; Thomas is cearly sub-par. I would argue that Scalia is sorely deficient in certain areas of imagination, though he's clearly gifted in language.
posted by lodurr at 12:31 PM on January 12, 2006


After three days, amberglow still can't grasp the idea that there are ethical requirements and that there might be personal practice which goes beyond in an abundance of caution, even though ethically not required to do so.
posted by dios at 12:31 PM on January 12, 2006


these are fan letters, dios--get real. even Thomas didn't get this.
posted by amberglow at 12:33 PM on January 12, 2006


monju, why then did he promise under oath to recuse himself in the first place?

Because, as he has explained several times, he attempts to hold himself to a standard higher than the minimum required by the law. His system broke down, and he mistakenly participated in a case when he had pledged not to. However, when brought to his attention he recused himself, despite not being required to by law, and vacated the opinion. The panel replacing him reached the same substantive conclusion. As I said above, this issue is a loser for the Democrats.

And I should suggest that you take the opinion of these judges testifying now very seriously. These judges, particularly Becker and Aldisert, are real heavyweights of the federal judiciary, and are universally respected. The only reason that one of them wasn't nominated for SCOTUS is because they're too old.
posted by monju_bosatsu at 12:33 PM on January 12, 2006


We've got a bunch of judges on the court who aren't very bright. The few Ginsberg opinions I've read have not impressed me; Thomas is cearly sub-par. I would argue that Scalia is sorely deficient in certain areas of imagination, though he's clearly gifted in language.
posted by lodurr at 2:31 PM CST on January 12


You are kidding, right? You realize that these people are far, far, far more intelligent than you and 99% of this country. But here you are calling them "subpar" and "not very bright." I will have to go find this APA article I read one time about a defect that some people exhibit where they can't properly evaluate themselves against other people so they are end up doing moronic things like saying that far superior people are not superior at all. It is some defect in self-evaluation. I'll have to see if I can find the article if I have a chance.

How you call them "not very bright" or "subpar" is so patently absurd so as to not need further comment.
posted by dios at 12:34 PM on January 12, 2006


After three days, amberglow still can't grasp the idea that there are ethical requirements and that there might be personal practice which goes beyond in an abundance of caution, even though ethically not required to do so.

Another instance in not being very bright--if you publicly proclaim under oath that you will go above and beyond the call of duty, then it behooves you to be extra careful and always follow thru, or your word is meaningless.
posted by amberglow at 12:37 PM on January 12, 2006


I think it's pretty clear that Alito isn't up to the intellectual standard of, say, John Roberts. He clearly lacks the argumentation skills to stand up to fairly milquetoast (albeit persistent) questioning.

I doubt this. Roberts was one of the top appellate advocates in the country going on the D.C. Circuit. He argued more cases before the Supreme Court than just about any other private advocate in the country, other than maybe Larry Tribe. Alito, on the other hand, was never a real oral advocate, and instead wrote briefs. Lots and lots of briefs. What's more, he's been on the appellate bench for more than fifteen years; it shouldn't be suprising that his skills as an oral advocate on the receiving end of questioning have atrophied. Make no mistake, Alito is a very smart guy.
posted by monju_bosatsu at 12:37 PM on January 12, 2006


why does Alito need these guys there? who set this up? why?
posted by amberglow at 12:39 PM on January 12, 2006


And I should suggest that you take the opinion of these judges testifying now very seriously. These judges, particularly Becker and Aldisert, are real heavyweights of the federal judiciary, and are universally respected. The only reason that one of them wasn't nominated for SCOTUS is because they're too old.
posted by monju_bosatsu at 2:33 PM CST on January 12


Yeah, this is pretty much conclusive to any fair-minded individual. These are all big dogs and they are giving stellar compliments. These are politicians or partisans. These are heavyweights in the judiciary. And when they call him "a giant" with "impeccable credentials," it really shows how petty the partisan sniping has been. Becker, Barry, Garth, Gibbons, Lewis. These people are extremely impressive people. Here is Aldisert, a Democrat, standing for him.

This ends it. The proverbial nail in the coffin.
posted by dios at 12:41 PM on January 12, 2006


this really makes Alito look weak(er). this is a political process, and extraordinary measures like this speak loudly.
posted by amberglow at 12:43 PM on January 12, 2006


Becker set this up, with the help of Specter. I don't think this is about Alito. I think this is about the confirmation process. The Senate Judiciary Committee has turned these hearings into a circus, and the process has become more politicized with each nomination. Most judges think that it's a disgrace, and I think these judges have decided to take a stand. Maybe I'm reading too much into this, but I know that's a sentiment many, many judges hold. It seems to me that this is exactly what Judge Aldisert is saying right now.
posted by monju_bosatsu at 12:43 PM on January 12, 2006


dios: You are kidding, right? You realize that these people are far, far, far more intelligent than you and 99% of this country....
You do understand, dios, that whether they're brighter than me (or you, which by your own comparison they clearly must be) is not relevant?

You do undertand that by your standard, you're hardly more qualified to stand in judgement [sic], positively or negatively, than I am?

And you do understand -- I certainly hope you do -- that what you're suggesting is an elitist meritocracy, in which you'r just as likely as I am -- for all you know, more so -- to be disenfranchised?

That, in short, you're arguing from a rather severely undermined position....
posted by lodurr at 12:46 PM on January 12, 2006


dios: This ends it. The proverbial nail in the coffin.
Oh, please. There was never any possibility that Alito would not be approved. You know that as well as anybody, and you're as guilty of dragging out the drama as amberglow or anybody else on this thread.
posted by lodurr at 12:48 PM on January 12, 2006


All his responses and his lack of ability to respond--even when these issues must have been raised during his coaching shows he's not very bright. He might know the law but he's not bright.

You seem to be confusing rhetorical skills and self-presentation with intelligence. That's a big mistake, unless you want to hire a politician or a salesman.

this really makes Alito look weak(er). this is a political process, and extraordinary measures like this speak loudly.

Is there anything that could possibly happen that wouldn't make him "look weaker" in your opinion?
posted by me & my monkey at 12:49 PM on January 12, 2006


me & my monkey: You seem to be confusing rhetorical skills and self-presentation with intelligence. That's a big mistake, unless you want to hire a politician or a salesman.
Maybe, but...not really. Rhetorical skills are generally a pertty good indicator of analytical skills. If you can't clearly communicate what you think -- especially in a rhetorically focused area like high-level jurisprudence -- then you probably can't think very clearly in the first place.

As my fiance likes to tell her composition students: "This is your brain on paper."
posted by lodurr at 12:52 PM on January 12, 2006


think this is about the confirmation process. The Senate Judiciary Committee has turned these hearings into a circus, and the process has become more politicized with each nomination. Most judges think that it's a disgrace, and I think these judges have decided to take a stand. Maybe I'm reading too much into this, but I know that's a sentiment many, many judges hold. It seems to me that this is exactly what Judge Aldisert is saying right now.
posted by monju_bosatsu at 2:43 PM CST on January 12


Ding, ding, ding.

You are correct.

This testimony is by judges who are pissed by the antics of people like Schumer and Kennedy (and, to a lesser extent, the politicization by people like Brownback and Coburn--a lesser extent because, while they are politicizing it too, they at least are attacking the character of an excellent man).
posted by dios at 12:53 PM on January 12, 2006


Damn, Judge Garth just missed a perfectly good opportunity to quote Spinal Tap in a Senate hearing.
posted by monju_bosatsu at 12:57 PM on January 12, 2006


The real question, in my mind, is why did Alito shoot the Pope?
posted by monju_bosatsu at 1:01 PM on January 12, 2006


There are no Democrats listening to this. They all left.
posted by dios at 1:03 PM on January 12, 2006


The real question, in my mind, is why did Alito shoot the Pope?
posted by monju_bosatsu at 3:01 PM CST on January 12


I don't know, but it might win him some votes here on Metafilter and on the Left.
posted by dios at 1:04 PM on January 12, 2006


Rhetorical skills are generally a pertty good indicator of analytical skills. If you can't clearly communicate what you think -- especially in a rhetorically focused area like high-level jurisprudence -- then you probably can't think very clearly in the first place.

Say what you like about him, but his opinions are very well-written, logically consistent, etc. Like monju pointed out, this is a guy who writes for a living. He doesn't speak for a living, and being able to do one doesn't make him good at the other. He would do very well in your fiancee's composition class, I'm sure.

Oddly enough, my spouse is essentially in the same position - not a potential Supreme Court jurist, but a lawyer for the government who writes, writes, writes. He's very good at writing briefs and policy statements, but he wouldn't do very well at a Congressional grilling; he doesn't like public speaking at all. That doesn't mean he isn't very bright - far from it. And despite being a gay man working for the EEOC, he's quite favorably impressed by the quality of Alito's written opinions and dissents. I'm not nearly as impressed as he is, but then again I didn't sit through con law, either - I'm more of an outcome-driven guy, as most of us are.
posted by me & my monkey at 1:05 PM on January 12, 2006


There are no Democrats listening to this. They all left.
posted by dios at 3:03 PM CST on January 12


Looks like that isn't correct. I just saw other angles and saw Feinstein and Durbin. I just didn't see anyone next to Specter, so Leahy, Kennedy, and Biden skipped these.
posted by dios at 1:25 PM on January 12, 2006


I just didn't see anyone next to Specter, so Leahy, Kennedy, and Biden skipped these.

That's unreal, and if you're right, incredibly disrespectful.
posted by monju_bosatsu at 1:26 PM on January 12, 2006


Is there anything that could possibly happen that wouldn't make him "look weaker" in your opinion?

Tons of things--honesty, integrity, speaking openly about his views on important issues that affect our lives, a refusal to let his family become actors in this drama (see the set-up crying), a demonstration of his ability to actually answer a question on any issue regular Americans care about (see spying, war, equal rights, workplace safety, etc)...tons of things.

These hearings are not for lawyers. The vast majority of Americans don't know who these people are, nor do they think that the very limited time allowed for this hearing--considering this is a lifetime job--should be used up by old people giving only glowing testimony. More questions and answers by our elected representatives would have helped, but since he doesn't really answer anyway on important issues i guess this is just more window-dressing and theater, something you say these judges are against--You really could have fooled me. I say this makes Alito look weak--as a candidate, and as a measure of how the people who put him forward think he is.
posted by amberglow at 1:28 PM on January 12, 2006


I'd skip these too--they know what these people are going to say, and it's irrelevant to the real purpose of these hearings, which is to give us the people a chance to judge the judge.
posted by amberglow at 1:30 PM on January 12, 2006


(see the set-up crying)

Are you kidding me? Do you really think that your political opponents are so machiavellian and subhuman that they would orchestrate the distress of Alito's wife at the accusations of her husband being a bigot? Really?
posted by monju_bosatsu at 1:31 PM on January 12, 2006




I'd skip these too--they know what these people are going to say, and it's irrelevant to the real purpose of these hearings, which is to give us the people a chance to judge the judge.
posted by amberglow at 3:30 PM CST on January 12


Partisan hack.

It is laughable that you are trying to discredit the importance of testimony from people who know him the best, know his work the best, and who have no vested political interest in this. Judge Lewis, who is a Clinton apointee and a liberal, is telling you and assuaging the concerns raised by the Senators. But you are ignoring him. He has said that he has never known Alito to ever let his personal agenda effect his decision-making and is of the utmost credentials. This goes directly to the questions being raised by the Senators and here is a person with liberal judicial bona fides answering it. But you want to call it irrelevant. Transparent.
posted by dios at 1:34 PM on January 12, 2006


I linked above to what Graham did, and here's a recap -- Cry Me a Murder Board--you guys should know about this: It was an old trial attorney trick that Graham pulled out of his briefcase yesterday, and the NYTimes and the teevee media are lapping it up. Suckers.
posted by amberglow at 1:37 PM on January 12, 2006


something like these 20 questions asked to Alito (questions other nominees were asked in the past) would have much better used the limited time allocated.

and from that page: “In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy, but should be able to judge on the basis of the candidate's expressed views.”
— Arlen Specter in his book: Passion for Truth

posted by amberglow at 1:42 PM on January 12, 2006


read Specter's own words above, dios. --...to judge on the basis of the candidate's expressed views.
posted by amberglow at 1:43 PM on January 12, 2006


Amber, with all due respect, if you think Alito's wife went along with some sort of plan by Republican operatives to stage her crying, well, I don't know what to say. You've lost a connection to reality, and forgotten that your political opponents are human, and have human families.
posted by monju_bosatsu at 1:44 PM on January 12, 2006


3 days of hearings for a lifetime appointment, and we're losing a 1/2 day to these other people when we could be learning more about Alito from Alito himself--this is wrong.
posted by amberglow at 1:46 PM on January 12, 2006


Believe what you wish, monju.

The jingosphere was irate yesterday with those of us who presumed to opine that Mrs. Sammy's tears looked somewhat staged.
Per Jeralyn, maybe the tut-tutters can explain the immediate post-caterwaul release of this:
The always-alert Creative Response Concepts, a conservative public relations firm, sent this bulletin: "Former Alito clerk Gary Rubman witnessed Mrs. Alito leaving her husband's confirmation in tears and is available for interviews, along with other former Alito clerks who know her personally and are very upset about this development."
And who would Creative Response Concepts be? According to Will Bunch, they're the same crack team that insta-pimped the Swift Boat Veterans and that TANG/Buckhead nonsense.
Quelle coincidence, as we traitorous French would say.

posted by amberglow at 1:53 PM on January 12, 2006


Durbin just specifically on the record disasscoiated himself from Leahy's comments.

On preview:

Keep floundering amberglow.

As monju presciently said before these judges started:

The Democrats are desperate to keep the judges from testifying, because they know they'll pop the rhetoric balloon.
posted by monju_bosatsu at 1:34 PM CST on January 12

posted by dios at 1:55 PM on January 12, 2006




I'm not floundering at all--i know how they operate. for lawyers you guys are awfully naive.
posted by amberglow at 2:00 PM on January 12, 2006


Got to love the last ditch effort by Leahy to try to suggest that there might some conflict by having the judges testify in hopes it will discredit the testimony.

Durbin then disasscoiates himself with Leahy's comment on the record and makes a point to do so, and then proceeds to thank the judges.

Then Judge Becker, a powerhouse, forcefully corrects Leahy and tells him there is no issue of conflict at all and how ridiculous it is to suggest that there was.
posted by dios at 2:14 PM on January 12, 2006


i know how they operate.

Sure you do, amber, sure you do. Between your insistence that Mrs. Alito was faking her tears, and your conclusion that the testimony of preeminent federal judges from across the political spectrum, who have known and worked with Judge Alito for years, is useless, I have to conclude that you are incapable of being objective on this issue.

I would have much more respect for your arguments, and those of the other Democrats who oppose Alito, if you were willing to admit that Alito is well-qualified and has the integrity to be a Supreme Court Justice, and instead oppose him on the basis of the likely political results of his confirmation. Judging is politics, after all, and confirmation votes can therefore be based on the political results of putting a particular nominee on the court--at least that's how the argument goes.

I don't have any problem with the informed argument that Alito may incrementally restrict the scope of Roe v. Wade and its progeny, or that Alito may interpret the Commerce Clause in a way that restricts Congressional power to pass important legislation, or that Alito's deference to the Executive branch will result in a loss of the judicial bulwark protecting our civil rights. I have a real problem, however, with the uninformed and unfounded attack on Alito's intellect and judicial temperment.

You have made clear, amber, again and again in this thread, that you simply have no idea what you're talking about, and that you're willing to swallow whatever conspiracy theory supports your desire to see Alito's nomination fail. That's unfortunate, especially because you seem so blind to it. As I said above, honestly oppose Alito on political grounds if you like, but rest assured that he is a good judge.

I know that if this criticism were coming from dios, you would reject it out of hand. Please, however, consider that I am not an Alito apologist, and in fact I share most of your political views. I hope you consider my criticism in the friendly spirit in which it is intended.
posted by monju_bosatsu at 2:18 PM on January 12, 2006


monju_bosatsu: Well put.
posted by Carbolic at 2:23 PM on January 12, 2006


Judge Johnny Lewis, a liberal Democrat and civil rights activist, who is a strong candidate for the Supreme Court himself if a Democrat gets the White House, says that Alito has never been anything but open-minded and never shown to prejudge any case. Also says he has been a strong defender of civil rights.

Judge Aldisert... who? Oh yeah, a Democratic appointee who wrote the book. What book? Oh, yeah, this book:



Says Alito is exceptionally brilliant and fair-minded and that all the allegations made about him by the Democratic Senators are false.

Judge Barry, put on the Court by Clinton, a female, says he has impeccable reputation and is strong on women's issues.

Judge Gibbons, an old liberal warhorse who argued against Bush in the Supreme Court on the Gitmo detainee issue and a Dealth Penalty Activist, told us that he is an exceptional judge who always respect precedent and always approaches cases with an open mind.

Judge Becker, chief judge of the Third Circuit Court of Appeals who has say on over 1,000 cases with Alito says he never saw him prejudge a case or let his personal views influence his vote.

This is amazing character testimony. Compeltely relevant since they all know and have worked with him, and without any reputable basis for challenging the opinions.
posted by dios at 2:29 PM on January 12, 2006


What monju_bosatsu said.
posted by dios at 2:31 PM on January 12, 2006


I don't know, but it might win him some votes here on Metafilter and on the Left.
posted by dios at 4:04 PM EST on January 12 [!]


And once again Dios launches a personal attack on everyone who uses Metafilter because he's too lazy or ignorant to come up with a rational response.
posted by Rothko at 3:00 PM on January 12, 2006


now it's getting interesting...hearing "my boss is great" is a crock. hearing that Alito thinks cops can shoot unarmed 8-year-olds or whoever they want is not a crock.
posted by amberglow at 3:05 PM on January 12, 2006


As I said above, honestly oppose Alito on political grounds if you like, but rest assured that he is a good judge.

He's not a good judge in my mind. People matter more than companies or governments or authority figures. He doesn't believe that. If he is confirmed i'll never have equal rights in this country. If he is confirmed the right to choose will be further eroded if not eliminated. If he is confirmed the executive can do whatever it wishes. A good judge would not continually side with those in power against those who have been harmed. A Supreme Court judge especially. I have a lot at stake here, and know that this person is not concerned with my life nor with that of millions of others of us who are without power. The courts are supposed to be there for us, as a remedy against harm or malpractice or injustice--he doesn't think that.
posted by amberglow at 3:10 PM on January 12, 2006


And he has explicitly stated that he decided to study constitutional law because he was distressed over the liberal activism practiced under Chief Justice Earl Warren's leadership.

That "liberal activism" is what gave many rights that were denied. It made the constitution real and useful for millions who had no other redress of real grievances and injury. His very premise for becoming a lawyer and now a Judge is anathema to me. The history of this country is about expansion of rights and allowing fuller expression of the rights laid out in the Constitution, not the opposite. He believes in less individual rights, less redress, less opportunity for regular people...
posted by amberglow at 3:16 PM on January 12, 2006


The Warren Court (1953–1969) made a number of alternately celebrated and controversial rulings expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process. It held that segregation was unconstitutional (Brown v. Board of Education), that the Constitution protects a general right to privacy (Griswold v. Connecticut), that schools cannot have voluntary prayer (Engel v. Vitale) (or, a fortiori, mandatory bible readings, Abington School District v. Schempp), dramatically increased the scope of the doctrine of incorporation (Mapp v. Ohio; Miranda v. Arizona), wrote an equal protection clause into the Fifth Amendment, held that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Baker v. Carr; Reynolds v. Sims), and that the Constitution requires active compliance (Gideon v. Wainwright).
posted by amberglow at 3:29 PM on January 12, 2006


And once again Dios launches a personal attack on everyone who uses Metafilter because he's too lazy or ignorant to come up with a rational response.

And once again, you launch a personal attack in response to a perceived "personal attack on everyone who uses Metafilter" from dios. He must really push your buttons. Dios has been a lot more rational in this thread than you have. The sad thing is, when you're not completely consumed by your sanctimony, you can be quite rational.

He's not a good judge in my mind.

To you, what makes a good judge is that he or she will decide cases in your favor. I'm sorry, but that's just crap. By that standard, you should be the next nominee!

If he is confirmed i'll never have equal rights in this country.

Who knows?

At Princeton, Alito led a student conference in 1971 called "The Boundaries of Privacy in American Society" which, among other things, supported curbs on domestic intelligence gathering, called for the legalization of sodomy, and urged for an end to discrimination against homosexuals in hiring by employers. During said conference, Alito stated that "no private sexual act between consenting adults should be forbidden."

1972 Alito Princeton Privacy Report
posted by me & my monkey at 4:34 PM on January 12, 2006


Whatever else I can add to this, I can tell you with personal knowledge that Mrs. Alito was not faking her tears, or at least her emotions. She was extremely upset over the treatment her husband received.
posted by caddis at 5:28 PM on January 12, 2006


And once again, you launch a personal attack in response to a perceived "personal attack on everyone who uses Metafilter" from dios.

Perceived? It's not the first time. Anytime anyone disagrees with him, it's Metafilter vs. Dios. I'm surprised Matt continues to allow it, frankly.
posted by Rothko at 8:14 PM on January 12, 2006


Anytime anyone disagrees with him, it's Metafilter vs. Dios.

You're kidding, right? He makes a (pretty mild) joke about shooting the Pope, and that's a personal attack on everyone who uses Metafilter? Is this your reenactment of the Princess and the pea? You're so sensitive to insults on our behalf, you can detect them when they don't even exist! What would we all do, without you to defend us?
posted by me & my monkey at 9:02 PM on January 12, 2006




whatever
posted by caddis at 9:54 PM on January 12, 2006


yup, whatever--it's not like they haven't used the exact same trick before or anything: Virginia Thomas weeps as she hears the allegations against her husband.
posted by amberglow at 11:32 PM on January 12, 2006




You're kidding, right? He makes a (pretty mild) joke about shooting the Pope, and that's a personal attack on everyone who uses Metafilter?

No, the usual personal attack comes afterwards, a typical and tedious rhetorical device to get around having to deal with the content of people's comments.
posted by Rothko at 6:48 AM on January 13, 2006


--Professor Erwin Chemerinsky of Duke
posted by amberglow at 8:41 AM CST on January 13


So, just to make clear, amberglow.

Testimony from respected, bi-partisan federal circuit judges who know what kind of judge Alito is and say he is impeccable is worthless to you?

Testimony from law professors, who are overtly political and don't know Alito at all or how he goes about as a judge is valuable to you?
posted by dios at 7:20 AM on January 13, 2006


So are you saying that being a law professor isn't a good basis making judgements? If not, would you say that?
posted by lodurr at 7:22 AM on January 13, 2006


Prof. Tribe has testified against every single judge nominated by Republican presidents since Bork, including David Souter, and expressed "grave concern" about each of them.

At what point does his opinion become worthless?
posted by dios at 7:23 AM on January 13, 2006


If you're responding to my question, I'm not sure what that has to do with it.
posted by lodurr at 7:25 AM on January 13, 2006


So are you saying that being a law professor isn't a good basis making judgements? If not, would you say that?
posted by lodurr at 9:22 AM CST on January 13


No. I didn't say that. I was showing what a hack amberglow is.

I personally think the opinion of the judges, who know him best and how he adjudicates cases, are extremely helpful in analyzing judges.

I think the opinion of law professors are helpful in some regard, insofar as they know about the law, but since they don't know him and don't know how he judges, I find their opinions to be less helpful than the judges who know him. Not to mention, as I just noted, some of the professors aren't exactly fair-minded. Tribe is an overt and unapologetic liberal who would testify against anyone Bush nominated. Chemerinsky isn't too far behind him. They are both respected constitutional scholars, but their opinions don't give us anything beyond how they would like a judge to rule.
posted by dios at 7:27 AM on January 13, 2006


If you're responding to my question, I'm not sure what that has to do with it.
posted by lodurr at 9:25 AM CST on January 13


That response wasn't my response to you, but it does have something to do with it.
posted by dios at 7:27 AM on January 13, 2006


Dios, i happen to agree that most of the judges appointed by the republicans since Bork have turned out poorly...so maybe i value his opinion. and i think thats what we are arguing over here you think Alito is a good judge because he sees the world the way you do, and myself and other don't like him because we don't see the world the way Alito does. So all this legal back and forth is really an argument over world views. so maybe we should stop arguing over Alito and get to the point, we don't see the world the same way and personally i feel that the liberals of today become the conservatives of tomorrow and the conservatives of today become history lessons for what not to do in the future. let us only hope this trend continues.
posted by stilgar at 7:28 AM on January 13, 2006


dios, I think that the testimony of these professors is as valuable as the testimony of the judges yesterday. The judges yesterday were testifying about Alito's ability and judicial temperment, and all agreed that he is a very smart guy, very collegial, fair, and impartial; in other words, qualified to serve as a Justice. None of the professors testifying today have contradicted that testimony; instead the professors are testifying about the political and doctrinal consequences of putting Alito on the court. If you accept the argument that Senators should vote for or against confirmation not just on the basis of qualifications, but also on the basis of those consequences. Sure, the professors are overtly political, but there's quite a range there, from Fried to Chemerinsky.

Prof. Tribe has testified against every single judge nominated by Republican presidents since Bork, including David Souter, and expressed "grave concern" about each of them. At what point does his opinion become worthless?

That doesn't make his opinion worthless; it means he has concerns about the doctrinal consequences of confirming Republican nominees. Each Senator has to determine how valuable he thinks that testimony is.

I personally think the opinion of the judges, who know him best and how he adjudicates cases, are extremely helpful in analyzing judges.

Again, you're comparing apples and oranges. The testimony of the judges is certainly more helpful in testing Alito's qualifications, but doesn't tell us much about the doctrinal consequences of putting Alito on the Court. The judges themselves implicitly acknowledged this, when several declined to testify on how they thought Alito might decide certain issues.

They are both respected constitutional scholars, but their opinions don't give us anything beyond how they would like a judge to rule.

That's exactly right. And that's something the Senators want to hear about. Indeed, I think asking professors to testify is a much more honest approach to the hearings than listening to the Senators pontificate about Vanguard or CAP.
posted by monju_bosatsu at 7:31 AM on January 13, 2006


stilgar: I respect that view sincerely. I wasn't trying to suggest that Tribe is wrong or doesn't have a right to be opposed to them. But he suffers from the same disease that many people here on Metafilter suffer from: they see the sky falling every time. Tribe has testified against every judge that if they are confirmed, a constitutional apocalypse will happen. That if the judge is confirmed, slavery will be re-instituted and women will die in back alleyways in an effort to get abortions.

Yet, they have all be confirmed, and his vision has been wrong. So maybe he is being unfair in his evaluations?

Opposing them is one thing. Acting as if they are all horrible people who will ruin our country is a bit much.
posted by dios at 7:34 AM on January 13, 2006


Dios the sky might not be falling but it sure as hell is sagging (if you have my world view) I really think bad things are, and have, been happening in this country, i don't like the direction we are going, and i think that a large part of that is because our leaders are not doing a good job of addressing the important issues of our day, and putting Alito on the bench i feel will only push us further in a direction i don't want to go. so i am going to have to disagree with you on this issue.
posted by stilgar at 7:39 AM on January 13, 2006


Indeed, I think asking professors to testify is a much more honest approach to the hearings than listening to the Senators pontificate about Vanguard or CAP.
posted by monju_bosatsu at 9:31 AM CST on January 13


I agree completely.

As I said, I find the professors' opinions helpful. I didn't intend to suggest otherwise. I thought I made it clear that I find it helpful.

I just think the judges are more helpful because I view judging as process oriented.

So don't assume I was saying their opinions aren't important. I brought up the issue to show the ridiculous and transparent partisan hackery of amberglow who felt the judges (who were pro-Alito) were worthless, but Chemerinsky is somehow greatly important.

So let me clear: I think the testimony of the law professors is helpful. Not terribly so, though, because these professors are testifying about how they would like the Constitution to look, as opposed to how Judge Alito would make it look. Now, I think Chemerinsky's opinion should be on there, as well as the rest. The only one I find to be worthless is Tribe (for the reasons I have stated). If you are going to get Tribe's opinion, you might as well get Bork's too. Not sure how valuable either of their opinions are going to be since they are so wedded to their agenda.
posted by dios at 7:40 AM on January 13, 2006


I really think bad things are, and have, been happening in this country
posted by stilgar at 9:39 AM CST on January 13


What percentage of that is tied to the interpretative views of Supreme Court members?
posted by dios at 7:42 AM on January 13, 2006


What if i said to you Dios "only a small percentage of that is tied to the interpretative views of the Supreme Court members" would that even matter, a small bit is still too much. A snow ball rolling down hill starts very small and before you know it you are fucked.
posted by stilgar at 7:49 AM on January 13, 2006


I should also note that quite a few members of the Senate Judiciary Committee decided to skip out on this morning's session. Given that many of the Senators had no interest in listening to or questioning either the judges testifying yesterday or the professors testifying this morning, the debate on whether these hearings are a substantive inquiry or mere grandstanding is effectively ended.

A few years ago, the Congress passed the Line Item Veto Act, giving the President authority to veto individual tax and spending measures after having signed them into law. Several individual members of Congress sued to challenge the Act's constitutionality. The case eventually made it up to the Supreme Court, where the Court concluded that members of Congress didn't have standing. Can you imagine if three or four Justices decided not to show at the oral arguments in that case? The members of Congress would have been incensed, and rightfully so. Now, members of the Judiciary Committee decide not show up at hearings on the confirmation of the President's nominee for the Supreme Court, arguably one of the Committee's most important functions. That's simply disgraceful, and show's a deep lack of respect for the confirmation process and the judiciary.
posted by monju_bosatsu at 8:59 AM on January 13, 2006


Exactly monju. That's what I said from the get go. Senators not caring how Alito answers questions, only interested in their own words. And not interested in the testimony of other witnesses. It's a sham.

And, as an unrelated matter, this Debbie Wasserman Schultz is the most worthless witness. Why the hell do they have this idiot on here? She has exhibited no knowledge of the law or knowledge of Alito. She has rambled on about all the blog churn talking points about Alito. "He let a 10 year old be strip searched!!"

What a waste of time. She has no qualifications to be testifying and has offered nothing to the dialogue. I don't blame the Senators for skipping her.
posted by dios at 9:23 AM on January 13, 2006


dios, women will die from back-alley abortions just like they used to if Roe is overturned. The judges you think haven't hurt anything have already made it much much harder for a woman to exercise her rights under Roe. That's going to be accelerated now, since O'Connor was the only one holding the rest of them back.

Alito is not qualified to serve for many reasons, but most simply because of his Vanguard and CAP lies under oath during these very proceeding. He is not trustworthy at all, nor does he care at all about the people affected by his decisions. The law is not a intellectual exercise or plaything, nor is it an abstract concept--it affects real lives, and needs to serve real people.
posted by amberglow at 11:26 AM on January 13, 2006


Alito is not qualified to serve for many reasons, but most simply because of his Vanguard and CAP lies under oath during these very proceeding.

Neither of those is as serious as you make them out to be, in my opinion. There are logical, simple explanations for both of them. Whether you accept those explanations is up to you, but they are pretty reasonable nonetheless.

He is not trustworthy at all, nor does he care at all about the people affected by his decisions. The law is not a intellectual exercise or plaything, nor is it an abstract concept--it affects real lives, and needs to serve real people.

That's the crux of the matter for you, I think. You don't agree with him, so he is therefore untrustworthy and uncaring. I'm sorry, but that's just crap, plain and simple. I don't think he believes that the law is a plaything - he seems to take it much more seriously than you do. You just want what you think is right, whether it conforms to the law or not. So do I, actually, but I don't confuse what I want with what the law allows.
posted by me & my monkey at 12:03 PM on January 13, 2006


I'll propose a contrarian view (though I do happen to actually hold this view, so it's not purely offered out of spite): I think Alito is both qualified and untrustworthy.

I don't trust him. I don't feel as though he's as good as we could get, if the process weren't so overtly politicized. But he's certainly a far cut above some folks we've had in the past.
posted by lodurr at 2:24 PM on January 13, 2006


They're not logical and simple explanations--there were multiple and conflicting explanations offered throughout the hearings. Even if i agreed with him, i'd still call him untrustworthy--i called Clinton that, and i loved him. Running away from your stated positions is extremely untrustworthy as well--it shows real lack of conviction.

Until he proves that he cares about the actual people behind the cases he's heard and will hear--which he hasn't done at all--then there's ample evidence he does not care. Not once during the hearings did he state that the people who brought a case were the important thing instead of the case and law itself. Law does not exist in a vacuum, and even Bork and Scalia understood that.
posted by amberglow at 2:36 PM on January 13, 2006




Not once during the hearings did he state that the people who brought a case were the important thing instead of the case and law itself.

We are a country of laws and not of men.
posted by monju_bosatsu at 3:11 PM on January 13, 2006


Law does not exist in a vacuum, and even Bork and Scalia understood that.
posted by amberglow at 4:36 PM CST on January 13


$1,000 says you completely made up this sentence and can't provide any basis to defend it.

And:

what monju_bosatsu said.
posted by dios at 3:26 PM on January 13, 2006


uscourts.gov: ... The federal courts often are called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by the Constitution. Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes. The courts do not make the laws. That is the responsibility of Congress. Nor do the courts have the power to enforce the laws. That is the role of the President and the many executive branch departments and agencies.
The Founding Fathers of the nation considered an independent federal judiciary essential to ensure fairness and equal justice for all citizens of the United States. ...


and then there's this Oliver Wendell Holmes guy, and a famous quote or 2: ...Justice Oliver Wendell Holmes, Jr. maintained that the law could only be understood as a response to the needs of society. According to Justice Holmes, political, social, and economic forces play a major role in shaping the statutes that are ultimately enacted and the decisions that courts ultimately render. This article reviews three interesting employment law developments, each of which reminds us of Justice Holmes' words that the law does not exist in a vacuum but responds to "felt needs of society." ...
posted by amberglow at 4:23 PM on January 13, 2006


Well, looks like he will be confirmed. Sorry, better luck next...decade...
posted by ParisParamus at 4:31 PM on January 13, 2006


You might want to read a little more from Holmes before you quote from him. For example, from his dissent in Lochner:
I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
posted by monju_bosatsu at 4:48 PM on January 13, 2006


now, on to Bork and Scalia: Bork: ...BORK: I think there is a pool of candidates who would meet that requirement. We're not talking about, you know, the details of what the founders thought. We're talking about the principles they laid down which have to be applied to today's circumstances and justices must not make up the principles as they go along. ... Now, do i really need to go into the principles and reasons why the founders set up this legal system? You let me know if that's necessary.

Scalia: ...when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years. ...
posted by amberglow at 4:50 PM on January 13, 2006


I don't understand why you selected those quotes from Bork and Scalia, amber. Can you elaborate?
posted by monju_bosatsu at 4:56 PM on January 13, 2006


there are tons of good Holmes quotes: LOCHNER v. PEOPLE OF STATE OF NEW YORK--...In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? ...
posted by amberglow at 5:05 PM on January 13, 2006


I don't particularly want Roe v. Wade to be superceded. But I would like abortion to be reigned-in just an itty bit, say, with the father notification requirement that Alito voted for (in a dissent). Why? Mostly because the hysteria on the Left would be so entertaining to watch...now, THAT would get me to buy a television, and perhaps, perhaps, even spring for cable!
posted by ParisParamus at 5:09 PM on January 13, 2006


One speaks to the principles (life, liberty and the pursuit of happiness, rights, priviledges, opportunity for redress of grievance, etc) that underly all law and the constitution. It's not a vacuum. Those principles are entirely about people.

The other is clear: saying "devised to protect you and me" against other people, and that it's not just majority rule tells you what animates Scalia. He says the reason we have the bill of rights--and his most important function--is not something in a vacuum, unconnected to people and their rights and lives.

Scalia actually is much more consistent than Alito, i think--Altio is for things the government or authority figures want, but doesn't uphold things/actions or provide remedy when regular people need redress. Alito allows for expansive Executive power over the other 2 branches--to an extreme sometimes, while Scalia goes on in that piece about how Congress and State legislatures should make laws instead of looking to the courts to make laws. Since we are stuck with the people on the courts til they die, that allows for more participation from citizens and their elected representatives, who can be thrown out if they don't do as people wish. Scalia shows proper deference to the other branches and their roles, i think. He's a check and balance on--and not a replacement for--the Legislative branch.
posted by amberglow at 5:15 PM on January 13, 2006


correct me if i'm wrong, monju, but people who look to the founders are actually looking to what they intended--it's pretty clear what they intended, and what animated them--it wasn't just creating something out of nothing (i.e., a vacuum)--it was purposely trying to devise a better system under which people could live freely and with rights--rights they hadn't had in the past.
posted by amberglow at 5:18 PM on January 13, 2006


amber, your quote from Lochner above is from the majority opinion, authored by Justice Peckham, not Justice Holmes, who penned the dissent.

Both Bork and Scalia agree that the Constitution, and particularly the Bill of Rights, is counter-majoritarian, but they also believe that the protections contained therein are based on immutable principles laid down hundreds of years ago. I agree with you on the deference point. Scalia does show less deference to the other branches than Alito appears to.
posted by monju_bosatsu at 5:20 PM on January 13, 2006


Nor was it about creating something in isolation to people and their lives, or ignoring how they had lived in Europe, and as a colony. Our whole system of Government is (and was) derived of the people, for the people and by the people.
posted by amberglow at 5:24 PM on January 13, 2006


correct me if i'm wrong, monju, but people who look to the founders are actually looking to what they intended...

Honestly, that depends on who you talk to. Of the subset of legal thinkers that believe we should care about the founders, some believe the intent of the founders is key, while some think that the contemporaneous understanding of the text is key.

As for what the founders intended, at least in specific cases, that's far from clear. The founders were not acting as a monolithic whole, and indeed, many of the founders believed in principles antithetical to what you and I think of as modern democratic principles. For example, the Establishment Clause was originally understood to protect state establishments of religion from federal interference, something that most people today don't realize. The Constitution is as much about institutional arrangements as it is about rights.
posted by monju_bosatsu at 5:25 PM on January 13, 2006


Nor was it about creating something in isolation to people and their lives, or ignoring how they had lived in Europe, and as a colony. Our whole system of Government is (and was) derived of the people, for the people and by the people.

I appreciate this sentiment, amber, but it's basically empty rhetoric that doesn't tell me much about how judges should decide actual cases everyday.
posted by monju_bosatsu at 5:29 PM on January 13, 2006


oops : >

Holmes says this there tho: ...But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. [198 U.S. 45, 76] It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. ...

I see things like that--always connecting the Constitution and laws to people--throughout his quotes that i've seen.
posted by amberglow at 5:30 PM on January 13, 2006


The Constitution is as much about institutional arrangements as it is about rights.

Why would that be tho? And why set up new types of institutional arrangements at all? If it's not about rights and people, there's no need at all for any new or different institutional arrangements.
posted by amberglow at 5:32 PM on January 13, 2006


I'm not saying that the rights aren't fundamentally about people, I'm just saying that doesn't tell us very much. Of course, it's connected to people, but what does that mean for an appellate judge on panel reviewing, for example, the decision of a district judge dismissing the securities fraud suit of a class of investors against a public company for failure to state a claim upon which relief can be granted? Your principle that "rights are for people" doesn't help us at all. The judge has to look at the statute, which is passed by Congress and signed into law by the President, to understand what to do. If you just argue that people should be privileged over corporations, you eviscerate the entire statutory scheme. Sure, rights are for people, but how do we apply them? And how do we apply them equally and fairly? We look to the law. Every good judge does this, including both liberals and conservatives, from Becker to Garth, from Ginsberg to Scalia, even Alito.
posted by monju_bosatsu at 5:40 PM on January 13, 2006


Can we please just overturn R V. W so Paris can be entertained enough to buy cable?
posted by Balisong at 5:42 PM on January 13, 2006


Sure, rights are for people, but how do we apply them? And how do we apply them equally and fairly? We look to the law.

And when your judicial record is overwhelmingly one-sided against the non-powerful and non-govermental? Is that applying the law equally and fairly? Or is it that the law itself is unequal and unfair?
posted by amberglow at 5:50 PM on January 13, 2006


And how do you evaluate the record? How do you know it's one-sided? I've read hundreds of Alito's cases, and I don't think they're that one-sided. It's very true that Alito displays a streak of deference to the executive, for example, but he's within the judicial mainstream.

Or is it that the law itself is unequal and unfair?

And what are judges supposed to do about that? The only basis for a federal judge to overturn a law passed by Congress is to find that it's unconstitutional. The judge can't just invent that basis.
posted by monju_bosatsu at 5:56 PM on January 13, 2006


I think you're wrong about the mainstream. According to this study, there are only 2 areas in which he was in the mainstream--voting against the defendants in criminal prosecution, and voting against prisoners in rights cases.
posted by amberglow at 6:12 PM on January 13, 2006


I don't believe laws themselves are unequal or unfair generally--we can always make new laws and fix bad ones. We have a neverending supply of possible laws. I thought that was your point--that it's only the law itself, and not rights or people?

I don't see how in a tax case he can decide that the 2 adults shouldn't have been searched (even tho they were specifically named in the warrant), and then say the IRS has immunity anyway, and then in another case, decide that strip-searching a little girl who wasn't named was perfectly fine, the police were just doing their job. That's not fair and equal at all--except that in both cases, he wanted the authorities to win.
posted by amberglow at 6:33 PM on January 13, 2006


It's the judicial system which is unfair and unequal tho--if you have money to get a better lawyer, you win. white-collar crime is treated much less harshly than other types. rich and/or famous people almost always get off, while poor and not-connected people almost always don't get off.
posted by amberglow at 6:44 PM on January 13, 2006




I don't know, but it might win him some votes here on Metafilter and on the Left.
posted by dios at 4:04 PM EST on January 12 [!]


This statement obviously, by your own logic, makes you blindly partisan.
posted by juiceCake at 9:02 PM on January 17, 2006


look at the mess i caused...with one simple post, i feel proud this is by far the best discussion any of my posts have had so far. thanks people.
posted by stilgar at 12:53 PM on January 18, 2006


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