What Would Samuel Alito’s America Look Like?
By Justin Gardner | Related entries in Supreme CourtToday I found myself reading a well written backgrounder on the man who would be the next Supreme Court Justice.
WASHINGTON, Oct. 31 - One weekend in 1986, two young lawyers working for Samuel A. Alito Jr., then a deputy assistant attorney general in the Justice Department, faced a looming deadline for a legal analysis and realized they would have to work all night to get it done.“In the legal world, most bosses would say, ‘This is what I want on my desk in the morning,’ ” said John F. Manning, one of the lawyers. “Sam stayed with us. He went out and got pizza and he pulled the all-nighter with us. I’ve never seen anything like that before or since.”
Throughout his life - ever since he resolved his high school indecision between his dream of a career in baseball or a life in law - the self-effacing Judge Alito, President Bush’s new choice for the Supreme Court, has made his mark with quiet dedication rather than showy display. He has cloaked his formidable intellect in modesty, an attribute both surprising and endearing to colleagues in high-octane legal circles.
However, a big caveat emptor:
Larry Lustberg, a former federal prosecutor who has known Judge Alito for 22 years, called him “totally capable, brilliant and nice.”But Mr. Lustberg added, “Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country wants to move this court to the right.”
The piece goes on to talk about his family, growing up in New Jersey, his college years and subsequent appointments. I really enjoyed it and I recommend you read the whole thing.
So from all indications so far, Alito seems like a fair and reasonable person, and he has what many would describe as a strict constitutionalist (conservative) take on the law. Given that, should he be the person to take the seat of a swing vote like Sandra Day O’Connor? Should we replace her with somebody who’s not like her at all? Remember balance here people. I mean, the guy was the lone dissent in Planned Parenthood v. Casey on the Third Circuit Court of Appeals. Say what you will about the judicial merits of that dissent, but it is a decidedly conservative stance since it essentially came down to his opinion about what an undue burden is for a woman.
Personally, I haven’t made up my mind yet on Alito. He troubles me and I said as much yesterday when I found out about the Planned Parenthood case. But I’m reserving final judgement until I go through his cases and determine exactly where this guy is going to lead our country.
Because let’s not kid ourselves. All of us should be extremely sober in our consideration of living 20+ years under a judiciary that marches to the beat of a right-wing drummer. That’s what we’re deciding here and the decision should not be taken lightly.
Look at the facts, look into your heart and let’s all start talking in earnest about what kind of country we’re facing if a Justice Alito replaces the swing vote of Justice O’Connor.
What would our country look like?
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November 1st, 2005 at 10:42 am
What you are endorsing is to always keep the “status quo” on the Supreme Court: Four liberals, two moderates, and three conservatives (at least that’s my take on their philosophies). Is that what we want? To always have a court that is slightly left-of-center? If so, then Presidents and the Senate would have their hands tied by every new appointment. Such a proposition is dangerous and foolish.
November 1st, 2005 at 11:07 am
Balance? I must have missed that section of Art II: let me check.
Clause 2: …and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…
Unless I missed it, I read that clause as saying he can appoint Supreme Court Justices, with the advice and consent of the Senate. Nothing about proper ideology.
November 1st, 2005 at 11:32 am
Which is exactly what Clinton did when he replaced Byron White, a staunch conservative, with Ruth Ginsburg, a staunch liberal. The president gets to nominate whomever he wants, balance or no.
November 1st, 2005 at 11:48 am
1) Prayer in public schools
2) Divine Design taught in science class
3) Juvenile Death penalty
4) Legalized discrimination of gays
5) No Miranda rights
6) No right to privacy
7) No endangered species act
8) No Family & Medical Leave act
9) More power to the executive regarding due process rights.
10) Increased power to the states. e.g. if State X wants to outlaw the morning after pill or abortion they can.
I am painting a worst case scenario here, but why do you think the Right Wing blogs love this guy? He is one vote closer to giving them everything they want.
November 1st, 2005 at 12:59 pm
I think it all comes down to how people want to see the constitution interpreted: Literrally or Liberally. Recently, in Kelo v New London,
the left-of-center court severely eroded our fifth amendment rights.
They read something into the constitution that clearly didn’t exist. That’s
liberal interpretation. How long before they start on our 1st or 2nd ammendment rights?
November 1st, 2005 at 1:45 pm
Well, the ideological shift Clinton made replacing White with Ginsburg was much greater than replacing O’Connor with Alito could ever be. Yet, even by conservative standards, it hasn’t been the end of the world. Kelo was close, though (WHAT WERE THEY THINKING!?!?!?)
If Alito is confirmed, that actually balances the court with 4 liberals, 4 conservatives, and 1 moderate. Alito will restore balance to the court. Or something like that.
November 1st, 2005 at 2:46 pm
First, off there’s nothing inherently wrong with the “status quo.” Let’s just say that right up front. Our court system isn’t broken although many would have you think so. And this label of “activist” is one of the most misued terms in history.
However, did I say I’m endorsing this? No. I haven’t made a decision one way or the other at this point. But what I did say is we need to consider the position Alito is replacing is a “swing” vote.
Also, let’s look at your ideological 4-2-3 breakdown, shall we? And to that point, let’s look at who appointed these people.
Roberts - Bush II
Breyer - Clinton
Ginsburg - Clinton
Thomas - Bush I
Souter - Bush I
Kennedy - Reagan
Scalia - Reagan
O’Connor - Reagan
Stevens - Nixon
7 conservative nominations vs. 2 liberal nominations. You’re actually telling me that this court is left-of-center? Why? Because they don’t always take the conservative point of view on every case? Please, spare me the histrionics. Also, forgive me Nemo if I think your descriptions of my post as dangerous and foolish are, well, foolish.
Also, nobody has said that Bush has to pick somebody of a certain ideology. But should we question the nomination of somebody who could swing the court in one distinct direction for the next 20 years? Absolutely. Courts need balance, and the Supreme Court needs it more than any court. Have all of you who attack my points forgotten this?
November 1st, 2005 at 5:28 pm
Yes we are telling you this court is left of Center in Judicial Philosophy. There are only three judges that view themselves as strict constructionists or traditionalists. The remainder all are prone to create new tests or “extra Constitutional Rights”, when they feel it is in their interest or the populous wants change. That simple test makes them liberal.
Simply put, making law is not their job. If you want to change policies win elections. It is dangerous and undemocratic to use the force of the Supreme Court to make new law. Legislatures make law; justices interpret the constitution and apply law. Sometime the legislature oversteps and creates an unconstitutional law, and it is the job of the court to correct that, not to create law on its own.
The reality is there are plenty of parts of the constitution, which are actually on paper, that we can disagree with. We don’t need justices to legislate from the bench and create new controversies for us to fight over.
Additionally, I’d like to point out that Nixon was not a conservative. He never claimed to be a conservative and he certainly never governed as a conservative. Stevens, Kennedy and Souter especially are all mistakes. George H. W. Bush would certainly say Souter was his second largest mistake after increasing taxes.
November 1st, 2005 at 6:13 pm
There is no such position as “Supreme Court Swing Vote Justice.” Just saying.
November 1st, 2005 at 6:31 pm
What? Oh, well nevermind…I recant everything I’ve said. ;-)
November 1st, 2005 at 8:12 pm
7 conservative nominations vs. 2 liberal nominations.
Irrefutable evidence that conservative presidents are more even-handed in their judicial nominations than liberal presidents!
Well, either that or they’re worse judges of long-term judicial temperament.
November 1st, 2005 at 8:50 pm
Well, upon re-reading, I apologise for the snarky tone of my earlier post. Sarcasm is cheap and your post probably didn’t deserve it. Sorry.
But from my perspective, all Bush is required to do is appoint a highly qualified judge, and frankly he’s not even required by the constitution to do that much (the language seems to permit pretty much any warm or for that matter, cold, body acceptable to the senate). The republicans control both houses and the white house: they’re entitled to appoint judges that agree with their politics.
November 1st, 2005 at 11:06 pm
Irrefutable evidence that conservative presidents are more even-handed in their judicial nominations than liberal presidents!
Well, either that or they’re worse judges of long-term judicial temperament.
Heh.
January 10th, 2006 at 12:39 pm
[...] And yes, the Casey case still bothers me quite a bit. As painful as it is for some men, respecting a woman’s right to do what she wants with her body is far more important than notifying the father. I’ve written more about this case and others here, here and here. [...]