Although I’ve blogged about ancillary topics related to Judge Alito’s nomination to the Supreme Court, I haven’t yet stated my own position on the pick, so let me say this. At first blush, I am inclined to say that he should be confirmed. The relevant question isn’t, “If I were president, would I have picked Alito?” Rather, the relevant question is, “If I were a senator, would I vote to confirm him?” And the answer is, I think, yes. Unless something emerges that makes him look more like a crazed lunatic than he currently appears, I believe that he possesses the requisite credentials for confirmation.
There are two components to this position. First off, I don’t believe the Senate’s advice-and-consent role extends so far that senators are supposed to act as 100 mini-presidents, each making individual judgments about whether they would have chosen this person if they were in Bush’s shoes. I prefer the approach taken by the Republicans during Clinton’s term, when only 3 senators voted against Ruth Bader Ginsburg and only 9 voted against Stephen Breyer; the vast majority of Republicans voted to confirm, even though I’m sure very few of them actually agreed with Ginsburg or Breyer on matters of judicial philosophy. I think senators are supposed to assess whether the nominee is generally, objectively acceptable, not vote “yes” if they agree with the nominee’s philosophy and “no” if they disagree with it. This isn’t an election. We had an election in 2004, and Bush won it. That means Bush gets to pick the Supreme Court nominees, and as long as his choices are reasonable, I believe they should be confirmed. The Senate plays an important role in making sure the nominee isn’t unqualified (see: Harriet Miers) or otherwise objectively unacceptable for some reason, but I think it’s an abuse of that role to vote against (or, even worse, filibuster) someone merely because of a disagreement over philosophy, so long as the candidate’s philosophy isn’t deranged or truly outside the mainstream. If the Senate starts to act like 100 mini-presidents on judicial battles, that new role will come back to haunt liberals once the Democrats re-take the White House. What happens when there’s a Democratic president and a Republican Senate (or even a Democratic Senate with more than 40 Republicans)? Is the president not allowed to appoint a judicial liberal? I don’t like that idea at all. The president gets to pick the justices; the Senate isn’t just a rubber stamp, but it isn’t a co-picker, either.
Secondly, I don’t believe that a nominee’s disagreement (or suspected disagreement) with controversial cases such as Roe v. Wade is somehow prima facie evidence that he or she is “unqualified.” If Alito disagreed with, say, Brown v. Board of Education, then we’d have something to talk about. But just because some more recent, controversial and debatable cases, like Roe, are seen as gospel truth by liberals, doesn’t mean everyone is required to agree with them or else be seen as objectively unsuitable for a seat on the Court. I simply don’t buy into the notion that anyone who has a Scalia-like conservative judicial philosophy is necessarily deranged or “outside the mainstream.” Frankly, I find that position absurd and borderline dishonest. No matter how much one might disagree with it, the conservative philosophy espoused by Scalia and his ilk is undeniably “mainstream.” It is held by two to three Supreme Court justices and countless other judges around the country, as well as many highly respected lawyers, law professors and others. To claim that judicial conservatism is “outside the mainstream” is to distort the term “mainstream” beyond all recognition. Again: just because one might strongly disagree with it, doesn’t mean it’s deranged or objectively beyond the pale.
The counterargument to this, I guess, is that if a judge isn’t clearly willing to “uphold” such “fundamental rights” as a woman’s right to choose, then he or she is just as objectively unsuitable as someone who opposes Brown. Sorry, but no. There is nothing “objective” about the debate over Roe and other issues that pit judicial conservatives against judicial liberals. There is an ongoing, vibrant discussion in which both sides have valid arguments and intelligent points. Just because you think someone is on the “wrong” side of the debate, doesn’t mean they’re objectively unqualified for high office. It just means they disagree with you. Presumably you registered your disagreement in the 2004 election; so did millions of others, and the other side won. That doesn’t mean you have to give up the fight, but it does mean you need to realize that elections have consequences, and the “wrong” side is going to win some battles in the short term, because they won. Crying “fundamental rights” resolves nothing, since whether the “rights” in question exist is the very thing that’s being debated. No matter how well you dress it up in flowery language suggesting the conservatives that evil, rights-stealing bastards, it still boils down to a fundamental disagreement over what the law should say and what the role of the courts should be, and whereas we can all agree today that segregation was objectively wrong, no such agreement is possible on the issues currently at stake.
Thus, since I believe senators should vote for a SCOTUS nominee unless that person is unqualified or otherwise objectively unacceptable, and since I do not believe Alito’s undeniable judicial conservatism makes him unqualified or objectively unacceptable, I am inclined to believe he should be confirmed, barring some new information or a poor performance at the hearings that raises doubts about his suitability for the job.
That said, I don’t particularly begrudge liberals the fact that they are vigorously opposing this nomination. This isn’t like Roberts, where I felt it was downright foolhardy to oppose a candidate whose positions on hot-button issues generally seemed to be either moderate or ambiguous, which is about as much as a liberal could realistically hope for from a conservative Republican president. Here, we’re looking at the quintessential conservative dream candidate, which means the quintessential liberal nightmare candidate. This is the guy the Democrats should have been saving their fire for; this is the one worth opposing. Although I ultimately don’t agree with the basic precepts that one must accept in order to oppose a SCOTUS candidate on purely ideological grounds, I can at least see where the Left is coming from on this one. So, for example, when my mom told me she’d written a letter to her senators urging them to oppose Alito, I didn’t feel the need to start an argument with her, like I did over her opposition to Roberts. :)
So anyway, there you have it. I tenatively support Alito, but I’m not about to join his fan club, either. And now, I need to either get back to my Moot Court paper, or sleep, or some combination of the two…
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Categories: Uncategorized
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November 2nd, 2005 at 3:39:09 am
The whole issue of what makes a nominee “qualified” is a curious one. It’s similar to how the Senate is supposed to “advise and consent” when it comes to the President’s nominees for crucial posts in the government.
What if a nominee is “qualified” in some kind of technical sense but holds clearly off the chart views?
There seems to me to be a point where the views one holds, when they become divorced from the mainstream of legal thought — (…and that’s what it’s all about for the very conservative….they want to redefine what is considered “mainstream”….)–can be used as a basis for a person to be disqualified from the job in question. When one holds views divorced enough from the mainstream of legal scholarship, does that disqualify you from the Supreme Court and does Alito hold such views?
An example might be this, to make it clearer: what if a nominee were a strict constructionist, someone who reads the Constitution very strictly and literally, trying to divine the intent of the Founding Fathers.
This method of constitutional interpretation is surely not in mainstream scholarship. So would this view alone be enough to exclude someone from the job? They might be qualified in every other way, having a deep constitutional knowledge about the law and cases, etc.
Take Alito’s view that the Congress has no right to regulate fire arms and ban ownership of automatic weapons like machine guns…..
Or his view that it is not unconstitutional to require a woman to notify her husband before getting an abortion….
Or his view that state workers are not covered by the family leave act, for whatever reason….
And then what if a person holds a handful of legal views that are out of the mainstream, but the rest of his or her views are generally mainstream? Is there a tipping point where the out of mainstream views crowd ut the rest of a person’s qualifications?
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November 2nd, 2005 at 6:29:21 am
The initial reaction by Senate Republicans to this nominee…as compared to Miers though is quite interesting in one respect. Several have already been quoted as saying he deserves an up or down vote. Maybe I missed it, but in the first few days following the Miers nomination, I don’t recall hearing that phrase used at all.
Instead, it appears that the Republican concept that all of the President’s judicial nominations should be entitled to an actual vote by the Senate really depends on whether the nomination meets the actual “standards” of individual Republican senators. While I am not saying that is a bad thing, it does seem to weaken the concept that the Democrats are required to allow votes on all such nominations as has been the demand of the Republicans this year.
November 2nd, 2005 at 7:52:31 am
“This method of constitutional interpretation is surely not in mainstream scholarship.”
Um, a major point of Brendan’s post is that this method of interpretation is indeed in the mainstream. I’m not sure it’s “the” mainstream in “scholarship,” but a) it is certainly very well represented in the scholarship and not just some fringe group of crazy professors talking to themselves, and b) I’m not sure what “scholarship” has to do with it anyway.
But to suggest that a strict construction or original intent/understanding method of interpretation is out of the mainstream is fundamentally to miss Brendan’s point — just because YOU don’t agree with it, doesn’t make it crazy. Fact is, a sizeable number of people believe it is the right way to go — which by definition places it in the mainstream. (This particular stream simply has two branches, I guess.)
November 2nd, 2005 at 7:57:05 am
Context, Ken.
Think of it in terms of burden of proof. First you need to show there’s a genuine issue of material fact in order to survive summary judgment. Then you need to make your case. At the close of evidence, the judge might enter a directed verdict, or he might let the case go to the jury.
Miers couldn’t clear the first hurdle. Most nominees can, in which case (by this analogy) they deserve to go the jury (the full Senate) rather than have a directed verdict (committee torpedo or filibuster).
If Miers had not withdrawn, I am confident that no Republican would have filibustered her nomination or let it die in committee. She would have gotten an up or down vote in committee, and if (as seems unlikely) they had voted in favor, she would have gotten her up or down vote on the floor of the Senate.
There is no inconsistency that I see in their being lukewarm as to whether or not they would support her. But they never suggested that they would deny her a vote. (Not that I’m aware of anyway.)
November 2nd, 2005 at 8:06:57 am
Brian - the difference is that had the Republican Senate leaders simply said on the day after her nominiation that she deserves an up or down vote…as they have done with Alito…that might have changed the tone of the discussion about her and made it easier for her to get to committee and ultimately the floor of the Senate.
However, because of her perceived lack of qualifications or lack of percieved conservative track record this did not occur immediately after the nomination as it has now done with Alito. Again…I don’t think this is necessarily bad but I believe that it makes it more difficult for the Republicans to argue that all judicial nominations are created equal…i.e. they all deserve a vote.
November 2nd, 2005 at 9:34:57 am
Brian Foster,
Brendan ASSERTED his personal opinion that original intent interpretations are not outside the mainstream so yes I indeed got that point. But thanks for reiterating it.
But the notion that we should rely on original intent as the sole guiding interpretation of the document is just plain silly and NUTS…yes, NUTS…for a couple of reasons. The two best reasons , and maybe these are actually more than a couple of reasons blended together, are that 1.) the Founding Fathers lived in completely different times, especially in terms of cultural values, that it’s silly to expect them to have the correct constitutional framework for solving our modern problems, and 2.) there are many things today that simply did not exist at the time the Constituion was written so it’s unreasonable for anyone to think the FFs framed all the constitutional issues in an appropraite manner. The FFs did not have automatic weapons that could spray hundreds of rounds a minute to deal with in their day.
What it all comes down to is this. Here’s what I think is the main sentence out of Brendan’s post on which his whole argument turns: “That means Bush gets to pick the Supreme Court nominees, and as long as his choices are reasonable, I believe they should be confirmed.”
Well, who’s to define what “reasonable” is? Brendan thinks he’s being “reasonable.” And we are quickly coming to a point in this country where some human beings think the earth is 4,000 years old and everything was created in 7 days by magic out of nothing, and that anyone with a view of the law that doesn’t agree with their notion of a Divine Creator is out of the mainstream.
I don’t have a solution to the problem of constitutional interpretation but I think for the above reasons that anyone who wants to interpret the Constitution within the framework of original intent and original intent alone has a screw loose.
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November 2nd, 2005 at 9:39:12 am
Sorry, I posted that last entry if that wasn’t obvious.
November 2nd, 2005 at 9:44:04 am
“Nominee Has Some Unexpected Supporters:
Liberals who have worked with Samuel A. Alito Jr. say he is fair, not a rigid ideologue”
http://www.latimes.com/news/nationworld/nation/la-na-legal2nov02,0,4962703.story?coll=la-home-nation
November 2nd, 2005 at 10:07:45 am
Mouse,
I don’t know that any Supreme Court justice has ever “rel[ied] on original intent as the sole guiding interpretation of the document”. The theory of constitutional interpretation that treats the constitution as a statute and gives its words the meaning they were understood to have at their writing, i.e., “originalism”, is not the same thing as “original intent”. For example, as a self-described “textualist” or “originalist”, Scalia expressly disavows original intent and could care less if the framers had some secret meaning in mind when writing the Constitution. The theory of originalism/textualism focuses first and foremost on the meaning of the words, which are the only thing that last and people have to go by when attempting to discern what the laws mean. Laws are obviously written in words, and as the saying goes, we are a nation of laws, not of men (and women!). If the Constitution as written becomes inadequate, we can amend it. The FFs specifically included a provision for that. It’s just as NUTS, if not more so, to believe that Constitution means what a group of lawyers and judges think it OUGHT to mean at any given time rather than what it actually DID mean. If that’s the case, then we are exactly a nation of men, not laws.
November 2nd, 2005 at 10:50:04 am
A Nun Mouse, you’ve just proven my point. So you personally hold the opinion that judicial conservatism is “NUTS.” Congratulations. That doesn’t make it objectively unreasonable. In fact, I would argue that it is quite implausible to say that something is obejctively “NUTS” when large numbers of obviously intelligent and articulate judges, lawyers and law professors earnestly believe it and passionately defend it. Again, if you personally believe it’s wrong, you have the opportunity to express that opinion at election time. But there clearly is no broad societal consensus on this issue, nor a broad legal consensus. So how can it be “outside the mainstream”? Basically what you are saying is, conservative judges are unqualified for the Supreme Court because they’re conservative. Surely you can see how that’s an untenable position! So Democrats are allowed to appoint anyone on the ideological spectrum from O’Connor to Ginsburg, but O’Connor-like justices are really the only available options for Republicans? Scalia-type justices are totally off-limits? Lame. You’re letting your own ideological views cloud your judgment.
November 2nd, 2005 at 10:53:28 am
Joe (no YER) Mama,
I never said any current or past Supreme Court Justices ever relied solely on original intent. My point, in part, was that there are many situations where the nominee will have a mix of views, and what one deems “reasonable” will be a judgment call. And is there a “tipping point” where the unreasonableness of a few fews outweighs the rest? etc.
Originalism is also described as being an attempt to devine the “original intent” so you seem like you’re parsing words on that point. See: http://www.usconstitution.net/consttop_intr.html A section is called “Originalism, or, Original Intent.”
And the bottom line is that the Constitution does not literally “say” anything. It’s all open to interpretation and argument, which lawyers make an art of…I think Lawrence Tribe said, “The Constitution does not ’say’ anything. It only says what people make it say.”
The quote might be wrong. But that is what legal hermenuetics is all about, i.e. that the process of reading and interpretting a document as complex as the Constitution is not a COMPLETELY objective process. When you read a document, yes there are the words that jump out at us. The question is how do we apply them and give them meaning.
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November 2nd, 2005 at 10:54:02 am
P.S. Your asserted justifications for your viewpoints — “1.) the Founding Fathers lived in completely different times, especially in terms of cultural values, that it’s silly to expect them to have the correct constitutional framework for solving our modern problems, and 2.) there are many things today that simply did not exist at the time the Constituion was written so it’s unreasonable for anyone to think the FFs framed all the constitutional issues in an appropraite manner” — are perfectly valid arguments, but they are just that, arguments, susceptible to perfectly plausible counterarguments. For example: the Constitution means what it says. If it needs to be changed to suit modern realities, there is a process to amend it. Meanwhile, it is “NUTS” to, as Joe Mama says, declare that it “means what a group of lawyers and judges think it OUGHT to mean at any given time.” That’s a counterargument, and there are countless judges, lawyers and legal scholars on BOTH sides of the debate — so clearly, neither one is outside of the mainstream, and neither one, if you can take off your ideological blinders for a minute, is “NUTS.”
November 2nd, 2005 at 10:56:21 am
P.P.S. Yes, there is a “tipping point.” That point comes in where someone believes something along the lines of, Brown was wrongly decided, we should go back to segregation… or something similarly TRULY outside the mainstream. But the argument that the entirety of conservative legal scholarship is outside the mainstream is utterly implausible.
November 2nd, 2005 at 11:01:30 am
Maybe I missed it, but in the first few days following the Miers nomination, I don’t recall hearing that phrase used at all.
Was Miers qualified for an up or down vote? I don’t think that she was nor would anyone else who has never, in my opionion, been a judge in any capicity. Miers was no more qualified to sit on the Supreme Court than I am to be the next Federal Reserve Chairman. and I think the reaction Bush received for Miers was more directed towards him than Miers because the general consensus was, “we will not be fooled again.” Byers ring a bell.
November 2nd, 2005 at 11:12:10 am
Mouse,
I wasn’t parsing words, I was paraphrasing what Scalia himself said in a speech on constitutional interpretation he gave in DC years ago, which is available here:
http://www.joink.com/homes/users/ninoville/cua10-18-96.asp
It’s very insightful, and dare I say required reading for anyone who wants to propose or oppose any theory of constitutional interpretation.
November 2nd, 2005 at 11:22:30 am
Regarding this whole “up or down vote” debate, there is a very substantial difference between a candidate withdrawing his/her nomination (or being withdrawn by the administration) because it appears that he/she will not have the votes to pass, versus a candidate being denied a floor vote through a procedural manueuver by the minority party even though he/she clearly does have the votes to pass. The latter, arguably, is obstructionism; the former is merely bowing to reality. Even if you don’t think the latter is wrong, surely you can see that’s it’s qualitatively quite different from the former, and it’s not by definition hypocritical to oppose the latter but support the former. The “up or down vote” concept does not extend so far that, once nominated, a nominee can never withdraw or be withdrawn, no matter how severe the political damage, no matter how strong the opposition, no matter how futile the attempt. There is no rule that says a nominee absolutely must go through the humiliation of a vote that he/she is probably going to lose. By that logic, Richard Nixon was wrong to resign. He denied himself an up or down vote!! The bastard!! :) Sorry, but this whole line of reasoning either misunderstands or misrepresents the underlying premise of the “up or down vote” argument.
November 2nd, 2005 at 11:53:50 am
Nebraska, someone doesn’t have to be a sitting judge to be a Supreme Court judge. One of my frustrations with what so many Republicans did for Miers was that they kept coming up with “qualifications” that AREN’T IN THE CONSTITUTION! And these are the people that I am supposed to trust to be “based on the Constitution”?
November 2nd, 2005 at 12:06:14 pm
Mouse, there are a few things wrong with your analogy to Creationism. For one, the idea that the world was created out of nothing by a divine force and that humanity was created uniquely within the past 10,000 years *is* a mainstream view–over 40% of this country believe it. That’s not the case among the experts, of course–among bilogists, geologists, and the like it’s certainly not a mainstream view, but a very marginal one–but it is for the country as a whole. For another, though, you have to accept the fact that judicial philosophy is a philosophy. Neither loose nor strict constructionism is objectively Correct, just as neither Kant nor Nietzche is objectively correct; it is up to any given individual to decide whether they agree with a given viewpoint and judgment. Science is not like that, because the laws of nature actually are objective, and you can still be wrong even if everyone else in existence agrees with you. But when it comes to matters of opinion, if a substantial portion of the experts in the field disagree with you–even if you think they’re loons for doing so–you have to accept that that view isn’t outside the mainstream.
November 2nd, 2005 at 12:35:15 pm
Brendan…You have missed my point entirely. I agree that any nominee can withdraw his/her nomination at any point and that obviously does not impair the concept that a nominee deserves (or does not deserve) an up or down vote.
The problem here is that on the same day and the several days following the Alito nomination several Republican Senators (including Frist) were quick to say that he deserved an “up or down vote.” However, I don’t recall such sentiments being expressed by those same senators immediately following the Miers nomination (but perhaps someone can point to such statments that I may have missed.)
In my view this clearly means that these Republican Senators believe that Alito has qualifications which lead them to conclude he is entitled to such a vote….but that they believed Miers either did not have such qualifications or they did not feel comfortable in immediatelly calling for such a vote following the nomination.
But isn’t that exactly what the Republicans have been complaining about vis a vis the Democrats? That if the Dems don’t like someone they have the right to vote against him/her but that ALL of the President’s nominees are entitled to an up or down vote.
The fact that Miers subsequently withdrew from the process several weeks later does not change the fact that in the period immediately following her nomination there do not appear to have been calls for an up or down vote for her by Senate Republicans, while in the Alito case there have been.
November 2nd, 2005 at 12:48:58 pm
Well, of course the Republicans weren’t saying that about Miers, because it was clear from the very beginning that the likely threat to Miers wasn’t a filibuster from the Left, it was a lack of support from the Right. They’re saying it now about Alito because it’s relevant now. Alito is just the sort of candidate one might reasonably expect the Dems to try and filibuster, so the calls for an “up or down vote” are a pre-emptive strike against that possibility. Calling for an “up or down vote” on Miers, a.k.a. Harry Reid’s chosen candidate, would be like asking Stanford to please be classy and not run up the score against USC this Saturday. It’s simply not a relevant point in that particular context. It doesn’t mean you don’t still believe in classiness — or in “up or down votes” trumping minority-party procedural maneuvers — it just means that there’s no point talking about it when it’s not an issue.
November 2nd, 2005 at 12:56:29 pm
Nebrasak, many people here have pointed out that highly succesful Supreme Court justices did not have prior judicial experience. I don’t remember the names, I’m sure others can point them out, but I think the “wasn’t a judge” notion has been disproven.
November 2nd, 2005 at 1:04:42 pm
Ken,
I was beaten to the punch, but it’s pretty clear to me why a senator who rushes out to say a nominee that may face a filibuster deserves an up or down vote, but doesn’t do the same for another nominee who faces no such danger is not being inconsistent.
November 2nd, 2005 at 1:05:57 pm
David - Rehnquist comes to mind.
November 2nd, 2005 at 1:08:05 pm
It’s worth keeping in mind that you don’t want to waste the effort filibustering a nominee you think will get voted down anyway; you spend political capital filibustering a nominee that you think will otherwise be CONFIRMED.
November 2nd, 2005 at 1:18:57 pm
Joe Mama and Brendan — I don’t think your “justification” makes much sense….but that is why people disagree on issues I guess.
As to the Dems….there were immediate complaints about her qualifications and the cronyism involved in the nomination. Additionally many Conservative groups immediately raised the same issues as well as the major complaint of a lack of conservative track record.
So it was obvious that there were forces immediately at work on both the right and the left to potentally thwart the nomination. To me it is clear that it was the forces on the right that caused the Republican leadership to remain silent on the “up or down” vote….not their belief that the Dems would not filibuster. Besides, I thought the concept of an up or down vote applied to both sides, not just the Dems. So if the Republican Senate leadership had wanted to be consistent about that philosophy it would have been easy for them not only to caution pre-judgment of her by the right (which indeed they did to a limited extent) but to also couple that with the point that a judicial nominee was entitled to an up or down vote even in the face of conservative opposition….not just opposition from the Dems.
November 2nd, 2005 at 1:32:36 pm
So by not immediately proclaiming that Miers deserved an up or down vote, Republican senators necessarily thought she didn’t deserve one and are therefore inconsistent? That seems like a pretty hungry criticism to me. Had her nomination not been withdrawn, would she have been denied a vote in the Senate? I suppose so, but I think Republican senators displeased with Miers would’ve been more inclined to vote no than filibuster her.
November 2nd, 2005 at 1:51:41 pm
There is, to my mind, a huge difference between calling for the up and down vote for someone yet to receive the courtesy 2 (Janice Brown) or 4 (Priscilla Owen) YEARS AFTER their nomination, and calling for one before the nominee was even presented to the Judiciary committee…
There was no need for Republicans to do so for that exact reason, in that there was no need. Her nomination had not been stalled in the Senate for years….the situations were and are completely different.
November 2nd, 2005 at 3:01:14 pm
My Boaz’s Ruth
I would agree with you if not for the fact that if Miers was ever to be found incompetent there would be nothing ‘we the people’ could do about it.
November 2nd, 2005 at 5:29:24 pm
Ok, its really simple. Either all judicial nominees deserve an up or down vote, or they don’t. If they do then it is hypocritical of the Republicans not to call for one in the case of Harriet Miers. If they don’t then Miers didn’t deserve one, but neither does any other nominee and its wrong for the GOP to claim otherwise.
November 2nd, 2005 at 6:02:29 pm
All judicial nominees do deserve an up or down vote, but senators don’t have to explain themselves for not explicitly saying so. If Republican senators came out and said they were considering filibustering Miers or otherwise preventing an up or down vote, they would be acting hypocritically. To my knowledge none of them did. Shouldn’t the presumption here be that a senator who says nothing would cast a vote one way or the other, and not filibuster?
November 2nd, 2005 at 6:28:33 pm
David, I would refer you to my 10:27 AM and 11:53 AM comments above.
You have to realize what the phrase “up or down vote” means and not take it out of context. It doesn’t mean “every single time the president nominates someone, that person must get a vote on the floor, no matter how certain it is that they will lose; withdrawing a nominee is not an option.” No one ever said that or intended “up or down vote” to mean that. What “up or down vote” means — and this was always clear to everyone, it’s not like the Republicans are changing their tune now — is, don’t use some procedural technicality to hold up a nominee who has majority support, give ‘em an up-or-down vote.
If you want to talk about the GOP being hypocritical on this issue, you should look at some of the things that folks like Jesse Helms did to hold up Clinton’s (non-judicial) nominees. Now THAT is hypocritical. But scuttling Miers’s nomination before the vote because she didn’t have enough support to win the vote has absolutely nothing to do with the “up or down vote” pledge.
November 2nd, 2005 at 7:01:38 pm
I don’t have a problem with them scuttling the nomination. I do have a problem with them coming out of the gate demanding Alito get an up or down vote before anything is even said, but not doing so for Miers.
Again, it seem to me that eiether every candidate is entitled to an up or down vote (if they make it out of the hearings, etc) or no candidate is entitled to such a vote. It can’t be, “every candidate which we think will get enough votes” is entitled to an up or down vote.
November 2nd, 2005 at 9:08:36 pm
Alito apparently has some pro-choice-type votes on his record. He also believes privacy is covered by the Constitution (yeah, I can already anticipate the ridiculous shit-storm I’m going to see on this board as a result of that comment). Best thing now is for Ted Kennedy to give him a big f-ing kiss on the cheek in front of SCOTUS and say “I love this man.” I wonder how long it would be before the Miers-ization of Alito would kick in.
November 3rd, 2005 at 8:45:22 am
Brendan,
As this entry is about to pass into the archives, I doubt this will be read.
But some quick points.
1. I never equated original intent interpretations to be equivalent of “conservative legal scholarship” or “judicial conservatism” as you impply I did. People can have well reasoned conservative judicial views that do not rest on an original intent argument.
2. Your view basically leads to this: no Senator can ever vote no, in your opinion, unless the person proffered up is either insane or a garbage man. (We don’t want garbage men — or other non-qualified professions– being SC Justices.
3. I don’t disagree with original intent interpretations because they are conservative.
4. Under your view, Nazis and hardcore Islamic fundamentalists could not be rejected from the court so long as they had a detailed working knowledge of the legal system and the Constitution.
5. Another one of judge Alito’s troubling views is his holding that Congress does not have the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows. Do you know how many of our federal laws rest on the Commerce Clause as a means to allow the federal government to regulate various aspects of our life? Most (all?) of our civil rights laws, labor laws, and enviromental laws that come from the federal government rest on this part of the Constitution.
6. Oh, and did I mention Alito has been a memeber of the Federalist Society? (See number 5 above for some implications.)
Yeah, but let’s just let him in because he knows the law and has been a judge….
RUBBER STAMP READY?? READY!
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November 3rd, 2005 at 8:59:33 am
Under your view, Nazis and hardcore Islamic fundamentalists could not be rejected from the court so long as they had a detailed working knowledge of the legal system and the Constitution.
Umm. yeah, okay, NO. Please re-read what I actually said and get back to me. (You may want to focus on the parts where I talk about the “mainstream,” particularly my comments about how, whereas opposing Roe v. Wade isn’t outside the mainstream, opposing Brown v. Board of Education would be. Surely it’s not too much of a stretch to realize that I also believe Nazism or Islamic fundamentalism would be outside the mainstream as well. Sheesh.)
P.S. Membership in the Federalist Society should NOT be a disqualification for high office. That organization produces a great many extremely bright, capable, intelligent and SANE lawyers and judges. If you think the FedSoc is beyond the pale, then we’ve come to an impasse.
November 3rd, 2005 at 9:04:30 am
P.P.S. It’s not a rubber stamp. I already addressed that. Our difference isn’t really over the Senate’s role per se, it’s over whether anyone with a Federalist Society-type judicial philosophy is by definition unqualified. I think that’s ludicrous; you think it’s obvious. As I said, we’ve come to an impasse.
November 3rd, 2005 at 9:21:35 am
And that reminds me, who decides which kinds of court decisions are “mainstream” and which are not?
Apparently, for you, Brown is a Super Duper Duuuuuper precedent, while Roe is not.
I’m wondering how people arrive at that conclusion. Roe has survived 32 years.
But let me guess, is it the subject matter that distinguishes the two?
November 3rd, 2005 at 9:53:27 am
Anon, I’m pro-choice, does that help answer your question?
As for “who decides”… well, each of the 100 senators decide for themselves, obviously. But ultimately what I’m saying is, they should be honest with themselves and with their constituents about that decision. To claim that a view which is held by a substantial percentage of both the legal community and the general public is “not mainstream” is patently dishonest. And yet that’s exactly where folks like Ted Kennedy are coming from: any justice who is anti-Roe is automatically going to be “outside the mainstream,” as far as Teddy & co. are concerned. That’s just not a defensible position, logically.
November 3rd, 2005 at 9:57:16 am
Just curious –
What makes Brown so much better than Roe, as a matter of constitutional law?
Sure, we can look at the results of each and wonder who could possibly oppose the desegregation of public schools, although in its day it was just as heatedly controversial as Roe has been the past 30 years. Indeed, the litany of school-desegregation cases that came in the decades after Brown reveal the profound lack of consensus on the wisdom of the decision, and over time the Court found it had no choice but generally to declare schools successfully desegregated, because remedial enforcement of the grand principle proved unworkable in the long term.
With 50 years hindsight and a largely unsupportable assumption that Brown was successful, it’s easy to believe that Brown was obviously right and opposing it is obviously wrong. But I am not at all convinced that’s the case.
THAT said, I do not advocate nor do I see a need to overrule Brown. Quite the contrary, I think such a move would be disastrous. But I base that belief on the fact that it would be a largely symbolic ruling, an empty statement that “the Brown Court reached the right result but for the wrong reasons” at a time when saying so is meaningless.
But the underlying truth remains that Brown was not only a controversial result but a controversial methodology — in the overturning of precedent, in the redefinition of a settled constitutional term, in the use of psychological studies and arguments to justify the redefinition, etc.
It seems to me entirely possible to disagree with this methodology and to believe the Brown Court strayed from its “judicial power,” while still respecting the decision’s precedential weight and recognizing that the Court did the “right” thing even if it did it in the “wrong” way — indeed, even if the “wrong” way was the “only” way.
(Which it was not — the Court could have resurrected the Privileges or Immunities clause of the 14th amendment.)
Apologies for the rough framework — I’m writing quickly here.
November 3rd, 2005 at 9:58:29 am
P.S. Anon, I love that you implicitly accused me of only saying this because I’m anti-abortion, when in reality I’m actually NOT anti-abortion, I’m just being fair-minded and reasonable, unlike many ideologues (on both sides). It reminds me of the time I was arguing that the Electoral College actually has some benefits, and somebody said, “Well, I bet you wouldn’t feel that way if the election had turned out differently,” to which I replied, “Ummm, I VOTED FOR GORE.” Accusing people of ulterior or biased motives is a very dangerous business, if you don’t know what you’re talking about. It’s like asking a witness a question without knowing what the answer will be.
Brian, point taken. If someone made the argument that you made above, I would not consider them necessarily outside the mainstream if they were nominated to the Court. That phrase “I do not advocate nor do I see a need to overrule Brown” is the key. :)
November 3rd, 2005 at 10:07:11 am
Great. Now all I have to do is make sure you’re Chairman of the Judiciary Committee by the time I am nominated … :)
November 3rd, 2005 at 10:32:28 am
I’m still not sure what makes a precedent a Super Duper one as opposed to a mere ordinary everyday precedent….
You call Roe “controversial”….The majority of Americans support abortion rights. I’m not sure for whom Roe is “controversial.” When Brown was decided in 1953, there was ALOT more open and public dissent over the ending of segregation. I wasn’t there to see it in 1953 but they have films of that old stuff.
But now Brown is a Super Duper precedent. Apart from a very vocal minority of Americans, I’m not sure how Roe can be considered “controversial.” It has withstood 30 plus years. And clearly Brown caused much more upset to the body politic than Roe ever did.
What’s the difference and who decides what the difference is between a Superly Awesome precedent and a mere regular old precedent?
November 3rd, 2005 at 10:53:08 am
I’m not saying Brown wasn’t controversial THEN… I’m saying it isn’t controversial NOW. Therefore a judge who supports overturning it NOW would be outside the mainstream.
If you don’t think Roe is controversial, you’re delusional.
I already answered the “who decides” question; see my 8:58 AM comment, above.
November 3rd, 2005 at 10:59:02 am
Roe SEEMS controversial only now because a small vocal minority of right wing Christians are determined to make it SEEM controversial.
A majority of Americans support reproductive rights. My comparison of Brown and Roe was to show the impact they had when first decided. Roe is not stirring up anywhere near the kind of controversy today that Brown stirred up when Brown was rightly decided.
Roe is settled law. That’s the whole point of the court packing exercise the right is trying to engage in….
How many years does Roe have to go before it’s a Super Duper precedent?
November 3rd, 2005 at 11:05:08 am
“Roe SEEMS controversial only now because a small vocal minority of right wing Christians are determined to make it SEEM controversial.”
And because a large number of constitutional scholars recognize it as an indefensible departure from the generally accepted method of adjudicating such ases.
Plus, even if a majority of Americans do not support overturning the decision, that does not mean the minority (which may or may not be small and may or may not be Christian) who do support overturning cannot create controversy.
The very fact that every time somebody opens their mouth about judicial nominations, Roe is mentioned within seconds, is sufficient testimony to its continuing controversy.
The passage of time during which the ruling stands has absolutely nothing to do with whether it’s controversial. That’s determined by the extent to which the debate continues about whether it was rightly decided and whether it should be overturned. That debate continues to rage today, as it has almost continuously since 1973. Ergo, controversial. (Whereas Brown is largely settled, ergo not.)
November 3rd, 2005 at 11:11:47 am
A 7-2 decision that has withstood 32 years and was reaffirmed by the court in 1992 with the majority of Americans wanting to keep abortion safe and legal constitutes a “controversy”? (And yes time matters because it reflects a cases ability to withsatnd challenges …)
The Polls Speak: Americans Support Abortion
http://www.msmagazine.com/summer2005/polls.asp
November 3rd, 2005 at 11:12:09 am
Yup… you’re delusional. That “small vocal minority of right wing Christians” is much, much, much bigger than your worst nightmares would have you believe.
Can I ask where you live, A Nun Mouse? I could be wrong, of course, but I’m guessing you live in or near a big city on either the East or West Coast. The majority/minority calculus on abortion and Roe becomes much, much different if you ever venture out into Flyover Country — where, incidentally, elections are decided.
Anyway, while I will agree with you that I suspect a majority of Americans would prefer to see Roe upheld (and I don’t care what polls say on the matter, because if you ask the average American, “Do you want Roe upheld,” he or she doesn’t know what that means, in terms of the decision going back to the states, etc.), I certainly will not agree that it is only a “small vocal minority.” There is a very sizable minority that feels very strongly that Roe needs to go, and abortion needs to be illegal everywhere, every time. (Those people will be sorely disappointed if Roe is someday overturned, because abortion will still be legal in most circumstances in most states.)
Another factor you’re failing to consider is that even among liberal legal scholars, Roe is widely (if quietly) regarded as a BAD DECISION, in terms of the legal logic underpinning it. Yet another reason why it’s controversial. Even many of the people who agree with the result, disagree with the decision… though they probably wouldn’t vote to overturn it, because they don’t wnat to deal with the upheaval that would cause.
As for the “Super Duper precedent” thing… you do realize, don’t you, that the Constitution is supposed to take precedence over old statutes, regulations, or Supreme Court decisions? That, in fact, every judge takes an oath to uphold the Constitution — not to uphold what a 5-4 majority of the Supreme Court said in 1974. This, incidentally, is the underpinning of the “crazy” originalist idea, and it’s hard to argue with on a conceptual level, even if you don’t like some of the results. But if a decision was wrongly decided — i.e., decided inconsistently with what the Constitution says — no matter how long ago, shouldn’t it be overturned? It’s not like we haven’t overturned old, bad decisions before. (See: Plessy v. Furgeson.)
“Court packing” is a meaningless slur. The right is trying to get justices on the court who they agree with, just like the left would try (if a Democrat was president) to get justices on the court who they agree with. It’s funny, you do realize that 7 of the 9 justices of the Rehnquist Court were appointed by Republicans? And yet the Court has a 6-3 pro-Roe majority? (5-4 once Alito is on.) Not a very good job of “packing.”
November 3rd, 2005 at 11:15:42 am
P.S. I hadn’t seen your most recent post when I noted that I don’t care what the polls say. I stand by that statement. However, I will point out that, even going by your own polls, the anti-Roe minority is somewhere around 40%. That’s hardly a “small vocal minority of right-wing Christians.” That’s two-fifths of the country. A 60-40 split is plenty close enough to create controversy.
I repeat: your insistent that Roe is not a controversy is completely irrational and makes you appear delusional. I don’t care what your stance on the issue, anyone who thinks it’s not controversial is clearly ill-informed or just plain nuts.
November 3rd, 2005 at 11:18:14 am
Oops, I forgot it was a 7-2 majority in 1974; it only became 5-4 by 1991. My bad (re: “what a 5-4 majority of the Supreme Court said in 1974″). The point standards regardless, though. There is an inherent tension between stare decisis and the judicial oath to uphold the Constitution, and there’s no quick and easy solution.
November 3rd, 2005 at 11:40:30 am
I never said that ALL of those who are against Roe are “right wing Christians.” I never said that all of the 40% against Roe are “right wing Christians.”
What I said was “Roe SEEMS controversial only now because a small vocal minority of right wing Christians are determined to make it SEEM controversial.”
Does that mean I think the 40% are ALL right wing Christians? No.
My point is that a small minority of Americans have continually raised the issue and kept it in the public consciousness in order to make it SEEM morally controversial and THAT small minority is made of right wing Christians.
30 plus years of settled law, a 7-2 decision reaffirmed at least once, and supported by a STRONG MAJORITY of Americans does not make a controversy.
Bu,t by the way, you already know how Roberts would vote if Roe came before the court? Do tell how you got that information in your 6-3 count….
And as for legal scholar’s rangling over the quality of the decision, that has little to do with assessing whether or not Roe is a real, living “controversy.” As I pointed out in an earlier post, many of the laws we rely on today have their foundation in the Commerce Clause of the Constitution because the judges and lawyers involved could not find a real basis for these laws in the Constitution. They were looking for a backdoor entry to keep these laws constitutional. In other words, the language in the Constitution did (does) not exist to affirm the principles involved so they stretched the meaning of the Commerce Clause and VOILA it’s all “constitutional.” (It affects interstate commerce therefore COngress has the right to legislate. How’s that for a guiding moral principle?)
There are plenty of laws like that. Does that mean because some legal scholars write a few articles in law reviews that there is a living, real, palpable CONTROVERSY over these decisions? Hardly.
November 3rd, 2005 at 11:44:10 am
If you can find five other people on this blog who agree with you that Roe v. Wade isn’t controversial, I will bow down and kiss your feet.
In the mean time, let me just answer your question about Roberts and then get back to my brief. You’re quite right, I don’t know how Roberts would vote on Roe. My 6-3 count assumes he would vote the same way as the guy he replaced, Rehnquist: to overturn it. If I’m wrong about that, then we have a 7-2 majority, which would become 6-3 with Alito on the court (assuming he would vote to overturn it, which seems an even better bet than Roberts).
None of that really affects my point, though.
November 3rd, 2005 at 11:48:16 am
P.S. There are lots of small, vocal minorities who believe lots of weird things, and who raise a fuss about said things. There’s a small, vocal minority who believe the IRS is unconstitutional. There’s a small, vocal minority in Oregon and Washington who believe they should secede and form the 51st state. There was a small, vocal minority in 2001 that believed America was wrong to bomb Afghanistan. Yet none of these issues cause anywhere NEAR the ongoing public debate that Roe v. Wade causes. None of them “SEEM controversial” to nearly the extent that Roe does. So your theory that this is purely a case of a small, vocal minority “determined to make it SEEM controversial” doesn’t address why this particular small, vocal minority has been so successful, where other small, vocal minorities have failed. The answer, of course, is that you’re wrong about the “small, vocal minority.” Roe is controversial because the abortion issue strikes a chord with an extremely broad spectrum of Americans, from far-right and far-left to moderate Dems and Repubs to dead-center independents. It’s an issue that many people have very strong feelings about, one way or the other. Hence, it is controversial.
November 3rd, 2005 at 11:49:13 am
To be clear about my point about the use of the Commerce Clause, many people think this is a completely bogus legal and constitutional basis for passing laws in various areas including civil rights legislation. In fact, many people think it’s a HORRIBLE legal basis. but they could not find any other so they used it. But do we today think these laws are “controversial” because some legal scholar writes an article about it? No at all….
What may prove to be the most dangerous aspect about Alito is just this: his opposition to Congress relying on the Commerce Clause to govern all kinds of areas of life that today we take for granted. People are wary of him for GOOD REASON. It isn’t just those “whacky liberals” who are wary of this kind of person.
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November 3rd, 2005 at 11:54:02 am
ANM, I took ConLaw in undergrad and law school — in fact, in the latter case I took it from the guy who has been playing a prominent role in helping Bush pick these nominees — so don’t worry, I know all about the Commerce Clause and its sundry implications. :)
A few critical law review articles here and there do not a controversy make. A roiling three-decade national debate that goes on and on, and resurfaces at every election and every court appointment, does a controversy make.
November 3rd, 2005 at 12:09:52 pm
Well, then we finally agree…You’ve come to my side and realize Alito for the threat to the Commerce Clause that he really is…
:-)
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November 3rd, 2005 at 12:10:30 pm
I’m sitting in First Amendment right now (and Brendan, shouldn’t YOU be here too? :) ) so no time to get into detail. But:
In case it wasn’t clear, I was the Anonymous at 10:10 am.
The Commerce Clause stuff actually IS a minor controversy, in my view, although not nearly as much a controversy as Roe. That was the big deal with the Raich case this summer — the one that held the intra-state non-commercial growth and use of marijuana for medicinal purposes was reachable by the federal government.
It may not be sexy, it may not capture headlines and imaginations in the same way that abortion does, but the idea that the federal government — purportedly of limited and enumerated powers — can stretch its interstate commerce power so far as to reach such clearly intrastate, noncommercial behavior, is surely a cotnroversial proposition.
People don’t get all that worked up about it, so again, it’s much LESS controversial than Roe. But it’s also not the accepted and therefore non-controversial position that Brown has become.
A further comment on controversy:
The fact that the ruling has “withstood challenges” for 32 years and been reaffirmed by the Court does nothing to lessen the controversy surrounding it — again as evidenced by the very fact that we’re having this argument about Roe instead of, say, Hanna v. Plumer. To see why, consider this:
This past summer’s Kelo decision surely ought to meet your definition of controversial. If, 30 years from now, Kelo remains good law and has been re-affirmed in another 5-4 vote, but people are still incensed and enraged and talking about it, and fighting to nominate judges who they hope will overturn Kelo, well, then it remains controversial no matter how “settled” it is or how much longevity it has.
Or for a more historical example — the “Lochner era” lasted for nearly 40 year before suddently, in the Constitutional Revolution of 1937, falling by the wayside. But according to your view of controversy, because Lochner-style due process analysis lasted for 30 years and was continually reaffirmed by the Court, despite the vocal and heated debate about the doctrine, it somehow became settled law that doesn’t rise to the level of controversy and therefore should remain undisturbed.
But of course that’s not how it played out. And it’s no coincidence that many of Roe’s critics equate it with Lochner.
November 3rd, 2005 at 12:38:03 pm
I’m sitting in First Amendment right now (and Brendan, shouldn’t YOU be here too? :) )
Heh… damn Moot Court.
November 3rd, 2005 at 12:48:10 pm
I swear this will be my last posting on this issue….
About the supposed “controversy” surrounding ROE…
Alot of the sensationalism and interest is simply media created. The media can create or ignore a “controvrsy.” The media feeds on things that seem controversial and that grab the public’s attention because the media wants market or audience share. While people do have strong feelings about Roe, I think much of the media attention is simply sensationalism, i.e. an attempt to garner that audience share. The media either scare Roe supporters or they inflame the outrage of pro-life people over the fact that Roe still exists.
Take the war for example. The public always had a strong 35-40% who were solidly against the war. And now the number is even higher, with well over half disapproving of Bush’s handling of it. So has a the controversy been fleshed out by the media? No….The media has generally, in my opinion, given the anti-war movement much less attention than it gives to Roe even though the numbers against the war and against Roe have been more or less the same from the start of the war.
Why the difference? The war is more politically charged. Media coverage could anger the people in government who have some say over the media. Plus the war story could drive away viewers and readers as well. Some would start to accuse the media of being “anti-American.” These dangers don’t exist in their coverage of abortion issues, at least not to the same degree. The media inflates the “controversy” surrounding Roe because there is little risk, and they ignore a real, politically charged controversy like the growing unease at home over an illegal war. The abortion controversy is less likely to piss off those in charge so it’s less of a risk for the media to latch onto it and make it into a “controversy.”
So Roe and abortion are the perfect issue for the media because they can just clamor on and on about how much the “controversy” is raging without really losing audience share. they can play both sides of the fence without alienating people.
And as for politicians talking about abortion rights, I think it depends on the district they are from. Many times politicians try to talk around issues: they try to adress them without really addressing them. In other words, they want to try and seem like they are taking a “stand” on the issue but do so in a way that doesn’t alienate too many voters. In fact, I’d say that politicians would rather NOT talk about abortion because their job is to garner votes. So the issue SEEMS controversial because it comes up in elections as a potential issue. But it’s still basically a settled issue.
November 3rd, 2005 at 2:51:22 pm
Nun Mouse…
Brendan’s right, you clear don’t get it. Roe is an incredibly controversially decision. There are people out there who support Republican candidates solely because they are Pro-Life, people who would otherwise vote for a Democrat. They feel that strongly about the issue. And they aren’t some few fringe people, they are a large group of people.
And the idea that something isn’t controversial (or even right) because a majority of Americans agree with it just doesn’t hold water. Slavery and segregation were both something a majority of Americans supported at one point or another, yet i’d say they were pretty controversial. I’m going to bet that gun rights are another controversial area, but I’m fairly certain one side or the other has a majority in that area too.
By your standards something could only be controversial if it held at or near a 50-50 split in public opinion. Sorry but that seems completely unreasonable to me.
November 4th, 2005 at 9:21:47 am
It’s simple….
It’s a “controversy” because this country is being hijacked by a small minority of very vocal right wing Christians.
Of the 40% who are “pro-life,” very few of them are willing to demonstrate and put themslves on the line for what they believe. It’s A SMALL VOCAL MINORITY OF HARD CORE RIGHT WING CHRISTIANS.
This is a perfect example of “perception being reality” for some people.
November 4th, 2005 at 9:31:27 am
So now it can only be a controversy if you’re willing to “demonstrate and put [yourself] on the line for what [you] believe?”
That doesn’t strike me as being reasonable at all. You can certainly disagree with something and find it quite controversial without being personally willing to demonstrate against it. The mere fact that a supposedly “small vocal minority” DOES feel that strongly, does not thereby diminish the disagreement and controversy generated by the fact that a larger minority holds the same view but isn’t willing to join the sit-in.
Are you really incapable of admitting that disagreement with Roe extends beyond fundamentalist Christians, and can also be found among reasonable people who feel an unfettered right to abortion “goes too far” or is “contrary to public values” or whatever, as well as among people who may full well believe in and support a right to abortion but believe the Court’s method of finding and justifying its protection as a Constitutional right was inappropriate at best, dangerous and destructive at worst, to our system of government and adjudication?
November 4th, 2005 at 9:33:34 am
And if none of the other Alito views/published opinions were scary enough, apparently Alito helped write a DOJ memo for the Reagan Administration arguing that employers could legally fire people living with AIDS for the “fear of contagion, whether reasonable or not”….
Okay, you can argue that it isn’t HIS view and he’s just doing his job, but when does moral responsibility for a lawyer kick in?
Supreme Court Nominee Alito Helped Write 1980s DOJ Opinion That Employers Could Legally Fire People Living With AIDS http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=33495
November 4th, 2005 at 9:41:28 am
“when does moral responsibility for a lawyer kick in? ”
When the question becomes, “what SHOULD I do,” rather than “what CAN I do.”
A memo opining that the government CAN legally fire someone for having AIDs, or any other reason, does not constitute a recommendation that the government should in fact do so.
November 4th, 2005 at 9:45:26 am
Ahh yes, lawyers are just hired guns…
That is surely the most ridiculous argument I have heard to absolve a man of the moral responsibility for making an argument to allow employers to legally discriminate against people with HIV/AIDS…..
Well he’s not saying it SHOULD be done, just that someone be ALLOWED to do it…
LOL
Pffft.
November 4th, 2005 at 10:03:00 am
You clearly don’t understand the role of a lawyer in advising as to what the current law is on a given question. If that’s what the law allows, that’s what the law allows, and it makes no difference whether or not he adds “P.S. but it really wouldn’t be nice to actually fire someone.” And if he misstates the law in order to arrive at some result that he believes is more moral than what the law will allow, he is guilty of malpractice.
Certainly, a lawyer acting as a counselor can be said to ahve some moral responsibility to counsel against actions that, while legal, may be morally reprehensible. But just as certainly, a lawyer acting merely as an advisor as to what the current law is, not only has no such responsibility, but is actually under an obligation affirmatively to avoid moral judgment as much as possible, so as to arrive at as accurate a statement of “the law,” as opposed to some other moral sense, as possible.
November 4th, 2005 at 10:11:29 am
THe lawyer is asked the question: “Does the law allow this form of discrimination?” He looks at the law, and concludes that it does. Accordingly, he answers the question “Yes.”
He wasn’t asked “Should I discriminate on this basis?” so we don’t know, we CAN’T know, whether he would have answered that question Yes or No.
And he could not have answered the first question No if he really believed the law in fact allowed that form of discrimination.
This, by the way, would be an example of something that is not controversial. (At least within the profession. The distinction between what is legal and what is right is confronted, and accepted, on a daily basis.)
November 4th, 2005 at 10:53:42 am
From the Post article:
For example, Alito helped write a opinion that employers could legally fire AIDS victims because of a “fear of contagion, whether reasonable or not,” because discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the disabled. Alito later explained that “we certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands.”
November 4th, 2005 at 11:13:17 am
I hate that when HaloScan.com eats my post.
BrianF
In brief, it’s completely naive to think that Reagan Administration DOJ lawyers were sitting around innocently interpretting laws and they just HAPPENED to notice that the law/laws/statutes in question allowed for discrimination against people with AIDS “whether reasonable or not.”
I doubt you were around when Reagan was President. Here’s a little fact. Even though AIDS and its means of transmission were widely discussed and known in the scientific community, then President Ronald Reagan did not mention AIDS until 1985, and by then, 10,000 people in the United States had died from it. (For a fuller account of Reagan, AIDS, and gays, I suggest you read the book “And the Band Played On…..”)
In short, Reagan’s response to AIDS refelected a deep seated bigotry towards homosexuals. This DOJ brief undoubtedly is connected with Reagan’s policies in this area. The general policies and directives come from the top down. Ahhh, let’s turn back the clock to the good old days when Ed Meese fought pornography for our own good.
But you can sit there and believe lawyers are these apolitical robots that move through life as hired guns with no moral responsibility for the words that come out of their mouths, if it suits you to think that. You’ll make a great lawyer.
November 4th, 2005 at 11:33:51 am
My two cents:
1) The Reagan Administration’s response to AIDS was morally reprehensible.
2) Brian’s comments about the role of lawyers are completely, 100% accurate.
November 4th, 2005 at 12:11:22 pm
A Nun Mouse, do you not see the irony/hypocrisy in your views? In Casey you chastise him for purportedly letting his personal views affect his decision, but in the DOJ opinion, you chastise him because lawyers should inject morality and what is right into the legal opinions, not just be hired guns who interpret the law and the law only. So which one is it? He bases his opinions and dissent on what the law says, but you do not buy it, you think his personal views on morality get in the way–but apparently if lawyers’ and justices’ personal views were your views, you wouldn’t mind it so much. Got it.
lame.
November 4th, 2005 at 1:10:50 pm
A SMALL VOCAL MINORITY OF HARD CORE RIGHT WING CHRISTIANS
So the fact that I am strongly against Roe v Wade and speak up about it means that I am a hard core right wing christian eh?
Man I love this blog. I can be a right wing nut job AND a liberal weener all at the same time.
November 4th, 2005 at 1:17:46 pm
LOL
November 4th, 2005 at 1:49:59 pm
“it’s completely naive to think that Reagan Administration DOJ lawyers were sitting around innocently interpretting laws and they just HAPPENED to notice that the law/laws/statutes in question allowed for discrimination against people with AIDS “whether reasonable or not.”"
I agree it would be naive to think that. I know of no one who claims to think it. I certainly don’t think it. Quite the contrary, I was very clear that SOMEBODY ASKED THE QUESTION. DOJ attorneys do not just research the law and generate memos in a vacuum; they respond to requests from their client, in this case the government (I forget exactly which DOJ department Alito was in at the time, or I would be more specific).
It was some other branch of government asking, Are we operating within the bounds of employment discrimination law if we fire someone who has HIV/AIDS out of a fear of contagion, in the absence of sufficient medical knowledge to determine whether that fear is justfied?
Aside from the fact that I do not believe the naive thought which you apparently want to ascribe to me, I fail to see what that has to do with anything at all. The specific question was asked; the specific question was answered. The fact that the answer was something you don’t like, or seems morally repugnant in retrospect (or even at the time), is not Alito’s fault. In a very real and literal sense, he was just the messenger.
“I doubt you were around when Reagan was President. ”
And that’s what happens when you assume… I’m a Nixon baby, so while I was not old enough to vote for Reagan, I remember him very well.
Your comments about Reagan’s alleged bigotry toward homosexuals, the inadequacy of his administration’s response, etc., are all well and good, perhaps even accurate — but they have ABSOLUTELY NOTHING TO DO with what the law said about dsicriminating in employment based on insufficient medical knowledge. As Bea extremely aptly points out, your hopelessly muddling your point on whether or not a lawyer or judge should permit personal views to color his legal analysis, and it’s abundantly clear that your standard is hopelessly based in your own personal subjectivity.
“you can sit there and believe lawyers are these apolitical robots that move through life as hired guns with no moral responsibility for the words that come out of their mouths”
Again: it is not Samuel Alito’s fault that the federal law, as passed by Congress, in the early 1980s was inadequate to prohibit discrimination against HIV/AIDs sufferers. Nor does any statute or constitutional provision empower Samuel Alito, as a lawyer in the Department of Justice, to take it upon himself to inject a prohibition on discrimination against HIV/AIDS suffers, in direct contradistinction to what the law actually says, simply because he feels it wouldn’t be “morally responsible” to so discriminate.
That is so fundamentally not how this sytem works.
Finally, I reiterate that Bea has very effectively revealed the gaping contradiction in your position.
November 4th, 2005 at 8:39:27 pm
If Andrew Sullivan can admit that Reagan wasn’t the bogeyman he was portrayed to be when it comes to AIDS, I think the rest of you should drop the complaint as well.