President Bush nominates Samuel Alito to the U.S. Supreme Court
Dave Sidhu - October 31, 2005
This morning, President Bush selected Judge Samuel Alito as his nominee to replace retiring Associate Justice Sandra Day O'Connor. The nomination has, already, unleashed a flurry of commentary on Judge Alito's qualifications, his judicial philosophy, and the politicization of the confirmation process. In this post, I will discuss these topics in turn.
Perhaps Judge Alito’s most immediate and glaring qualification is that he is not Harriet Miers. That is to say, he possesses exceptional academic and professional credentials. Judge Alito, 55, graduated from Princeton University and Yale Law School, clerked for a federal appellate judge, served as a U.S. Attorney, and held prominent legal positions in the Justice Department. In addition, Judge Alito, an Italian-American, has argued twelve cases before the U.S. Supreme Court.
Miers, in my estimation, would have been unable to demonstrate an interest in and familiarity with weighty legal issues in a forum independent of her association with President Bush. Hence the charges that the pick was an example of cronyism and that, as a former appellate judge stated, Miers "has no experience with constitutional law whatever." Thus, I argued privately to a member of the Senate Judiciary Committee’s staff that the senators subject Miers to the “Ginsburg standard” (in which the nominee is to exhibit a command of constitutional law, but express no personal opinions) because Miers may have been unable to satisfy even this minimal threshold requirement, making her personal opinions irrelevant and exposing her inadequacy in an apolitical fashion. In this respect, I disagree with the Senate Minority Leader that, “The radical right wing of the Republican Party killed the Harriet Miers nomination.” Instead, I think a legal blogger has it right: Miers's withdrawal was a victory not for the right, but for all those who demand highly qualified nominees to the U.S. Supreme Court, including myself.
Aside from Judge Alito’s background and his relatively impressive experience, what do we know of his jurisprudence? Press reports have already labeled Judge Alito as a reliable conservative and as someone who will tip the balance of the Court in the direction of Associate Justices Antonin Scalia and Clarence Thomas. For example, he found that an exhibit containing a menorah did not violate the Establishment Clause, held that an anti-harassment policy violated the First Amendment, and he dissented in a case involving a woman alleging sex discrimination. On balance, however, his opinions suggest that he may not be as “bad” as the spin doctors would have us believe. In fact, in some of his most notable opinions, he argued in favor protecting the rights of a disabled student, an African-American prisoner, and an Iranian asylum seeker.
Judge Alito’s stance on abortion may serve as the most controversial – and telling – aspect of his tenure on the Third Circuit. He dissented from the court’s opinion in Planned Parenthood v. Casey, concluding that a State law requiring women to inform their husbands prior to getting an abortion should have been upheld. He reasoned that the State legislature “could have reasonably concluded” that the spousal notice rule would “properly further a husband's interests in the fetus," and that exceptions to the law would account for situations in which a woman “may suffer physical abuse or other harm as a result of this provision….” Judge Alito also concurred in the Third Circuit’s decision in Planned Parenthood v. Farmer, in which the court invalidated a State statute that prohibited partial birth abortions. He reasoned that the court was bound by “controlling Supreme Court precedent.”
Accordingly, concerns that Judge Alito is an ideologue with respect to abortion may not be wholly accurate; he, as with Chief Justice John Roberts, may be a staunch institutionalist respectful of the principle of stare decisis, despite conservative leanings. (One must note, of course, that a Supreme Court justice may feel more empowered to tinker with precedent.) In light of this, commentators have argued that Judge Alito is more like Chief Justice Roberts than Associate Justice Scalia. (The nicknames of “Scalito” and Scalia-lite” have fueled knee-jerk reactions that Judge Alito is as conservative and acerbic as Justice Scalia. However, as has been reported elsewhere, the nickname is not faithful to his record, writing style, or temperament.)
What truly troubles me is not Miers or Judge Alito, but the extent to which the confirmation process has become politicized. The rush to praise or condemn Judge Alito, seemingly within minutes of today’s announcement, concerns me far more than what I may think of the judge on the merits. This is not to say that the liberals or conservatives are to blame (or, conversely, are completely absolved of responsibility for contributing to the current climate surrounding the Supreme Court); this is simply to recognize the divisive politics attendant to this particular constitutional imperative.
Possible solutions do exist: the federal courts turning down controversial cases on prudential grounds, issuing very narrow holdings in certain cases, selecting only “moderate” nominees, etc. Whether any or all of these suggestions will be invoked is uncertain. What is clear is that the confirmation process is currently a negative one, to the detriment of the country, thus requiring a searching evaluation of how we got to this point: indeed, just twenty years ago, Justice Scalia, a Republican nominee, was confirmed by a vote of 97-0 and ten years later Justice Stephen Breyer, a Democratic nominee, collected 87 votes.
Where did we go wrong?
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Posted by Dave Sidhu at October 31, 2005 01:21 PM
Comments
Is that really fair, blaming President Bush -- and Bush alone -- for the politics of the confirmations? Look at the following articles, which suggest to me that the Dems are as "guilty" for appealing to politics and not consistent judgment:
http://www.noticias.info/asp/aspComunicados.asp?nid=113958&src=0
AND
http://www.eyewitnessnewstv.com/Global/story.asp?S=4050451&nav=F2DO
They are still using such old-world language such as liberal v. conservative heh; funny little creatures are they not, like puppies chasing their own tail. . .
An Italian-American conservative nomination, not surprising at all considering the trouble "we" have had with the Italian government lately. As far as being troubled by the confirmation process, well, what else have politicians to do besides sit around and waste taxpayer money, it is not like the democrat politicians will do anything besides beg for scraps to further line their own pockets with while muttering something about social injustice.
The haves v. the have-nots, the lawmakers v. the oppressed, the Anglophiles v. the world; these are THE issues that most urgently need to be addressed, hence another benefit of the current war, keep them dying and distracted so they will have not time to think of their impoverishment and lack of opportunity. That is why the upcoming war with China will be so beneficial to both the Chinese and American governments because it will; 1) further entrench the position of the haves, 2) destroy millions of each respective country's surplus populations, and, 3) spur innovative technologies; you know, better and more productive methods of manufacturing and using weapons of mass destruction (Halliburton, Lockheed, and the U.S. government just love our naiveness).
Sisters and brothers revolution is here, WE are OUR only hope:
In noting that governments are instituted among men [sic: should now be humankind] from the consent of the governed, we, the people, invoke our right, nay, our duty, to abolish the government of old America upon the long train of abuses:
· He (the president) has made Judges dependent on his Will alone
· He (the president) has erected a multitude of New Offices, and sent swarms of Officers to harass our people
· He (the government/president) has affected to render the Military independent of and superior to the Civil power
· He (the government/president) has combined with others to subject us to a jurisdiction foreign to our constitution (Patriot Acts, corporate land take-overs, religious military schools, et. al.) and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation
· For Quartering large bodies of armed troops among us [and overseas]
· For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these [or those] States
· For imposing Taxes on us without our Consent
· He (the government/president) is at this time transporting large Armies of [public and private] Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation
· He (the government/president) has constrained our fellow Citizens [of the world] to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands
· He [the government/president] has excited domestic [divisions] amongst us, and has endeavoured to bring on the inhabitants of our frontiers [an endless stream of unlawful emigrants]
· In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people
We, the people, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these lands, solemnly publish and declare, That The Republic is, and of Right ought to be [a] Free and Independent State; that [is] Absolved from all Allegiance to the United States government, and that all political connection between us and the United States government, is and ought to be totally dissolved; and that as a free and independent nation we, the people, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
---
That grand old phrase "hoisted upon thy own petard" sounding ironically delicious anyone???
Hello David and Everyone,
When President Bush nominated H. Miers, a woman without real judicial experience, and to my laywoman's eye not a qualified candidate, I found myself saying...Oh...she is the "dummie nominee"..she will not be confirmed and then the President will throw out his real nominee and pretty much dare the Senate to reject them. This is actually what went through my mind...Pretty sad when you understand the political game playing of a sad and sorry President!
Truly, as an American citizen, I feel pretty much beaten up by this President and his Administration, it is one fight after another, drama, drama, drama. I feel like our President has the emotional maturity of a 17 year old adolescent. Three more years...feels like a very, very, long time.
Ruth, I tend to agree - there may have been two political strategies used by Bush here 1) to nominate Miers (a woman) with weak credentials, and then nominate a conservative White male when Miers withdrew, and 2) to nominate Alito when the press and the public were talking about 2,000 dead soldiers, Libby, and Miers.
the principal reason why the people are so divided over the courts is bush v. gore - a judicial decision that halted the political process, where the republican majority (conveniently) ruled in favor of bush.
Ruth, I would put his maturity at the level of 12. How else could you explain "Iraq war game". There is a chance that a 17 year old might "think" before indulging in childhood fantasies.
Krish,
I agree with you totally, the man has the maturity of a pre-teen. Bush is clearly a misfit of the worst order. Shame on all of you who helped put him there. This man is simply an embarassment. I am sorry I have to be so blunt.
I am a American and I am ashamed of this "president."
Cherry.
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Recent Comments
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Cherrylane commented on President Bush nominates Samuel Alito to the U.S. Supreme Court
Krish,
I agree with you totally, the ma
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Krish commented on President Bush nominates Samuel Alito to the U.S. Supreme Court
Ruth, I would put his maturity at the level of
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no commented on President Bush nominates Samuel Alito to the U.S. Supreme Court
the principal reason why the people are so divi
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Ketan Patel commented on President Bush nominates Samuel Alito to the U.S. Supreme Court
Ruth, I tend to agree - there may have been two
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ruth commented on President Bush nominates Samuel Alito to the U.S. Supreme Court
Hello David and Everyone,
When Presiden
May be the reason for such divisive arguments in the confirmation of justices is due to the arrogance and lack of magnanimity on the part of President. Instead of being an uniter (the promise he gave in 2000), he is more of a divider than anyone else. A person who went on extensive discussions before the nominations of Justice Roberts and Miers, failed to do it this time. He wanted the religious conservative base to shoot for him in the face of Libby indictment and pathetic public support and hence he has selected a strong conservative for the position of Justice O' Connor (Isn't it irony that the person whom he is going to replace, Sanda O' Connor, threw away one of his decisions). Bush didn't consider what is good for the country. He only considered what is good for him politically at this time. The net result is a nomination which is bound to create divisiveness among the senators, media pundits and even public.