A Decent Man

October 31, 2005 | 68 comments
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During my second year of law school I met Samuel Alito, who President Bush has nominated to the Supreme Court. I was interviewing for a clerkship with him after I graduated. I arrived at his chambers in Newark, New Jersey after several grueling days of travel. I had flown from Boston to Chicago to Indiana to Arkansas and finally to Newark. At the time two friends of mine, both BYU law graduates, were clerking for Alito, and I arrived early to speak with them. A short time later, Alito called me into his office. He looked somewhat solemn, and then informed me that my wife had just called him to say that my nephew had died. We spoke softly for a few minutes. I told him about Thomas and his brief life, about his parents’ long struggle to have children. Alito listened and spoke softly about sorrow and condolence.

We didn’t end up talking much law or jurisprudence. Ultimately, I clerked for a judge in Arkansas. However, his concern and grace in our one sad and awkward encounter has stuck with me. I have a clear memory of a warm and decent person.

68 Responses to A Decent Man

  1. Mike on October 31, 2005 at 11:47 am

    I am eating crow for lunch today. I really thought that Harriet was going to win the nomination. I was wrong. Dare I go out on a limb again and say that I think that Alito is going to make it after a thorough roasting?

  2. Frank McIntyre on October 31, 2005 at 11:48 am

    Thanks Nate, I’m saddened by your loss but glad to hear some evidence of him being a decent man.

    Mike,

    Alito probably has about an 80% chance of getting confirmed. Unfortunately, we know relatively little at this point, so that number may move a lot in the coming days.

  3. Nate Oman on October 31, 2005 at 11:53 am

    Leahy and others on the Judiciary Committee have already told folks on the Hill that they are strongly opposed to Alito. On the other hand, unless they can pick up a Republican (Specter?) on the committee they can’t stop him. If Alito can get out of the judiciary committee, I don’t think that the Dems can stop him. None of the GOP members in the gang of nine, or whatever it is called, will regard him as “outside the mainstream.” This means that if the Dems try to filibuster, the GOP can make a credible threat of using “the nuclear option.” As a result, I think that there are wavering Dems who would not support a filibuster.

    Of course, we might have a wonderful situation in which Shumer et al force a cloture vote, which Harry Reid then ignominiously loses.

  4. b bell on October 31, 2005 at 12:16 pm

    I personally think that Alito will be confirmed after a bruising battle. Alito is a mainstream conservative. If he cannot get confirmed with his credentials then nobody can. This coming battle over Alito is good for Bush politically.

  5. Aaron C. on October 31, 2005 at 12:42 pm

    Its nice to hear about experiences that make these justices/potential justices more human. I had a friend who worked on the Supreme Ct. modernization (construction) committee and worked closely with Justice O’Connor. He said the meetings he had with her and two other justices (Stevens and Breyer, I think) were very amusing. Bickering over money, disagreements over style, teasing each other with nicknames.

    BTW- during a backlot tour of the court we climbed the staircase to the basketball court/excercise room: 7:00am – Justice O’Connor – aerobics class (priceless)

    Touching story, Nate.

  6. Geoff B on October 31, 2005 at 1:53 pm

    Well, I was wrong about Harriet Miers, and Adam G and others here were as right as you can be. I’m keeping my fingers crossed about Alito. Conservatives seem very high on him. We’ll see how it plays out.

  7. Jeremiah J. on October 31, 2005 at 1:53 pm

    “If Alito can get out of the judiciary committee, I don’t think that the Dems can stop him. None of the GOP members in the gang of nine, or whatever it is called, will regard him as “outside the mainstream.” This means that if the Dems try to filibuster, the GOP can make a credible threat of using “the nuclear option.””

    I don’t think that this is quite accurate. First, I admit that Alito’s chances are good because of a few things–the obvious fact of who holds the majority, the unity of Republicans; and the fact that Altio has no personality/ personal issues to add to his conservatism (as Bork or Thomas did).

    But the Democrats are not wavering at all on Alito. He clearly was on the Democrats’ short No list along with Luttig, Brown, Owen and a very few others. They didn’t sit on the sidelines in the Miers debacle just so they could accept whomever Bush wanted to nominate.

    The “Gang of 14″ language about nominees being ‘outside the mainstream’ is largely meaningless. Part of that deal was letting Owen and Brown through, yet I doubt Lindsey Graham could name 2 or 3, if any, Federal judges to the right of them. The real issue with the seven Republicans is whether they want to support the changing of the rules on judicial filibusters just to get Alito nominated.

    If they do, the Republicans have even more to lose politically than they did before the Miers debacle, when they could consistently claim that they wanted all nominees to get an “up or down vote”.

    “Alito is a mainstream conservative. If he cannot get confirmed with his credentials then nobody can.”

    I’m not sure what this means. By all indications he’s a thoughtful, very accomplished conservative (i.e. the kind of person with whom George W. Bush associates only when he’s forced to), but I’d like to hear someone here name a half-dozen Federal judges to the right of him. But the idea that no one with his credentials could get nominated if he can’t is probably wrong. Bush could have nominted any conservative whose right wing record falls short of immaculate. M. McConnell and M. Mahoney would have fit this bill just fine–they probably would have been confirmed at least as easly as Roberts despite the fact that they’re probably to the right of O’Connor. As for Alito, the only mark against him from conservative circles is that he’s younger than Luttig, Brown or Owens.

  8. annegb on October 31, 2005 at 1:58 pm

    Nate, that is cool. Thanks for sharing. I’m going to tell people I know somebody who knows the new supreme court nominee.

  9. Clark on October 31, 2005 at 1:58 pm

    I tend to agree that this will be good for Bush. Even most conservatives have really been shaken up regarding him. The combination of major missteps in Iraq, the continual ad homen attacks on political foes, Katrina and remaining issues at FEMA, a lot of anger over the way homeland security has been run, and so forth. It’s all made even the staunchest conservative gasp at times.

    By having Bush actually engage in an ideological debate over the issues instead of Machiavellian power plays typically unrelated to the exchange of ideas, I think many conservatives will start to regain a lot of faith. We’ll see how far it goes. Unfortunately a lot of Bush’s plays via expediency the first term have come back to haunt him. I think most conservatives think that in a debate of ideas their ideas will will. It’s just that we so rarely get that from Bush. Let’s be honest – we don’t get a lot of debate. I think even in the last election most conservatives who were wary of Bush voted for him precisely because of this ideological debate that finally we’re going to have.

    This is an important point for the conservative movement. It’ll determine whether Republicans really are just like Democrats were in the 90’s or whether the conservative movement continues on. I think many conservatives are starting to realize this, thus some of the attacks on pork finally. However there are still far too many Republican leaders without a clue. That Bush nominated an intellectual conservative in a fashion that demands debate suggests that he’s finally getting it.

  10. Adam Greenwood on October 31, 2005 at 2:09 pm

    “The Republicans have even more to lose politically than they did before the Miers debacle, when they could consistently claim that they wanted all nominees to get an ?up or down vote.”

    This is a talking point that leaves me scratching my head. To my knowledge, no Republican had threatened to filibuster Miers. If any did, they were certainly in the minority.

    If Democrats wish to call on Bush to withdraw Alito’s nomination, as the Republicans did with Miers, they may be my guest.

  11. Nate Oman on October 31, 2005 at 2:11 pm

    Jeremiah J.: I agree with you that the “outside the mainstream” language is largely meaningless. Indeed, I think that the threat to filibuster Bush’s nominees was largely meaningless (ie I don’t think that Dems had the votes to survive a cloture motion). I think that the whole deal was basically done to provide the Dems with a means of backing down gracefully. My point is that the threat of filibuster is largely empty. I think that there are enough Democrats who think that there are enough Republicans who would vote for the nuclear option that the Dems can’t support a filibuster in the face of a cloture vote. As a result, I think that Harry Reid and others will put tremendous pressure on folks to NOT try to filibuster Alito.

    What this means is that those opposing Alito, having no procedural hook to kill the nomination will result to personal attacks in an attempt to vilify him and create public opposition. It is hard to figure out what it means to be to the right of someone, but here is a possible list:

    Boggs
    Kozinski
    Owens
    Luttig
    O’Scannglin
    Levinsky Smith

  12. Adam Greenwood on October 31, 2005 at 2:17 pm

    Some of those guys are really out there, O’Scannglin, for instance.

    Judge O’Scannlain, on the other hand, is a notorious left-winger. The Reinhardt-O’Scannlain axis on the 9th Circuit is infamous.

    [Note to people who don’t spend all day gossiping about legal stuff: I’m lying.]

  13. b bell on October 31, 2005 at 2:38 pm

    Adam,

    Janice Rogers Brown is also more conservative than Alito IMHO. (although I am not sure how you can really measure this)

  14. Adam Greenwood on October 31, 2005 at 2:49 pm

    Yes, Janice Rogers Brown is Movement. If I were black, female, smarter, and a little less muddy rhetorically, I would be Janice Rogers Brown.

  15. Guy W. Murray on October 31, 2005 at 3:00 pm

    Harrier Miers was likely a “decent woman”; however she didn’t bring with her nomination, what Justice Alito brings to his, i.e., Constitutional knowlege, pedigree, experience, and independence from the Executive. I’m a democrat, was very opposed to the Miers nomination, but, so far I like the Alito nomination.

  16. Guy Murray on October 31, 2005 at 3:01 pm

    Sorry, “Harriet”

  17. Adam Greenwood on October 31, 2005 at 3:07 pm

    Whereas Alito is more of a Nate Oman without the gawky good looks.

  18. Drex Davis on October 31, 2005 at 4:04 pm

    Great nomination. His record is one of consistently interpreting law, rather than legislating. That the left considers this “extreme” says more about the left than the nominee. If the country wants to elect representatives who enact law that lead us down the path to ruin, then so be it . . . but a tyranny of 9 unelected “legislators” has been shown to be a quicker road to hell in a hand basket. The only hope to reign in the judiciary is to appoint judges who self-regulate by interpreting law, not making it. The more extreme fringes of the left (the current “pocketbook” of the democratic party) is up in arms b/c they know their activist agenda stalls when it is put votes . . . hence, they must rely on sympathetic activist judges. I’d like to see abortion laws put to popular votes, just as same-sex marriage has been. If we choose wrong on these points, then really we get what’s coming to us. But if we just stand back while the judiciary mandates rather than interprets we’re forced to reap the rewards of poor law without choosing.

    I’m opposed to activism conservative or liberal, though I think “conservative activism” is a bit of an oxymoron . . . Conservatives, by definition, should be strict constructionists and originalists and leave legislation up to legislators.

  19. Drex Davis on October 31, 2005 at 4:19 pm

    Sorry if that post leads the thread to a threadjack . . .

    I’m sure there are plenty of fine judges who are not warm and sensitive people, and many warm and sensitive people who are liberal in their leanings and also may or may not happen to make fine judges.

    All things considered it would be nice to have judicial heavyweights who are also compassionate persons on the court. Nate’s anecdote seems to indicate that Alito may be one of those.

  20. Justin @ RSR on October 31, 2005 at 4:31 pm

    Here’s another “Mormon law” connection to Alito:

    http://www.rightsideredux.com/2005/10/lee-lee-on-alito_31.html

  21. Mark B. on October 31, 2005 at 4:32 pm

    I agree with Adam about the Democrats’ complaints that Harriet Miers was denied an “up-or-down” vote. (As compared to what, by the way? A left-or-right vote? An in-or-out vote?) As Adam says, nobody in the Senate threatened to prevent her moving through the process: hearings, committee vote, floor debate, vote. That she did the decent thing and withdrew before the pain that the hearings would have been does not mean that she was denied that vote.

    But, in your 17, Adam, didn’t you mean “geeky good looks”?

    Finally, I love having Chuck Schumer, (aka The Putz) defining for all what the judicial mainstream is. Who, pray tell, made him the arbiter of where the center is? (Actually, from seeing Chuck in action for two decades, I have concluded that he believes that the center runs straight through him.)

  22. Adam Greenwood on October 31, 2005 at 4:36 pm

    Nate Oman’s gawky good looks are also geeky. Point taken.

  23. mrs on October 31, 2005 at 4:39 pm

    In my understanding, the conservatives on the Supreme Court can do a significant amount of legislating from the bench themselves. One study looked at the percentage of times that each justice voted to overturn federal statues as a measure of judicial activism (Golden and Gewirtz, don’t know the original publication reference) Conservative justices were more likely (especially Thomas, a real movement conservative) to overturn Congress than the liberal justices. I assume there are other ways that other justices might express judicial activism — such as expanding the class that a Congressional or constitiutional protection should extend do. Perhaps “judicial restraint” is a better way to judge this measure I’m showing here. But it shows a very interesting different interpretation of the whole judicial activism debate. Any comments from the lawyers? IANAL . . .

    Where I read it: http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

    The data – percentage a federal statue is voted to be overturned.

    Thomas 66%
    Kennedy 64%
    Scalia 56%
    Rehnquist 47%
    O’Connor 47%
    Souter 42%
    Stevens 39%
    Ginsburg 39%
    Breyer 28%

  24. Jonathan Green on October 31, 2005 at 4:55 pm

    The political strategizing of the Alito nomination may not work out as ‘united Republicans prevail over Democrats,’ as a couple people suggest. Given the right circumstances, a candidate that pleases the Christian Right wing of the Republican base may end up becoming problematic for pro-abortion rights Republican senators, like judiciary chairman Arlen Specter. Confirming Alito may come at the price of the Republicans sustaining damage to their moderate wing, such as it is. I rather enjoyed the last intra-Republican crackup, and wouldn’t mind a double feature. I’m not putting any money on it, however, despites Frank’s tempting links to gambling sites–I mean, to market-based predictive solutions.

    The leadup to the confirmation hearings might discover that Alito is not just a decent man, but a great judge and a first-rate legal mind who will decide some issues the way Republicans hope for, and some issues in a way that Democrats would appreciate, and he’ll be quckly sustained by a vote of 98-2. If not:

    The best political outcome for the Democrats might involve a filibuster. If Alito’s truly objectionable to Democrats, what’s the point of preserving a toothless filibuster threat? Assuming that even pro-life Democrats in the Senate can find enough other facets of Alito’s rulings to object to, it might be better to go down firing. Resisting the will of an unpopular president with approval ratings in the high 30’s is not the same as opposing a popular president leading a popular war, or even a recently re-elected president. Better to try to show that Republicans in the Senate will go to any lengths and abuse long-standing tradition in order to get their way.

  25. Drex Davis on October 31, 2005 at 5:13 pm

    Re: #21 – It’s my understanding that due to Meirs poor performance on her “road show” with Republican and Democratic Senators that Sen. Frist called the President and informed him that it appeared that he wouldn’t be able to get the votes to get her out of committee . . . The next day Meirs withdrew.

    Republican Senators were jumping off the bandwagon big time, and not just because of “pressure” from right-wing punditry . . . Based on their personal experiences they were having serious doubts about her ability to even get through a confirmation process.

  26. lyle on October 31, 2005 at 5:18 pm

    Jeremiah: Alito is _older_, not younger, than Luttig.
    Mrs: We’ve hashed out those numbers before, they are largely meaningless. Just remember that post Marbury, it is the job of SCOTUS to kill legislation that is unconstitution; so the #s you post again could just as easily be % as to which Justices are actually doing their jobs as opposed to letting Congress re-write the Constitution w/o formal amendments.

  27. Adam Greenwood on October 31, 2005 at 5:21 pm

    “The leadup to the confirmation hearings might discover that Alito is not just a decent man, but a great judge and a first-rate legal mind who will decide some issues the way Republicans hope for, and some issues in a way that Democrats would appreciate, and he’ll be quckly sustained by a vote of 98-2.”

    Whatever happens, I can predict that it won’t be this. 22 Democrats voted against Roberts, which 22 Democrats will vote against anybody who hasn’t explicitly either announced that abortion is sound policy or that Roe v. Wade was sound law. Alito will not do either. In fact, he actually said that a state law requiring spouses to notify their spouse that they were having an abortion was constitutional. For this alone, at least 30 Democrats will vote against him, and perhaps a pro-choice Republican or two (here’s looking at you, Rhode Island!). Alito’s best case scenario is 70 votes.

  28. Melissa on October 31, 2005 at 5:29 pm

    Frankly, Alito is no replacement for O’Connor. Liberals and moderates aren’t going to take this sitting down.

    I agree with Adam that this isn’t going to be 98-2. But, I’ll go further. There’s no way Alito will get 70 votes.

  29. Frank McIntyre on October 31, 2005 at 5:49 pm

    Any takers on 60 votes? Do I hear 55?

  30. b bell on October 31, 2005 at 6:01 pm

    53-60 votes. This nomination will swing the SCOTUS towards conservative. Dems in Blue states will not vote for him. Some repubs in blue states might not either. Dems in Red states will consider voting for him. Look for a big blowup…..

  31. Adam Greenwood on October 31, 2005 at 6:18 pm

    “Alito is no replacement for O?Connor.”

    Yes, actually he is. He may not be a difference splitting pragmatist (Scalia: what’s moderation in interpreting the law mean? That you’re only halfway between what the text says and what you want it to say?), but, on the other hand, so what?

  32. toady on October 31, 2005 at 6:53 pm

    “legislating from the bench” is a conservative buzzword that basically means nothing, as mrs has pointed out.

    Alito will make it, though the power of the “two white men” critique should not be underestimated (I don’t think the Miers nomination did much to preempt the critique). As far to the right as we have swung in recent years, a LOT of people still find Bush’s failure to take ethnic and gender diversity very seriously, and they won’t take to this nomination terribly kindly, regardless of ideology.

    I will say the Miers-Alito one-two was a well-played hand. Cruel to Lady Lotto (Miers), but well-played.

  33. toady on October 31, 2005 at 6:55 pm

    edit: “very seriously problematic,” instead of “very seriously,”

  34. Justin @ RSR on October 31, 2005 at 7:14 pm

    Quick note. Mike Lee with be on Hugh Hewitt’s radio show tonight at 4:00 EST

    http://www2.krla870.com/listen/

  35. Drex Davis on October 31, 2005 at 7:28 pm

    We could’ve had a diverse nominee – a real two for one, black and a woman – Janice Rodgers Brown. Would you all be for that one . . . it would meet the diversity test.

  36. Adam Greenwood on October 31, 2005 at 9:04 pm

    ““legislating from the bench” is a conservative buzzword that basically means nothing, as mrs has pointed out.”

    Sure. There’s no principled distinction to be made between the work of legislatures and of courts, and no way to tell when one is overlapping the other.

  37. Kaimi on October 31, 2005 at 9:10 pm

    Adam,

    Assuming that such a principled distinction exists, do you believe that the term as used by critics always follows the principled distinction and is never used as political hackery?

    Or can we agree that — at least some of the time — accusation of “activism” and “legislating from the bench” really just stand for “handing down decisions that I don’t like”?

  38. Jeremiah J. on October 31, 2005 at 10:09 pm

    Nate: “It is hard to figure out what it means to be to the right of someone, but here is a possible list:

    Boggs
    Kozinski
    Owens
    Luttig
    O’Scannglin
    Levinsky Smith”

    Agreed that it is hard to figure out what it means to be to the right of someone judicially, but mainly because there are several legitimate criteria rather than that the criteria lack meaning or precision. In this case I’m mainly refering to the priorities of influential conservatives. Or: rate Greenwood’s smile from one to ten and that’s my rating of conservatism.

    Oh, and thanks for the list.

    On the filibuster: I’m still of the opinion that the threat is not empty. You have well-taken points as well, though, so we’ll have to see who’s the better prognisticator. But I still hedge by noting that Alito is a good looking nominee. Reid declared victory after the Gang of 14 episode. But the victory is hollow unless you actually plan to use the filibuster (on judicial nominees, of course) at some time in the future. Say there are enough votes to go nuclear. So what? It’s just as well if you’re never going to use it anyway. And many Dems think that going nuclear could be a political loser for the GOP. It’s a tough call on that score, but the point remains that you have nothing to lose if you’re not going to filibuster anyway.

    A second, further off consideration is whether a change of the rules on judicial filibuster could help justify or lead to a change of the rules to get rid of filibuster altogether. Some liberals with a longer view would like to trash it altogether. This is important, say ten years down the road, since historically 60-vote cloture has had conservative results.

  39. Howie on October 31, 2005 at 10:22 pm

    Please, God, don’t let Nate Oman ever reach the Supreme Court.

  40. Matt Evans on October 31, 2005 at 10:25 pm

    Nate and Jeremiah,

    The term of art from the agreement among the Gang of 14 is “extraordinary circumstances,” not “outside the mainstream.” Today both Mark Pryor (D) and Lindsey Graham (R) said that on the surface they don’t believe Alito’s nomination constitutes an extraordinary circumstance.

    Kaimi,

    “Judicial activism” and “legislating from the bench” solely concern the means whereby a case is decided and have nothing to do with a case’s outcome. But as commenter Mrs pointed out, some liberals are trying to dupe uninformed people into thinking a judicial activism is refusing to rubber-stamp as constitutional every law Congress passes.

    Adam,

    That Scalia quote about “judicial moderates” is priceless. And accurate!

  41. Kaimi on October 31, 2005 at 10:36 pm

    Matt,

    “some liberals are trying to dupe uninformed people . . .”

    Because that’s what liberals do. They look for uninformed people — and then they dupe them! It’s a fun way to spend an evening. (And uninformed people are soooooo much easier to dupe than informed people . . .). Meanwhile, conservatives _never_ try to dupe uninformed people into a widespread belief that judges are activist.

    Alternatively, we could read the comment as suggesting that terms like activism and legislating from the bench — or for that matter, terms like extremist or outside-the-mainstream — are terribly vague and often mean different things to different people.

    That reading, however, doesn’t get us to our devious, dupe-seeking liberals. So it can’t be right.

  42. Adam Greenwood on November 1, 2005 at 1:10 am

    Kaimi,
    can we agree that – at least some of the time – liberals try to dupe uninformed people?

  43. Kaimi on November 1, 2005 at 1:19 am

    Adam,

    I’ll stipulate to that, if you’ll stipulate to the fact that, at least some of the time, conservatives try to do the same.

    :)

    (Actually, you already know my position here — after all, I’ve blogged in the past criticizing duplicitous arguments made by liberal groups . . . ).

  44. toady on November 1, 2005 at 3:07 am

    yes, and liberals are all about upholding the constitutionality of so many of the laws passed by the GOP-controlled congress that has been in place for the last ten years.

    I don’t hear liberals talking about activist judges very much at all. Do you, Matt? Who are these liberals attempting to “dupe” the uninformed that non-rubber-stamp judges are “activist?” Because frankly, I can’t find too many of them out there. Conservatives love the phrase, though, precisely because it appeals to the uninformed.

  45. gst on November 1, 2005 at 10:51 am

    Melissa: that Judge Alito is no “replacement” for Justice O’Connor, in the sense that he’s different from her, shouldn’t surprise anyone. Why should President Bush should appoint an O’Connor clone? That would give President Reagan, who is not only no longer president but also dead, extraordinary power.

    Nate: Don’t all Supreme Court nominees get out of committee? I don’t know if it’s rule or tradition, but I thought that the Judiciary Committee had to give high court nominee a floor vote (or at least in our modern, fractured times a chance to be filibustered).

  46. Nate Oman on November 1, 2005 at 11:30 am

    “Frankly, Alito is no replacement for O’Connor.”

    I think that is the point. For what it is worth, O’Connor was frequently no O’Connor as well…

  47. Adam Greenwood on November 1, 2005 at 11:43 am

    The Senate has agreed that a negative vote in committee won’t kill a nomination. A nominee would still have to be either voted down or filibustered.

  48. b bell on November 1, 2005 at 11:47 am

    Examples of Judicial activism:

    MASS supreme court out of thin air creating a right to SSM.
    9th circuit declaring pledge of allegience Uncon.

    Liberal activists promoting liberal agendas thru the courts because they cannot do it thru the ballot box. That is what conservatives mean when they rail about judicial activism.

    Also Conservatives do not take what the NYTIMES publishes seriously on any topic esp the federal judiciary.

  49. Eric S. on November 1, 2005 at 12:09 pm

    The Dems couldn’t stop CLARENCE THOMAS when they had a MAJORITY in the Senate. They now have a 45-seat minority, with something like 13 Dem Senators from solid red states. Alito will sail through just like Roberts did although there will be much weeping, wailing, and gnashing of teeth (i.e., fundraising tactics) on the left. Still only four votes to overturn Roe (assuming Roberts is in that camp, a big assumption).

  50. James Jones on November 1, 2005 at 2:57 pm

    Of course he will get 70 votes. He is a Roberts look-a-like for all practial purposes. He is no more conservative than Roberts is, and, when that comes to the Committee hearings, the commentary on abortion and other hot issues will end. He will win the hearts of the lib’s with his testimony.

    Of course he is no O’Connor. He is much more sound ideologically.

  51. jimbob on November 1, 2005 at 3:11 pm

    “Frankly, Alito is no replacement for O’Connor.”

    If we’re only painting with very broad strokes, I guess I might agree, but would also point out that Rehnquist, as a conservative, was probably replaced by a more moderate justice in Roberts. Thus, a moderate was replaced by a conservative, and a conservative by a moderate. Accordingly, I see the net result of the ideological shift of the last few months as minimal; if there is any change at all, it will probably be very slightly to the right.

    I am also a little surprised that in terms of issues, all the talking has been on abortion. I would think that at least some attention would be paid to the possibility that the death penalty might come under attack by placing 5 Catholic justices on the Court. But, there are big social issues, I guess, and then there are big social issues.

  52. Kaimi on November 1, 2005 at 3:24 pm

    “Pledge unconstitutional” = activist, but “violence against women act unconstitutional” != activist.

    Reading the 14th amendment broadly = activist, but reading the takings clause broadly != activist.

    Incorporation of the 14th amendment = activist. Incorporation of the takings clause != activist.

    Looks pretty results-based to me . . .

  53. Guy Murray on November 1, 2005 at 3:25 pm

    I agree with jimbob’s analysis on the net change, if any. The abortion obsession is also very tiresome. You would think it’s the only issue with which the Court deals. I for one, would love to see the death penalty go the way of all the earth, and return to the days that it was considered cruel and unusual punishment–regardless of the justices’ religious affiliation.

  54. b bell on November 1, 2005 at 3:31 pm

    Kaimi,

    Both left and right is looking for results. Trust me. Throw out the ideal that its all about the law. Its some.

    Guy, #53 To many LDS scrips justifying CP. Check the topical guide. END Threadjack

  55. Guy Murray on November 1, 2005 at 3:40 pm

    # 54 b bell: Too many people who interpret these scriptures to justify CP. I’m familiar with the topical guide entries. They don’t (and I hope would not) provide a Constitutional framework that justifies CP.

  56. Clark on November 1, 2005 at 5:25 pm

    Interesting that set of statistics by mrs is rebutted here in Legal Affairs. (Yes I shamelessly lifted that link from the discussion of the stats over at Crooked Timber)

  57. Drex Davis on November 1, 2005 at 6:27 pm

    #53 – I’d like to see murder go the way of all the earth too.

    But I guess milk and cookies for life on taxpayers (i.e. law abiding citizens) dollars makes a lot more sense.

  58. Adam Greenwood on November 1, 2005 at 6:34 pm

    ” for one, would love to see the death penalty go the way of all the earth, and return to the days that it was considered cruel and unusual punishment–regardless of the justices’ religious affiliation.”

    Really, Guy Murray? You want to return to the years during the 70s when the Court was so arrogant that they were willing to forbid a punishment that the Constitution includes? Yeesh, I didn’t realize we were so trustful of legal elites and suspicious of democracy.

  59. Guy Murray on November 1, 2005 at 7:10 pm

    #58 Really Adam Greenwood! I admit I long for the days of Brennan, Douglas, et al. (A court no more or less arrogant than one hoped and longed for by many judicial “conservatives” that will rescind rights they claim don’t exist in the Constitution, i.e., privacy) As you are no doubt aware they forbad a punishment that the Constitution allowed, but that at the time, and likely even today, was/is unconstitutionally applied, in contravention of the due process guarantees of that same Constitution. It has nothing to do with judicial elites or democracy–though I’d agree with you that we should be suspicious of judicial elites, and more trusting in democracy.

  60. Adam Greenwood on November 1, 2005 at 7:14 pm

    “(A court no more or less arrogant than one hoped and longed for by many judicial “conservatives” that will rescind rights they claim don’t exist in the Constitution, i.e., privacy) ”

    We’re so far apart on this, Guy Murray, that I don’t even see how we could get in shouting distance of each other. When a fellow tells me that the Brennan court was restrained, I purse my lips and move on. I have nothing to say.

  61. Guy Murray on November 1, 2005 at 7:18 pm

    No doubt far apart Adam Greenwood . . . but in the final analysis I suppose it all depends on whose Ox is gored . . . so to speak. Nevertheless, I thought you were very good on that zeitcast thing.

  62. Adam Greenwood on November 2, 2005 at 10:27 am

    ” I suppose it all depends on whose Ox is gored”

    No, it doesn’t. Law isn’t politics.

  63. Guy W. Murray on November 2, 2005 at 10:48 am

    Adam Greenwood: When a fellow tells me “law isn’t politics” in light of what the Supreme Court nomination process has become, I smile and nod my head :-) Clarence Thomas and Harriet Miers are just two examples that come to mind. They were two of the most “political” choices in history . . . made to achieve political ends. The process now no longer seeks the most qualifed potential jurists. Rather, it’s raw politics. An attempt to promote political goals, whether it be to over turn Roe v Wade, or correct some other social ills that plague our community. Don’t read into my response that I support abortion. I am appalled at the lack of responsibility people in American culture exhibit; however, I’m equally appalled by how political judicial appointments have become over the last several years–both by democratic and republican administrations.

  64. Adam Greenwood on November 2, 2005 at 11:30 am

    And yet, somehow, the Miers nomination was withdrawn, largely because a decent number of folks from all parts of the spectrum thought it was too much politics and not enough law.

    Saying that nominations have become political is a far, far cry from saying that the only way to evaluate what judges like Brennan do is to see whose ox is gored. No, sir. No way. Never, never.

  65. CaliSaint on November 2, 2005 at 1:51 pm

    Kaimi #52:
    “Pledge unconstitutional” = activist, but “violence against women act unconstitutional” != activist.

    Activist only if you believe that Congress has unlimited power to pass any law on any subject on the basis of the Commerce Clause. So I guess for penumbra-lovers like Kaimi, it would be activist.

  66. b bell on November 2, 2005 at 1:58 pm

    When Conservatives talk about activist judges imho they are talking about cultural issues AKA, the flag, Christmas, the pledge, abortion, and SSM. They do not really care about some of the other issues that Kaimi mentioned. They are just looking for results in the culture wars. Debates over legal theory are mostly limited to lawyers and academics…..

  67. Kaimi on November 2, 2005 at 2:28 pm

    Cali,

    Penumbra lovers? Elaborate, please. Find something that I’ve actually said to indicate that I love penumbras. I’ve written a lot on legal topics, here and at other blogs. Find an actual statement of mine showing love for penumbras. (Hint: There aren’t any).

    My claim here is the limited one that “activist” is essentially a contentless term, used to denigrate which judge is on the opposite end of the political spectrum from the speaker.

    Bell,

    In my observation, the Kelo court was decried as activist, just as much as the Goodridge court.

    Goodridge: How dare that court overrule our legislature?! How dare they impose a constitutional limit on legislative power?! Activism!!
    Kelo: How dare that court refuse to overrule our legislature?! How dare they refuse to impose a constitutional limit on legislative power?! Activism!!

    It’s all about the results.

  68. b bell on November 2, 2005 at 2:33 pm

    Kaimi,

    its all about the results. No……..Really………