"There is always a philosophy for lack of courage."—Albert Camus

Thursday, November 17, 2005

Alito Bit Of This, Alito Bit Of That

Although they were written without knowledge of the other, R. Emmett Tyrrell's essay and the one penned by yours truly form a perfect complementary tandem in today's American Spectator. Both are responses to the Alito job application which was discussed below by the estimable Mr. Karnick, who astutely assayed its radioactivity.

Tyrrell focuses on the fact that liberals have been pretending for at least a quarter-century that Reaganite ideas do not exist, and to the extent that they do exist they are outside the "mainstream" - this despite these ideas being in the political ascendancy since 1980.

I concentrate more on the need within the conservative camp for a pact of total loyalty, not to abandon Alito come Hell or high water. Here's a teeny excerpt:

All the gung-ho movement types were itching to volunteer for the battlefield. Okay, here it is. They had better be as good as their word. Because there will not be another chance. If Alito ends up twisting in the wind, with conservatives suddenly finding some taint in an obscure ruling of his and leaving his carrion in the open field for the vultures, then it's over for them. They won't get another chance. Not now, not ever. Not with this President. Not with any future Republican President.

It's very nice that everyone thinks of himself or herself as a person of principle. Not a sell-out. Motivated by morality. Informed by reason. Modified by experience. Calibrated by individuality. Guided by the spirit of the past. Animated by the spirit of the present. Inspired by the spirit of the future. We know all the lines, pal, but now is not the time: now it's time to put up or shut up. To, er... do your business or get off the pot. Push, as we have noted, has in fact come to shove.

16 comments:

Hunter Baker said...

There's no question that Alito has to be suppported. If he isn't, then that means no matter how outstanding one's legal resume', a failure to agree with a highly controversial ruling would void one's chances to serve. I don't think the American people expect or want that.

James Elliott said...

I am far more concerned with Alito's "Conflict of interest? I know no conflict of interest... Promise to Congress? Pshaw, I see no need to be bound to promises to Congress given under oath..." line of thinking than his opinion on Roe. I'm in the (unfortunately small) liberal camp that realizes very little will change if Roe is overturned. It's impossible to exercise your right in 87% of all counties. That's not going to change, Roe or no. For luvva Pete, let's be pragmatic for once and take the issue off the table.

JC said...

The "conflict of interest" is not entirely clear... if the guy does a small amount of business with a company, must he recuse himself? True, he should not have been so restrictive in his original statement, and it is important to follow up on promises/oaths.

However, I think it was more a question of "well, does anyone really think there is a conflict here?" In those two cases (out of a huge judicial record), someone did, so...

"Alito said Thursday he did not believe he was required to disqualify himself on the basis of ownership of shares in a mutual fund but 'voluntarily recused myself once my participation was called into question.'"
Washington Post

He recused himself; no harm done. If there were a pattern of stuff like this, I might care---but we only have a couple of minor incidents that were quickly corrected, not a fundamental contempt of the judicial system.

James Elliott said...

That "small amount of interest" were holdings that amounted to (depending on what year you ask) $400,000 to over $1 million in assets at that mutual fund. To the fund, that might be small. To an individual, that's huge.

Pattern? What about refusing to recuse himself from a case with huge financial implications for his sister's law firm? A judge jockeying for the Supreme Court must be above reproach, and you're parsing this?

Tlaloc said...

Frankly I think the indications of misogyny on Alito's part are more worrisome than anything and (hopefully) indicate he is unsuitable to be a judge at all much less one on the supreme court.

In addition to the ruling in which he equates married women legally with children he was also part of a group that tried to remove women from his alma mater back in the 70s.

I'd say thats more than enough to cause grave concerns about his impartiality and should merit a significant amount of questioning and discovery.

Tlaloc said...

"if the guy does a small amount of business with a company, must he recuse himself?"

Absolutely. A judge who owns one share of stock should recuse themselves from any case related to that company. It's vital that the judiciary maintain the highest ethical standards.

JC said...

I'm all for ethical standards --- and the quote / article I linked show that he did recuse himself when someone brought it up. Two oversights (that were corrected) over 15 years are not a "pattern," and no one is alleging that the "conflicts" ever affected his rulings.

In addition to the ruling in which he equates married women legally with children [...]
No, he didn't... he just happened to make a similar ruling in each case, using different reasoning. Ruling that the two groups have the same rights in one case is not "equating" them! (Do we "equate" school teachers with sexual predators by ruling that they both have the right to a driver's license?!)

I'm sure there will be plenty of questioning and discovery (that's the Senate's job, after all), but it's unlikely that any big skeletons will magically appear before confirmation---Alito's been a judge longer than most.

Tlaloc said...

"Two oversights (that were corrected) over 15 years are not a "pattern," and no one is alleging that the "conflicts" ever affected his rulings."

I agree, but you asked a question and I answered it.


"No, he didn't... he just happened to make a similar ruling in each case, using different reasoning."

Afraid not. In his ruling on Casey he specifically invokes parental notification laws and the two dissenting judges specifically call him on it because he was equating a married woman's relationship with her husband to that of a child to their parent.


"Ruling that the two groups have the same rights in one case is not "equating" them! (Do we "equate" school teachers with sexual predators by ruling that they both have the right to a driver's license?!)"

If the question at hand was the right to drive then yes you certainly have equated them in that case. Equal means the same. Saying they have the same legal rights and responsibilities is to say they are equal. At least for the case at hand. I agree he is not claiming married women are legally equal in all cases to children but that's irrelevent. A single case of saying a woman is nothing more than a child who must submit to her husband is one too many.



"I'm sure there will be plenty of questioning and discovery (that's the Senate's job, after all), but it's unlikely that any big skeletons will magically appear before confirmation---Alito's been a judge longer than most."

I'd say we already have a couple HUGE skeletons personally.

James Elliott said...

...he did recuse himself when someone brought it up.

Isn't that kind of a problem? Someone shouldn't have had to bring it up in order for him to recuse himself. Ethical standards are something you hold yourself to, not something others call you on!

...he just happened to make a similar ruling in each case, using different reasoning.

I tend to agree here. I'm not as worried by his actual judicial reasoning. I read an analysis by Jeffrey Rosen, a liberal judicial analyst whose opinion I trust, that explained his rulings pretty well and didn't see anything that implied judicial misogyny. His reasoning was, however, flawed and he was rightly taken to task for it.

Ruling that the two groups have the same rights in one case is not "equating" them! (Do we "equate" school teachers with sexual predators by ruling that they both have the right to a driver's license?!)

That said, the above is rather glaring sophistry, JC.

Tlaloc said...

some interesting polling data:

"The Supreme Court legalized abortion 32 years ago in the ruling known as Roe versus Wade. If that case came before the court again, would you want Alito to vote to uphold Roe versus Wade, or vote to overturn it?" Options rotated

Uphold 64
Overturn 31
Unsure 5


"If you were convinced that Alito would vote to overturn the Roe v. Wade decision, would you, personally, want the Senate to vote to confirm him to the Supreme Court, or not?"

Confirm 37
Not Confirm 53
Unsure 10

http://www.pollingreport.com/Court.htm

If accurate it indicates that fighting Alito may be very politically smart for the dems right now. I mean fighting hard not putting up a token resistance. Especially if the congressional republicans are disintigrating as badly as they seem to be (looking at recent big votes they've lost).

connie deady said...

The man does better as a jurist than a politician. His explanations are lacking a lot.

His explanation for the conflict of interest is that he didn't mean to restrict himself that way. So when he promised his wife that he would forsake other women, he didn't mean it to apply to some attractive woman he met 10 years later.

Equally, his explanation for the application answers is that it was only a job application and he was saying what people wanted to hear. I'd say that equally applies to the confirmation hearings. Is he only telling the Senate what they want to hear so that he can get the job of Supreme Court Justice.

When you combine the two issues together it appears that he has no problem saying things he doesn't mean or making promises he doesn't intend to keep.

All in all, I find that a bit disconcerting. Bit then again, as a "lib" to use Jay's word, that means I'd look for any excuse to tear a good conservative down. (even if he is a Phillies phan).

Or OTOH, I might consider that since he doesn't apparently put a high priority on truth telling, he obviously fits in with this adminisration.

JC said...

Obviously the conflict of interest thing is a matter of opinion that, as connie observed, is likely to fall along party/ideological lines. If you really want to attack Alito on this---did you support the impeachment of Clinton for perjury, where he actually lied under oath about something that happened in the past?

Let's get it straight on the husband-notification opinion. Alito ruled that the state could legitimately believe that a husband has a legitimate interest in a fetus (child?) that he helped create. He doesn't say that husbands have parental rights over their wives.
The question was not even "Should the husband usually be notified?" (>70% of Americans say "yes") but rather "Can the legislature decide this question?" The legislature has decided all kinds of related questions, like
* A father (not even necessarily a husband) has custody rights and
* ... might have to pay child support
* Parents can be involved in major decisions that affect their children
* In some states, one might need to notify the spouse (or even---gasp---get consent!) for a sterilizing procedure

Alito's argument was that it is difficult to see how the government can regulate all these other things, and yet not have the ability to require a wife to notify her husband for a major decision like the destruction of what would be his child (given the four exceptions in the law). The burden of proof is on the pro-choice folks to show that the legislature does not have this power, because it violates some Constitutional right.

Several Supreme Court justices used his arguments in their dissent. A large majority of Americans support spousal notification.

Where's the misogyny exactly? Are 3/4 of Americans misogynists?

James Elliott said...

Where's the misogyny exactly? Are 3/4 of Americans misogynists?

Given the barriers women still face in society? Probably. And most probably don't know it.

Jay D. Homnick said...

Oy, the old "You're a racist and you don't even know it; you're a misogynist and you don't even know it" canard.

Years ago, Joe Sobran wrote some fabulous pieces showing what a malicious tack this is in debate, to attribute to your interlocutor subconscious thoughts and attitudes. If you say "I'm innocent," the other guy gets to cluck his tongue and give you a pitying smile - you poor schlub, so deep in denial.

Matt Huisman said...

Where's the misogyny exactly? Are 3/4 of Americans misogynists?

The question before Alito was whether spousal notification was an undue burden (and reasonably within the state's interest). With respect to undue burden, the issue here seems to be whether or not the notice would stop women from having abortions if they wanted them. Alito references the parental notification case and draws the conclusion that notice (assuming exceptions are available) does not limit the ability of the woman to have an abortion - she retains full control over the decision.

You may disagree with his conclusion and say that notice harms women, but you can't say that his reasoning is based on his treatment of women as inadequate to make the decision.

James Elliott said...

Careful, Homnick. Your denial's showing.

We're all parties to misogyny, Jay, willing and unwilling. Just as white people do benefit from a racially imbalanced societal power structure, again, willing or unwilling, consciously or unconsciously. That includes me. It's not an attack. It's an observation.