Don't Flyspeck Sam Alito

It is a source of immense relief to see that the nomination of Samuel Alito to the Supreme Court seems to be attracting less press attention with the passage of time. I regard that as a healthy matter because, truth is, there really is very little that need be said in defense of this nomination. So I will speak once, and perhaps thereafter hold my peace.

One key question with nominations is how the Senate should evaluate them. The usual response is to get copies of all his opinions and publications which are then pored over, usually by ideological opponents of the nomination, in the hope of finding some nugget that will inspire senators to vote against the nominee.
I think that this form of flyspecking is the wrong way to go about things. The better approach is to engage in a little bit of free riding in what should be a three stage process.

Stage one, look at the resume and get a sense of overall quality. Thirty seconds later it is clear that Samuel Alito is as strong in this regard as Harriet Miers was weak. So the proponents of the nomination rest their case.

Stage two, the opponents (on whose labors I will happily free-ride) then scrutinize the record, and list their objections to the nomination. In Alito’s case, their meager harvest has three points. He is soft on separation of church and state; he is a bit too pro-state on the federalism issue; and he supported against constitutional challenge a requirement that women in some cases notify their husbands before they have an abortion.

That list looks to me to be sufficiently thin that it really does not need much of a reply But that said here is a short answer on each of these points.

• The charge on church and state is that Alito has given a narrow reading to Employment Division v. Smith (1990) which held that the proper way to read the establishment and free exercise clauses was to impose a general rule that allowed all formally neutral regulations to pass muster. I think that this was one of Justice Scalia’s worst opinions because it ignore the obvious disparate impact that these rules can have on individuals with certain religious practices—including smoking peyote for religious purposes only. That decision has been condemned from both left and right because of its failure to make reasonable accommodations for religious practices. When Alito works to narrow its scope, so much the better. Score one for Sam.
• The charge on commerce clause is that he has read United States v. Lopez (1995) to strike down a ban on assault rifles. And for this we should worry? Lopez itself represented a (much too) modest retrenchment of the Supreme Court’s Commerce Clause jurisprudence that treated any and all activities within the scope of federal power, in ways that mock the original constitutional design. There are no” changed circumstances” that justify this extension in Wickard. So long as the arteries of commerce are left open, Congress does not have to control which goods are shipped in commerce or why. Alito’s decision, alas, did not roll back Wickard. It sought to make sense of Lopez. One can oppose the contraction of Congressional power on any one of a number of dubious grounds. But score two for Sam. Would that he would go further!
• The last charge is that Alito voted to uphold a provision that required a woman to give notice to her husband before having an abortion. That vote has been denounced as “outrageous” in the New York Times, which does its best to undermine its own credibility with each editorial it writes on Alito. But while there is lots of room to debate the merits of the notification provision, there is none to denounce a vote that would spare it from constitutional oblivion under Roe v. Wade. First off, it is a notification provision, not a consent provision. And why not? Surely a husband has some interest in deciding whether an unborn child—I expose my anti-Roe prejudices—lives or dies. Indeed it is an odd marriage in which consultation would be done routinely in secret. In addition the notification provision had exceptions. It did not apply in cases of abuse, in cases where the father was some other person; or in cases of rape. Perhaps the matter should have been left to a woman’s choice, but if this knocks a Supreme Court nomination off the rails, then we should quake in our boots. No one with any spine or distinction could run the gauntlet. Score three for Sam.

The bottom line: the opponents have not come close to making out their case to derail the nomination. Even Joe Biden has announced that he will not support a filibuster. Now if he will only wave a copy of Takings before a somewhat befuddled Alito, he will make my day. Next time, some other topic.

Comments

[Alan Meese]

I agree with all of what Richard has said, at least on Commerce and Spousal Notification. Indeed, those who embrace Griswold should have applauded Pennsylvania's spousal notification law as well as the dissent by Judge Alito that would have upheld it. After all, Griswold (and Justice Harlan's dissent in Poe v. Ullman) announced a right of "marital privacy." See William Van Alstyne, Closing The Circle From Griswold to Roe, 1989 Duke L. J. 1677. Justice Douglas ends the Griswold opinion this way:

"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Apparently Pennsylvania was assuming that marriage is a "bilateral loyalty" and attempting to ensure that both partners in the "association" would have notice before the destruction of their offspring. How ironic that Casey's joint opinion, which purports to rely on Griwold and Poe, should, in voiding the spousal notification rule, reject the very foundation (marriage) on which Griswold and Poe purport to rest. In Griswold, marriage was critical to the "right of privacy." After Casey, its irrelevant!

[Michael J.Z. Mannheimer]

It is interesting that you would characterize the approach of Judge Alito's opponents in that way. From my experience as a former clerk for a Third Circuit judge, I know that it also aptly describes Judge Alito's own approach, at least in death penalty cases: "The usual [approach] is to get [the record] which [is] then pored over . . . in the hope of finding some nugget that will [aid the prosecution]." Call that what you want, but it is not judicial restraint.

[D]

Perhaps I'm missing something, but what is stage three? Merely the testing of the stage-two objections?

[ziemer]

well done;

i notice that you don't even consider the many mindless distortions of the fmla decision even worth addressing.

[Jean-Michel]

Concerning Alito's ruling on spousal notification, I find your interpretation interesting because I think it nicely sums up the basic argument in favour:

"Surely a husband has some interest in deciding whether an unborn child—I expose my anti-Roe prejudices—lives or dies. Indeed it is an odd marriage in which consultation would be done routinely in secret."

Obviously, in most marriages, it is perfectly natural for a wife to tell her husband about a pregnancy and to discuss whether to have an abortion or not. But by definition, the law does not apply to these happy marriages, but only to those in which for any reason the degree of trust and shared hopes we look for in marriage have either never existed or have gone by the wayside.

The law is flawed in that it was enacted with a happy marriage in mind, whereas it can only be applied in one where there is no trust between husband and wife. I have read the ruling in full, and to my unlawyerly eye Judge Scalito's opinion seems grounded in a reasonable interpretation of the "undue burden" provision, but clearly didn't take into account the caveat noted above, especially when referring to the proportion of women the law will burden, since he includes all the happily married ones the law does not really apply to.

From what I have read of his rulings and dissents, I see no reason to oppose his nomination to the Supreme Court. While I don't agree with many of his decisions and interpretations of the law, he does not seem to be the radical right-wing crusader that many Conservatives hope he is and Liberals fear him to be, and failing that, I see no valid reason to oppose his nomination.

Not that anybody asked me, of course. :-)

[JackD]

And what do you think about the allegations of failure to recoignize conflicts of interest?

[ziemer]

oh my goodness!

there's a mindless distortion even more shameless than the fmla one!

[gd]

Absolutely, ziemer! It is positively outrageous that anyone expect Alito to hold to his own promises about recusal. To expect even a basic measure of honesty from such a man is ludicrous. We must all denounce any effort to ask why he violated the specific rules on recusal he set for himself and promised to uphold.

[ziemer]

gd,

the fact remains there was no conflict of interest that would warrant recusal. owning shares in a mutual fund is not a financial interest in the company that manages the mutual fund.

vanguard could go bankrupt tomorrow; it would not affect the value of alito's shares in vanguard funds -- that is determined by the value of the stocks in the fund.

so, i'm not sure why you consider this to be a real issue. it sure looks like a baseless smear to me.

[fi99ig]

Ziemer, before you go around accusing people of baseless smears, get the issue right. The primary concern being raised is _not_ that the financial stakes created a conflict of interest. The problem is that he gave his word to the Senate committee that he would recuse himself from Vanguard cases. All of them. Unconditionally. And one might think that his failure to live up to his word is a serious ethical lapse. We can go on to debate whether the lapse is sufficiently serious to keep him off the bench, but at least get the issue straight!

[ziemer]

so, let me get this straight.

15 years ago, before he'd ever been a judge, alito didn't understand the governing rules of judicial ethics, and said he'd recuse himself in a variety of unnecessary circumstances.

after being a judge, he realized there was no conflict, and did not feel bound by that statement.

this is what you people call a real issue?

[fi99ig]

Ziemer, that would be a good reason for Alito to regret making his promise. But it obviously would not be a good reason to break his word. Of what value are promises if we can break them whenever we decide we regret having made them?