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January 29, 2006

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wb

This may be a dumb question, but I'll ask it anyway. In your post, you say the following:
In other words, it was less a difference between Roberts and Alito than a change in my sense of the magnitude of the stakes that led me to oppose Alito even though I supported Roberts. I probably would have come out in favor of Alito and against Roberts had the order of their nominations been reversed. In my view, the legal landscape changed in a significant and relevant way with the revelation of the Bush spy program.

It strikes me as odd that one's views of a Supreme Court nominee's suitability could change over the space of a few months because of the revelation that our President has taken some liberties with the Fourth Amendment.

To put it differently, if confirmed, Judge Alito will probably be on the bench for 20-30 years, and will confront fact patterns and constitutional issues that we can probably not predict right now.

Why is it that, knowing what you know about his philosophy/temperament/qualifications, you were prepared to accept 20-30 years of "Justice" Alito, but now, when presented with a particular set of facts and a particular issue (granted, they are important facts and an important issue), you have changed your mind?

Does this mean that you hadn't given the Alito nomination sufficient thought before, that a single issue is an appropriate basis upon which to judge a nominee's suitability, or do you have something else in mind?

I suppose that one issue can make or break one's opinion of a Supreme Court Justice. For example, I could understand a senator who voted to confirm Blackmun saying that "had I realized the stakes of this abortion issue, regardless of what I think of his suitability to be a Justice and his likely rulings on other issues, I would not have voted to confirm him."

There are legitimate reasons for interest groups or even politicians to say things like this, but I would be surprised to hear an academic say this sort of thing, unless s/he had a personal connection to the abortion issue. It frustrates me to no end to listen to Feinstein speak, when it becomes clear that she doesn't really know or care what judges actually do, but cares only about the future of Roe v. Wade.

Surely this isn't your position applied to a different issue, is it?

Abadaba

Re the second point, which responds to a criticism that Prof. Stone's earlier post lacked evidence: I'll only note that there is not one shred of evidence to back up what Prof. Stone says here. Not one of Alito's cases is cited. This is a blog, Prof. Stone -- you have all the space you need to actually, you know, try to prove your point with evidence. But I guess that a politically expedient ipse dixit is easier. It's actually kind of sad when distinguished scholars, deservedly admired for their academic achievements, become hatchet-men for political causes.

T. More

Prof. Stone,

Here's an easy one for you, given your confidence in making predictions, and your breathtaking intimacy with Alito's opinions.

Which way will Alito vote in a Hamdi-like case? Will he vote as a "conservative"? Will that mean he will vote like Scalia or like Thomas?

On what basis do you make the prediction? Which cases of Alito's (of the sample you claim to have read, at least--how large was that sample, again?) lead you to this conclusion?

Your betting public wants to know...

T.

Cheeky Lawyer

Professor Stone,

How many cases of Judge Alito's have you read? Which ones? I'd like to see names and cites to see this pervasive conservatism that is so predictable. And can you remind us how many cases involving executive power Judge Alito has heard? The war on terror? Comparing a case involving say the reasonable reading of a search warrant with a case involving the scope of the President's power during wartime to detain enemy combatants is really comparing apples and oranges. And I think T. More points out the difficulty in assuming a predictable "conservative" response in such a case.

Your whole paragraph responding to the specific evidence charge against your first post amounts to: I've read some of his opinions. Read a meaningful sample and you will see I am right or otherwise you don't have all your marbles together. This is to say the least not a very compelling argument. Especially when someone begins by saying, "Frankly," if you just do x, one probably is best served by judging the proceeding statement with some skepticism.

In fact your posts concluding that Judge Alito should not be confirmed strike me and I am sure others as partaking of the very sort of results based reasoning of which you accuse Judge Alito. You reach a conclusion and then try to provide some framework by which to reach that conclusion. Of course you have no real evidence (in fact Judge Alito's testimony cuts directly against your case and offers the best insight into how he would handle these questions) but that doesn't stop you from saying that if we would just read his cases we'd see how right you are that "he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief." The dissent from your view should give you pause and all those eager to support your conclusion.

Niels Jackson

Good one, T. More. I'll be surprised if Prof. Stone is able to answer your question. After all, the split between Scalia and Thomas in that case makes nonsense of Stone's claim that there is any such thing as a "standard" conservative outcome on these issues.

Well, as I now see, Ed Whelan has perfectly summed up the vacuousness of Stone's post here. http://bench.nationalreview.com/archives/088604.asp

Richard

Professor Stone now appears to be saying that in light of what he has recently learned about the NSA's "data mining" or "domestic spying" activities, Judge Roberts should not have been and Judge Alito should not be confirmed to the Supreme Court.

This point of view seems to be based on the unproven allegation that both Justice Roberts and Judge Alito will condone whatever the President has or will do with respect to such "domestic spying."

As a citizen, Professor Stone is free to make whatever predictions about these two judges he wishes to make.

As a legal scholar, he should hold himself to a higher intellectual standard. Perhaps citing and discussing a few cases wouldn't be too much to ask.

In any event, neither citizens nor scholars are likely to predict the future with as much accuracy as Professor Stone apparently claims for himself.

Geoffrey Stone

To WB: Until the revelation of Bush's NSA spy program, I hadn't fully appreciated just how dangerous this administration is to the protection of civil liberties. Moreover, now that it's come out that John Ashcroft, Jack Goldsmith, and James Comey were fighting a rearguard action against the Bush-Cheney approach to civil liberties, I'm even more confident of my view. We cannot afford any more justices who will simply roll over in the face of executive claims of "national security." I haven't changed my views about either Roberts or Alito, but I have changed my views about how much damage they might do on the Court.

To those who question my predictions re Alito and national security issues: Just read his opinions for yourself. You'll find that he's a very smart, very able judge who almost never varies from the predictable conservative outcome, unless it's clearly precluded by precedent. Why would you deny this? It's exactly why he was nominated. (Or have you forgotten Harriet Miers?) This seems to me quite a silly argument.

To those who ask about the Thomas/Scalia split in Hamdi: No one is predictable 100% of the time. Even Thomas and Scalia disagree sometimes. But their votes are predictable in 90% of the cases involving civil liberties. Alito will be just as predictable.

Geof Stone

T. More

Prof. Stone,

Yes, it is silly to imagine that you should have to argue rather than merely assert and mock. Guess I should have gone to Chicago!

The Scalia/Thomas point is not merely that "no one is predictable 100% of the time"--Alito support for Scalia's opinion in the Independent Counsel case is one of the chief pieces of "evidence" adduced by those who bother adducing evidence for Alito's "extremism." It is the case Alito cites in his speech discussing the unitary executive. And yet Scalia's vote in Hamdi was not a supine surrender to the executive.

The further point here is that the "conservative" position on executive power is not supine surrender in any event. There are some conservatives who read the Constitution as granting a lot of executive authority. There are others (like myself) who read it otherwise. Some conservatives have a more libertarian streak, others less so. Indeed, as you note above, there are indications that Jack Goldsmith (whom liberals at Harvard thought was oh too conservative for their faculty) and John Ashcroft (we'd all agree he's conservative) were not on board with the legal understanding this Administration has adopted. Were they being "liberal" then? So your predictions that Alito, qua conservative, will vote for the executive are rather, um, silly.

Dan McGuire

This vague "read his opinions" line is a total cop out. He's a conservative, yes. That doesn't prove your point. In your earlier post, you stated that Judge Alito "has certainly made clear that he has no interest in restraining the acts of this commander-in-chief," and that this provided a sufficient basis to vote against him. May I have your case citations for that proposition, please? This "I'm right, you're wrong" attitude, with no supporting evidence, reminds me of the man you despise so much in the White House. The irony is rich.

Niels Jackson

To those who question my predictions re Alito and national security issues: Just read his opinions for yourself. You'll find that he's a very smart, very able judge who almost never varies from the predictable conservative outcome, unless it's clearly precluded by precedent. Why would you deny this?

Notice two things:

1) When asked why he thinks there is a single "conservative" opinion on executive power -- given that you couldn't find more opposite Justices than Scalia and Thomas on this issue -- Stone's response is that their votes are "predictable in 90% of the cases involving civil liberties." So what? If Thomas and Scalia vote that state governments should treat all races equally in university admissions, or that the Sentencing Guidelines allow judges too much discretion to modify sentences upwards, etc., how is any of this useful in predicting their votes on executive power, which is what Stone claims is his concern? I mean, on executive power, Scalia and Thomas are the two most opposite Justices on the Court. Which of their opinions is "conservative"? Stone can't say.

2. Notice that, once again, when asked for citations, Prof. Stone is unable or unwilling to provide even one. Just "read his opinions." Well, which ones? Alito wrote several hundred opinions, after all, and by far most concerned irrelevant issues like bankruptcy law, securities law, civil procedure, diversity cases, immigration law, etc., etc. Are we to suppose that because Alito voted to uphold qualified immunity in a Fourth Amendment case (probably the one case that Stone has heard of), therefore it is a sure thing to guess how Alito will vote on issues of presidential power? Please.

No offense, but: Doesn't U. Chicago have any standards for this blog? Seems to be that the Law School wouldn't want professors embarrassing the school by claiming some sort of intuitive ability to predict a Supreme Court nominee's votes, without ever being able to come up with a single case citation.

Thomas

Professor Stone's assertion of unprincipled partisanship is the bit I find most disturbing ("at least as long as George Bush remains president").

Disturbing not for what it says about Alito, but for what it says about Stone. It's offered without any evidence, because there isn't any.

Of course, the clear implication is that Alito's views on executive powers do not pose any long-term threat to the constitution. In 3 years we'll have a new president, and, apparently, Alito's views are likely to change with the election. We might expect that his views, like the views of so many advocates, would change with a change in the party holding power.

Alito might even prove to be anentirely unprincipled sort. He might spend years arguing for limitations on executive power, and then, with a change in the party in power, adopt and argue for novel and unfounded positions on, say, presidential immunity from civil actions.

No, no one could be that unprincipled...

MPD

Professor Stone,
In your first post, you stated, "Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief." When did he "certainly [make that] clear?" Was there a salute involved? Regardless, it "certainly" sounded "clear" to me that you were drawing your conclusions from something he said at the hearing. But then in your second post, you said that you had drawn your conclusions regarding the judge's views on executive power from reading his opinions, and not "by parsing his non-answers before the Senate Judiciary Committee."
You have now asserted twice that Judge Alito is a water-carrier for this Administration, albeit a highly intelligent water carrier, and yet you have not offered the tiniest shred of evidence to back up such a nasty charge. As a professor of evidence, you have some explaining to do.

Joe

I'm just wondering, and I don't want to drift into "attack" terrority like some commentators here are doing... but a question for those who object to Prof. Stone's claim about Judge Alito's record and predictions of future action:

Have any of you actually *read* Alito's opinions? Do you disagree with Stone's conclusions because of evidence of your own, or are you just attacking him for not doing the legwork for you?

Brent Money

This post and the one that preceded it are a perfect illustration of the "liberal echo chamber" that is academia, particularly law schools. The fact that Stone was backslapped by his colleagues for such intellectually bankrupt "legal commentary" demonstrates how unaccustomed liberals are to actually having to defend their views with even a modicum of actual evidence or logical support.
Fortunately, the rise of the internet is putting an end to the belief that an argument is well-reasoned merely because a liberal wrote it.
Thank you, Professor Stone.

Deborah Spaeth

Brent

"The fact that Stone was backslapped by his colleagues for such intellectually bankrupt "legal commentary" demonstrates how unaccustomed liberals are to actually having to defend their views with even a modicum of actual evidence or logical support."

Is this civil discourse?

Deborah Spaeth

MPD

"You have now asserted twice that Judge Alito is a water-carrier for this Administration, albeit a highly intelligent water carrier, and yet you have not offered the tiniest shred of evidence to back up such a nasty charge."

Here's some evidence: Alito was nominated by President Bush, a "conservative" of sorts, whether you consider him to be "your" kind of conservative or not (I consider him to be a profoundly incompetent fundamentalist Christian tool, as does a significant fraction of the American public).

Now, like everyone in the country, Alito has opinions on subjects like a woman's reproductive rights. Do you think Bush would nominate a Supreme Court justice who didn't share Bush' views on women's reproductive rights? Do you think conservative Christian leaders would approve of a nominee who didn't share Bush's views on reproductive rights? I don't think so.

So Bush nominated Alito in large because Alito shares Bush's views on reproductive rights. Alito, in fact, was on the record as saying that he thought Roe v. Wade was a bad case. Alito also was a member of a conservative student group in Princeton that evidently had on its agenda the promotion of some sort of white male culinary "tradition."

So when Alito testified before Congress during his nomination hearings, why did Alito pretend that he couldn't remember anything about that student group? And why did Alito pretend that he couldn't say what his opinion on women's reproductive rights were (unlike, say, Ginsberg and Breyer who weren't afraid to talk about their past activities and opinions of cases)?

The answer is plain as paint: Alito is carrying water for the Administration. Alito did what he was told to do which was to dissemble, obfuscate, and (clearly) lie to Congress about his past actions and his current "beliefs."

Does anyone here honestly believe that you can't predict with reasonable accuracy how Alito would rule on ANY case relating to the constitutionality of a search for drugs where drugs were, in fact, found?

Alito, like many self-identifying "conservatives," is a cowardly hypocrite and you can be fairly certain that he will do what he can to support any "war" campaign that is premised on fear and which favors conservatives interests (i.e., maintaining the status quo or improving the situation for corporation owners wherever possible). Federal laws aimed at suppressing allegedly "immoral" or "terrorist" behavior will be coddled; federal laws designed to assist the poor or prevent discrimination will be shot down -- unless those discriminated against are Christian.

I mean, the guy is surely going to be on the Supreme Court so instead of bashing Professor Stone, just place your freaking bets.

In the next five abortion and drug-related 4th amendment cases that come before the court, I predict Alito takes the anti-women's rights and anti-privacy position on at least four of the cases.

Anyone want to bet against me?

T. More

Joe,

I have read some Alito opinions. (I don't claim to have read a representative sample; I don't know how one constructs that nor do I have the time).) I have also read the speeches adduced to support the claim that he holds a "bizarre" view of executive power.

That's why I cited the Morrison v. Olson case above, and Alito's approval of Scalia's opinion therein, as the evidence we actually have of his views on executive power. If we take his views to be like those of Scalia, it is not obvious why we should not think that, like Scalia in Hamdi, he will be more faithful to the text and structure of the actual constitution, and tougher on the executive (where warranted) than O'Connor, Breyer and the other "moderates" were.

I think the attack mode here, to the extent I have been involved in it, comes from the presumptuous and hyperbolic claims that border on the ad hominem that Prof. Stone has made and repeated without citing anything. Coupled with Prof. Stone's repeated refusal despite polite invitation to cite evidence, responding instead with the charge that asking for same was "silly" (because if we saw what he's seen, we'd see what he sees!).

Another case I have read is the one involving the infamous strip search of the 10 year old girl--a case neither about strip searches nor 10 year olds, but about reasonable constructions of ambiguous warrants. Nevertheless, this case has become a staple in the "Alito loves the executive" claims. I can't impute such silliness to Prof. Stone, of course, because he will not deign to tell us a single case that supports his conclusion that Alito will surrender to this Administration's claims. In his defense (rather than to attack), it follows from the fact that he cites nothing that he has not cited the silly things.

T.

Deborah Spaeth

T. More

"Another case I have read is the one involving the infamous strip search of the 10 year old girl--a case neither about strip searches nor 10 year olds, but about reasonable constructions of ambiguous warrants."

What was ambiguous about the warrant in that case, with respect to the warrant's alleged authorization for strip-searching a 10 year old girl on the premises?

Deborah Spaeth

Niels

"After all, the split between Scalia and Thomas in [Hamdi] makes nonsense of Stone's claim that there is any such thing as a "standard" conservative outcome on these issues."

In what percentage of cases do Scalia and Thomas split on the holding when their split actually makes a difference in the outcome (i.e., whether both are in the majority in the minority)?

T. More

Deborah,

The warrant was read by the officers (and by Alito) to have incorporated the accompanying affidavit (which it explicitly did incorporate--it's essentially the extent of the incorporation that was argued over) with with warrant. The affidavit unambiguously stated the officers' request to search not just the primary target but all people on the premises, as it noted that there was reason to believe he would hide drugs on others present on the scene.

Alito thought that (a) that was the proper way to read the warrant under the "common sense" standard appropriate for such documents and that (b) in any event, it was a reasonable interpretation on the part of the officers, which would be required to give them immunity from the civil suit they were facing.

T.

Deborah Spaeth

T. More

"The affidavit unambiguously stated the officers' request to search not just the primary target but all people on the premises"

That's nice. What did the warrant say, T. More?

I'm not surprised that the officers would read the warrant in way that reflected their request. After all, who wants to wake the judge and ask for a proper warrant in the middle of the night?

It's only a ten year old girl's privacy with respect to her vagina versus the desire of every True American to rid the nation of evil drugz. That's easy one, right, for any Good Patriotic Cop?

So, what did the warrant say, T. More, about what parts of the affidavit were incorporated?


Deborah Spaeth

Let me help out T. More so we can save readers here any more of your dissembling.

Was there a box on the warrant that says "things to be searched" in the house pursuant to the arrest? Was the box checked? Was there a list of such "things" to be searched incident to the warrant below the box? What appeared on that list? Did the warrant incorporate every item requested to be searched in the affidavit by reference, explicitly?

After you answer this simple factual questions, then you can explain to us how a "common sense" reading of this warrant we are now discussing grants cops the right to strip search a ten year old girl on the premises.

T. More

Deborah,

http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf

Not sure where I've dissembled. People can read the case for themselves and see whether it demonstrates an attitude of executive supremacy on the part of Judge Alito. Those who think the case ruled that 10 year old girls may not be searched, or strip searched, will be sad to learn that that is not what the case was about. Those who think the case stands for the proposition that warrants cannot incorporate affidavits will be saddened as well.

On the other hand, fair minded inquirers will be interested to learn that the officers themselves wrote the warrant, that it was reviewed by the prosecutor and approved by the magistrate without alteration. Now it's possible that they wrote the warrant so as to put themselves in this pickle--but why would they have done that? Does it not seem likely that they wrote the warrant as they did, unfortunately somewhat ambiguously, but hardly hiding their intention to search all people on the premises? Are we to interpret the judge's non-alteration of the warrant the officers wrote as a denial by the magistrate of that authority?

The majority did. I must say I find their logic a bit odd, but not unreasonable. I imagine they are saying to officers that the system will be better served if they check all the boxes rather than just stapling their plain intentions to the warrant they also write. Fair enough. I have that odd view that sometimes reasonable people can differ reasonably. But when one tries to engage in that here, one is accused of silliness or dissembling, it appears.

To my mind, Alito's dissent (at p. 19) persuasively distinguishes Groh, the precedent on which the majority heavily relies. But people can differ on that. What cannot be argued, I think, is that the case shows an insenstivity to the rights of 10 year old girls vis-a-vis strip searching. Those rights are undisturbed by the case. Yet it is constantly referred to in those terms by folks who think the law and jurisprudence are just tallies of results. That strikes me as a flawed approach generally, and particularly unfair in this instance as it is sensationalistically employed to smear Judge Alito.

T.

GARY

The use of the word “conservative” to define Alito is troubling and misleading. By and large, labels are not meaningful argument.

In my town, “conservative” means racist to the 60% of the population that has skin pigmentation ranging toward black. “Conservative” means born again to most white folks who regularly attend church.

The Goldwater Republicans think that conservatives generally favor less government and liberals favor more government. The Bush haters label everything Bush wants to do as conservative. One of the bloggers seems to think conservative means anti women’s rights.

The Bush supporters are not much better. One of the commentators described you as part of the “liberal echo chamber”, whatever that means. [I think he meant Bush hater.]

Accordingly, I think those labels are counter-productive.

As for me I lack the time to read all of Alito’s opinions. I have read 20 or 25 of his most recent opinions, and a synopsis of 30 or 40 cases where he joined but did not write an opinion.

It is my impression that, like most judges, he has a definite bias in favor of the institutions; e.g. government and big business. If everything else is about equal, he is going to vote against the criminal and for the prosecutor, against the employee and for the employer, and for the government and against individual rights. The only time we need to worry is in what is “about equal”. It is my impression that he will be open minded and fair in resolving that.

Alito was not my first or even tenth choice. My first choice started one of his opinions :
“We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves. Thus, though the authority conferred upon the federal government be broad, it is an authority constrained by no less a power than that of the People themselves. “
I wonder if you would like a judge with such a philosophy We the People, distrustful of power, and believing that government limited and dispersed [F.3d 826] protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves. Thus, though the authority conferred upon the federal government be broad, it is an authority constrained by no less a power than that of the People themselves.?

I wonder if he would suit you as a nominee.

Niels Jackson

Have any of you actually *read* Alito's opinions?

Yes, quite a few of them. Has Stone read even a single opinion? If he has, surely he would have produced a case citation by now?

Do you disagree with Stone's conclusions because of evidence of your own, or are you just attacking him for not doing the legwork for you?

Doing the legwork for me? That question is incoherent. Stone has failed to do the legwork for HIMSELF. He is the one who claims to make a confident prediction about where Alito stands on these issues. Yet despite being asked repeatedly for his reasons, his evidence, etc., all he can do is wave his hands in the air and warn us that we had all better take his word for it.

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