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January 22, 2006

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» U. Chicago Prof. Geoffrey Stone: 'Senate Should Not Confirm Samuel Alito' from Discourse.net
Geoffrey Stone, The University of Chicago Law School Faculty Blog: Why the Senate Should Not Confirm Samuel Alito:Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial ph... [Read More]

» Geoffrey Stone Opposes Alito Confirmation from Dispatches from the Culture Wars
In an interesting turn of events, Geoffrey Stone of the University of Chicago Law School has come out against the confirmation of Samuel Alito. His argument is based solely on Alito's views on executive power: Whatever else Judge Alito may... [Read More]

» Against Confirming Judge Alito to the U.S. Supreme Court (Leiter) from Leiter Reports: A Group Blog (Jan. 23-May 31 2006)
There is a strong statement of the case by Geoffrey Stone (Law, Chicago) here, which emphasizes, as we have, the danger Judge Alito poses during a time when legal and constitutional restraints on authoritarian rule are being challenged. [Read More]

» The Administration's latest rationale for illegal wiretaps bites the dust . . . . from Before the Law
The virtually-always-worth-reading Glenn Greenwald at Unclaimed Territory seems to have broken this story. Be sure to read his post, but the executive summary goes something like: Yesterday the Administration trotted out Michael Hayden, the former head... [Read More]

» The NYT: WTF? from Party of the Purple
The new math formula that describes a small section of the massive alternative theory to that (recently oft maligned) thing called REALITY is... NYT:WTF (and for those of you out there not yet awake enough to have WTF in your [Read More]

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Cousin Lymon

You know, I campaigned for John Kerry and don't relish the idea of Justice Alito. But please -- nobody prior to 2005 would have said this man was beyond the pale of respectable jurisprudence. Even Professor Stone's objection seems tied to the nature of This President in these times. I'm far more troubled by the pass the Court has given gerrymandered voting districts (those outside of Chicago should look at Congressman's Louis Guiterrez' district, shaped like an elongated letter "C") - I'd argue this perversion of "one man, one vote" is just as great a threat to the Constitution. And as a political reality, what would anti-Alito forces have the Dems do if Bush continues to throw up similar judges - in the long run the Dems can't win this one.

Roach

I do stand corrected on elmeents, though I distinctly recall something along those realist lines from Stone, perhaps an interview or article. And, more improtant, that view is evident in his articles on this site.

As for hypocricy, that's true too. He might be right this time and wrong to withold such criticisms of Cltinon. But his argument lacks rigor, and lacking rigor, it implicitly says, "I'm a law professor who knows about law and this argument is worthy of consideration for that reason." When an argument is offered in bad faith by someone who does not believe there is a correct legal answer but instead only a meta-policy answer to legal questions--i.e., what advances leftism is good--that is something the audience should know. While we are mostly wondering what the truth is and what's legal, such a person would only be spinning tall tales.

AJTALL

Professor Stone,

Do you really think the "liberal" justices do a better job restraining government power and protecting individual (civil and economic) liberties than conservative justices or future justices, like Alito? The Institute for Justice analyzed this very issue and found that justices Breyer and Ginsburg were the worst justices at protecting civil and economic liberties. The two of them voted more often to allow intrusive government meddling in ordinary citizens' lives than the other justices. So, again, where is your proof that a justice alito would be any worse than Ginsburg or Breyer - two justices I'm sure you would've voted to appoint?

Regarding the Red scare and Japanese internment, that was a long time ago. Attitudes have changed a lot since then. The Japanese internment, in my opinion, was about economic scare - the Japanese being too industrious, hard-working, earning more money than other Americans - than possible spying. It was a blatant and ugly form of domestic protectionism.

Kimball Corson

Roach, the fact Stone did not take issue with the Clinton overreaches you identify, as I certainly believe he should have, does not mean that he is wrong to raise the challenge and issues he does now. All of us are right sometimes and wrong sometimes.

Further, while slurring what you perceive to be Stone's politics, you seem to dismiss very real and legitimate constitutional questions about the checks and balances between our branches of government and protection of our Bill of Rights under all presidents, especially during war time where presidential overreach is more likely. The Court is or should be our guardian in this quarter by its constrained and limited role as a watch dog, with its constitutional review function – abdication of which is much more likely with Alito on the Court aligning himself with Chief Justice Roberts. But this is the very reason the brains behind Bush nominated these men. That is the problem. The Court’s first order of business is to protect, not permit emasculation of, our Constitutional rights when they are stepped on. This President is happy to let them be stepped on to do what God tells him to do. Ergo, the concern. If there is a branch of our government that is running out of control and without constraint, it is the Executive branch, not the Court. Who got us into the quagmire of a mess we are in? It certainly was not Congress looking into the matter for itself and declaring war against Iraq, or the Court, marshalling our troops by mandatory injunction. It was our God- driven President looking for his legacy here and in the Great Beyond.

Moreover, the fact that someone holds a 50 cal. sniper rifle in our country and is willing to use it is certainly nothing new. We are the most armed nation the earth has ever seen and overspend everyone else put together on armaments. And we use our arms too, to muscle our way around the world and tell people what they should do. We, not Arabs, put our troops on foreign soil, namely, theirs. Not the other way around. What is new is our sense of the treat we have created against ourselves thereby and our overreaction to that threat, as we pig- headedly continue to ignore what those who terrorize us have to say.

Also, that a little French philosophy and legal crit thinking have spilled over into Stone’s legal realism Elements class certainly does not make him unique or evil. While Europe has largely recovered from this French blight, the problem is in full swing in American academia and in spades. But then, if you want to challenge me personally on these matters, I really did not write this; it was thinking suspended in the ether that was flowing through my pen, er, that is, my keyboard. I’ve been deconstructed out of existence.

Everything has its uses.

GARY

I AGREE WITH MUCH OF WHAT IS SAID UNTIL I READ ". . . . he has certainly made clear. . . "

SOMEWHERE FROM THE DEPTHS OF MY LIMITED BRAIN CELLS I RECALL PROFESSOR SHARP STANDING IN FRONT OF THE CLASS SAYING "WHATEVER FOLLOWS 'CERTAINLY' - DUBIOUS!"
IN A SIMILAR FASHION "WHATEVER FOLLOWS 'CLEARLY' - DUBIOUS!"

I GUESS THAT IF SOMETHING IS CLEARLY CERTAIN, IT RATES A DUBIOUS - DUBIOUS.

GEORGE SAT IN SOME OF THOSE SAME CLASSES. IT LOOKS LIKE HE AGREES WITH ME.

Deborah Spaeth

What's the problem with Alito?

Alito understands that fighting the War on Drugs is more important than the right of little girls to keep their private parts free from probing by plastic-gloved police.

Similarly, the War on Terror is more important than my right to talk on the phone without some jackass from the FBI listening to me, and far far more important than the right of innocent Iraqi women and children to keep their intestines and brains inside their bodies.

Alito understands these things. And he also understands that in today's culture it is better to say "I don't remember nothin'" than to admit being a misogynist or racist conservative axxhole.

Yes, Alito is a "wise man."

Or so some say.

Roach

"We, not Arabs, put our troops on foreign soil, namely, theirs. Not the other way around." Perhaps you forgotten a sunny day in September when 19 men, who considered themselves soldiers of Allah, crashed four commercial airliners into our country after an earlier declaration of war by the country to which they belonged. So this facile moral equivalence doesn't stand up to scrutiny. As for Iraq being separate and distinct from the war on terror, tel that to Zarqawi, Abu Nidal, the victims of Saddam-subsidized suicide bombers, and all of the rest of their confederates who provided aid and comfort to jihadist terrorists after 9/11. If you listen to them, you'd realize they're unappeasable extremists that need to be exterminated.

And Deborah--who might want to take a chill pill--you can still talk on the phone. You just might be listened to if you talk to your old buddy Khalid Sheikh Mohammad or Ramzi bin Alsheibh. I suppose there is an important liberty interest in being allowed to spy uninteruppted too. Your exquisite regard for procedure in a time of war shows that you lack the real pragmatic wisdom that recognizes the specialness of a wartime situation, something Stone and the procedure-fetishits of the bar share in common.

The Law Fairy

"Your exquisite regard for procedure in a time of war shows that you lack the real pragmatic wisdom that recognizes the specialness of a wartime situation, something Stone and the procedure-fetishits of the bar share in common."

How far does this "pragmatism" extend, Roach? A hypothetical "practical" approach to international affairs in time of conflict certainly sounds nice and sensible. But what does this actually boil down to? I suspect that, were we faced with a Democratic president and a Democratic congress, you might feel differently about putting so much trust in the executive unchecked by the legislature. The "time of war" rhetoric also makes it easier for one side to make such arguments -- Democrats in general are more likely to exhaust diplomacy before resorting to force (if you prefer an alternative dialect, one perhaps more to your liking, Dems are more likely to roll over and let other countries dictate how international issues will be addressed). Thus, a time of war is far more likely to arise when the Republicans are in power. Thus, such an argument in essence entrenches unchecked power in one party. Doesn't it make sense in such a case to strongly question both the reasons and the underlying motives driving such a view of "pragmatism"?

The pragmatism argument also neglects a fundamental idealistic question: if the Constitution is only to be upheld when it's easy to do so, does the Constitution really carry any independent weight? Or is it just a convenient excuse when we feel like listening to it?

Deborah Spaeth

Roach

"Your exquisite regard for procedure in a time of war shows that you lack the real pragmatic wisdom that recognizes the specialness of a wartime situation"

You know, I have to wonder what sick sad pussies like you would permit if this country were actually engaged in anything resembling a real war. I am guessing that internment camps would be just the beginning.

"You just might be listened to if you talk to your old buddy Khalid Sheikh Mohammad or Ramzi bin Alsheibh."

How about my relatives in Iran, Roach? Can I talk to them without your Dear Leader's stooges listening in? Can I advocate taking a crap down Dear Leader's throat without his stooges parking their van in front of my house?

I hope so. Such discourse is routine in my home, at work, in restaurants, while I'm driving, etc.

You see: I think the Chimperor and his administration are some of the sickest pricks this country has ever had the misfortune to encounter. And you, Roach, are what we call "shills" and "script reciting morons."

But guess what, Roach: the gays are coming! The gays are coming!!!!

Deborah Spaeth

Roach

"If you listen to them, you'd realize they're unappeasable extremists who need to be exterminated"

All religious fundamentalists are unappeasable. As to which ones the United States should exterminate, I guess that depends on which fundamentalists are in power in the United States. Right?

Michael Martin

Kimball,

The evidence you've pointed is too thin for me rely on in calling somebody a liar. The best you've got is inconsistency with prior opinions, and prior opinions may have been influenced by facts not readily available from the opinion. The Vanguard and CAP things look mild in comparison to what they dug up on Thomas, for example. In fact, the more I consider your evidence of "bad" character, the better Alito looks.

I should say, however, that I'm skeptical about this whole attempt to identify ideology and predict how a justice will decide cases anyway. One unstated assumption of those opposed to Alito's confirmation has always been that putting a justice with a stronger view of presidential powers would lead to less separation of powers, &c. Is that true? Even if Alito were so inclined, if, as his opposition supposes, his views are so radical, wouldn't that make the Court as a whole more aware of and so less inclined to permit trenching in on the separation of powers? Maybe not. But in general I can't see how anything any nominee has said before sitting on the court is going to predict where how they will rule in actual cases with their eight colleagues (who will change over time) twenty-years from now. Prof. Stone's comment confuses me first because I thought he was on the same page with me in this regard. (Earlier, he endorsed McConnell and Wilkinson as nominees.) And because it's always strange to see a liberal arguing against somebody else who's in favor of stronger gov't.

Deborah Spaeth

Michael Martin

"But in general I can't see how anything any nominee has said before sitting on the court is going to predict where how they will rule in actual cases with their eight colleagues (who will change over time) twenty-years from now."

You think Ginsberg or Breyer is going to vote to overturn Roe v. Wade or Griswold? Ever?

Contrast Ginsberg's discussions with the Senate regarding her prior activities and organizations to which she belonged with Alito's. Notice anything, uh, different in the responses of these two individuals?

Again, the difference between the so-called "liberal" approach to these matters and the approach of the so-called conservatives (= right-wing extremists) is striking.

Alito (and Roberts) were put on the Supreme Court for the purpose of making abortion illegal.

The reason Alito doesn't answer questions about abortion in a straightforward manner is, uh, probably because most Americans want abortion to remain legal.

But most Americans are pretty freaking clueless about how our government works, what the Constitution says, and even about what their fellow Americans think.

Conservative extremists, especially the religious kind, thrive under such conditions. Such conditions, you see, make it easy to manipulate crowds by scaring them (see, e.g., "Roach" and his fellow diaper-soiling script reciters).

Is Alito "afraid" that his daughter will smoke marijuana and turn into a demon-possessed serial killer? Is Alito "afraid" that Saddam Hussein is going to escape from prison, run to his secret warehouse, and set off the hidden intercontinental nuclear missiles aimed at Joplin, Missouri?

I doubt it.

But if sober analysis about such subjects as drugs, sex and terrorism were to become the norm, then Alito might be obliged to give the opinions of atheist pot-smoking lesbians an ounce of consideration.

And that, my friends, is something that Alito and his cohorts simply cannot allow to happen. Why, the next thing you know someone will be asking to have "In God We Trust" taken off our currency! And then we'll have McInfanticide drive-thru's popping up in downtown Appleton.

That's why we needed to kill all those Iraqi civilians.

Roach

Since our own fundamentalist Christians and the fundamentalists in charge of Iran are indistinguishable to you, Deborah, perhaps you can move to that country and give us a full report if your hypothesis is correct. That is, if they don't cut your tongue out for your potty mouth. The truth is our own fundamentalists by and large want to restore some modicum of basic social morality and order, and the fundaemntalists in the Middle East want to annhilate civilization in the name of totalistic Sharia. Of course, if you have a propaganda-based view of our own Christian past, I can see how the distinction between the two worlds is lost on you.

Speaking of shills, make sure you check in with Michael Moore for the right talking points. Your use of phrases like "chimp," your vulgar invective, and alienated observations that "most Americans are pretty freaking clueless" show you to be of like mind, or should I say, like mindlessness.

Good day. And have a valium, on me!

Tobias

Hmmm ...

The Senate should give more weight to excellence over judicial philosophy.

Roberts was excellent, though I disagreed with his philosophy, so he deserved to be confirmed.

Alito is excellent, though I disagree with his judicial philosophy (re separation of powers), so he should not be confirmed.

Exercise in banality.

Deborah Spaeth

Roach

"The truth is our own fundamentalists by and large want to restore some modicum of basic social morality and order"

Preach it, Roach! Christian fundies have cornered the basic social morality market! If only we would let them rewrite the Constitution, we would never have to worry about our children gyrating their pelvis' to Chuck Berry's voodoo music again.

"Speaking of shills, make sure you check in with Michael Moore for the right talking points."

Hahahahaha! Gosh, what a surprise to see you laying the "Michael Moore" card down.
After all, we know now that comparing someone to Michael Moore is more insulting than comparing them to Osama bin Laden. How do we know that? Because Chris Matthews recently accused bin Laden of sounding like Michael Moore!

Remember Chris Matthews? Stupid people get their news from that rich Nantucket script-reciting fatass. Here's Chris at his shilly prime, just a few short years ago:

May 1, 2003:

Senator McConnell, let me ask about today.

What's the importance of the president's amazing display of leadership tonight?

...

What do you make of the actual visual that's people will see on TV and probably, as you know, as well as I, will remember a lot longer than words spoken tonight?

And that's the president looking very much like a jet, you know, a high-flying jet star. A guy who is a jet pilot. Has been in the past when he was younger, obviously.

What does that image mean to the American people, a guy who can actually get into a super sonic plane, and actually fly in an unpressurized cabin, like an actual jet pilot?

...

Do you think this role, and I want to talk politically for just a secretary, the president deserves everything he's doing tonight in term of his leadership. He won the war. He was an effective commander. Everybody recognizes that, I believe, except a few critics.

--------------------------

Read it and puke, folks! Discourse in this country has gone DOWNHILL since then. But Chris Matthews will never tell you so. Neither will Roach. Their interests lie elsewhere.

Deborah Spaeth

Roach

"Since our own fundamentalist Christians and the fundamentalists in charge of Iran are indistinguishable to you, Deborah, perhaps you can move to that country and give us a full report if your hypothesis is correct."

I'm back, Roach! One difference is that, as far as I can tell, the fundy leaders in Iran aren't encouraging men to shower with their male children.

Remember Rev. Jim Dobson's lessons on how to keep your kid from becoming a sick homo? Let's refresh ourselves, shall we:

"Meanwhile, the boy's father has to do his part. He needs to mirror and affirm his son's maleness.... He can even take his son with him into the shower, where the boy cannot help but notice that Dad has a penis, just like his, only bigger."

Jim Dobson's blessing of Judge Alito was an important consideration of Karl Rove's.

Think about it.

Kimball Corson

Quoting me, Roach writes:

"'We, not Arabs, put our troops on foreign soil, namely, theirs. Not the other way around.' Perhaps you forgotten a sunny day in September when 19 men, who considered themselves soldiers of Allah, crashed four commercial airliners into our country after an earlier declaration of war by the country to which they belonged. So this facile moral equivalence doesn't stand up to scrutiny."

I respond:

I don't argue moral equivalency, although I could if I brought Muslim unity and our invasion of Afghanistan into the argument. Then 9/11 is merely retaliation. I argue instead a lack of practical equivalency and an absence of common sense.

We massively overreacted and have thereby put ourselves in a serious quagmire. Further, our actions have now angered a whole brunch of additional Arabs who now likewise wish to threaten us. We are institutionalizing Arab Anti-Americanism. Roach’s answer is to exterminate all Arab fundamentalists and Deborah feels our efforts fully justify spilling the guts and brains of innocent Arab women and children.

And I ask if you two have lost your minds?

Were that our public policy, we might well expect the US to launch the equivalent of a complete invasion of the Middle East, with full occupation and full ethnic cleansing to follow. Fortunately, not even this God-fearing, Christian Administration goes that far, nor do we have the muscle to pull it off. Moving to the opposite end from these views, why don’t we listen to the grievances of the “terrorists” (i.e., those who do not have the resources to effectively fight back against us, but who are smart enough to keep us running scared with threats) and get our troops off their lands and moderate our support of Israel. Were the Arabs much stronger than we are and occupying US soil, you can bet Americans would have some pretty fundamentalist and hard core views on that and some Arabs of Roach's dispostion might argue we should be therefore exterminated.

We just don’t seem able to get it, because we cannot see beyond our own noses.

Kimball Corson

Michael Martin,

Your criticisms of my views on Alito's honesty are fairly taken and I think we simply disagree there, as gentlemen.

As for why Alito should not be on the Court, I urge any and all to read his opinions as a whole and what has been written about them here and elsewhere. In light of those opinions I believe my position and that of Geof Stone are fully justified.

Kimball Corson

Deborah's comments do bring to mind how much US Arab relationships are driven by fundamentalist Christians on one side, and fundamentalist Muslims on the other. Saner heads in the middle have been run over.

Deborah Spaeth

Kimball

"Deborah feels our efforts fully justify spilling the guts and brains of innocent Arab women and children."

Uh ... no.

Kimball Corson

Deborah's comments do bring to mind how much US Arab relationships are driven by fundamentalist Christians on one side, and fundamentalist Muslims on the other. Saner heads in the middle have been run over. This religous thing is becoming tiresome.

Kimball Corson

Apologies for the accidental double post. I used preview for the first time by mistake.

Deborah wrote:

"Similarly, the War on Terror is more important than my right to talk on the phone without some jackass from the FBI listening to me, and far far more important than the right of innocent Iraqi women and children to keep their intestines and brains inside their bodies."

which can be fairly rewritten as:

"Similarly, the War on Terror is . . . far far more important than the right of innocent Iraqi women and children to keep their intestines and brains inside their bodies."

uh, yes?

The Law Fairy

In fairness, Kimball, I think Deborah was being sarcastic when she wrote that. I guess what we can take from this is that sarcasm doesn't translate too well in written media.

Deborah Spaeth

Jeebus Kimball. Are you telling me that you couldn't tell from my earlier comment that I was referring to ALITO's apparent willingness to defer to our government's Wars du Jour at the expense of the Constitution? That's just ... pathetic. Or intentionally deceitful. I'll let you decide.

Here's the post from which Kimball quote-mined me:

-------------------------------

"What's the problem with Alito?

Alito understands that fighting the War on Drugs is more important than the right of little girls to keep their private parts free from probing by plastic-gloved police.

Similarly, the War on Terror is more important than my right to talk on the phone without some jackass from the FBI listening to me, and far far more important than the right of innocent Iraqi women and children to keep their intestines and brains inside their bodies.

Alito understands these things. And he also understands that in today's culture it is better to say "I don't remember nothin'" than to admit being a misogynist or racist conservative axxhole.

Yes, Alito is a "wise man."

Or so some say.

UChicago Law

Deborah -

In your next comment, could you please post a working email address? The one you use repeatedly on this site does not actually work. Yahoo returns your email as undeliverable.

Alternatively, if you would prefer not to make your email address public (after some of the stuff you write here, who would blame you?), please send your email to us directly by emailing the blog at "blog at law.uchicago.edu".

Many thanks.

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