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November 10, 2005


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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.


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


well done;

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


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. :-)


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


oh my goodness!

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


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.



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.


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!


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?


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?

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