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November 06, 2005


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Don't you want to wait for the hearings? Do you think the choice is that clear now, without them?


Great post.

"Don't you want to wait for the hearings?"

Suggesting that useful information will come from the hearings?

I think it is interesting that everybody is focussed on social conservative issues when the Alito nomination (like everything the Bush admin does) is driven by business interests.

"Alito has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases."

Jason McKenzie

Mr. Stone - Fantastic blog. You wrote: "They were concerned that an overbearing executive could exercise undue authority if granted carte blanche authority to appoint federal judges, who would then serve for life."

Could you point me to a historical reference for this opinion?

Garba Longo

GS: It was only on the final day of the Convention that the Framers decided that it would be unwieldy for a multi-member body to make nominations and reluctantly assigned the responsibility of nomination to the president.

Yes, well it was only until Einstein figured it out that we knew that e=mc squared.



You're missing Professor Stone's point. He's not trying to deny that it would be unwieldy for the Senate to make SCOTUS nominations, just as he's not trying to argue that e=mc^2 is wrong because people thought otherwise earlier. That's a singularly dumb argument that you're imputing to him.

Rather, what Professor Stone is pointing out is that the framers thought it preferable to give the power to the senate, not the president. They gave it to the president instead because it was more practicable. This does not mean that they'd changed their minds regarding what was preferable (nomination by the senate), but that practicability trumped their other preferences. The power to nominate was thus given to the president as a (seemingly reluctant) concession to the cumbersome nature of legislative bodies. The gist being that it's hard to create a compelling originalist case for Senate deferrence to the president's nominations given the fact that the framers would have liked the Senate to have the power in the first place, i.e. they would have given the senate complete control over the process if not for certain practical concerns.

The Law Fairy

I sense something of a disconnect between your belief that the point of the judicial branch is to protect the powerless from the dangers of democracy, and your apparent conservative view that "mainstream" judicial views are the best. If democratic majorities create problems for powerless minorities, then wouldn't a less "mainstream" point of view have greater potential to remedy the wrongs imposed by the status quo. In other words, if society creates problems for the powerless, then it makes little sense to give "the benefit of the doubt" to people who will merely enforce the views of the majority. If anything, the Senate should be insisting on volatile and creative justices -- in other words, precisely the kind of person unlikely to be elected as a representative. A certain unconventionalism seems to me a basic requirement for a justice who will fight majoritarian tyranny.


"As a senator, would you vote to confirm?"

I would vote against confirmation. I think one of the important issues is real world experience. Alito has a long history of government service and, I believe, of working for corporate law firms. I would ask him the same question I would have asked of the Chief Justice: Please tell us all the cases you have handled where you represented an individual in personal trouble, trying to take care of those problems.

Those of us who practice in the real world, in my case, as a Chapter 7 Trustee lawyer and sometime debtor counsel, quickly lose our interest in ideology, and focus on how to help human beings in trouble. Neither Chief Justice Roberts nor Judge Alito, nor, for that matter several of the other Justices, meet this test.


You can't be serious that "the primary responsibility of the Supreme Court is to protect the relatively powerless in our society against the inherent dangers of the democratic process and to protect the process itself against the most powerful elements in our society when they attempt to manipulate the system for their own partisan or personal advantage."

One of the inherent dangers of our "democratic process" is that each state gets two senators, regardless of population. It's also explicitly written into the Constitution. Is this know, according to Stone, unconstitutional?

One of the most "powerful elements of our society" is elite universities who "manipulate the system for their own personal advantage" by claiming and receiving an exemption under the Tax Code that allows wealthy donors to deduct from their taxes (without regard to the ATM) by ever-fattening the endowments of these wealthy schools. Is this unconstitutional? If so, when are you giving up your endowed chair?


Alito's never been a corporate lawyer; he's spent his whole career in public service. Maybe it's just me, but I think prosecuting and imprisoning criminals is a pretty good way to help human beings in trouble, as well as some pretty good "real world experience".

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