Why the Senate Should Not Confirm Samuel Alito

I supported the confirmation of John Roberts and, until recently, the confirmation of Samuel Alito. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed, and that this is a matter of real importance to the nation.

Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts.

Why, then, should the Senate deny confirmation to Judge Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. History teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the President demands excessive authority in his role as “commander-in-chief” and the President and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.

This was true when Lincoln suspended the writ of habeas corpus, Roosevelt ordered the internment of more than 110,000 individuals of Japanese descent, Nixon ordered unlawful break-ins and wiretaps against those who opposed the Vietnam War, and Congress enacted the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940. We hope, of course, that Presidents and members of Congress will act with restraint and wisdom. But we know that, in times of crisis, they frequently overreact to the perceived danger, manipulate public opinion, and needlessly sacrifice our liberties.

In our constitutional system, the last line of defense against such excesses is the Supreme Court. With life tenure, the Justices are largely insulated from the need to please any particular constituency for personal advancement. And with their unique commitment to long-term principle rather than short-term political expediency, they are well placed to resist the fears and anxieties of wartime.

Through our history, the Court has had a mixed record in fulfilling this responsibility. During World War I, the Court upheld the convictions of individuals for criticizing the war; during World War II, it upheld the internment of Japanese-Americans, and during the Cold War, it initially upheld the persecution of American citizens because of their political beliefs and associations.

At other moments, however, the Court has performed admirably. During the Korean War, it held that President Truman had exceeded his constitutional authority as commander-in-chief when he sought to take over the steel industry; in the latter part of the Cold War, it held unconstitutional government actions directed against “disloyal” Americans; during the Vietnam War, it rejected both the President’s effort to enjoin the publication of the Pentagon Papers and his claim that he could constitutionally conduct “national security” wiretaps without judicial warrants; and during the war on terrorism, it rejected Bush’s claims that he had the “inherent” authority to deny habeas corpus to individuals detained at Guantanamo Bay and that he could unilaterally decide to detain American citizens indefinitely without even a hearing on whether they were in fact “enemy combatants.”

The single most critical factor that distinguishes the decisions in which the Court failed from those in which it succeeded was the character and constitutional philosophy of the Justices serving at the time. Those Justices who abdicated their responsibility and chose blindly to defer to excessive presidential claims approved the pervasive suppression of dissent during World War I, the Japanese internment, and the rampant abuses of McCarthyism. Those who were determined to ask hard questions and to insist that the President and Congress comply with the Constitution gave the nation the steel seizure decision, the Pentagon Papers decision, and the 2004 decision preserving the due process rights of American citizens.

Now, President Bush arrogantly asserts that he has the inherent constitutional authority to wiretap American citizens on American soil without first obtaining a warrant, in direct defiance of federal legislation and the Fourth Amendment. This is on top of his previous assertions of inherent authority to employ torture, wiretap lawyer-client communications, confine American citizens incommunicado, and close deportation and other legal proceedings from public scrutiny.

Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the Justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.

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. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate – Republicans and Democrats alike – to deny his confirmation to the Supreme Court of the United States.

Comments

[Scout]

Debbie, you're not making any sense. What does the First Amendment have to do with right to an abortion, other than the obvious, people can say whatever they want? People obviously can't do whatever they want. Are you suggesting that the First Amendment's negative connotation (i.e., you can't be forced to say anything you don't want to say) means that a woman shouldn't be compelled by law to inform her husband of an abortion? Well, if that's the case, then the First Amendment means that husband doesn't have to tell the mother of his child where he moved to, so she can't find him for child support. I could go on with a lot of examples of notice requirement laws, that if struck down under the First Amendment, would make life pretty miserable.

As far as segregation, you're right. I'm sitting in the ladies' right now.

I'm done responding to you. I'm sure you'll take this as a sign of weakness, or like I've conceded defeat or something - but whatever.

[Deborah Spaeth]

Scout

marriage seems like the sort of institution best left to smaller communities to define, encourage or discourage as they see fit.

Sure. Get the government out of marriage. I'm all for it. But to the extent the government is handing out benefits to monogamous couples joined in a ceremony of some sort, they should do so in a way that is fair to the families created by those ceremonies.

This is straightforward and, like it or not, it is the future.

Gay marriage is coming to the US. Guaranteed. Whine and cry all you want. The folks who thought blacks were animals and wanted to keep the white race pure whine and cried, too. Remember them? For some reason, those folks tend to keep their ugly traps shut nowadays. Do you ever stop to wonder why, scout?

[Deborah Spaeth]

Scout

"People obviously can't do whatever they want."

Sure. But we're talking about the First Amendment, which is typically construed to govern speech. That's why I can say "I think fifteen year olds are sexy and President Bush is an ugly rapist" and I can't be imprisoned for doing so. It really is a great Amendment, Scout. It allows me and -- more to the point -- YOU to say a great many incredibly stupid things.

"What does the First Amendment have to do with right to an abortion, other than the obvious, people can say whatever they want?"

Sigh. Must I walk you through it? Abortion is legal in 2005, right? I'm a woman who is pregnant with a fourteen cell blastula. I just discovered my husband is having an affair. I want an abortion. And you're telling me I have to inform my husband that I'm pregnant before I do so?

HAHAHAHAHAHAHAHAHHAH!!!!!!!!! Nice try. There is this phrase, "dick-for-brains," that is especially applicable for the folks who drafted these "Wife Must Tell Man" laws.

Think about it.

"husband doesn't have to tell the mother of his child where he moved to, so she can't find him for child support"

As long as he pays the child support, I don't see why he should have to "tell" anyone where he is. Even so, having to disclose your address to the government in a situation where the government has evidence of a history of ducking out of obligations seems sort of trivial compared to a government-imposed mandate to inform another person of a serious health concern before you attempt to address that concern.

This is obvious to most people, once those people are provided with sufficient information to make an informed decision about that matter.

Of course, if you're a fundamentalist who believes that human embryos are little tiny people with souls with "rights" which trump the rights of women, then it doesn't matter how much information you are presented with, does it? That is why the "beliefs" of religious fundamentalists are properly given zilcho credit by judges who are doing their job (i.e., who are not engaging in the illegal promotion of religious beliefs in their courtrooms).

"I'm done responding to you. I'm sure you'll take this as a sign of weakness, or like I've conceded defeat or something - but whatever."

No, I could care less really. There are many others qualified to take your place. Maybe some confused middling Young Republican wants to cut his teeth here instead of enlisting in the military.

You know how it goes.

[Deborah Spaeth]

Scout

"As far as segregation, you're right. I'm sitting in the ladies' right now."

Do let us know if you run out of paper.

[The Law Fairy]

"It is for this reason that I would hope the selection of judges for the Supreme Court would be largely apolitical, because the process of interpreting law should be, to the largest degree possible, mechanical and deferential to legislative and executive action, unless otherwise expressly constitutionally restricted."

Scout, I agree that the selection process is overly infected by politics and that this is a bad thing. But I'm not sure that the process of interpreting the law should or could be "mechanical" or deferential. If it's overly deferential, the question is begged why we have a Supreme Court at all. I suppose that Marbury has its fair share of critics -- but I think most people agree that some form of judicial review is desirable.

As to the mechanics of interpretation, that's a subject that has provoked much debate. Judicial interpretation used to be fairly mechanical in the sense that strict literal adherence to statutes and codes was the norm. Cardozo and others of his jurisprudential ilk slowly shifted the paradigm to one of broad and all-encompassing interpretation. Instead of adhering to the strict language of the law, we now look to things like legislative intent and history. We now see the law as being three-dimensional, rather than strictly linguistic. I don't think this is a bad thing. And certainly, it's sensible and plausible -- and difficult to refute -- to say that legislatures now operate on the understanding that history and intent matter to courts. Laws are thus fashioned with this understanding in mind.

Perhaps I'm struggling with the wording of your argument, but I think any mechanical application of the law is difficult, if not impossible.

As to retained rights, I'm not sure that yours is the correct understanding of the meaning -- but even if it is, interestingly enough, abortion was legal in Revolution-era America. Consistent with British common law at the time, abortion wasn't considered a crime in the earlier stages of pregnancy. Abortion wasn't criminalized at all trimesters until well into the 19th century. So if we follow your analysis, then Roe was actually one of the best decisions the Court has made -- it reversed over a century of legislation disparraging rights that had existed at the time of the Constitution's adoption.

Also, as to the child support problem, I agree that it's somewhat unfair to expect fathers to provide child support when they have no ability to cause or prevent an abortion. It should be noted that it's hardly the case that every man who fathers a child has to pay support for the rest of his life. But I'd definitely be in favor of reasonable modifications to current child support laws. At the very least, this doesn't really operate as an argument against abortion, since losing money and losing control over your body are two very, very different legal consequences.

[Scout]

Law Fairy:

You're point on the difference between bodily control and money is well taken. Certainly bodily control outweighs the father's interest (and I appreciate your concession that changes could be made to the current system to promote more fairness).

I, of course, could argue that the interests of the life being taken clearly outweigh any interest in bodily control, but that opens up a non-legal can of worms, with both sides taking positions that are irreconcilable, based on premises that neither can prove (i.e., when does that bunch of cells have enough value to be treated as a human, or at least to outweigh the woman's interest in bodily control). Probably then best to leave this argument out of a legal debate.

Your point on mechanical interpretation of law is also well taken. Certainly, it is impossible to be perfectly mechanical, especially when interpreting legally important words like "liberty", "due process" and "equal protection". Still, I think that the more judges feel constrained by language, the better. Precious judicial resources are expended scouring legislative histories only to come out more confused on the meaning of the legislation than when one entered. If the legislators failed to clearly express themselves in the statutory language, and a judicial opinion contrary to their intent results, they should go back and try again. The text should be given its natural and reasonable meaning, guided by principles of statutory construction and precedent. If we limit judges to the language, not only are they restrained, but we promote precision in drafting legislation (avoiding vagueness), and we promote predictability of enforcement (the average citizen can read the statute and know what they should or shouldn't do - without having to conslut legislative history).

As far as the fact that abortion was legal at the time of the Framing, I don't think this matters. The right was not "retained" by the people, under the 9th Amendment, and I don't see what other amendment it could possibly arise under. Indeed, the people later passed laws explicitly outlawing abortion. If people want to pass laws retaining a right to abortion, then the right exists. And as long as the legislature has not spoken, and the right exists under common law, then the right exists. But once a legislature spoke to outlaw abortion, that legislative act trumped any common law existing at the time. And since I believe Roe was wrongly decided (from a legal perspective, I can find no foundation in the text for the right asserted without stretching the text further than I think would be responsible), there should have been no constitutional argument to invalidate the law. The people spoke - and those desiring an abortion could either attempt to convince them otherwise and change the law, learn to live with it, or move. But not make up rights that aren't set out in the legal text.

I'm not a big believer in legal realism (cuts the judge off from the text too much and creates absurd results, like Roe and Lochner) and not a big believer in originalism (also absurd results, like rolling back the incorporation doctrine). I think a good judge is a textualist, reads the words, gives them their normal meaning, and applies them to the facts, as mechanically as is possible (and granted, this is difficult). I would always look for judges who felt extremely constrained by the language of the text. Alito, while he fails to satisfy the kind of diversity we both think desireable on the court, has (to me) shown an acceptable level of constraint. (I have done my best to read a number of his decisions, but not all, so maybe he's got some head-scratchers out there I'm not aware of).

As far as deference, I think the court must clearly defer to the other branches, when not constitutionally authorized to counter them. Judicial review is important in our system, but if the court is allowd to invalidate acts from the popularly elected branches without constitutional approbrium, but on policy grounds cleverly disguised as constitutionally required, then we no longer have a republic.

I feel like we're just rehashing arguments from Elements right now, as if you and I are going to come to some sort of glorious consensus at the end that everybody else is missing. Reasonable and intelligent people can differ on these things, and I have to concede that having a right to an abortion isn't terribly important to me. If the shoe were on the other foot, and it was a right I cared about deeply, would I want the court to understand that it's a right that many like me care about deeply, realize we can't "retain" every right we hold dear explicitly in the law (and maybe that's what the 9th Amendment was trying to say in the first place), and protect me - legal text, majority rule and judicial restraint be damned? I don't know. Maybe I would be singing a different tune. But I hope not.

At least we can agree on this, no pear trees on government property - ever.

[Deborah Spaeth]

Scout

"And since I believe Roe was wrongly decided (from a legal perspective, I can find no foundation in the text for the right asserted without stretching the text further than I think would be responsible)"

That's nice. Of course, whether YOU can find anything in the text, scout, is irrelevant, isn't it? Others more knowledgeable and experienced than you have found such a foundation in the text. Twice. At least.

"I, of course, could argue that the interests of the life being taken clearly outweigh any interest in bodily control"

Really? I'd like to see that argument, scout. Could you also make an argument that every alleged "miscarriage" by a woman should be investigated by police?

I hope so. Such an argument will become a integral to ensuring that embryos and fetuses are given the protection from criminals which they "clearly" deserve in your Imaginary Future When Women's Reproductive Rights Are Controlled by Men.

[Deborah Spaeth]

Scout

"The text should be given its natural and reasonable meaning, guided by principles of statutory construction and precedent."

This from the character who praised the Brown v. Board of Education decision upthread?

Hilarious.

Then again, Alito knew that he should praise Brown, too. Is Brown a "well-reasoned" decision based on a strict interpretation of the Constitution? I suspect the answer depends on who happens to be sitting in the room when the judicial candidate gives his answer.

[Deborah Spaeth]

Scout

"As far as deference, I think the court must clearly defer to the other branches, when not constitutionally authorized to counter them."

Where is that in the Holy Constitution?

[Deborah Spaeth]

Scout

"The people spoke - and those desiring an abortion could either attempt to convince them otherwise and change the law, learn to live with it, or move."

Why did blacks continue to live in the South during segregation anyway?

[The Law Fairy]

Ahhhhh, elements. Good ol' days of 1L...

You're absolutely right about the mutually exclusive moral positions on abortion. It's actually something I personally struggle with, since, as a Christian, I believe that murder is wrong, but as a woman, I grate against laws that to some extent turn us into breeding machines -- in my mind, *almost* if not as immoral. I do believe that an unborn baby is a human life, and I hope that if I were ever faced with an unwanted pregnancy I would not make the wrong choice. But I also cringe in terror at the thought that I could be *imprisoned* if I did take the coward's way out.

As to the legal argument, I have to take issue with the following from your comment:

"And as long as the legislature has not spoken, and the right exists under common law, then the right exists. But once a legislature spoke to outlaw abortion, that legislative act trumped any common law existing at the time."

This seems to me almost a disingenuous understanding of what "retained" means. Even if one were to agree to your argument that it means only those rights that were in existence at the time of the Constitution's adoption, how could it not include common law rights? Common law rights would have, at the precise moment the Constitution was enacted, been the only rights that existed outside the Bill of Rights. We had no statutory law until *after* we had a governmental structure to support its creation. I'd be interested to hear, then, how these rights we retained were in existence at the time -- examples might be helpful, if you could think of any.

I'm still not the greatest fan of textualism -- I think a strict textualist point of view doesn't allow for, among other things, basic human error. Let's say the legislature enacted a poorly-worded law (that could happen? Shocking!) and the Court struck it down as unconstitutional based on the strict text of the law. Now let's say the legislature realizes that it wrote the law poorly, and re-words it to try to get it to conform with the Constitution. Now, however, when it gets before the Court, the Court will see it as a plain attempt to circumvent its prior ruling -- it's textually different but looking to achieve the same result. Either the justices are stuck with saying that, essentially, they were beholden to tha strict language and had on this basis alone struck down meritorious legislation (turning the Court into little more than a glorified bureaucracy), or they have to once again strike down legislation that's actually wholly unproblematic.

I think textualism is nice in theory -- but I just don't think it's workable as a legitimate jurisprudential approach.

[Kimball Corson]

Originalism or even quasi-originalism in too many contexts is such a boring and truly unworkable philosophy of judiciary interpretation, for the reasons among many others that Law Fairy points out, that I am really shocked it has so many sincere adherents or supporters to pay it lip service. And lip service it is, because in many cases, even its adherents as judges are forced outside of their boxes at times, if by none other than their saner colleagues or fear of opprobrium from others.

The world and issues of concern change as we discover and learn more so that virtually any static doctrine or world-view becomes largely dysfunctional or dated, especially one centuries old. That Alito pays verbal homage to a form of originalism is a bit scary because another of originalism’s problems is that it permits a judge or justice to duck new hard questions after a fashion and reach back into history for some senseless way to stay in the box and not do his or her job. At its best, originalism is a brake on the occasional mistakes of progressivism, but better brakes are available.

[Roach]

Debbie, I only think someone who was extremely obtuse would call me a liar for saying you're rude and sarcastic. But, just as evidence in support, I'll quote you from your comments above:

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

"Remember Chris Matthews? Stupid people get their news from that rich Nantucket script-reciting fatass."

"Geez, Scout, you're embarassing yourself with your lack of knowledge of these matters. Maybe you should read a book or something."

"Go ahead. I think there's a virtual crying room on the Internet somewhere for paranoid fetus-worshipping wingnuts like you."

"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.'"

[Deborah Spaeth]

Roach

"I only think someone who was extremely obtuse would call me a liar for saying you're rude and sarcastic."

Ah, but Roach, you claimed that I'm *always* rude and sarcastic.

That's false. For example, this comment is not rude or sarcastic.

Is it being "obtuse" to point this out? No. If you ever catch me claiming that "Every thing Roach says here is a lie," I urge you to call me on it. That sort of sloppiness is intolerable.

[Roach]

Point taken. I suppose I should've said frequently. Now that we cleared that up . . .

[Kimball Corson]

Back in Wi-Fi land after a serious shake-down cruise on the Pacific with some new equipment:

Help me here if I am wrong, but isn't the First Amendemnt relevant on the abortion issue not for any free speech component, as suggested, but because it supports a right of privacy that in turn gives rise to the right of a women in connection with her own body to an have an abortion during the first trimester?