Posted on 10/31/2005 3:32:05 PM PST by neverdem
How Samuel Alito would push the Court even further right than William Rehnquist.
We already know some of the dynamics of President Bushs nomination of Judge Samuel Alito: the presidents low approval ratings, driven lower by defections from his base during the Harriet Miers episode, and his need to recapture some political ground by shifting attention from corruption and incompetence to a Supreme Court nominee who cant be challenged as an incompetent crony.
One element in the political dynamics, though, may have been overlooked. The president is taking advantage of what might be merely a moment of unified government to consolidate conservative control of the Supreme Court. Facing the possibility (though hardly a certainty) of a Democratic majority in the Senate after next years elections, and even of a Democratic president after 2008, Bush is following the tradition established by John Adams in 1800: If you think you might lose control of the political branches, try to plant your allies on the Supreme Court so they can as check the excesses (as you see them) of your political opponents.
Alitos nomination seems likely to put this element at the center of the confirmation discussion. Nobodys going to claim that he lacks the basic qualifications of a Supreme Court justice, and the Miers episode made the focus on a nominees judicial philosophy inevitable -- though Im sure well see some conservatives turning on a dime to assert that the debate should be exclusively about competence and qualifications, not judicial philosophy.
Alito is a down-the-line judicial conservative. Its not for nothing that hes acquired the sobriquet Scalito. Here, too, were already seeing some scrambling by conservatives to deny that Samuel Alito is an Antonin Scalia clone, mostly taking the form of disparaging the latter as acerbic and personally abrasive in contrast to the formers smoothness -- overlooking the fact that, on a personal level, Scalia is entirely affable. (Indeed, although its been forgotten, when Scalia was nominated his supporters and opponents agreed that his ability to get along with everyone might make him a unifying force on a divided Court. Sound familiar?)
But, looking at Judge Alitos record, its hard to find anything a conservative would disagree with. He interprets the free-exercise clause expansively because it protects the rights of religious dissidents, which is the self-characterization of many religious conservatives in what they see as a secular society. He interprets the establishment clause restrictively because it keeps religious conservatives from enacting their preferred agenda when they happen to control a school board or city council. And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.
Worth emphasizing are two cases in which Judge Alito was more conservative than the Supreme Courts conservatives. In one, he found that the Constitution precluded Congress from requiring state and local governments to provide family medical leave. The Supreme Court, in a decision written by Chief Justice William Rehnquist, upheld the federal statute. Alitos defenders are going to say that the case he decided presented a slightly different question from the one presented in Rehnquists case. Thats true. But cases are almost always distinguishable, and the tenor of the chief justices opinion is quite different from Alitos holding.
Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldnt use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun. He took the Supreme Courts decisions restricting that power and ran with them past where anyone else had -- or would. Last years case involving medical marijuana makes it clear that the Supreme Court doesnt have nearly as restrictive a view of Congress powers -- and, conversely, as expansive a view of the Supreme Courts powers -- as Judge Alito does. And, in the medical marijuana decision, who wrote an opinion explaining why Congress could prohibit the private possession and use of marijuana? Justice Antonin Scalia.
More conservative than Rehnquist and Scalia, then. A Roberts Court with Samuel Alito would be under consolidated conservative control. What then? If we continue to have unified government under Republican control, not much. The Supreme Court would do some of the jobs that, mostly for reasons of time, Congress cant get around to. It might invalidate some statutes adopted by state legislatures controlled by Democrats instead of using Congress power to preempt those statutes. It might eventually overturn Roe v. Wade, although the political implications of doing so are likely to hurt Republicans (and so a conservative Court might not take that step). Basically, the Roberts Court would collaborate with the Republican political branches to advance the Republicans substantive agenda, just as the Warren Court collaborated with the Democratic political branches.
A return to unified Democratic government is so unlikely as not to be worth spending time on. If we get divided government again, the Roberts Court could be free to pursue a strongly conservative substantive agenda, confident that its allies in Congress would have enough power to ensure that the Courts decisions would stick -- and confident that its opponents would fulminate but not be in a position to mount a full-scale attack on the Court. Or, and I think this is more likely, the Roberts Court would, like the Rehnquist Court, drift gradually to the right, changing constitutional law incrementally while awaiting the return of unified Republican government.
Over the past few weeks Ive quoted a line from the conclusion of the film Dead Again. The three main characters are together in a small room, each (as I recall the scene) pointing a gun at another. One of the characters says, I, for one, am very interested in what happens next. Me, too.
Mark Tushnet is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law.
De Wine and Grahams have BOTH made public affirmations today of their intent to vote for the Constitutional Option IF the Dems try to fillibuster! That's 2 of the squishy 7!!!!!
"Even more striking, Alito, almost alone among all federal judges, would have held that Congress couldnt use its power to regulate interstate commerce in a way that would make it a crime for a person to possess a machine gun."
Well Justice Alito and Justice Thomas are going to get along JUST fine, I see!
I love it! Eat dust you sorry liberals!
"De Wine and Grahams have BOTH made public affirmations today of their intent to vote for the Constitutional Option IF the Dems try to fillibuster! That's 2 of the squishy 7!!!!!"
Incredible! Hell, we don't need no hearings. Let's just go straight to a vote on the rules...followed by a straight party line vote.
What I've read and heard spoken about Judge Alito today is very encouraging for the conservative movement. Alito appears to be pro-life, pro-2nd amendment and anti-special rights for special interest groups. I'd say that's putting the Constitution in the proper perspective of original intent.
What a bleedin' rollercoaster this month has been!
Agree. You can't count on Kennedy.
We still need to fill another seat, hopefully Stevens, while we still have the Senate and the White House.
In your wildest dreams, Tush! Oops! I mean Tushnet! In your most joyous and outlandish delusions! But not in reality.
"Incompetence on that topic is null and void."
Si senor. Let's get ready to rumble now! (And I mean with the libs...)
That is not necessarily an accurate assumption. Had Alito seen constitutional grounds against Roe, he probably would have said so when he upheld partial birth abortion. He differs with others mentioned for the SCOTUS short list, such as Edith Jones and Emilio Garza, who had (reluctantly) upheld abortion precedent while specifying disagreement with Roe.
Alito's judicial philosophy seems to be to fall in line with precedent. Where that will lead on the SCOTUS is anyone's guess.
We need one more pick, and John Paul Stevens is 85 years old. We may get it.
I can only thank the heavens above that Miers did not get in.
It will be an "evolving consitution" until liberalism permeates every jot and tittle of United States law. At that point, it will quit evolving.
That's a lot of reading. Can you paste in the relevant parts?
I wasn't aware that DeWine and expressed that. That's great news.
I have a feeling the Democrats are going to let Alito go through with little opposition, and focus on Congressional elections instead. I'm sure they're aware that both Ginsburg and Stevens are this|close to retiring and would like to have better numbers if they quit in '07 or '08.
I think anyone looking for a battle is going to be disappointed. They have much more to lose if they make a public spectacle in front of a man of Alito's caliber.
A return to unified Democratic government is so unlikely as not to be worth spending time on.
test ...
As far as I can tell, the "ubercon" uprising has come to a happy ending for the entire GOP.
The next step is to keep Rove in the White House and get going on 2006.
Gosh, Fellow Freepers, that is something we never considered!! [palm on forehead slap]
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