Posted on 01/17/2006 3:20:20 PM PST by Congressman Billybob
Today (Tuesday) the San Francisco Chronicle ran an editorial entitled, “Why Alito is the wrong choice.” Instead of demonstrating what it says, it demonstrates why the Chronicle has failed to do its homework as reporters, in preparing its editorial. Here’s why:
The editorial begins with this statement:
In some ways, Alito's taciturn approach to questions about the great constitutional issues of our time was similar to that of Chief Justice John G. Roberts Jr. But the distinction between the history of the two judges -- and the role of the justice they were nominated to replace -- are important.
First, this fails to note that the “taciturn approach” followed by Judge Alito was exactly the same as Justice Ginsberg’s. It is a gross violation of judicial ethics for any judge on any bench to comment publicly on any issue likely to come before him/her in a case.
As for the Justice that a nominee will replace, if all Justices should mirror the ones they are replacing, many of the current Justices would have been disqualified. If such a policy had always been in force, the Dred Scott case would still stand, upholding slavery.
The editorial continues:
Of the two, Alito had far more explaining to do about his past, and his answers fell short of satisfying concerns about his record of advocating repeal of Roe vs. Wade, highlighting his membership in a Princeton alumni group with retrograde views of women and minorities and all too frequently siding with government and businesses against individuals seeking redress.
Only laws can be “repealed.” Decisions of the Court, like Brown v. Board of Education which outlawed segregation, can only “reverse” prior decisions of the Court. Or, is the Chronicle just revealing its core belief that the Court is just an unelected supra-legislature with a roving commission to do whatever strikes its fancy on a given Friday (the day that Justices conference and decide the cases argued that week)?
Apparently, the information has not reached the editorial offices of the Chronicle that the anti-minorities and anti-women article from the Concerned Alumni of Princeton that Senator Ted Kennedy quoted from ad nauseam was a SATIRE. One of the tip-offs was that the article claimed for homosexuals “the right to bear children.” Helloooo. Didn’t anyone pay attention in high school biology?
The editorial next attacks Judge Alito’s suggestion as a staff attorney in the Reagan Administration that
Presidents... put... caveats with their signature on legislation. President Bush has been doing just that -- using ‘signing statements’ more than 100 times to essentially reserve his right to ignore a law he might find unduly constraining.
Apparently, the Chronicle missed the Supreme Court case which denied President Nixon the “right” to conduct “hold-backs,” refusing to spend money as authorized by Congress. Both President Nixon and the seminal case he lost were in all the newspapers, presumably in the Chronicle as well (unless it happened during the baseball season, as Tom Lehrer said at the hungry I.) Presidents can issue whatever statements they choose when signing legislation, but none of that changes anything about the laws just passed.
One last point. Apparently the Chronicle wants Alito to be a “moderate” or “centrist” like the departing Justice Sandra Day O’Connor. What do those words mean, in the context of a Justice of the Supreme Court? Based on the example of Justice O’Connor, it means not going overboard in enforcing the Constitution. Enforce it sometimes; rewrite or ignore it in others. A Justice who thinks that way is in violation of his/her oath of office. The Justices are supposed to obey and enforce the Constitution in EVERY case that comes before them.
No one wants a “moderate” policeman, who will capture some of the criminals if he feels like it. No one wants a “centrist” surgeon, who will correct some of the patient’s physical problems, but not others. And perhaps no one wants a newspaper which attempts to write authoritatively about the role of the Justice of the Supreme Court in total ignorance of facts readily available to any competent researcher.
[The author is not merely an opinion writer about the Court and its Justices. He has practiced First Amendment law in the Supreme Court over a span of more than three decades.]
John_Armor@aya.yale.edu
John / Billybob
"....the role of the justice they were nominated to replace..."
Irrelevant, your honor!
marking for later read....
BillyBob BUMP
Tsk, John, I'm sure if we went back and checked the Chron archives, we'd find its editorials decrying the nomination of openly liberal Ginsburg to replace the largely conservative White.
Right? Of course we would!
/sarcasm.
San Franciso is unfit to be anything
That last sentence summarized the entire MSM, plus detailing why they're rapidly going the way of the Dodo.
As long as they don't claim to journalists or chroniclers, who cares? Oh my!! This rag is named the Chronicle. Perhaps they use a different language that English.
I would rather read a back-issue of Pravda.
A back-issue of Pravda would be more accurate
Who exactly was Ginsber nominated to replace?
Byron R. White
Democrat nominated by Kennedy in 1962.
And suddenly, the points in the Chronicle Editorial make sense.
Maybe if I go back down in the basement and run into that beam a few more times, I can become a liberal.
Easy pickin's for today's commentary. Every writer needs a day like that.
I'm surprised the editorial board didn't just keep on digging the hole they were in and criticize Judge Alito for denying the relevance of foreign law in cases before the Supreme Court.
Houston Chroniclier
To wit, Congressman Billybob. What the SF Chronicle has published under its "veil" of "editorial" is usual -- it is willful propoganda, IME, rather than "lack of knowledge".
No but a conservative, non Republican that is, wants someone that respects the separation of powers and can recognize that the administration has overstepped its bounds. A main reason that Luttig or Janice Rogers Brown wasn't nominated. It wasn't the fear they couldn't get past the hearings, it was the fear they may stand against the administration. 'Competent research' shows that clearly enough
Considering there is only one conservative on the bench currently (Justice Thomas), Bush is not about to put another up there. Alito is a good company man and unfortunately will agree with the administration instead of reading the Constitution and the inherent limitations therein.
It wasnt' quite so much fun when that was my local newspaper. This editorial is one more nail in the coffin of sensibility in northern California. (the south gets the LATimes treatment, so as to contract the same disease).
I can only shake my head sadly having the very intense feeling that many of my former neighbors read that editorial and nodded sagely in agreement.
Nope, living among them wasn't that much fun at all.
"San Franciso is unfit to be anything"
AND the Chronicle is unfit for anything other than fish-wrap or doggie tinkle paper!
Judge Brown is an excellent jurist, who does (exactly as you say), recognize the real divisions between federal and state authority, per the Constitution. Plus, this would put the hard left (or in Teddy's case, the drunken left) in the position of opposing a woman and an African-American for the Court, going into the 2008 election when the Democrats will claim that they represent women and minorities.
The more I have seen of Bush's strategic decisions, the more respect I have for his ability to play long-term. He plays to win the game at the end, not merely to prevail in the immediate inning. As long as he thinks that way, and the Democrats think only in terms of the immediate battle, he will usually prevail.
John / Billybob
And they want to be called "Loretta". The fact that they physically can't have children is no one's fault, though, not even the Romans.
If you do it enough times to stop breathing, you'll be certain to vote Democrat after that, at least.
Sorry, but to have the faith that he would do anything of the sort is no longer there. If Ginsberg were to step down, the next nominee would be another company man or woman. Someone to toe the Republican view of government. Centralization, centralization, centralization, and nothing more. All decisions for the separate and sovereign states to be made in Washington. The argument is now what the decision should be, not even if it should be made in the first place. Thomas alone on the Court recognizes this. After reading his view, it is becoming clear he is a burr in the side of Republicans and Democrats alike
The more I have seen of Bush's strategic decisions, the more respect I have for his ability to play long-term
And the more I see of his decisions, and his ardent supporters, the more I realize that few people could care less about Constitutional limitations as long as the right 'team' is at the top of the heap. If Bush has another choice, and that's a big if, his nominee will be a minority, it may even be a woman. But it will be someone who agrees fully with the Republican interpretation of the Constitution and not necessarily a conservative
"Sam Alito is just what George Bush is looking for: a big government conservative who will almost always side with the government against the individual, and the federal government against the state," Napolitano said.Nice. Of course he was just a judge, so what the heck does he know? And for you to say that Clarence Thomas and Janice Rogers Brown are from that camp, I'd say you haven't only not bothered to pay attention, you haven't read anything about either one of them except what the RNC or Fox News would have you read. Shall we cover case by case of the Alito and Roberts compared to Thomas and Brown? Hell, let's throw in Scalia for you as well. He's not much more for federalism either. I really don't think you want to go there.
You really need to do more homework, and lest posting. The whole FR community would benefit from a little more effort on your behalf.
Ah, I make a simple observation and the 'ignorance' attack comes out. Let's see, we've got a respected judge (I don't think you've tried to put that one on your resume yet have you?) and numerous cases representing the past two nominees deference to the federal government on practically everything. If you believe Thomas would fall on those same lines, you haven't even bothered to read his most recent decision. And if you believe Brown would fall on those same lines, I'd say you've not bothered to read hardly any of her decisions.
But post on with your next blind, baseless personal attack. I've come to expect no less from such a 'respected' First Amendment lawyer....
Should anybody be surprised?
Yes, I agree. I also like leaders who focus on long-term results. When President Bush didn't attend the NAACP convention it sent a very positive message that he was results oriented and many Americans supported that decision. Long-term results, not short-term words and rhetoric.
"But the distinction between the history of the two judges -- and the role of the justice they were nominated to replace -- are important."
Is ungrammatical. "is important" is right.
The Chronicle can't handle complex sentences. They should stick to simple sentences that San Franciscans can understand.
Yes, there may be something about the thinking skills acquired through a Harvard MBA that come in handy in anticipating the end consequences (intended and unintended) of certain courses of action. Business owners face that kind of strategic thinking requirement daily.
Another related skill he has demonstrated is his willingness and ability to give a clear and unmistakable statement of position and call to action, as he did on his visit to the WTC site following 9/11 and in his speeches over the next months, and as he did when he declared his intentions about the kind of Supreme Court nominees he would offer.
Exhibiting this latter skill relies, not on a desire for popularity, poll-taking or a "finger in the wind," but on courage and commitment and leadership--attributes which frustrate and confound enemies.
bttt
How Scalia of you!
A sharp wit to the point that connects with common sense.
I know, it's just a damn wonder they didn't pick you with your 'extensive' legal knowledge, all documented by you BTW. Christ, with 30 years of arguing First Amendment cases before the Supreme Court, one would think at least that blowhard O'Reilly would listen to you. But instead of presenting evidence his opinion is somehow wrong, you attack him. Right....
I've been up against Larry Tribe twice. Beat him both times. Now THAT's a philosopher of the law. He's wrong on the basic approach to the Constitution. But at least he thinks things through.
Hold on a second. No I thought I had a cardboard cookie around here somewhere... Imagine it, Larry Tribe (professor at Harvard Law, writes articles for the WSJ, Law.com. ) If I were you I’d hop yourself right over to SCOTUSblog and chime in on ol’ Larry’s letters…Not that I doubt you, but which cases did you beat him in? And not that I agree with Tribe’s statements any more than I do yours (oh yes, I have heard of him) but I would like to see the arguments you presented to overcome his. Glad you shunned the limelight unlike him though. The work one would have to do writing an article for the Wall Street Journal is probably taxing
BTW, I'm working on my 20th brief for the Supreme Court
Oh yes. I've read about your 'briefs'. You have yet to provide links to the other 19 briefs (I do remember asking you about that many months ago and received no response)
Now, explain your statement that Alito and Roberts, government supporters on most issues, are going to agree for the most part with Thomas and Brown, respected federalists. Both Thomas and Brown have time and again in their writings have shown disdain for the federal government intrusion into the business of the separate and sovereign states. Whereas Alito and Roberts can't fall over themselves fast enough pushing the 'conservative' agenda as long as the decisions are made in Washington DC.
Do you have any background in the law? Or are you one of those "gifted amateurs" who reads a few cases, and cobbles together a theory based on such limited reading?
No, I've actually spend time reading many cases. The activism from the left and the 'right' is mindboggling. My 'theory' as you say has been 'cobbled' together not only from past decisions but the writings of the Framers and their intent for the general government. Of course I'm sure like most 'conservatives' you could give us a good list of their names, but have little understanding of their words. Do I need to have some sort of letters beside my name to make the opinion reasoned?
We see these folks trying to represent themselves in court much too frequently. It is pitiful. In 25 years in the trenches, I have NEVER seen a pro se litigant prevail . . . although occasionally they manage to survive a motion to dismiss. More often, they get socked with penalties and attorney fees for wasting everybody's time. (Like that fellow that Ted Kennedy is touting as the magic bullet for Judge AliOto . . . he's a hardy perennial down at Federal Square.)
I guess it's the same impulse that makes folks attempt to practice medicine on themselves with all kinds of quack nostrums. People put themselves in serious debt to go to medical school and law school. If it were as easy as reading a few cases and textbooks, the schools would be empty.
And by the way, Congressman, I concur fully in your opinion of Judge Napolitano. He's not a dummy, but he's no constitutional lawyer.
I don't know why it is people think they know everything about someone from a few postings. No, I have not attended a school of law. However, I have followed the SCOTUS rulings for quite sometime and studied the history of the court. I also don't know why someone can't respond to a simple request. To prove that Roberts and Alito are as libertarian (or believers in federalism if the word suits you better) as Thomas and Brown.
It is not a few cases. Of course I don't claim with no evidence I've argued First Amendment cases in front of SCOTUS for 30 years either. Would my claim be more accepted by a Republican like yourself if I stated, almost baselessly, that I worked hand in hand with Ronald Reagan's campaign manager because I voted for him? Should I use that as a tagline now? Will that gain me 'street cred' in your eyes? You know I've been thinking lately about running for office here in NC, maybe against Richard Burr. Yeah that's it....
I guess it's the same impulse that makes folks attempt to practice medicine on themselves with all kinds of quack nostrums.
Oh yes it's exactly the same. Whereas medicine is an objective science, where the wrong move can kill someone, constitutional law is to a large extent subjective. If it weren't cases wouldn't be overturned 50 years later because a judge has decided he's found a new right in the Constitution that no one else has been able to find.
And by the way, Congressman, I concur fully in your opinion of Judge Napolitano. He's not a dummy, but he's no constitutional lawyer.
Of course. He was just a sitting judge, what the hell does he know about the law?
As I see no response is forthcoming (as my point is correct from reading more than a 'few' opinions of all judges mentioned (I'd suggest you do the same before posting again)), I'll leave you to the needless and baseless bashing okay? That seems about par for the course when you can't answer the question put to you.
The practice of law, even constitutional law, is largely objective rather than subjective, as a close encounter with the bar exam would inform you. The only subjectivism being practiced is by liberal judges "discovering" nonexistent rights in the Constitution for political reasons. If conservatives do the same thing, they are JUST as wrong as the liberals.
Moreover, whether a profession is "objective" or "subjective" has little to do with whether or not you kill somebody . . . straw man. Of course, I would venture to say that Roe v. Wade may have killed more people even than lousy doctors . . .
Unfortunately, just reading and "studying" the opinions doesn't do the job. Otherwise, why would anybody bother to go to law school? I believe you can still "read law" in a few states, but again in that case the student is studying under an experienced attorney. Unless of course you think law school and the bar exam are just a racket . . .
And re Judge Napolitano - he's not a constitutional lawyer and there's a big difference between a STATE trial court judge and a FEDERAL circuit judge. (This is another reason why some law school time comes in handy.) He's an intelligent man, but his time on the bench did NOT consist of reviewing constitutional issues. It's black letter law in most state trial courts that constitutional issues are avoided if at all possible, and they're usually pretty good at dodging them.
. . . and re the good Congressman - most everyone on FR knows his real name, and since you're so well-versed in Supreme Court matters it should be a simple matter to find a couple of his cases on the USSC website . . . he doesn't need to present "evidence" because anyone can find out for himself. . . . Now WHO did you say is ad homining here?
Oh good, another 'constitutional' lawyer. Geez, ths place is becoming as crowded with legally educated lawyer types as SCOTUSblog....
He's a sound jurist, though it's difficult to say with certainty whether he will construe the Constitution in the same manner as Scalia and Thomas because as a circuit judge he is not permitted to do much of anything but follow the USSC.
Uh-oh, the cover up begins. Roberts agreed with Scalia and not Thomas. Big difference. Alito will fall under the sphere of Scalia as well. Big government, no idea of federalism.
So let me get this straight. You've claimed a legal education and you can't read between the lines of opinions to get the feel of what the judge is thinking? I'd be more than happy to direct you to several of Alito's decisions where his opinion on several issues is easily discernable...Oh but wait, I didn't read them in 'light of a legal education' so I must have read them wrong...
The practice of law, even constitutional law, is largely objective rather than subjective, as a close encounter with the bar exam would inform you. The only subjectivism being practiced is by liberal judges "discovering" nonexistent rights in the Constitution for political reasons. If conservatives do the same thing, they are JUST as wrong as the liberals.
But yet that's what many 'conservatives' would have these judges do. Scalia and Roberts were wrong, Thomas was right. One opinion was a Republican opinion, and one was a Constitutionalist one. If Constitutional law is objective how on earth did 9 people come to three different conclusions?!? Also for you to say that Constitutional law is not subjective, it sort of defeats the point of having nine judges as by your standard of objectivism they should all come to the same conclusion every time. Since they don't.....Geez, I'm glad you're not a doctor
Unfortunately, just reading and "studying" the opinions doesn't do the job. Otherwise, why would anybody bother to go to law school?
If you and the other one were the only instances I had to base my opinion on, I'd say good question. However, we have respected jurists like Janice Rogers Brown, J. Michael Luttig, and Clarence Thomas (even Justice Rehnquist to some extent, God rest his soul) that remind me law schools do have some purpose. Lawyers do have they're there (did I miss one?) their uses
And re Judge Napolitano - he's not a constitutional lawyer and there's a big difference between a STATE trial court judge and a FEDERAL circuit judge. (This is another reason why some law school time comes in handy.)
Well thank ye!! Us unedukated folks don't know them differences between the states and the federal government. Unfortunately most 'conservatives' don't either. Now as Judge Napolitano is such a failure in your eyes at what he does and since you have read 'opinions in the light of a legal education' should I ask you as well why you're only postng on an internet bulletin board? Do you have any books out there I may have heard of? Get your name out there, you could be the next Senator from the state of Georgia!!
and re the good Congressman - most everyone on FR knows his real name, and since you're so well-versed in Supreme Court matters it should be a simple matter to find a couple of his cases on the USSC website . . . he doesn't need to present "evidence" because anyone can find out for himself. . . .
Oh trust me. I have looked at that as well. The information is quite easily found. Why do you think I asked the questions? I believe I may have missed some.....
Now WHO did you say is ad homining here?
Not me...not me..
I do again find it interesting that now you refuse, or can't, answer the question. Let me put it out for you again so you can ignore it and continue the attacks eh? The original poster suggested (actually stated matter of factly) that Roberts and Scalia would agree in most opinions with Thomas and Brown. Do you agree with that? And if so, what is your basis for such a statement? As you will no doubt focus on my rebuttal (that's a lawyer type word ain't it?) instead of answering the question put before you, I will end this conversation post haste. It's boring and for some reason the questions I pose never get answered...
Sorry if you feel that I'm dodging the question, but in the words of one of our (local) appellate court judges, talking with you about the law is like trying to nail a jellyfish to the wall. I'm not even sure I understand exactly what you're trying to say. Maybe the fault is on my part - in which case I do apologize for being unable to follow your argument.
Let me make it as simple as possible for you (although one who has read judicial opinions in 'light of a legal education' should have had no problem with the question the first time)
From post #31 the poster makes the statement..
There is no "Republican" interpretation of the Constitution. Many hold a literal view. Some hold an expansionist view. But both Roberts and Alito hold the literalist view. If you don't see that from their decisions that are a matter of record, you are not paying attention.My question stands. Brown and Thomas are not in the same camp of Roberts or Alito. Brown and Thomas have (more than once I might add) stated in their opinions the concern of the federal government overstepping the rights of the separate and sovereign states. Brown is even on record in a speech as dissenting against the incorporation theory of the 14th Amendment. Considering the stance of Roberts and Alito on more than a few cases (reading their opinions with my 'limited' mind apparently), how can one say those four are in the same camp?* Two of them are true originalists (for the most part) and two are stalwart Republican judges.Janice Rogers Brown is in the same camp. Justice Thomas is not "the only one on the court."
*I've emboldened my question so it doesn't slip by as a jellyfish this time...
Please forgive the snide remark and just answer the question. After dealing with the other poster I shouldn't have taken it out on you.
Great column.
It looks like you won't be getting an answer. That's too bad; I was interested in seeing it.
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