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Tilting at Windmills

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January 10, 2006
By: Kevin Drum

FIGHTING ALITO....Over at Crooks and Liars, Glenn Greenwald says:

The Democrats are a party in urgent need of a good fight. And the Alito nomination presents the perfect opportunity for Democrats to demonstrate that they are willing to wage a real battle for the things they believe in. Two core Democratic principles, at least, are at stake in these hearings, and are clearly threatened by the Alito nomination:

(1) whether we live in a country where the President has the right to declare himself to be above the law and can freely violate whatever laws he wants; and, (2) whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court....If Democrats are unwilling to fight for these principles, what are they willing to fight for?

Roughly speaking, I agree with Glenn. The problem is, how do we wage the fight? Here's what Alito said today about the president being above the law:

In response to questions from Sen. Patrick Leahy of Vermont, the top Democrat on the Senate Judiciary Committee, Alito said that "no person in this country is above the law." But he said some issues related to executive powers fall into "a twilight zone" where presidential authority is at a low point.

And here's what he said about privacy and abortion:

Alito said he agreed "that the Constitution protects a right to privacy," the main underpinning of the Supreme Court's 1973 Roe v. Wade ruling that legalized abortion nationally....If the [abortion] issue were to come before him today, the first consideration would be precedent, he said. "If the analysis would get beyond that point, I would approach the question with an open mind," he said.

Is Alito fudging furiously? Probably. But it still doesn't give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president's Article II powers just aren't going to get very many people ready to take to the streets with pitchforks. So what's the battle cry?

Kevin Drum 1:29 PM Permalink | Trackbacks | Comments (101)

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Comments

Simple: the rule of law, not the rule of Bush.

Posted by: walt on January 10, 2006 at 1:33 PM | PERMALINK

Howzacome the Radicals always manage to spin these "no traction" areas up into tornados of counterattack? I realize that part of the answer is, "they own the major media outlets", but could another part be "Because they TRY"? And the DC Democrats just quit?

Cranky

Posted by: Cranky Observer on January 10, 2006 at 1:34 PM | PERMALINK

He previous lied to the Senate about recusing himself.

He lied about Roe, either to the Senate or on his job application.

His membership in CAP.

He is a liar. That is enough to fight. We can't let people just lie to congress. Even Al can understand this.

Posted by: Gore/Obama '08 on January 10, 2006 at 1:34 PM | PERMALINK

i suggest dems leave alito alone, and focus on how to win back the house, the senate and ultimately the presidency. when this last event occurs, we get to nominate judges we like. isn't that just the way it works? at least we didn't get janice rogers brown.

Posted by: lucretius on January 10, 2006 at 1:35 PM | PERMALINK

Somebody should simply look Alito in the eye, cite Henry Hyde, and ask: "What is the issue on which you are willing to LOSE your SCOTUS nomination, judge?

Bork was willing to lose over his extreme, but strongly reasoned view of the Constitution. Gee, judge -- I look at your job applications, at your testimony, and I don't see much that you won't fudge or wink about to get the next step up the ladder.

Show me I'm wrong."

Posted by: theAmericanist on January 10, 2006 at 1:36 PM | PERMALINK

Senators simply don't know how to cross-examine a witness. You don't ask open-ended questions. You put a document before him and say, in effect, do you believe what you said here or did you lie about it? Are you a principled man or an unprincipled careerist? Alito's record is packed with documents you can do this with. You have to go after him hour after hour, wear him down, and eventually you will get your battle cry. The only Senator who knows how to do this is Spector, and he's not going to.

Posted by: JR on January 10, 2006 at 1:36 PM | PERMALINK

On the other hand, Dems don't want to be uncivil. They might not get invited to all the good parties!

It isn't as though government has any consequences...

Posted by: Gore/Obama '08 on January 10, 2006 at 1:37 PM | PERMALINK

Cranky is right.

Since when has logic or truth been the fundamental issue in a GOP attack? I say pillory Alito over his idea that Bush can make up the law whenever he pleases. Plus, frankly, he sounds like a bad liar whenever he speaks. What's he hiding?

There's your battle cry: What's he hiding?

Posted by: craigie on January 10, 2006 at 1:38 PM | PERMALINK

Alito said that "no person in this country is above the law."

Which is true since article II of the constitution (which is the Supreme law of the land) gives George W Bush the power to override any Congressional statute by executive order which he deems to interfere with the War on Terrorism. Therefore any one who violates Bush's executive orders would be violating the law since no person is above the law."

"If the [abortion] issue were to come before him today, the first consideration would be precedent, he said. "If the analysis would get beyond that point, I would approach the question with an open mind,"

Which is true because if someone wants to overrule Roe or Griswold we should approach it with a open mind. Since open minded people believe life begins at conception, open minded people would overrule Roe and Griswold to protect the unborn from murder.

Posted by: Al on January 10, 2006 at 1:38 PM | PERMALINK

First, G/O is right... Alito is a liar. And as was noted several places yesterday, there's a reason that the Evil Liberal Ruth Bader Ginsburg was perfectly forthright about, even proud of, her past work & associations, while the Robertses & Alitos of this world hedge & sidestep their own pasts.

Second, precedent has much less weight for the SCOTUS, as was made evident by the Lawrence decision, and Alito knows that as well as we do (and better than most, unfortunately). He might think that it's a bit scary to completely overturn precedents, but AFAIK he would be in no way bound to follow them, because the law ultimately would be whatever he & four colleagues say it is.

Posted by: latts on January 10, 2006 at 1:40 PM | PERMALINK

Even the GOP Times (although they seem to think that lying about his lies is enough of an answer):

The Senate should also explore Judge Alito's honesty. According to a senator he met with, he tried to dismiss his statement about the Constitution's not protecting abortion as merely part of a job application, which suggests he will bend the truth when it suits his purposes. Judge Alito has said he does not recall being in an ultraconservative group called Concerned Alumni of Princeton, which opposed co-education and affirmative action. That is odd, since he boasted of his membership in that same 1985 job application. The tortuous history of his promise to Congress to recuse himself in cases involving the Vanguard companies, which he ultimately failed to do, should also be explored.

Posted by: Gore/Obama '08 on January 10, 2006 at 1:40 PM | PERMALINK

So the standard is that if a guy knows how to lie convincingly, and you know he's lying but you can't prove it, he deserves to be confirmed to the Supreme Court?

Posted by: Walter Crockett on January 10, 2006 at 1:42 PM | PERMALINK

He previous lied to the Senate about recusing himself.

He lied about Roe, either to the Senate or on his job application.

His membership in CAP.

He is a liar. That is enough to fight. We can't let people just lie to congress. Even Al can understand this.
Posted by: Gore/Obama '08 on January 10, 2006 at 1:34 PM | PERMALINK

If he made a commitment to under oath before Congress to recuse himself under specific circumstances. Later he either "forgot" (one of his excuses) or decided that the law didnt require him to recuse himself (and maybe the law didnt but his promise before Congress did). So now he says that he will hold closely with the idea of starie decisis and the right to privacy etc. How long until he "forgets" about these prinicples in favor of another ultra con ideas. How long until he decides that the law dosent apply if the Prez says otherwise? How can we trust his current statements with his trackrecord under oath before Congress?

Simply put why should we beleive him now?

Posted by: clyde on January 10, 2006 at 1:44 PM | PERMALINK

I despised the moment Specter yesterday brought up "a woman's right to choose." The issue is abortion -- say the word, dammit! "Choice" is as much a damn euphemism as the fundies' emphasis on "family," or the vague term "pro-life" (a real pro-lifer isn't only opposed to abortion, but the death penalty as well).

You want to make the pivotal issue privacy? Fine. But don't limit it to abortion; there are many other privacy-related topics that go before the court.

Posted by: Vincent on January 10, 2006 at 1:44 PM | PERMALINK

battle cry: this is who you want to replace the first woman on the supreme court???

Posted by: lawrence rocke on January 10, 2006 at 1:50 PM | PERMALINK

Specter keeps cutting off Alito's answers.

Specter ever-so-subtley ridiculed -- twice -- Alito's bon mot "Super-duper precedent."

Wild and crazy long-shot prediction: Specter votes against Alito

Posted by: ferd on January 10, 2006 at 1:51 PM | PERMALINK

So what's the battle cry?

Alito's gay?

Works for the other guys...

Posted by: G-man on January 10, 2006 at 1:55 PM | PERMALINK

The battle cry should be that Alito lied to Congress (or broke an explicit made to Congress) when he was first nominated for the federal bench and, therefore, his responses can't be trusted and he can't be trusted with a higher federal appointment.

Posted by: Advocate for God on January 10, 2006 at 1:56 PM | PERMALINK

Since open-minded people think Al should STFU, Al should STFU already. Geez.

Posted by: Hamilton Lovecraft on January 10, 2006 at 1:57 PM | PERMALINK

Strip searching children? NSA spying without a warrant? Throwing people in jail forever without review by a judge or access to a lawyer?

Alito is a dangerous radical.

Posted by: bleh on January 10, 2006 at 1:59 PM | PERMALINK

The Political Pussycat suggests we hold off on the "big fight" until he's sure it's a guaranteed win. Like, for example, if Alito admits taking blowjobs from the babysitter.

Hokay, we await your all-clear signal Mr. Pussycat.

Posted by: Libby Sosume on January 10, 2006 at 2:04 PM | PERMALINK

For more on Alitos key rulings, judicial history, Reagan-era documents, an interactive chart of his decisons, confirmation hearing transcripts and other essential materials, see:

"The Alito Files."

Posted by: AvengingAngel on January 10, 2006 at 2:08 PM | PERMALINK

If the closing weeks of 2005 are any indication, 2006 is rapidly shaping up as the year of the health care coverage crisis in the United States. Middle class Americans will join the 46 million uninsured in feeling the pain as companies trim benefits and shift costs to their employees under the guise of so-called consumer-driven health care. Judging from the results to date, the experience won't be a pleasant one.

For the full story, see:
"Unhealthy Trends for 2006."

Posted by: AvengingAngel on January 10, 2006 at 2:11 PM | PERMALINK

Who cares?

The Prez nominated his man, now let's deal move on. This is a stupid thing for us to waste our energy on.

Let's win back Congress first.

Posted by: polthereal on January 10, 2006 at 2:14 PM | PERMALINK

Exactly. The battle cry should be that Alito will say anything to get a job, and that he has repeatedly demonstrated this throughout his career.

Posted by: Joe Buck on January 10, 2006 at 2:20 PM | PERMALINK

Kevin - i usually agree with you, but I agree with Glenn Greenwald's response to your post here.

We have a President who is claiming the power to break the law. And Alito is one of the most likely judges to allow that. It's why he was chosen. It is a serious matter, and if presented clearly, Americans will get it.

Posted by: Craig on January 10, 2006 at 2:20 PM | PERMALINK

Al would put all women in camps, so they can't have sex. It is the only way to prevent RU-486 murder!

C'mon -- surely you are open-minded enough to agree!

Posted by: Gore/Obama '08 on January 10, 2006 at 2:21 PM | PERMALINK

To the polthereal and Yglesiases of the world:

What is the point of winning if you don't stand for anything?

How can you win if you don't stand for anything? Why would anyone vote for you?

Give the Republicans unlimited spying ability and Diebold, there is no chance of winning, anyway.

Posted by: Gore/Obama '08 on January 10, 2006 at 2:23 PM | PERMALINK

um, there's no fire and very little smoke with the Vanguard thing.

why? his recusal promise was TWELVE years before the Vanguard case came before him. I know that at least in my firm (which is at least 90% Democrat) people bought (or found plausible) his explanation that 12 years later "Vanguard" just didn't ring a bell with him.

in the actual practice of law, where there is a potential conflict of interest, it is normal for the attorneys involved in a matter to bring it to the attention of the Court (very rarely will one actually ask a Judge to recuse him/herself)....that didn't happen in the Vanguard matter.

Posted by: Nathan on January 10, 2006 at 2:25 PM | PERMALINK


Maybe the rallying cry should be, "let's stand for something other than obstructionism, let's not be so anti-American and obviously rooting for our defeat in Iraq, let's have a party leader who is not an idiot, and let's win an election every now and again. Then we can shape the direction of SCOTUS.
Until then, we look like fools, because we act like fools."

Posted by: Portugal on January 10, 2006 at 2:42 PM | PERMALINK

How about something like "Sure, in a confirmation hearing, he say's he'll do 'x', but when it really mattered, in a written opinion, he wrote 'y'."

Just ignore whatever he says in these hearings. It's all Kabuki and everyone knows it. What matters is how he has held as a judge, and there's plenty of fodder there.

Posted by: jacob on January 10, 2006 at 2:43 PM | PERMALINK

The battle cry should be the fact that it's an absolute travesty that Bush is replacing our First Female Justice with a goon who belonged to a group which opposed the presence of women & minorities at Princeton.

Posted by: J on January 10, 2006 at 2:48 PM | PERMALINK

Alito lied before. Time proved him to be a liar.

Alito is lying now. Time will once again prove this, unfortunately... after he's been made bulletproof... so to speak.

Republican operatives have no honor. Of course they scream and holler ever time that claim is made. But then all we have to do is wait and see to be proven right... while the nation swirls further and further down the drain (Perot's "giant sucking sound".)

Posted by: The Dad on January 10, 2006 at 2:52 PM | PERMALINK

as a Rian Mueller, a commenter on carpetbaggerreport so eloquently put it, how about the following be asked:

Mr Alito, Mrs Ginsburg said in her confirmation hearing, "[The right to an abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices." Yes or no: do you agree with those statements? And what, if any, reservations do you hold about them?

Every Dem Senator on the committee should ask this or some variation of this until he answers it unequivocably or until he cries. After all the GOP talking point is the "Ginsburg" rules, right?

Posted by: Edo on January 10, 2006 at 2:54 PM | PERMALINK

The right - most notably Bork - has long espoused a belief in "core value" rights that are not specifically expounded in the Constitution. These rights have long included the right's recognition of a right to privacy in the Fourth Amendment's limit on search and seizure. For example, the right believes this right extends to electronic surveilence ... something that did not exist at the time the Constitution was ratified.

This is the "right of privacy" Alito is referring to. Make no mistake, he is not referring to the the more commonly understood Right of Privacy that is discussed regarding Griswold, Roe, etc.

He is being intentionally misleading because he knows the Right of Privacy to which he is referring (one his Federalist Society buddies certainly understand) is vastly different than what most people think of when they hear the phrase "Right of Privacy." Yet, he will not acknowledge the distinction he is making though he certainly knows hew is creating a misunderstanding.

Posted by: Macswain on January 10, 2006 at 3:02 PM | PERMALINK

The Dems best battle cry would be that of the French:

"We surrender."

Posted by: Birkel on January 10, 2006 at 3:04 PM | PERMALINK

Kevin: Explain this. How does the right to an abortion implicate in any way anyone's privacy rights? Privacy means to keep secret. An abortion requires participation by several people besides the pregnant woman: a doctor, a nurse, maybe others. Privacy is clearly not the issue. What is at issue is personal autonomy. Now maybe you want to argue that there is an implied right to personal autonomy in the Constitution. I don't think so, but at least you would be using words in accordance with their plain English meanings.

Posted by: DBL on January 10, 2006 at 3:05 PM | PERMALINK

One other point: The radicals in the Democratic caucus can spin Alito all they want, but the plain fact is that their parade of horribles - and yours, too (arguing that Justice Alito would vote to allow the President to violate whatever laws he wants - sheesh, get real) - just isn't getting any traction because it's so obviously not true. My prediction: Alito is confirmed without a filibuster and with the votes of 10 Democratic Senators, including Dodd and Lieberman.

Posted by: DBL on January 10, 2006 at 3:10 PM | PERMALINK

Don't get too worked up, guys. He's as good as confirmed right now.

Posted by: Brian on January 10, 2006 at 3:11 PM | PERMALINK

DBL:

The right to privacy is a fundamental expression of personal autonomy. Autonomy underlies the entire concept of natural rights as understood by the Framers. You can't name one BoR item that isn't a vaulation of personal autonomy in one way or another.

That being said, I wish abortion was founded on something more substantive than the penumbral doctrine out of Griswold. Maybe something in the 14th Amendment.

Bob

Posted by: rmck1 on January 10, 2006 at 3:12 PM | PERMALINK

An abortion requires participation by several people besides the pregnant woman: a doctor, a nurse, maybe others. Privacy is clearly not the issue. What is at issue is personal autonomy.

The same could be said for birth control, though, since at the very least someone has to sell it to an individual, and if it's pharmaceutical, it has to be prescribed as well. Civil rights are usually prohibitions against the government's interference or obstruction, which is why the right-wing tactics against abortion & birth control-- the non-judicial, non-legislative ones, like the "conscience clause," that involve private actors instead-- are so contentious.

Posted by: latts on January 10, 2006 at 3:13 PM | PERMALINK

DBL:

Show me *any* limitations on presidental power during "a time of war" in the Yoo Doctrine.

Heh. You can't. Didn't think so.

Bob

Posted by: rmck1 on January 10, 2006 at 3:15 PM | PERMALINK

latts:

Exactly. Good point.

It's a privacy issue because it's an issue of government involvement with a private decision.

Bob

Posted by: rmck1 on January 10, 2006 at 3:17 PM | PERMALINK

I agree, the battle cry should be very simple, Alito is a liar. What's more, he's under oath, before Congress. That's called perjury. If he's going to sit there and flatly lie, that's enough. Make him and the rest of the thugs get on record as to just what sorts of policies they want. The fact that Alito and his ilk aren't willing to stand up and proudly say that they want to ban abortion and place a crown on GWB's empty little head should be all we need to know. We know what his views are - the Senate Dems isn't trying to learn about his views, they're trying to trick him into admitting them. Enough of that. Don't try to trick him, just challenge him straight up.

Posted by: libdevil on January 10, 2006 at 3:19 PM | PERMALINK

What's the battle cry

How about "The last time you were in front of the Senate Judiciary committee you lied about recusing yourself from any case involving Vanguard. Why should we believe you this time?"

Posted by: gogozilla on January 10, 2006 at 3:24 PM | PERMALINK

rmck1-Is the prohibition of LSD use a "government involvement with a private decision?"

Posted by: DBL on January 10, 2006 at 3:25 PM | PERMALINK

libdevil, gogozilla:

I'm curious as to what constituted this purported "lie"...

Posted by: Nathan on January 10, 2006 at 3:36 PM | PERMALINK

Zilla - How about "Have you stopped beating your wife and screwing your daughter?" Those would be on a par with the other questions from the honorable (sic) Senators.

Posted by: DBL on January 10, 2006 at 3:36 PM | PERMALINK

Nathan: I'm curious as to what constituted this purported "lie"...

No you aren't, or you would already be aware of it.

Alito's promise/testimony to Congress that he would recuse himself from future cases involving certain companies and then failing to do so has been amply documented.

DBL: How about "Have you stopped beating your wife and screwing your daughter?"

Predictably dishonest bullsh*t from DBL.

Posted by: Advocate for God on January 10, 2006 at 3:39 PM | PERMALINK

Birkel: The Dems best battle cry would be that of the French: "We surrender."

The battle cry of conservatives like Birkel: "We lie and defame in an attempt to hide our own corruption, mendacity, and incompetence.

Bush's battle cry: "I surrendered, but I'm gonna lie to my supporters about doing so."

(Works for Bush 41 also.)

Posted by: Advocate for God on January 10, 2006 at 3:41 PM | PERMALINK

rmck1-How about these limitations on the President's powers, which I am quite confident Justice Alito would vote to uphold, war nor not, in the absence of supporting legislation:

1) The President has no unilateral power to impose or increase taxes.

2) The President has no unilateral power to impose a draft.

3) The President has no unilateral power to expropriate private property.

4) The President has no unilateral power to require every person in the United States to submit a DNA sample and fingerprints for inclusion in a new database.

5) The President has no unilateral power to grant citizenship to foreigners.

I coud go on but the list is endless.

I trust this answers your question.

Posted by: DBL on January 10, 2006 at 3:45 PM | PERMALINK

DBL:

In my opinion, yes. I'm generally a Euro-style civil libertarian when it comes to recreational drug use, although I do make distinctions. I wouldn't legalize hard drugs, and I'd prefer to legalize natural hallucinogenics like mushrooms and catus before I'd legalize synthetics like LSD.

But to honestly answer your question -- Yes. It's none of the government's goddamn business unless I jump off a roof under the influence or something similar.

But this isn't comparable, of course, because the SCOTUS never ruled that taking LSD was a matter of personal privacy.

They did, however, on birth control and abortion.

Bob

Posted by: rmck1 on January 10, 2006 at 3:46 PM | PERMALINK

But it still doesn't give liberals much of a purchase to lead a battle against his nomination.

This is why Democrats are perceived as weak, and with good reason. We need a "purchase" to oppose Alito, apparently. If he says the right things in the nomination hearing, then well shit, our hands are tied.

That is not how Repubs operate. They don't need a reason to do what they do. They do what they want, when they want. They don't ask for permission first and wring their hands about how it would look.

Posted by: grytpype on January 10, 2006 at 3:47 PM | PERMALINK

Nathan: I know that at least in my firm (which is at least 90% Democrat) people bought (or found plausible) his explanation that 12 years later "Vanguard" just didn't ring a bell with him.

You are lying again.

Alito said he didn't recuse himself because the court's conflict of interest rules didn't prohibit his participation in his opinion, not a part of his original promise/testimony to Congress which included no caveat that he would recuse himself only if the court's rules required him to do so (a promise/testimony that would have not been necessary in that case), not because he "didn't remember."

You certainly further the common opinion that attorneys are generally liars and deceivers.

Posted by: Advocate for God on January 10, 2006 at 3:48 PM | PERMALINK

So what's the battle cry?
Should I respond, or should I keep quiet? Is it nobler to offend the delicate sensibilites of the moonbat, or to follow my mama's advice of "If you don't have anything nice to say..."

Oh, what the hell.

Democrats: We oppose everything!

Democrats: Sure we lost the elections, but we deserve to be in charge!

Posted by: conspiracy nut on January 10, 2006 at 3:48 PM | PERMALINK

AdvocateforGod:

let's see -- Alito makes the statement that he will recuse himself from a case involving Vanguard.

TWELVE YEARS LATER such a case ends up before him. He apparently doesn't recall his Vanguard statement 12 years later. More than plausible.

But even if he does recall it, the first statement is only a lie if he said it knowing that it was untrue. In other words, if changed his mind or forgot about it in the intervening TWELVE YEARS it wasn't a lie.

Is that all you've got?

Posted by: Nathan on January 10, 2006 at 3:49 PM | PERMALINK

conspiracy nut: Democrats: We oppose everything!

I guess this confirms that conservatives are lying when they say Democrats oppose nothing.

Which is pretty much par for the conservative defamatory hypocrisy and mendacity course.

Posted by: Advocate for God on January 10, 2006 at 3:50 PM | PERMALINK

DBL:

That's only because he hasn't *requested* do do those and (and ten thousand other) things, dingus.

Show me one aspect of the Yoo doctrine that prohibited something that Bush *wanted* to do in the Global War Against A Noun that Yoo ruled impermissible.

Once again, you cannot.

Bob

Posted by: rmck1 on January 10, 2006 at 3:51 PM | PERMALINK

AdvocateforGod: not so.

that's not what he said today.

read the liveblog at www.scotusblog.com

Posted by: Nathan on January 10, 2006 at 3:52 PM | PERMALINK

Nathan:

Ahhh .... the Karl Rove defense :)

Scooter Libby, too.

Bob

Posted by: rmck1 on January 10, 2006 at 3:54 PM | PERMALINK

Nathan: But even if he does recall it, the first statement is only a lie if he said it knowing that it was untrue. In other words, if changed his mind or forgot about it in the intervening TWELVE YEARS it wasn't a lie.

If it isn't a lie, then it is a broken promise which makes his promises to Dems to follow precedent and uphold the Constitution meaningless.

And he didn't forget about it. He proffered the excuse that he determined at the time of the case that it wasn't a conflict of interest as he interpreted those rules, which negates a position that he had forgotten about it at the time of the case.

And if he claims he changed his mind, then, again, he can't be trusted to maintain a position for which the relevant facts and rules have not changed - in other words, he is quite willing to promise anything and then quite willing to conveniently "change his mind" when his promises become inconvenient.

His promise/testimony to Congress the first time was not predicated on whether it would actually be a conflict of interest.

He stated emphatically that he would recuse himself, with no exceptions or limitations or conditions attached.

Posted by: Advocate for God on January 10, 2006 at 3:56 PM | PERMALINK

Nathan: that's not what he said today.

Then, he is lying today, since he has previously and quite publically stated differently.

So, he's now lied twice.

Once about recusing himself and now about why he recused himself (or he lied previously about why he recused himself).

In any event, that makes two public lies.

Posted by: Advocate for God on January 10, 2006 at 3:58 PM | PERMALINK

rmck1-I'm not entirely clear on what you are asking.

If you are asking whether Justice Alito would, like most Supreme Court Justices, defer to the Commander-in-Chief's powers to wage war during a war, well, that's probably true. Does that include the power to engage in foreign intelligence gathering without a search warrant? Or to capture on the field of battle and hold for the duration of hostilities enemy soldiers? Of course.

If you are asking whether Justice Alito would support a broad expansion of Presidential authority to areas not usually viewed as inherently part of the Commander-in-Chief or war-fighting function, no, I don't think so. Now I suppose you could argue that the ability to impose a draft is necessary in some sense to wage war, but it's beyond my imagination that Justice Alito or any of the other Justices would agree that any president has the power to do so without legislation.


Hope this helps clarify things for you.

Posted by: DBL on January 10, 2006 at 4:02 PM | PERMALINK

Nathan, 12 years after his original promise, Alito still had his holdings in Vanguard Mutual funds which were worth $390,000 by that time. The suggestion that in condsidering whether those holdings presented a conflict of interest, he completely forgot about a promise, made to Congress during his first judicial nomination hearing deserves some skepticism.

The fact that he and his supporters have advanced at least 3 other explanations for why he didn't recuse himself further hurts his credibility on this issue.

His claims that he doesn't remember, even when reminded, ever being a member of a racist student/alumni group or that his strong statements of opposition to abortion on his applications to work for the Reagan justice department were just a matter of telling a prospective employer what they wanted to hear certainly don't add to his credibility.

Posted by: tanj on January 10, 2006 at 4:05 PM | PERMALINK

Kevin, you are underestimating the ability of skilled questioners to extract damaging statements from nominees. Bork eventually killed himself through his own testimony. As the questions and answers accumulate, Alito's vulnerabilites and the basis for a Democratic attack will appear.

Posted by: Dan Kervick on January 10, 2006 at 4:12 PM | PERMALINK

Summary of Nathan:

Don't bother me with the facts. Bush nominated him and it is Congress' duty to rubberstamp that nomination, regardless of Alito's judicial ethics, political independence, or questionable regard for precedent and our constitutional foundations.

Posted by: Advocate for God on January 10, 2006 at 4:13 PM | PERMALINK

the 12 years is a factor not present with Rove or Libby. he's heard over 4,000 cases on the merits.

you can't make a credible argument that his initial statement was a lie...for it to have been a lie that would require him knowing that it was untrue when he said it.

if you really think there's political hay to be made out of someone changing their mind over a 12 year period, you're crazy.

as for differing explanations as to what happened 12 years later...arguments in the alternative are common in the legal realm. "the name 'Vanguard' didn't register with me, and even if it had I still would not have been required to recuse myself" is pretty standard form of argumentation.

Posted by: Nathan on January 10, 2006 at 4:13 PM | PERMALINK

AdvocateforGod:

I have made no other statements concerning Alito's fitness for the SC. I've only noted that the Vanguard issue is a red herring and that people are being either deliberately or ignorantly remiss in not mentioning that little 12 year factor.

Posted by: Nathan on January 10, 2006 at 4:15 PM | PERMALINK

tanj:

if the attorneys in the Vanguard case had mentioned that there was a possible conflict of interest (a simple fyi letter to the Court is how this is done), I would agree that it would be somewhat incredible for him not to have then remembered his statement to Congress. (albeit he could still change his mind.) but they didn't.

Posted by: Nathan on January 10, 2006 at 4:17 PM | PERMALINK

DBL:

It doesn't. You completely ducked the question. And your own opinions are entirely irrelevant here.

I asked you -- was there a single request that Bush made which expanded his executive power under color of Article II in time of "war" that Yoo ruled impermissible?

I haven't heard of one. Have you?

Bob

Posted by: rmck1 on January 10, 2006 at 4:17 PM | PERMALINK

So Nathan, you are saying that a case came before him involving the company that manages almost $400,000 dollars of his investments and he didn't even consider whether there was a conflict of interest? Or that you would be OK if he needed to have someone bring up the issue of conflict of interest before he considered it on his own?

That is certainly what is implied by your insistence that nobody raised the conflict of interest question during court filings or that the name Vanguard just, "didn't ring a bell" with him.

Posted by: tanj on January 10, 2006 at 4:23 PM | PERMALINK

Nathan

You can parse your language all you want but Alito testified under oath that he'd recuse himself and he didn't. Call it a lie, a broken promise, whatever. He said he'd recuse himself and then he didn't. You can rationalize it however you want, but the reality is that he's already demonstrated that he doesn't feel he has to live up to what he says under oath in front of the Senate Judiciary Committee, so why should they believe what he says now?

Posted by: gogozilla on January 10, 2006 at 4:23 PM | PERMALINK

"So Nathan, you are saying that a case came before him involving the company that manages almost $400,000 dollars of his investments and he didn't even consider whether there was a conflict of interest? Or that you would be OK if he needed to have someone bring up the issue of conflict of interest before he considered it on his own?"

actually yeah. go to the ABA website and check out the rules of professional responsibility and then the section pertaining to judges.

non-lawyers are often flabbergasted when they discover that judges have investments, know lawyers socially (especially if its their opponents' lawyers), golf with attorneys, etc.

judges are supposed to be impartial, even with matters involving former clients, tangential financial interests (the Vanguard case had no relationship to the value of his Vanguard holdings). indeed, when such a situation arises, it's usually the attorney representing the judge's former client, etc., who is most annoyed. why? because the assumption is that the judge will lean over backwards too far to the other side.

Posted by: Nathan on January 10, 2006 at 4:35 PM | PERMALINK

gogozilla: what part of TWELVE YEARS do you not understand?

Posted by: Nathan on January 10, 2006 at 4:36 PM | PERMALINK

Nathan: . . . as for differing explanations as to what happened 12 years later...arguments in the alternative are common in the legal realm.

He's not making alternative legal arguments for a client.

He's stating alternative facts that purport to be based on personal experience.

It is also a common legal tactic to dissemble in order to divert attention from an unfavorable fact against one.

You are practicing that well here.

Posted by: Advocate for God on January 10, 2006 at 4:39 PM | PERMALINK

"It is also a common legal tactic to dissemble"

not its not. a good way to get sanctioned.

Posted by: Nathan on January 10, 2006 at 4:57 PM | PERMALINK

Nathan: not its not. a good way to get sanctioned.

That suggests that you don't actually practice in a courtroom much.

And what part of "I will recuse myself from any case involving X" without qualification don't you understand?

Posted by: Advocate for God on January 10, 2006 at 5:03 PM | PERMALINK

Nathan -- I take it 12 years is the statute of limitations for Judiciary Committee testimony.

Posted by: gogozilla on January 10, 2006 at 5:09 PM | PERMALINK

I think Alito is being honest but disengenuous when he says that he would approach the issue with "an open mind." I may approach the computation 2+2 with an open mind every time I re-calculate it, but that doesn't mean that the answer will change.

Posted by: Mike B. on January 10, 2006 at 5:23 PM | PERMALINK

Any Republicans who voted against Ginsburg because she was a liberal, or supported the ACLU, or supported Roe, were completely wrong to do so. The issue was and is qualifications and competence, not politics. And on that, Ginsburg was a no-brainer. Every Senator should have voted to confirm her.

The same is true of Alito. There is no question but that he is a well-qualified jurist. The Democrats are turning off more and more middle-of-the-road Americans by dredging up things like Alito's failure to recuse himself in the Vanguard case 12 years after he said he would do so during his "initial service" on the appellate court, especially because you can't find any expert in legal ethics who will say it was a conflict of interest for him to participate in the case. Until the Democrats figure out how to nominate a presidential candidate who connects with the country, rather than someone like Kerry (an elitist hypocrite who cravenly ran away from his strong and defensible positions opposing the war in Vietnam), they will be stuck fuming about the fact that Republicans don't nominate moderates or liberals for the Court. The solution here is persuading the nation to elect a Democrat as President, not in obstructing highly qualified jurists from sitting on the Court.

Posted by: jabster on January 10, 2006 at 6:29 PM | PERMALINK

Against Alito, I think the line must be that he is a lying liar who will say anything to get what he wants. I think it can be demonstrated that he lies regularly when he wants a job (he said so himself).

This also focuses attention on the issue of dishonesty. This is a good place to focus attention given the revelations about Republican corruption. Any attempt to explain away Alito's lies about, say, concerned alumni of Princeton will force people to learn about the issue. That should get people in the streets with pitchforks.

I suggest a Democrat Senator (say Kennedy) start reminding Alito that he is under oath whenever he lies.

Posted by: Robert Waldmann on January 10, 2006 at 7:10 PM | PERMALINK

Waldmann,

If you're going to use someone to represent truth and morally may I suggest someone other than Maryjo's old boyfreind.

Posted by: rdw on January 10, 2006 at 7:52 PM | PERMALINK

Dan,

That's wishful thinking, not analysis. You assume the Democrats are more organized than the are. It's not possible to form a team with egos that huge. Further, many of these people expect to run for President against one another.

You've got 3rd rate lawyers in love with the camera and themselves versus a 1st rate lawyer in love with the law. This is a mis-match. Alito has proven himself to be as smart as Roberts. This is another men versus boys competition. You will not be able to filibuster nor stio him. He needed Soector and he has him.

Posted by: rdw on January 10, 2006 at 8:01 PM | PERMALINK

It's a privacy issue because it's an issue of government involvement with a private decision.


This is merely a play on words. "Privacy" does imply secrecy, as one commenter stated. But it's ridiculous to claim that any "private decision" is a secret. My decision to attend the Acme University is a "private decision," but that doesn't mean that the decision is secret (i.e., a matter that I'm keeping "private").

Anyway, good point. Pro-aborts should be talking about whether one can conjure up a "right to autonomy" in the Constitution, not a "right to privacy." "Privacy" just isn't the right word.

Posted by: Niels Jackson on January 10, 2006 at 8:41 PM | PERMALINK

my first visit here,and I'm loving it. I've never seen such a group of frothy-mouthed people. No need to hurl abuse at me - just ask yourself:
If all these people are so self-evidently mendacious, corrupt, wicked and greedy then how come they keep winning election after election?
About half of you need to tone down your rhetoric - the average moderate switches off half-way through your rant.
And our democracy will be stronger if you do.

Posted by: gazzer on January 10, 2006 at 8:45 PM | PERMALINK

You don't need a battle cry. You just stick together and vote against the guy. It's easy. Then you filibuster him. And you stick together. It doesn't matter what he says. It is about his record. Why he was nominated. You just stop him. Period. It's just a two fisted battle and you fight the fight. Maybe you win maybe you lose but you fight the fight. Hard. To win. You don't have to bring the public along because I don't think the public is going to care one way or the other. Do you think they are going to are about Meirs two years from now?

Posted by: SW on January 10, 2006 at 9:32 PM | PERMALINK

whether we live in a country where the President has the right to declare himself to be above the law and can freely violate whatever laws he wants; and, (2) whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court....


well, first of all the SCOTUS isn't "decimating" any rights. If this is the belief and language of the Democrats or liberals then they are lost already. second, the bedrock of individual liberty are (sic) the enumerated rights, not the implicit rights hinted at in the ninth ammendment, or inferred from the emanations from the penumbra of the 14th ammendment. these are under attack from liberals (e.g. laws restricting "political speech", "hate speech", and "commercial speech") third, the right to bill for a medical service isn't a protected right, it's licensed by the states; lastly, the president didn't declare himself above the law, he declared himself in compliance with relevant laws and court decisions. That was what he "declared" -- if he was wrong, it hasn't yet been proved or decided either in a court of law or in the Congress.

Perseverence in support of your goals is what you Democrats need; these histrionics simply confirm the Coulteresque charicatures (" the only contribution of liberals to the war against terror has been to whine.") Pick a few really important goals and themes (health care might be made to work, if you think it through) and hammer them relentlessly for the next 3 years.

Alito will be confirmed because he is competent and in the mainstream -- slightly to the right of center on a few issues.

Posted by: contentious on January 10, 2006 at 9:33 PM | PERMALINK

Listen to Gazzer, you'se guys!

As a moderate, I'm becoming increasingly put-off by the vitriol on this site. I've never posted before. I doubt I'll visit much again. Perhaps I will just stick to Volokh, where most of us take our meds.

Alito is neither a radical nor a liar. If he were, then the ABA is made up of mendacious morons, and so whatthehell does it matter who sits on the Supremes anyway?

This is debate, for Pierre's sake, not war. I know good people with impressive, shiny law degrees who think that Roberts and Alito are the best thing to happen to the Court since Harlan II. And these people are not wicked. They don't want to take away your freedoms. They don't want to abuse disabled Eskimo welfare recipients. They just think differently than you do.

Posted by: Hoosier on January 10, 2006 at 10:08 PM | PERMALINK

When do the Democrats stand up and fight - Never according to centrist Dem. Centrist Dems is very meaning of spineless. No fighting is cost Dems votes and people faith in ANY kind of government. Republicans are radicals and centrist Dems are worse, they are nothing.

Alito is appointed for life - and the man's a confirmed liar, end of story - When do the Dems stand up. Voters might vote for new faces but Dems are even worth going to polls for.

You could always trust Kevin Drum to tell Dems not to fight this or that - not because it's the right thing to do but rather because is politically safe for this or that congress member - so what if harms the public. That not a winning ticket - its a losing ticket that will continue to lose.

Posted by: Cheryl on January 10, 2006 at 10:15 PM | PERMALINK

It doesn't pay to be militant in this situation. Alito comes across as intelligent, respectful, reasonable. We may strongly disagree with him on many things, but we look bad if we attack without regard for his manifest decency.

So, rather than a 'battle cry,' I recommend a rueful refrain:

"Don't it always seem to go
That you don't know what you've got til its gone"

Posted by: obscure on January 10, 2006 at 10:21 PM | PERMALINK

Following the constitution means following the C as he interprets it, not as mere mortals have interpreted it for more than two centuries: the president isn't breaking the law when he follows (Alito's) constitution, especially when he issues a signing statement in which he announces he's going to ignore the law.

Posted by: Brian Boru on January 11, 2006 at 12:52 AM | PERMALINK

I wont call his nonsense lying, but he made a commitment under oath and failed to live up to it. Why should we belive that he will live up to whatever commitments he makes now?

Posted by: clyde on January 11, 2006 at 1:03 AM | PERMALINK

clyde, cheryl

Even the liberal ABA agreed Alito lived up to all of his commmitments and is highly ethical. They gave him their highest rating and a glowing written recommendation.

Listening to some of the liberal pundits discuss the days hearings it is encouraging. They're not happy. There's no chance for a filibuster and thus no chance to stop Sam.

Posted by: rdw on January 11, 2006 at 7:46 AM | PERMALINK

Yeah--What the Chinese guy said.

Posted by: Hoosier on January 11, 2006 at 10:11 AM | PERMALINK

Hoosier, gazzer!

You guys are enough to make me want to behave, and stop stirring the pot around here. I don't think you'll get to square one, but I appreciate the effort.

Posted by: conspiracy nut on January 11, 2006 at 11:54 AM | PERMALINK

The French option still exists for those brave enough to choose it.

Posted by: Birkel on January 11, 2006 at 4:19 PM | PERMALINK

If Alito will not explain his basic legal philosophy and views about the Constitution, Senators are justified in judging his nomination based on his past record as a judge. And that record indicates a reflexive vote in favor of government power. Senators have a duty to uphold the Constitution, and preventing the installation of an "empty robe" just as the president is asserting maximum power is absolutely necessary.

Posted by: Justin Faulkner on January 11, 2006 at 8:46 PM | PERMALINK

whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court....
well, first of all the SCOTUS isn't "decimating" any rights. If thisCrown poker is the belief and language of the Democrats or liberals then they are lost already.

Posted by: timi on January 12, 2006 at 4:08 AM | PERMALINK

1. We are Democrats. We are better than the enemy. Smarter. More reasonable. More compassionate. More honest. We have Higher Standards.
2. However, we are losing. (How could that happen? We are so good and they are so bad; Bush is like Hitler and Jimmy Cawter is a Saint.) Everyone knows that we deserve to win! Gosh, it's just so unfair!
3. Anyway, we are very angry about this, so we have decided to allow ourselves to suspend our Higher Standards for a little while. After all, winning is everything: we cannot exercise our Higher Standards unless we win something. So we'll just demonstrate how cranky and nasty and unreasonable and dishonest were willing to be in order to exercise our Higher Standards. There! That'll show 'em!
4. Oh, and don't forget to vote for us next time. Don't forget, have Higher Standards...

Posted by: Dario Siteros on January 12, 2006 at 9:27 AM | PERMALINK

Above all there are the rules that should be obeied. it is pretty annoying that people who has lots of money think they are above low .

Posted by: George Fulp on January 12, 2006 at 11:36 AM | PERMALINK




 

 

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