The Washington Monthly

January 13, 2006

JUDGING ALITO....I've only paid a modest bit of attention to the Alito hearings, but from what I've seen I'd say that Michael O'Hare has it about right:

....He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice. Not a case came up for discussion in which he registered that one or another outcome was just wrong, outrageous to a sense of decency, or to him.

He's on record in a memo as believing that to shoot an eighth grader, known not to be armed, who was trying to climb over a fence in escape, is a proper use of deadly force by a policeman. In a discussion of immigration cases that have been regularly occasioning inexcusable, vile, un-American heartbreak on people who missed obscure deadlines or violated arcane requirements, all he could say was that the courts get bad transcripts and it was hard to find translators for some of the plaintiffs, but that was a problem for Congress.

It wasn't exactly Pilate washing his hands, but the man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office. Sometimes the Court has to do this, but to Alito it's an especially good day's work, not a disappointment.

A smart, decent, small man....

—Kevin Drum 1:17 AM Permalink | Trackbacks | Comments (268)

Comments

In what sense is the person described in that article at all decent?

Are we using some obscure meaning that I am unaware of?

Posted by: Patrick on January 13, 2006 at 1:30 AM | PERMALINK

"decent" as in "my standards for republican nominees is so low that any humanity short of active cannibalism of babies is pretty good."

Posted by: Nads on January 13, 2006 at 1:34 AM | PERMALINK

You don't get it at all, Kevin. For a lot of people, the entire point is to put someone on that bench who doesn't fancy himself to be a Hero of the People, creating the law instead of interpreting it. Someone who isn't an "activist" judge.

Someone who wants to stand on a soapbox and express his outrage should be running for office, or starting an advocacy group, not being appointed to the Supreme Court.

BTW, the Democrats are really shining in those hearings. Keep it up.

Posted by: tbrosz on January 13, 2006 at 1:36 AM | PERMALINK

Hannah Arendt's phrase "the banality of evil" comes to mind. Repressive regimes could not exist without these sort of bland, bespactled bureacrats who are good at making the trains run on time -- but whether the trains are running to Auschwitz or to Frankfurt isn't, they feel, their concern.

Posted by: Stefan on January 13, 2006 at 1:45 AM | PERMALINK

Good one Stefan. Probably a new record for invoking Godwin's Law.

Posted by: tbrosz on January 13, 2006 at 1:48 AM | PERMALINK

He's a fucking fanatic, without the googly eyes and Bork attitude.

Are the Democrats going to sack the hell up and filibuster him?

Posted by: Rad Racer on January 13, 2006 at 1:48 AM | PERMALINK

He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice.

It's not just Stripsearch Sam; you see it in a lot of Republicans these days, this sense that they are missing some vital part of themselves, some component of character or personality that is somehow not part of them. Did they never have it or did they lost it at some point? Does the lack of this sense of empathy, compassion, fair play, concern for others, justice, etc. cause their slavish worship of power, or does the worship burn those qualities out of them?

But look, sometime, at men like Frist, or Rove, or DeLay, or Bush, or Feith, look into their eyes and you'll see beneath everything else a void, a vast yawning emptiness where their humanity should be. This absence, this lack of any core, is even more frightening than active evil. Evil, after all, at least implies some passion, some feeling. This is merely nullity, almost a sociopathic lack of connection with their fellow man.

Posted by: Stefan on January 13, 2006 at 1:51 AM | PERMALINK

He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice.

Actually he has a superb sense of justice. He knows the most important goal of America is to kill the terrorists. That's why we need a unitary executive under the leadership of George W Bush who isn't restrained by the will of Congress from doing what is necessary to make this country safe from the murderous terrorists. And that's what Alito will fight for on the Supreme Court.

Posted by: Al on January 13, 2006 at 1:53 AM | PERMALINK

Try tradesports. They give you like 7 to 1 odds on his getting in at the moment. Why not mortgage your house, bet half of it on him being stopped, then spend the other half on effective liberal organizations like Moveon to stop him?

You'll rake it in and have plenty left to contribute to the next election.

Posted by: McAristotle on January 13, 2006 at 1:55 AM | PERMALINK

Someone who wants to stand on a soapbox and express his outrage should be running for office, or starting an advocacy group, not being appointed to the Supreme Court.

Correct tbrosz. Liberals like Stevens, Ginsburg, Breyer, and Souter are nothing more than liberal Democrats who can't understand the difference between a judge and a politician. That's why they're judicial activists. The conservative judges like Thomas and Scalia do understand the difference.

Posted by: Al on January 13, 2006 at 1:57 AM | PERMALINK

For a lot of people, the entire point is to put someone on that bench who doesn't fancy himself to be a Hero of the People

Tom, does that really register with He's on record in a memo as believing that to shoot an eighth grader, known not to be armed, who was trying to climb over a fence in escape, is a proper use of deadly force by a policeman. ? Or strip-searching a young girl? Do you really consider say, William O. Douglas, someone who considered himself a "Hero of the People"? If so, there is a greater gulf between us than I had perceived.

Posted by: LW Phil on January 13, 2006 at 1:59 AM | PERMALINK

If someone wants to change the rules to make the world a better place he should run for office.

The purpose of the judicial branch of government is to apply the rules written in the constitution, the laws, and government regulations (in that order of precedence), not to create new rules to avoid injustice, etc.

If the American people want it to be unconstitutional to "shoot an eighth grader, known not to be armed, who was trying to climb over a fence in escape" then there is a process for them to follow to amend the Constitution. It is certainly not a judge's place to make that decision for them.

Posted by: Michael Friedman on January 13, 2006 at 2:02 AM | PERMALINK

Sign the petition to stop the confirmation of Alito, and more.

http://www.usalone.com/cgi-bin/petition.cgi?pnum=142

Posted by: maximus on January 13, 2006 at 2:07 AM | PERMALINK

If someone wants to change the rules to make the world a better place he should run for office.

Michael Friedman, you have just given a good definition of a conservative judge. A conservative judge is someone who applies the law and doesn't make the law. He is like a umpire who simply applies existing rules and doesn't make new ones. Doing anything else would be legislating from the bench which a judge is not supposed to do.

Posted by: Al on January 13, 2006 at 2:07 AM | PERMALINK

You're not really that dumb, Michael Friedman, MIT alum, are you?

Posted by: ogmb on January 13, 2006 at 2:10 AM | PERMALINK

I need Senator Coburn's truth-detecting skills to determine if Alito can be trusted. He always shines at these hearings, lol.

btw--you don't have to "create" law to know that shooting a fleeing child or strip-searching a girl is unconstitutional. Are the conservative judges who ruled that way "activists", or only the ones appointed by Democrats?
of course, if you're just one of George W. Bush's moronic sheep, you throw a few buzz words around and actually believe that you know something about the law.

Posted by: haha on January 13, 2006 at 2:16 AM | PERMALINK

the Constitution is already clear on that--at least it's clear for the vast majority of people, not including yourself.

Posted by: haha on January 13, 2006 at 2:18 AM | PERMALINK

It is certainly not a judge's place to make that decision for them.

Whew, that's not the talking point I would have chosen in your place. Although fakeAl is cheering you on. Shooting teenagers is really going to help you raise that 38% approval rating isn't it? Brilliant, keep it up. I'm almost convinced. Now, if we can just strip-search a few teenagers, and torture some Muslims...yes...I'm converted!!! GWB is god!!! The Democrats will never win elections again. Global warming is good for property values. Trade deficits and outsourcing promote free enterprise. Jack Abramhoff is a democrat.

Posted by: LW Phil on January 13, 2006 at 2:22 AM | PERMALINK

Look, since the Judges just need to do what's right and not refer to the law...Would it be OK for them to extend Bush's term?

Posted by: McA on January 13, 2006 at 2:23 AM | PERMALINK

Look, since the Judges just need to do what's right and not refer to the law...Would it be OK for them to extend Bush's term?

Oooh, now that's my boy. I'm going for a walk.

Posted by: aristotle on January 13, 2006 at 2:25 AM | PERMALINK

"the most important goal of America is to kill the terrorists"

Wow, talk about inspiring! Just what Jefferson had in mind, for sure.

Posted by: Kenji on January 13, 2006 at 2:34 AM | PERMALINK

Good one Stefan. Probably a new record for invoking Godwin's Law.

More to the point is this administration and Congress setting a record for people feeling it necessary to invoke it.

Does the lack of this sense of empathy, compassion, fair play, concern for others, justice, etc. cause their slavish worship of power, or does the worship burn those qualities out of them?

Excellent post, powerful stuff.

Posted by: trex on January 13, 2006 at 2:38 AM | PERMALINK

A smart, decent, small man.

I think that that is the very pinnacle of human virtue of which today's conservative is capable.

Alito is as good as it gets with them, and that is a more telling truth about who and what they are than perhaps any other.

Posted by: frankly0 on January 13, 2006 at 2:42 AM | PERMALINK

When you read the transcripts of Eichman's defences of his decisions, you have the same sense of his blamelessness in the business. He didn't originate the problem, he just enforced the orders and passed the details along for correction to another department if someone felt it wasn't right. As John Denver would sing if he were alive: "Thank God I'm in Another Country Boy"

Posted by: murmeister on January 13, 2006 at 2:51 AM | PERMALINK

"He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice."
--

You have defined a... Republican.

Posted by: Jay in Oregon on January 13, 2006 at 2:56 AM | PERMALINK

With five ultraconservatives on the Court, the public will finally find out what the words conservative and liberal mean. Then maybe they'll start to throw the Republicans out.

Posted by: yankinpak on January 13, 2006 at 2:58 AM | PERMALINK

I listened to much of his testimony. I came away thinking that this was a regular mind with an okay grasp of constitutional law. I keep reading about how smart he is. I didn't hear it -- not because he was taking complex notions and explaining them in a simple, understandable way so that everyman could understand, but because he didn't seem to have a complex, nuanced understanding of the subject matter.
For a 15-30 year practioner, not very impressive.

Posted by: spasm on January 13, 2006 at 3:00 AM | PERMALINK

Haha says:

If the American people want it to be unconstitutional to "shoot an eighth grader, known not to be armed, who was trying to climb over a fence in escape" then there is a process for them to follow to amend the Constitution.

the Constitution is already clear on that--at least it's clear for the vast majority of people, not including yourself.

Please point me to the relevant clause.

The way you refer to the Constitution reminds me of the way some people refer to religious faith - "God told me".

In actual fact, it's just a document. It says a bunch of things about what the government can and can't do and how it needs to go about doing those things. That's it.

There's nothing in the Constitution preventing the government from making rape and murder legal, using confiscatory taxation to take over the economy, or from shooting people (including 8th graders) who are running from the police.

It's up to the legislature to handle those issues.

(BTW, did you know that there is no federal law against murder except in limited cases such as on federal land or of federal employees while carrying out their duties? Same issue... federal law does not try to cover everything... some things are left to the states.)

Posted by: Michael Friedman on January 13, 2006 at 3:00 AM | PERMALINK

I have a better idea. Why don't I mortgage my house and bet half that you can't stand in the public square in Kuala Lumpur and criticize the prophet Mohammed without getting caned or worse, then bet the other half that you can't write editorials criticizing your country's government without getting held indefinitely without trial?

Wonder what odds tradesports will give me on that one given the fact that Malaysia ranks 122nd out of 167 countries for freedom of the press and that the government disappears people whenever they see fit?

Those of us who don't support Alito for the Supreme Court may not be able to prevent his appointment to that seat, but at least we live in a country where we're free to debate it.

Why don't you clean up your own house instead of spending so much time here throwing spitballs? You're big on the whole glib remark that if we libs don't get more serious on terrorism we'll end up in a country where we have to pray five times a day -- but the last time I checked Malaysia was the country where Shariah law was enshrined in the constitution.

How can you even say that with a straight face?

I don't think you personally are ready for democracy, you're still too willing to cede your rights to the authoritarian father figure at a moment's notice. No man is worthy of the kind of adoration that you give to Bush on a daily basis.

We are all created equal.

Posted by: trex on January 13, 2006 at 3:07 AM | PERMALINK

Have to repost there. Stefan's pushing for a Pulitzer.

> Hannah Arendt's phrase "the banality of evil" comes to
> mind. Repressive regimes could not exist without these
> sort of bland, bespactled bureacrats who are good at making
> the trains run on time -- but whether the trains are running
> to Auschwitz or to Frankfurt isn't, they feel, their concern.

Amen.

> Good one Stefan. Probably a new record for invoking Godwin's Law.

And rendering it moot.

> "He doesn't have a screw loose; what he has is a
> piece missing, conspicuously, radiantly, displaying
> the absence of any sense of, well, justice."

> It's not just Stripsearch Sam; you see it in a lot of
> Republicans these days, this sense that they are missing
> some vital part of themselves, some component of character
> or personality that is somehow not part of them. Did they
> never have it or did they lost it at some point? Does the
> lack of this sense of empathy, compassion, fair play, concern
> for others, justice, etc. cause their slavish worship of
> power, or does the worship burn those qualities out of them?

> But look, sometime, at men like Frist, or Rove, or DeLay,
> or Bush, or Feith, look into their eyes and you'll see beneath
> everything else a void, a vast yawning emptiness where their
> humanity should be. This absence, this lack of any core, is
> even more frightening than active evil. Evil, after all, at least
> implies some passion, some feeling. This is merely nullity,
> almost a sociopathic lack of connection with their fellow man.

Evil, unlike a vaccuum, is also something you can actively fight.

Samuel Alito's not an activist judge -- he's just following orders.

> If the American people want it to be unconstitutional to
> "shoot an eighth grader, known not to be armed, who was trying
> to climb over a fence in escape" then there is a process for
> them to follow to amend the Constitution. It is certainly
> not a judge's place to make that decision for them.

> Posted by: Michael Friedman

How about just finding it wrong?

Are we really becoming a nation of good Germans?

I tremble for my country.

Bob

Posted by: rmck1 on January 13, 2006 at 3:16 AM | PERMALINK

Posted by: Dan B. on January 13, 2006 at 3:45 AM | PERMALINK

but at least we live in a country where we're free to debate it.

Posted by: trex on January 13, 2006 at 3:07 AM | PERMALINK

So why are you against the Iraqi's having that freedom?

On Malaysia: This is about where its gotten to.
Read http://www.malaysia-today.net/index.html

And I would doubt this is a fair test in democracy, "criticize the prophet Mohammed without getting caned or worse". This would be hate speech in France and England.

Oh, we're allowed to pray in our schools.

Posted by: McA on January 13, 2006 at 3:53 AM | PERMALINK

Oh, we're allowed to pray in our schools.

Posted by: McA on January 13, 2006 at 3:53 AM | PERMALINK

Can you?

Religous freedom is a human right according to the Universal Declaration of Human Rights, y'know.

Posted by: McA on January 13, 2006 at 4:10 AM | PERMALINK

I live in a country where judges are supposed to interpret the law to get the "right" results, not just the result dictated by the cold hard reality of the law.

Of course, in China, the "right" result is the one that is convenient to the Communist Party.

The government here is very well aware of the importance of having judges who get the "right" results. In fact, they make a point of distinguishing between "rule by law", which they like, and "rule of law", which is how bad countries like the US think they should run things.

As soon as you start talking about vague concepts like "right" as opposed to the cold hard letter of the law you suddenly are at the mercy of the judge's concept of what is "right". For example, in election disputes, should the judges focus on who they think the "right" candidate is or on the exact wording of the statutes?

Having seen rule by law I'll take rule of law thank you.

Posted by: Michael Friedman on January 13, 2006 at 4:28 AM | PERMALINK

McAristotle:

> "but at least we live in a country where we're free to debate it."

> So why are you against the Iraqi's having that freedom?

Nobody's against anybody having freedom. You want freedom? Do
what we did -- take it! Seize the day! No country can "give"
another country freedom. Freedom only comes from within.

If Iraq evolves some leaders who can get their shit together,
who are widely recognized as legitimate by all parties, they'll
be worthy of support. It would actually be rather soul-stirring
to root for Iraqi freedom, rather than this US-imposed charade.

> And I would doubt this is a fair test in democracy,
> "criticize the prophet Mohammed without getting caned or
> worse". This would be hate speech in France and England.

You really are a fucking dope, McA. That comment is so utterly
ignorant of France and England I just don't know what to say.

> Oh, we're allowed to pray in our schools.

Allowed ... or compelled?

> Can you?

Depends on what sort of school.

> Religous freedom is a human right according to
> the Universal Declaration of Human Rights, y'know.

So is freedom from religious coercison.

Bob

Posted by: rmck1 on January 13, 2006 at 4:39 AM | PERMALINK

Michael Friedman:

Of course, the more a judge is a legal automaton, the easier it is to make law which -- no matter how it looks as black letter -- is inhumane and unjust.

Adolph Eichmann was a model bureaucrat, admirably following the letter of his superiors' assignments.

He was only following orders -- but he was a moral monster the same.

Bob

Posted by: rmck1 on January 13, 2006 at 4:45 AM | PERMALINK

tbrosz: "You don't get it at all, Kevin. For a lot of people, the entire point is to put someone on that bench who doesn't fancy himself to be a Hero of the People, creating the law instead of interpreting it. Someone who isn't an "activist" judge."

It is you who does not get it at all, Tom. Alito is ironically an "activist judge." Always reaching verdicts supporting the "authorities" over the people.

The strip search of the nine year old girl is a good example. The constitution says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The warrant in this case did not name the girl, or her mother for that matter, yet the police strip searched them anyway. Alito ruled hey, that's ok; the police can violate the plain language of the founders and suffer no penalty.

Tbrosz, you claim to be a libertarian. Why do you find comfort in a man like Alito?

Posted by: joeiscoffee on January 13, 2006 at 4:46 AM | PERMALINK