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November 6, 2005 - The 'Wise Guy' from Trenton - Sam 'Scalito' Gets Nominated

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On Sunday, October 30 it was clear the White House really needed to change the subject. As noted in these pages, the two Sunday topics that had people buzzing were the new polling that showed now more than half the country felt all this business about the Bush team restoring "honor and integrity" to the White House was a load of crap, and this was a failed presidency, and a second item on the calls for an apology about what had happened with Libby and for Karl Rove to be fired. The administration was having a bad Sunday.

Add to that, CNN reported, first thing Monday, that the new count of our military losses in Iraq had jumped to 2,023 - "The six deaths [Monday] bring the number of U.S. soldiers to have died in Iraq this month to 90, the highest number of American deaths there since January when 107 Americans were killed." By the end of the day it was seven killed.

This is not good news for the administration - things are not getting better - and Sharon Jumper here, with details of the new and improved "improvised explosive devices," explains how now even our best and most heavily armored vehicles in theater can be easily penetrated. The IED is not just an exploding Coke can any longer. The enemy is adapting quickly to whatever we roll out.

So what to do?

Change the subject.

Bush Nominates Alito for Supreme Court
Ron Fournier, Associated Press, Monday, October 31, 2005


President Bush nominated veteran judge Samuel Alito for the Supreme Court Monday, seeking to shift the judiciary to the right and mollify conservatives who derailed his previous pick. Ready-to-rumble Democrats said Alito may curb abortion rights and be "too radical for the American people."

Drawing an unspoken contrast to failed nominee Harriet Miers, Bush declared that the appeals court judge "has more prior judicial experience than any Supreme Court nominee in more than 70 years."

… So consistently conservative, Alito has been dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to conservative Supreme Court Justice Antonin Scalia. But while Scalia is outspoken and is known to badger lawyers, Alito is polite, reserved and even-tempered.


"Scalito." Well, that will change the subject.

Fournier quotes Senate Judiciary Committee Chairman Arlen Specter, one of those oddball Republicans who actually supports abortion rights, saying this abortion thing "will be among one of the first items Judge Alito and I will discuss."

No kidding.

But AP tracks down Rose Alito, the nominee's ninety-year-old mother. "Of course, he's against abortion." He's a good Catholic boy. From Jersey. Trenton.

Of course this will bring up jokes about The Sopranos and maybe Sinatra and the Mafia and all that.

Well, that is underway, and here's the immediate push back:


Mon Oct 31 2005 15:56:42 ET
National Italian American Foundation (NIAF) Statement:

The NIAF is distressed by the attempts of some senators and the media (CNN, CBS) to marginalize Judge Samuel Alito's outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, "Scalito."

Appropriately, no one mentioned that Justice Breyer was Jewish or suggested that he was lock-step ideologically with the other Jewish Supreme Court Justice, Ruth Bader Ginsburg, it would have been outrageous to do so. We still do not know Justice Robert's ethnicity. ...


Say, wouldn't this make the Supreme Court five Catholics and two Jews - a Catholic majority as noted here? What does that portend? Forget the Mafia. Is this an Opus Dei plot? What is that sneaky new German pope up to?

Insert your own conspiracy theory here:


See also Why Catholics? - The political advantages of Catholic justices by William Saletan in SLATE.COM - Tuesday, November 1, for more thoughts on the matter.

Well, this all should be interesting. The Democrats would have to filibuster to block this confirmation - the Republicans do have those fifty-five seats in the senate, and no one on that side is upset at this nomination. Harriet Miers is now old history. The old "in your face" Bush is back.

The AP also reports that the president called for confirmation of the fellow by year's end, but Senate leaders said the vote may wait until next year.

One suspects it is in the White House's interest that this is dragged out. No need to hurry. Keep the conflict and controversy hot, and extend it as long as possible. This is not governing by division and conflict, really - it's a subset of that. This is laying down a good thick smokescreen. And this is relying on the evidence so far that the general population can only attend to one big news story at a time. There was an earthquake in Pakistan and far more than one hundred thousand died? Really? New Orleans isn't rebuilt yet? You get the idea.

Well, the announcement on television was dull, at least on the replay here in Hollywood. No one seemed excited, or inspired. That was curious, and the Times of London (UK) captured the flavor here


Having won two presidential elections and fought two unending wars, President Bush has run out of energy. Instead of the bouncing enthusiasm of happier days, his subdued manner indicates a loss of interest in the presidency itself, a desire to go home and rest.


Really? The Times post explains all this in detail, but one doubts their conclusion about the man wanting to go home. How can he go home now? What would that look like?

Judge Samuel Alito

So who is this guy? There's a complete, but negative, biography from the American Constitution Society here. He was born in 1950, did his undergraduate degree at Princeton and his law degree from Yale. Bush's father nominated him to sit on the Third Circuit Court of Appeals in New Jersey. Before that he was clerk to Third Circuit Judge Leonard I. Garth, then Assistant to the Solicitor General as Deputy Assistant Attorney General, and was at one time Attorney for the District of New Jersey, a prosecutor.

In fact, that last part is what troubles defense attorney Jeralyn Merritt here:


Before becoming a judge, after a short stint as a law clerk for a federal judge, Alito's entire career - from 1977 to 1990 - was as a prosecutor or attorney for the Government.

Again, my prediction: A disaster appointment for those who care about the constitutional rights of the accused. I don't want a career prosecutor like Alito on the Supreme Court. I fear he will be a major proponent of the war on drugs, the death penalty and the war against immigrants, while he will rule to restrict habeas rights and Miranda.


Or he won't. Click on the link to see the supporting case evidence.

But this appointment was announced on Halloween, and another lawyer-writer, Dahlia Lithwick, picks up on that in Trick and Treat: Sammy Alito is the whole bag of goodies.

And she opens with the key ruling that seems to bother everyone –


So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey - which later became the case that reaffirmed Roe, Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion."

Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. Then Chief Justice Rehnquist quoted Alito's dissent in his own.


So Roe stood. He got slapped down. Rehnquist got outvoted.

And there's a lot of talk around this whole issue. Who owns the woman's womb and gets a say in any abortion decision? Is it fifty-fifty once you're married, and before that - if the woman is under eighteen - is the womb the property of the girl's parents and they get to decide? On the other side, if you make the assumption a fetus at any stage of development is really "a child," can a woman unilaterally kill a child without consulting the father? And so on. Alito may be on the side of those who say this should not ever be the woman's decision alone, or he may be just on the side of saying the Pennsylvania law is what it is and there's no issue here - and what's the big deal since there is "no burden" in multiple approvals or vetoes of what the woman decides? We'll see. (For a detailed discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey see Emily Bazelon here.)

Lithwick does point out some other decisions that may be a problematic from some lefty-types - "his vote to limit Congress' power to ban even machine-gun possession, and his ruling that broadened police search powers to include the right to strip-search a drug dealer's wife and 10-year-old daughter - although they were not mentioned in the search warrant."



He upheld a Christmas display against an Establishment Clause challenge. His prior rulings show that he would raise the barriers for victims of sex discrimination to seek redress in the courts. He would change the standard for analyzing race discrimination claims to such an extent that his colleagues on the court of appeals fretted that Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin, would be "eviscerated" under his view of the law. He sought to narrow the Family and Medical Leave Act such that states would be immune from suit - a position the Supreme Court later rejected. In an antitrust case involving the Scotch tape giant 3M, he took a position described by a colleague as likely to weaken a provision of the Sherman Antitrust Act to "the point of impotence."


If you read that all slowly you get the idea. He would not legislate from the bench to change laws to his whims. He'd just rule in ways that would make those laws about how to treat others - on matters of racial discrimination and sex and privacy, and keeping machine guns off the streets - meaningless. And he'd protect giant corporate monopolies. Congress has had too much power in this law-making business, after all.

What? What about all this blather about those evil, activist judges? Bruce Reed explains here


What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.

The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing - and the left - to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Forget all that mumbo-jumbo about umpires and judicial restraint, Bush seems to be saying. The fans don't come out to watch everybody sit on the bench - they want to see a brawl that clears it.


And they'll get it, and everyone will forget Joe Wilson and his wife and which White House official goes to jail next.

See John Dickerson here


Finally, the battle everyone has been waiting for. Since summer, Washington has been preparing for a Supreme Court brawl, a chest-beating showdown filled with sweeping displays of pettiness, small-minded political bickering, and explosive camera-luring rhetoric. John Roberts turned out to be too qualified for that. Harriet Miers wasn't qualified enough. Now, with the nomination of Samuel Alito, both parties can revert to type.

... Conservatives like political expediency when it's their interests that are being tended to. They may be needy these days, but they already seem to have forgiven Bush for wandering into the Miers cul-de-sac. The blast of e-mails supporting Alito as a strict constructionist was filling my inbox before breakfast. When Miers was nominated, approving testimonials started as a trickle and then stopped altogether. This time the e-mails have lots of chewy talking points, such as Alito's unanimous approval for the U.S. Court of Appeals by a Democrat-controlled judiciary committee and Senate in 1990.

The left is jumping on the case just as quickly. People for the American Way is boasting that it "will mobilize its 750,000 members and activists to wage a massive national effort to defeat Alito's nomination." It will "work closely with its coalition partners to educate Americans about the threats posed by this nomination." Those war rooms everybody readied during the summer look like they'll get some use after all.


Markos Moulitsas Zúniga over at The Daily Kos says this about what he's seen:


This is the tip of the iceberg - merely his court rulings. As the usual vetting process gets underway and people research his background, his writings, his speeches, and the testimony of colleagues, we'll get an even more complete picture of the man. But it's already obvious that the nuts got exactly what they wanted - a nut. Scalito is everything they hoped for and more.

But this is the best possible scenario for Democrats as well. We now have a vehicle upon which to showcase the differences between us and Republicans, between liberalism and conservatism. This is a golden opportunity, and one wisely denied by Bush and Rove with the Roberts and Miers nominations.

This is a gift to Democrats. Katrina, massive budget deficits, and continued economic hardship have proven that Republicans can't govern. Iraq, Plame, and Osama Bin Laden have proven that Republicans can't run an effective foreign policy or protect our nation. Now Scalito, along with Bush's social security debacle, will prove to the American people that conservative ideology doesn't have their best interests at heart.

Let the debate begin.


And so it has with this, with links to the case law, over at Think Progress


ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias." [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any?cases would survive summary judgment." [Nathanson v. Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction." [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]


So you could go to this thing and drill down and read the decisions. Be an informed, and strange citizen. Or see this


The poor man is being cruelly maligned and slandered by his unscrupulous feminist opponents.

Why, just last week Alito issued a decision in which he denied asylum to a Chinese woman who fled China because she had undergone a forced abortion and been ordered to report to a medical clinic for mandatory sterilization. Chen v. Gonzales, Slip Copy 2005 WL 2652051 (3rd Cir., October 18, 2005).

So take that, liberals! He's not anti-abortion at all! He's just against women having the right to choose abortion for themselves.


This will stay hot, for a day or two.

Blog notes, Monday, October 31, compiled by Reuters here:


"Judge Samuel Alito is everything that Harriet Miers is not. He brings extensive judicial experience - the most of any Supreme Court nominee in nearly 70 years - to the table. He has a clearly developed sense and theory of jurisprudence and Constitutional interpretation."
Pejman Yousefzadeh, Red State (www.redstate.org)

"Let's be clear what has happened here - George W. Bush was simply not allowed by the Extreme Radical Right Wing of his Party to choose the person he wanted for the Supreme Court. It is that simple."
Armando, Daily Kos (www.dailykos.com)

"I'm very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the "Scalito" nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia."
Orin Kerr, Volokh Conspiracy (http://volokh.com)

"Every profile emphasizes his mild manner. So he's got the temperament of Roberts with the judicial philosophy of Scalia. From the point of view of the right: about as good as it gets."
Andrew Sullivan (www.andrewsullivan.com)

"Since Alito ruled against abortion rights in one of the most famous cases of all time, Planned Parenthood v. Casey, he ought to be practically a god to the social conservative right. No stealth candidate this time. The movement conservatives wanted a war, and this time they've probably gotten one. I guess Bush was itching for revenge after Scooter Libby got indicted."
Kevin Drum, Political Animal (www.washingtonmonthly.com)

"This is a winning political move. Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito's dissent in Casey, the Dems will be forced by their groups to make abortion the issue. So if there is no filibuster, this is going to come off as a huge victory for the president."
Stanley Kurtz, The Corner (www.nationalreview.com)

"With the nomination of "Scalito", the political forces are arrayed for an Armageddon type court battle. After a brief diversion, the President has returned to the home base. The right is swooning and the left will be in a rage. The end-of-times battle has probably arrived."
"The Moose" (www.bullmooseblog.com)


But there is the real war, and the Fitzgerald investigation still not done, and Tom DeLay is still in court, and Bill Frist is still under investigation by the Securities and Exchange Commission. And Silvio Berlusconi made a Halloween visit to Washington, just after he said on Italian television that people had him all wrong. He only seemed to support the Bush war - actually had secretly and often tried to talk him out of it. No candy corn for Silvio. And the story of those forged Italian documents about Saddam buying uranium in Niger is getting more and more press.

It doesn't seem like there's enough controversy in this nomination - as much as there actually is - to keep the other news suppressed, especially if no hearings will come until late in the year and no vote until early next year. Maybe if the guy from New Jersey tore apart a live puppy on national television?

Well, it did make for a more interesting Halloween.


Footnote to Liberals:

Read this from Robert Gordon: Alito or Scalito? If you're a liberal, you'd prefer Scalia - "In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will."


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

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