Judge Alito is the SCOTUS nominee

[quote name='sgs89']Returning to topic...

The Democrats are floating the filibuster trial balloon. At the end of the day, I would be VERY surprised if they took that route. It has become clear that, barring some unforeseen disclosure about Judge Alito's past, the Republicans (i.e., the Gang of 14) would not stand for a filibuster in this situation. The result? Nuclear option.

I think either way, we will have Justice Alito in early 2006.[/QUOTE]

IIRC, the "gang of 14" is a coalition of equal parts Dems and Repubs; with that in mind (and if that's correct), then, of course, we will have to guess if allegiance to the "no filibuster" promise supercedes the Democrats' allegiance to their own party.

Another IIRC, I believe the gang of 14's pledge was to stop filibustering, so long as the nomination was reasonable. So, for instance, if Bush were to nominate Quickdraw McGraw, that would be unreasonable and grounds for a filibuster in the event that Republicans stomped their feet to the march of "fair up or down vote." So, in the end, if what I remember is correct, then we have to deal with whether or not the Dems consider Alito's nomination (or his judicial ideology) to be reasonable. If not, then a filibuster is not out of the question.

Also, a quick :shame: for you, sgs. After all, it is no longer the "nuclear" option. We have to amend our statements to reflect the semantic demands of the Republican party. It is now the "constitutional" option. More palatable. Rolls off the tongue better. ;)
 
[quote name='mykevermin']IIRC, the "gang of 14" is a coalition of equal parts Dems and Repubs; with that in mind (and if that's correct), then, of course, we will have to guess if allegiance to the "no filibuster" promise supercedes the Democrats' allegiance to their own party.

Another IIRC, I believe the gang of 14's pledge was to stop filibustering, so long as the nomination was reasonable. So, for instance, if Bush were to nominate Quickdraw McGraw, that would be unreasonable and grounds for a filibuster in the event that Republicans stomped their feet to the march of "fair up or down vote." So, in the end, if what I remember is correct, then we have to deal with whether or not the Dems consider Alito's nomination (or his judicial ideology) to be reasonable. If not, then a filibuster is not out of the question.

Also, a quick :shame: for you, sgs. After all, it is no longer the "nuclear" option. We have to amend our statements to reflect the semantic demands of the Republican party. It is now the "constitutional" option. More palatable. Rolls off the tongue better. ;)[/QUOTE]

Yes, the Gang of 14 is made up of Republicans and Democrats that struck a deal on judicial nominees. My point was that several Republicans in the Gang have already indicated that they will not stand for a filibuster of Judge Alito -- that is, that he does not rise to the level of an extraordinary case.

You are not correct that the standard agreed upon was whether the nominee was "reasonable" -- the standard was much higher for a filibuster. I think it is clear that a filibuster will not be allowed to proceed.

WRT the "nuclear" option, just be glad W didn't cut the deal; then, it would have been called the "nukulur" option.
 
[quote name='sgs89']Yes, the Gang of 14 is made up of Republicans and Democrats that struck a deal on judicial nominees. My point was that several Republicans in the Gang have already indicated that they will not stand for a filibuster of Judge Alito -- that is, that he does not rise to the level of an extraordinary case.

You are not correct that the standard agreed upon was whether the nominee was "reasonable" -- the standard was much higher for a filibuster. I think it is clear that a filibuster will not be allowed to proceed.

WRT the "nuclear" option, just be glad W didn't cut the deal; then, it would have been called the "nukulur" option.[/QUOTE]

ZING! I like it.
 
[quote name='sgs89']Yes, the Gang of 14 is made up of Republicans and Democrats that struck a deal on judicial nominees. My point was that several Republicans in the Gang have already indicated that they will not stand for a filibuster of Judge Alito -- that is, that he does not rise to the level of an extraordinary case.

You are not correct that the standard agreed upon was whether the nominee was "reasonable" -- the standard was much higher for a filibuster. I think it is clear that a filibuster will not be allowed to proceed.

WRT the "nuclear" option, just be glad W didn't cut the deal; then, it would have been called the "nukulur" option.[/QUOTE]

Well, perhaps "reasonable" is not the proper term (in the sense that "reasonable" can also mean "moderate," which nobody would expect to coexist with a Bush nominee), but I think we're in agreement in the idea that the filibuster can potentially be used (which I guess is implicit in the notion that you brought it up to begin with ;)).
 
[quote name='evanft']What exactly is "winning"? Abortion laws are still pretty liberal as far as I can tell, and a federal ban on abortion would require an amendment to the constitution, and you'd need 34 states for that. So the Supreme Court would have to overturn Roe v. Wade, and even then it would just become a state issue. of course, you could argue that a court that overturns Roe v. Wade would allow a federal ban on abortion to pass without a constitutional amendment, but a more conservative court is likely to uphold states' rights.[/QUOTE]

That is, of course, if the court decides to vote based on principle or preference.

Something tells me that Scalia (and, in turn, Thomas) would vote based on ideological preference, rather than principle.
 
[quote name='capitalist_mao']That is, of course, if the court decides to vote based on principle or preference.

Something tells me that Scalia (and, in turn, Thomas) would vote based on ideological preference, rather than principle.[/QUOTE]

I think I may agree with you about Thomas, but I wouldn't be surprised if Scalia stuck to principle.
 
[quote name='evanft']I think I may agree with you about Thomas, but I wouldn't be surprised if Scalia stuck to principle.[/QUOTE]

There you go, belittling the black man again.

Kidding!
 
[quote name='mykevermin']Well, perhaps "reasonable" is not the proper term (in the sense that "reasonable" can also mean "moderate," which nobody would expect to coexist with a Bush nominee), but I think we're in agreement in the idea that the filibuster can potentially be used (which I guess is implicit in the notion that you brought it up to begin with ;)).[/QUOTE]

Sure, it can be used, but so can the so-called constitutional option. I think invocation of the constitutional option would be unwise, but, at the same time, I think the Democrats would make a grave mistake by filibustering Judge Alito.
 
I'm getting tired of the debate over the fillibust/nuclear option. Right now it's just the Republicans lording over the Dems and saying "Sure, you can fillibuster any nominee but the second you do we're going nuclear." I'm not saying that Alito should be fillibustered, but I'd like to see that debate settled. Would the GOP be that short-sighted that they would eliminate the fillibuster for judicial nominees? Do they think they will always be the majority party? Are they not watching all the Republican scandals?

Is there any circumstance where the GOP would think a Democratic fillibuster was reasonable? I doubt it.

I want the Dems to call their bluff. Doesn't have to be on Alito, but sometime soon.
 
[quote name='MrBadExample']I'm getting tired of the debate over the fillibust/nuclear option. Right now it's just the Republicans lording over the Dems and saying "Sure, you can fillibuster any nominee but the second you do we're going nuclear." I'm not saying that Alito should be fillibustered, but I'd like to see that debate settled. Would the GOP be that short-sighted that they would eliminate the fillibuster for judicial nominees? Do they think they will always be the majority party? Are they not watching all the Republican scandals?

Is there any circumstance where the GOP would think a Democratic fillibuster was reasonable? I doubt it.

I want the Dems to call their bluff. Doesn't have to be on Alito, but sometime soon.[/QUOTE]

I agree that it would be short-sighted to use the nuclear option, but, on the other hand, a filibuster of someone like Alito is really nothing more than a base political manuever. Now, if the Republicans had appointed someone unambiguously unqualified (can you say Miers?), racist (say, a member of the KKK), or incompetent (for example, sleepkyng), then I could see that a filibuster would be an appropriate response.

Here's the point: qualified candidates (especially those who have long records of distinguished service on the Circuit Court of Appeals) should not be filibustered just because you don't like their politics. That is not the appropriate purpose of the procedure.

And, remember, the Republicans did not filibuster Ruth Bader Ginsburg.
 
[quote name='sgs89']I agree that it would be short-sighted to use the nuclear option, but, on the other hand, a filibuster of someone like Alito is really nothing more than a base political manuever. Now, if the Republicans had appointed someone unambiguously unqualified (can you say Miers?), racist (say, a member of the KKK), or incompetent (for example, sleepkyng), then I could see that a filibuster would be an appropriate response.

Here's the point: qualified candidates (especially those who have long records of distinguished service on the Circuit Court of Appeals) should not be filibustered just because you don't like their politics. That is not the appropriate purpose of the procedure.

And, remember, the Republicans did not filibuster Ruth Bader Ginsburg.[/QUOTE]
And I'm not willing to suggest that Alito be fillibustered now either. I just hate the way the Republicans keep threatening to go nuclear when it's used because I don't think the far right wing of the party will ever think a Democratic fillibuster is reasonable.
 
[quote name='MrBadExample']And I'm not willing to suggest that Alito be fillibustered now either. I just hate the way the Republicans keep threatening to go nuclear when it's used because I don't think the far right wing of the party will ever think a Democratic fillibuster is reasonable.[/QUOTE]

I don't think the far right wing of the party would find the moderate wing of the Republican party filibustering reasonable.

I honestly doubt they have the votes to do it, too many of them know hubris has a way of coming back to bite them in the ass. The party's popularity is in the toilet and they are very likely to loose a few seats next year (current numbers suggest a good chance to put them back in the minority in the Senate) and if so, they're gonna want that power back at some point.
 
[quote name='sgs89']Here's the point: qualified candidates (especially those who have long records of distinguished service on the Circuit Court of Appeals) should not be filibustered just because you don't like their politics. That is not the appropriate purpose of the procedure.[/QUOTE]

Without a doubt he has a long record of service. Distinguished service, though - well, that's a lot more questionable. His opinions have been slapped down many, many times by higher courts (including the Supreme Court several times) as being wrong/ridiculous. Its often been not merely that they disagreed with him - he has on several occasions completely ignored existing precedent and instead voted based purely on his own personal opinion. The best example there was his vote to overturn decades worth of precedent in a case regarding the legality of machine guns - his written opinion was quite thoroughly bitch-slapped by the other judges on the case and by the next higher court.

When someone has a long record of being reprimanded/overturned, I don't think 'distinguished' is quite the right description (unless, of course, you mean it in the 'weird, stand-outish' definition, as opposed to it being a good thing...)
 
You refer to http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt. In the Rybar case, Judge Alito dissented from an opinion upholding the constitutionality of a statute criminalizing simple possession of a machine gun. Judge Alito relied on US v. Lopez as putting some teeth into the Commerce Clause -- e.g., in this case, Congress had made no finding that the possession of the guns impacted interstate commerce.

You are quite right that this case will likely be a hot-button issue during the hearings. It certainly suggests that Judge Alito takes a restrictive view of Congress' power to regulate commerce under the Commerce Clause (though I don't know that his position is necessarily inconsistent with Lopez). I also don't know, necessarily, that he was wrong.
 
I found the decision in Doe v Groody to be particularly absurd.

http://vls.law.villanova.edu/locator/3d/March2004/024532p.pdf

apparently, 4 police officers were given a warrant and told to search the house and only one resident. They originally wanted to search all the occupants, but were denied this. They searched them anyways.

Alito dissented saying they were good cops. A line from his dissent is:

First and most important, the majority employs a technical and legalistic method of interpretation that is the antithesis of the “commonsense and realistic” approach that is appropriate.
Click to expand...

God forbid one applies a technical and legal interpretation of legal subjects.
 
Some interesting documents have emerged about Judge Alito:

http://www.cnn.com/2005/POLITICS/11/14/alito/index.html

These are a bit different than the Roberts' Justice Department documents, which were positions articulated on behalf of a client. These are Judge Alito's personal views. Maybe not too surprising, but I can see them becoming an issue at the hearings...
 
If I follow your line of logic from Roberts' nomination, having opinions cannot be denied; judges aren't robots. Does/should this extend to allowing them to express opinions?

To be sure, this is a bothersome, yet unsurprising, opinion. The fact of the matter is this: during Robert's hearings, you often made the argument that opinions do not matter, and judicial interpretation does (EDIT: not judicial interpretation, but qualifications and credentials; my mistake). Alito has shown his opinion *of* judicial intepretation in these documents. If it's merely an opinion, and one founded on an accepted interpretation of the constitution (tho' one I'm scared to death of), is this much ado about nothing?

In short, what do these documents mean for Alito's nomination that would be different than asking him (or Roberts) about their opinions on abortion (or similar and other questions Roberts avoided)?
 
[quote name='mykevermin']In short, what do these documents mean for Alito's nomination that would be different than asking him (or Roberts) about their opinions on abortion (or similar and other questions Roberts avoided)?[/QUOTE]

Well, the idea is that one should not inject their own opinion into decisions, or be a "progressive" judge. These memos seem to indicate not so much where he lies in terms of judicial ideology, but where is in terms of a political ideology as well as an admission to trying to steer cases towards this ideology (as a lawyer).
 
This statement troubles me:

He notes that as a federal employee, "I have been unable to take a role in partisan politics. However, I am a lifelong registered Republican."
Click to expand...

In itself it's not so bad, but it seems to suggest that there is intentional favoratism to conservative and republican points of view, beyond what his actual way of interpreting the constitution would tell him.

Though I wish they'd bring back miers, at least she didn't think woman should be treated like children
 
[quote name='alonzomourning23']In itself it's not so bad, but it seems to suggest that there is intentional favoratism to conservative and republican points of view, beyond what his actual way of interpreting the constitution would tell him.[/QUOTE]

I think you are reading something into that quote that isn't there. Of course he was going to point out he's a Republican; he was applying for work in a Republican administration! You don't think that the Clinton administration favored hiring Democrats? I think the fact that he's a Republican is the least of your worries.
 
[quote name='elprincipe']I think you are reading something into that quote that isn't there. Of course he was going to point out he's a Republican; he was applying for work in a Republican administration! You don't think that the Clinton administration favored hiring Democrats? I think the fact that he's a Republican is the least of your worries.[/QUOTE]

I didn't say that the problem is he's republican, or admitting it. It just comes across that he wishes he could engage in partisan politics.
 
[quote name='mykevermin']If I follow your line of logic from Roberts' nomination, having opinions cannot be denied; judges aren't robots. Does/should this extend to allowing them to express opinions?

To be sure, this is a bothersome, yet unsurprising, opinion. The fact of the matter is this: during Robert's hearings, you often made the argument that opinions do not matter, and judicial interpretation does (EDIT: not judicial interpretation, but qualifications and credentials; my mistake). Alito has shown his opinion *of* judicial intepretation in these documents. If it's merely an opinion, and one founded on an accepted interpretation of the constitution (tho' one I'm scared to death of), is this much ado about nothing?

In short, what do these documents mean for Alito's nomination that would be different than asking him (or Roberts) about their opinions on abortion (or similar and other questions Roberts avoided)?[/QUOTE]

I am certainly not saying that these memos should disqualify Judge Alito from serving on the SCOTUS. Rather, I was simply pointing out that these memos -- as compared to the Roberts' advocacy documents from his time at DOJ -- are likely to create quite a stir during the hearings because they reflect his personal opinions, rather than positions advocated for on behalf of a client.

They also appear to indicate Judge Alito's position on a matter of constitutional interpretation -- i.e., whether the Constitution protects a woman's right to an abortion. You will recall that Judge Roberts, along with all other SCOTUS nominees, refused to answer questions about specific legal issues that may come before the Court. It will be more difficult for him to dodge this specific question given the existence of these documents.
 
[quote name='sgs89']It will be more difficult for him to dodge this specific question given the existence of these documents.[/QUOTE]

Does that matter, though, if his opinion is framed as his interpretation of the constitution? Perhaps the answer to that depends on if senators vote on him as a matter of qualification or ideology, huh.
 
[quote name='mykevermin']Does that matter, though, if his opinion is framed as his interpretation of the constitution? [/QUOTE]

I would say no, if his opinion came in the form of a legal opinion. However, in this case, it did not -- it came in the context of a personal opinion. Therefore, I can certainly see Senators believing that Judge Alito has already made up his mind on an important legal issue before he has even heard that issue. The burden will be on him to rebut that presumption and convince them that he can and will judge each case fairly on the record that is presented.
 
What I thought was interesting today is what he told Sen. Feinstein, "It was different then. I was an advocate seeking a job. It was a political job." Does this mean that he doesn't believe what he wrote? And if so, is he saying it's okay to be less than 100% honest when applying for a job?

If that's his argument, that's a lousy way to start off this new job interview.
 
[quote name='MrBadExample']What I thought was interesting today is what he told Sen. Feinstein, "It was different then. I was an advocate seeking a job. It was a political job." Does this mean that he doesn't believe what he wrote? And if so, is he saying it's okay to be less than 100% honest when applying for a job?

If that's his argument, that's a lousy way to start off this new job interview.[/QUOTE]

He said that? I wondered if he would use that as his defense but I figured he'd be smarter than that. He is trying to become a justice on the highest court in the land - You would hope that a Supreme Court justice would have more integrity than that.

I don't know if I smell a filibuster just yet, but the longer this goes on, the stickier it gets.
 
This is comforting, if true:

"I don't give heed to my personal views. What I do is I interpret the law,'" she said, quoting the 55-year-old judge from New Jersey.
 
[quote name='mykevermin']I thought that the senate was dealing with Bernanke (sp?) today. What's Feinstein doing with Alito?[/QUOTE]

Alito's up there every day meeting with different senators. Bernanke (you got it right) is fairly noncontroversial anyway.
 
Regarding Senator Schumer's claim that Judge Alito lacks candor for not disclosing ALL the memos he authored while at the SG's Office, Charles Fried (former Solicitor General and current Harvard Law School professor) had this to say:

“I have never heard of anyone who worked in the solicitor general’s office who would list all the cases where they wrote memos,” Mr. Fried said. “There are hundreds of these. It’s just absurd. It’s one of these typical cases, and I’m afraid Senator Schumer is guilty of this, that if you can’t get someone on the merits, you bring up some phony lack of candor argument. He should be ashamed of himself, but he is shameless. And you can quote me on that.”

Ha! Finally someone calls out Senator Schumer for what he is! Go get 'em, Prof. Fried.
 
A difference needs to be made between ensuring that all memos are released, and permitting all memos to be released. It WOULD be unreasonable demand that all the memos Alito (or anyone) had ever written need to be presented. That's a ridiculous amount of paperwork, and would require a ridiculous amount of work to dig it all up.

If, on the other hand, certain memos are readily available to Alito, or if he/others are preventing people (news organizations and the like) from searching for those memos, then the case is different. In this situation, you have to ask why Alito/the Bush administration is deliberately attempting to prevent those memos from becoming public. One can reasonably presume that they have some bearing on the decision at hand (if they're irrelevant, there's no point in deliberately supressing them.) So what would be in those memos that Alito doesn't want coming out?

Even aside from this, there's plenty of other material that raises serious questions about Alito. Just his decision that its perfectly OK for police to shoot fleeing unarmed teens if maybe, possibly a crime has been commited somewhere in the area is more than to raise serious red flags for any rational person.
 
[quote name='Drocket']A difference needs to be made between ensuring that all memos are released, and permitting all memos to be released. It WOULD be unreasonable demand that all the memos Alito (or anyone) had ever written need to be presented. That's a ridiculous amount of paperwork, and would require a ridiculous amount of work to dig it all up.

If, on the other hand, certain memos are readily available to Alito, or if he/others are preventing people (news organizations and the like) from searching for those memos, then the case is different. In this situation, you have to ask why Alito/the Bush administration is deliberately attempting to prevent those memos from becoming public. One can reasonably presume that they have some bearing on the decision at hand (if they're irrelevant, there's no point in deliberately supressing them.) So what would be in those memos that Alito doesn't want coming out?

Even aside from this, there's plenty of other material that raises serious questions about Alito. Just his decision that its perfectly OK for police to shoot fleeing unarmed teens if maybe, possibly a crime has been commited somewhere in the area is more than to raise serious red flags for any rational person.[/QUOTE]

The point, though, is that NO ONE could possibly list all the memos they wrote while at the SG's office. Failure to list all memos is not evidence of a lack of candor. That is just bogus and, unfortunately, all too characteristic of Senator Schumer. As Fried said, Schumer should be ashamed of himself, but I think he lacks the capability to feel shame.
 
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