Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, October 31, 2005

Alito Teaser

Some of you might be visiting to see whether I have anything to say about the Honorable Samuel Alito, and his nomination to take the Supreme Court seat presently occupied Madame Justice O'Connor. You're right that I have things to say. Indeed, I have a lot to say, including a couple of personal anecdotes concerning one-on-one discussions I've had with Judge Alito in recent years. But real work calls, and you'll all just have to wait.

For the time being, I urge you not to swallow whole what those people who are itching to fight are saying about Judge Alito and his prior decisions. Though I can't vouch for all of the claims Julian Sanchez's makes at Hit and Run (hat tip Bloodless), I can say that they seem in large part to be correct, and generally are consistent with my objections to commentary on the other recent nominees.

The most dangerous meme out there, the one sure to be harped upon relentlessly by the left, is that Alito is a judge "in the Scalia mold" as I heard enough times this morning that I wanted to throw up. I half-expected an NPR commentator, any of them, to blow it and use "Scalito" in lieu of his real name.

I've never seen anything that really substantiates Scalia comparisons. Unlike Scalia, it appears that Judge Alito has been a very consistent, traditional conservative jurist. Unlike Scalia, and indeed far more like Chief Justice Roberts, Judge Alito appears to have tremendous regard for precedent and the institutional stability that respects the settled expectations created by prior decisions.

Scalia, on close scrutiny, is not even remotely close to the Justice people claim him to be, or that he sets himself up to seem. He's fickle, self-indulgent, and violates his own supposed principles of interpretation (or alternatively bends them beyond recognition) where it serves patently ideological ends. And, worse, he delivers these opinions derived from deviations from his own supposed normative jurisprudence with a tone of sanctimony and condescension never before seen on the Court, even as he indicts other Justices for committing offenses against the law that he uses to further his own ends.

Nothing I know of Judge Alito suggests that this is true of him, and in light of that fact I think it unfair to tar Judge Alito with the Scalia brush. I'm not saying I like him; I'm not saying I would urge Democrat senators to vote for his confirmation. I'm merely saying that he's got a long history on the bench and an ample record to review, and that he deserves to be evaluated on the merits of his own work. Supposedly pejorative comparisons to sitting justices are the hallmark of lazy commentators.

As Armand points out, people need to do their own homework before forming strong opinions based on a lazy commentariat. As a career public servant, Judge Alito deserves nothing less.

(Anecdotes and at least some analysis to come.)

UPDATE: Orin Kerr evidently agrees that, in Judge Alito, we face a nominee much closer to the Roberts model than the Acalia model.


Anonymous binky said...

His mom is being such a help to endear him to the pro-choice.

5:31 PM  
Blogger Moon said...

Moms. They're all the same. They all mean well, but they're all still moms.

8:05 PM  
Anonymous baltar said...

Re: the "as a career public servant, he deserves nothing less" comment.

Not sure where you're going with this. Why should public servants get any more (or less) of the doubt than any others. Everyone, ideally, should do the research and make up their own mind not only about Supreme Court nominees, but also about US House of Representative candidates, US Senate candidates, and Presidential candidates (as well as local and state offices). It's democracy: you're supposed to work at it.

I'm not thrilled with Alito thus far, but my "deal breaker" is on stuff that hasn't been discussed (that I've seen): how does he feel about Padilla, or the rights of the executive in times of undeclared war? If he is a very strong "separation of powers/limits to the executive" type, I can overlook the rest.

Given this President, I'm doubtful, but curious

8:42 PM  
Anonymous binky said...

And if only our dear Morris were here to comment, he would remind us that some people make decisions by feeling, not thinking, and thus the blather of the lazy commentariat (based on feelings, which we hyper rational types unjustly dismiss) is in fact part of that working at democracy business. :P

8:47 PM  

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