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.

Sunday, November 06, 2005

Brevity Is the Bane of Twits

Who is the latest to get it wrong on Alito? No one special, just Neil A. Lewis of the New York F*&king Times. Lewis offers two howlers today, both discredited in detail on this site last week.

1. "In his dissent from [Rybar, Judge Alito] said a gun deal in Pennsylvania should not have been convicted because Congress did not constitutionally have the right to enact the law on machine guns."

Well, no, actually. What Judge Alito wrote is that Congress had failed to establish, in the way it enacted the law in question, that it had constitutional authority to pass the law. Judge Alito held that this outcome was compelled by the Supreme Court's decision in Commonwealth v. Lopez Judge Alito noted, however, that had Congress offered a clear jurisdictional provision, or had offered empirical data explaining how the activity it sought to regulate affected interstate commerce, it might well have passed constitutional muster.

More generally, I take issue with Lewis's reference to Congress's "rights." Congress has no rights. It has enumerated powrs. Judge Alito would have ruled that Congress had failed to demonstrate how the activity in question fell within one of Congress's enumerated powers.

2. Judge Alito "ruled in 2000 that the Family and Medical LEave Act did not apply to state employees."

Wrong again. And I'm sick of explaining why. Professor Althouse does a better job of it anyway. Not that Mr. Lewis could be bothered to check that out.

Not impressive at all from the Newspaper of Record, but typical, sadly.


Blogger Michael said...

I went and read Alito's Casey dissent and all it says to me is that he applies the precedent as he sees it, which isn't really saying all that much. The thing is, I'm not sure we know much more about Alito, and that kind of bothers me. Your link to Althouse about the FMLA stuff had a line that stuck out as well about Alito's apparent commitment to precedent.

I think I'd feel a lot more comfortable if we had some more information about him, but insofar as Alito's abilities as a judge are concerned, I haven't seen anything that would suggest he's suxxors. That said, I haven't gone through all your postings on him because I'm too lazy at the moment.

1:19 PM  

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