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.

Tuesday, November 08, 2005

More Real Concern About Alito

Again, in the interest of equal time, and because I'm drawing more people from elsewhere on the ideological spectrum (and a warm welcome to visitors from Protein Wisdom), I'm inclined to further reaffirm my personal displeasure with a conservative nominee, even (or perhaps especially) one with the tremendous intellectual fire power of Sam Alito.

Armand at Bloodless Coup quotes Professor Walter Murphy of Princeton, evidently a friend of Judge Alito with whom he finds himself intellectually aligned in a few regards, as follows: "[Alito] is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I." Professor Murphy notes that the two agree that Roe v. Wade was wrongly decided (though I must insist, for the umpteenth time, that such a belief is a far cry from espousing the tumult that inevitably would follow overturning a thirty-year-old precedent with such far-reaching effects, and I think it basically unknowable, on the record we currently have, whether a Justice Alito would in fact work to effectuate that result).

Aside from admiring Murphy's sentence structure and his uncommonly perfect grammar, one also might find in this comments an assessment of Alito apt on the record and fair in substance. They also suggest why the left might oppose Alito's nomination, notwithstanding his intelligence and undeniable qualification.

And a word on qualification: in sheer intelligence and experience, Robert Bork also was qualified. But I use the term more technically than that to require, in addition to general aptitude in legal and constitutional analysis, a less than radical view of the constitution. Radical views, on the right and left, serve important roles in intellectual and public discourse regarding the role of the constitution and the direction of American law, but, notwithstanding the substantial systemic redundancy designed to hedge against the arrogation to undue power of any one official, jurist, or branch of government, I don't believe there is much room for radicalism on the Supreme Court, and I have only a marginally greater tolerance for it in the courts of appeals.

Bork was a radical, and hence unqualified. Alito, a rightist jurist, is not to my thinking radical. He may be, however, especially dangerous, if unchecked, to the prorities of the left, and as such perhaps should be vehemently opposed.

It has been suggested, and polls support it, that a majority of the country simply does not want a justice who will vote to overturn Roe v. Wade, or who will endeavor to kill the right to abortion with a thousand cuts. Increasingly, the commentaries of people like Professor Murphy, lead me to believe that Alito would be such a justice. Evidently, it would behoove Alito's opponents to back off the talking points, stop trying so hard to find in his eminently restrained jurisprudential writings things that aren't there (to wit, much in the way of evidence concerning how he would rule when less bound by precdent than he was as a circuit judge), and start paying attention to the bigger picture, where the key to victory (non-confirmation, that is) may lie.

Go check out Armand's post for more of Murphy's comments and a link to the rest.

UPDATE: Faiz Shakir at Think Progress just contacted me concerning the Princetonian's potential misquotation of Murphy regarding Judge Alito's opinion on Roe. If you're interested in following up further, check out his post on the issue. Do not, however, interpret my link, which I offer out of respect for his effort to reach me, as an endorsement of Shakir's sly characterization of what might be a simple journalistic SNAFU as a "cover-up." This strikes me as unduly inflammatory (in precisely the vein for which I've criticized TP recently), since the post's title, containing this insinuation, belies its own conclusion: "What we still don’t know is Alito’s true opinion on Roe."


Blogger Pooh said...

Maybe this is my idealism rearing its head again, but it seems to me that voting down a nominee only because his rulings are likely to go 'against' you is improper.

I fully agree with your point about not wanting radicals of any stripe, which Bork certainly was. But then, wasn't the Warren court pretty radical as well? Or was congress just way to the right of the polity on social issues at that time?

And it strikes me as cynicism of the highest order to oppose Alito because of his undoubted qualifications. We lost the election. It's unfortunate that the electorate was, well, duped might be too strong a word, but misdirected into voting against their interests by such red herrings as 'boys kissing each other,' and the Swift Boat (how does a Nat'l Guard AWOL have the balls to go after someone else's war record? I might never figure that one out.) But to the victors go the spoils. FWIW, I think filibustering judicial nominees is also, in general, wrong. If its in response to making controversial appointments during a recess, that's a different ballgame. But I digress.

There's also an argument that Roe getting reverse could be the best thing to happen for progressives in this country, much as Roe itself has turned out to be a huge rallying point for 'values' conservatives over the years. See here for one take.

Do I think Alito is the 'best' candidate? Of course not. Should he be good enough under our system? Absent something more revealing then anything brought up so far, absolutely. Will the Court with Alito, Roberts, Thomas and Scalia move the law in ways I think are good for the country? Perhaps not, but to reiterate, the election results indicate that I may well be in the minority in that belief.

7:33 PM  

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