January 10, 2006 PERMALINK
Confirmation Conversion Alert II
(posted Jan. 10 3:30 PM ET)
Dem Sen. Herb Kohl brought up Alito's effusive praise -- "one of the most outstanding nominees of this century" -- of defeated right-wing Court nominee Robert Bork.
(transcript of Alito's 1988 remarks is here).
Alito relied on a similar excuse he used for his 1985 job application: just serving my right-wing masters in the Reagan White House:
...I was an appointee of the Reagan Administration. Judge Bork had been a nominee of the Administration, and I had been a supporter of the nomination.
And I don't think the statement goes beyond that.
Alito then went on to claim he disagrees with Bork on "a number" of issues, but always using weasel words.
For example:
On the issue of reapportionment [redrawing congressional districts to adhere to one person, one vote standards] -- as I sit here today in 2006, and I think that's what's most relevant -- I think that the principle of one person, one vote is a fundamental part of our constitutional law.
And, uh, I think it's, uh, it would be, uh, I don't see any reason why it should be reexamined.
Note he never says, "I agree with the reapportionment decisions," he simply says they are the law and doesn't plan to review them.
Translation: us right-wingers lost the battle to keep people disenfranchised, and I'm not so stupid to stand up for a lost cause.
That doesn't mean he rejects the judicial philosophy that tramples on the one person, one vote standard. Far from it.
(UPDATE 4 PM ET -- Alito was a little more revealing on reapportionment soon after, claiming that while "I don’t believe that I -- in fact, I’m quite sure I never was opposed to the one person, one vote concept," he favorably noted a critique that "the court had taken the one person, one vote principle too far."
Perhaps he circled himself back into Bork's good graces.)
January 10, 2006 PERMALINK
Abortion Snow Job Begins
(posted Jan. 10 10:25 AM ET)
During the Specter Q&A, Alito hit all the expected bogus points designed to dupe the public into thinking he'll uphold Roe, very similar to what John Roberts did.
He said he'd give stare decisis great weight (but conservative judges believe you can overturn Roe under stare decisis).
He said he believed in "a" right to privacy, but defined that right narrowly, just under the 4th Amendment's ban on unreasonable search on seizure. But he didn't embrace the broad right defined in the Griswold, Eisenstadt and Roe cases.
(UPDATE 7 PM ET -- Later Alito added that there are some rights to privacy under 1st, 5th and 14th Amendments in "certain circumstances," which still leaves him wide open to define the right very narrowly.)
Further, he only said he agreed with the "result" of Eisenstadt (single people can have contraception), which is a way to duck answering whether he agrees with the constitutional reasoning defining the privacy right.
He tried to claim his past anti-abortion comments aren't relevant now that he's a judge, despite there being no record that his constutitional views have changed.
And he played up the few cases where he followed precedent on the lower court bench, even though he had no choice but to follow precedent as a lower court judge.
Further info here, here and here
(UPDATE: Senate Judiciary Dems have more on Alito's true record here)
January 10, 2006 PERMALINK
Preparing For Abortion Distortions
(posted Jan. 10 1 AM ET)
GOP Sen. Arlen Specter has said he will kick off today’s Q&A with questions on abortion.
We already have clues on how Alito will handle such questioning.
One, we have Alito’s opening statement, where he not-so-subtly tried to distance himself from his 1985 statement that the Constitution does not protect abortion, by saying:
When I became a judge, I stopped being a practicing attorney. And that was a big change in role.
The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way.
Here’s what the response to that should be:
“If your judicial philosophy on privacy rights has changed since 1985, what’s the evidence?
“Can you point to one ruling, one speech, one op-ed, one letter to the editor, where you have said, I now see that the Constitution allows a woman to make a private decision on when to become a mother?
“If you can’t, then why should we take your word today? Because you have misled this committee before.”
Two, we have comments from Alito’s conservative movement buddy Ted Olsen, made on MSNBC’s Hardball yesterday, where he argued Alito has a record of following precedent on abortion cases:
Judge Alito, in every case involving abortion and every case involving anything else, was very carefully trying to discern what the Supreme Court had already decided...
... his record shows that he follows precedent, he carefully analyzes the issues, and he carefully applies The Constitution, and he sets aside his personal views to apply The Constitution as it`s written and as it has been interpreted by The Supreme Court.
LiberalOasis has debunked this talking point before, noting that the few times where he applied Supreme Court precedent in abortion cases, it was because as a subservient lower court judge, he had no choice.
It says nothing as to what he would do while sitting on the Supreme Court, where he gets to set the precedents, where he gets to put his 1985 statement into law.
January 10, 2006 PERMALINK
GOP Distortions on Race Discrimination
(posted Jan. 10 12:45 AM ET)
On Monday, Sen. Ted Kennedy said:
Judge Alito has not written one single opinion on the merits in favor of a person of color
alleging race discrimination on the job.
In fifteen years on the bench, not one.
Combined with Alito’s past membership in Concerned Alumni of Princeton, which tried to restrict admissions for women and minorities, that fact speaks to a deep hostility to equality.
Which is why the GOP is desperate to shoot it down. Both GOP Sens. Jeff Sessions and Sam Brownback departed from their prepared remarks to claim Kennedy was wrong.
Since Kennedy isn’t wrong, they had to pretend Kennedy said something else in order to shoot it down.
Sessions said, “Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination.”
But that’s not what Kennedy said. He made a narrower, though still damning charge, that Alito hasn’t 1) written an opinion, 2) on the merits, 3) of a case involving race discrimination on the job.
To back up their phony charge, Sessions and Brownback cherry-picked a few cases where 1) Alito voted with a majority, but didn’t write an opinion, 2) Alito made a ruling favorable to a person of color, but for technical reasons, not on the merits of the discrimination case, and 3) race discrimination on the job wasn’t even the issue.
And those few cases do not remotely characterize the entirity of Alito’s record on equality.
Check out this Knight-Ridder analysis and this W. Post database of Alito’s rulings for more.
The Senate Judiciary Dems offer some additional context here.
January 9, 2006 PERMALINK
Specter, DeWine: Weak Alito Supporters
Tracking the Alito Hearing As It Happens
(posted Jan. 9 2:50 PM ET)
Both GOP Sens. Arlen Specter (PA) and Mike DeWine (OH) subtly revealed a softness in their expected support for Alito.
Both complained about a right-wing court striking down key provisions of laws, passed by the democratically elected Congress, that protected women and minorities.
Specter cited the Violence Against Women Act and DeWine the Americans with Disabilities Act.
Neither of course, explicitly called the Court “right-wing,” but that’s the unspoken subtext.
Both also spoke highly of Alito. Neither should be considered likely No votes.
And don’t expect either to be helpful in the process of fighting Alito. They have couched their concerns in tepid language to avoid provoking the wrath of the conservative machine.
But know that they have revealed a hesitancy.
Dem Sen. Dianne Feinstein sought to exploit that hestinacy, citing the Alito opinion that shows he is league with conservative judicial activists that seek to hamstring our Congress:
I have very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution...
...This trend, I believe, if continued, would restrict and could even prevent the Congress from addressing major environmental and social issues of the future...
...certain of your decisions on the 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court’s limited view of congressional authority.
...let me give you one example here, and that’s the Rybar case.
Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.
You took this position, even though the Supreme Court had made clear in 1939, the Miller case, that Congress did have the authority to ban the possession and transfer of firearms and even though Congress had passed three federal statutes that extensively documented the impact that guns and gun violence has on interstate commerce.
I’m concerned that your Rybar opinion demonstrates a willingness to strike down laws with which you personally may disagree by employing a narrow reading of Congress’ constitutional authority to enact legislation.
Ohio and Pennsylvania readers should apply grassroots pressure, through phone calls and emails, and reinforce their concerns about right-wing judges denying our Congress the ability to pass laws that protect civil rights, clean our environment and promote public safety.
Just maybe, Specter and DeWine could be turned into No votes, or (just as good), become votes against using the illegal nuclear option to stop a filibuster.
January 9, 2006 PERMALINK
The Sunday Talkshow Breakdown
A weekly feature of LiberalOasis
(posted Jan. 9 1:45 AM ET)
All the Sunday shows featured debates between GOP and Dem Senators about Alito,
solidifying the notion that the Alito nomination is controversial and the outcome is not predetermined.
In fact, the AP headline coming out the shows was, “Senators Talk Tough Ahead of Alito Hearing.”
That’s a far better lead-up than we had before the John Roberts hearings. The table is fairly well-set.
So what lies and distortions were GOPers using to deal with the heat?
On NBC’s Meet The Press, Sen. John Cornyn said:
Everything we know about Sam Alito is that he is not an ideologue.
Right. That must be why the corporate newspaper chain Knight-Ridder found: “Review of Cases Shows Alito to be Staunch Conservative”.
Over on CBS’ Face The Nation, Sen. Arlen Specter was covering for Alito on his support for unchecked, unbalanced presidential power:
He has had very little to say about those issues ... In his early college days, he had talked something about a unitary approach to the presidency, which really doesn't have any application on an issue of the president's authority to eavesdrop without a warrant.
Little to say? Talked about the “unitary” approach – which holds that the president holds some powers that are unchecked by the courts or Congress -- merely in college?
The Wall Street Journal begs to differ:
In November 2000 ... in a speech to the [right-wing] Federalist Society ... Alito was describing the theory of the "unitary executive," an expansive view of presidential powers that he and his colleagues set forth while working in the Office of Legal Counsel of the Reagan Justice Department.
Although the Supreme Court has not always agreed, he said in his speech, "I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."
Furthermore, that has direct relevance to the warrantless wiretap program, because Bush has defended it by contending he has unitary powers under the Constitution to conduct the program.
What about abortion?
Interestingly, the GOP Senators lacked a coordinated message on that. They couldn’t decide if they should duck or be defiant.
Cornyn generally ducked, though he did offer the usual smokescreen:
I believe that Judge Alito — I don’t know exactly how he’ll handle this; this is really up to him — but I expect you’ll hear from him what you heard from Chief Justice John Roberts, and that is he respects the [Roe] decision under the principles of stare decisis.
As LiberalOasis noted when Roberts said as much in his hearings -- that he believes in stare decisis, giving great weight to Supreme Court precedents -- that’s a meaningless comment.
Because in the Bizarro Conservative World, you can use stare decisis to overturn Roe.
When Justices Rehnquist, Scalia and Thomas sought to overturn Roe, they wrote in their opinion:
We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.
Sen. Sam Brownback, on ABC’s This Week, went a step further with the smokescreen, and tried to suggest that Alito’s views had changed since he flatly said in 1985 that “the Constitution does not protect a right to an abortion.”
Things do change, and positions change. He’s advocating for a position in a conservative administration at that time.
[ed. Note – No he wasn’t. Alito was applying for a job and stating his judicial philosophy.]
Now he’s going on the Supreme Court of the United States if approved by the United States Senate.
And these are different jobs altogether, and they have different parameters with them all together.
And he’s not going to answer questions about how he’s going to rule on a Roe-type case, and he shouldn’t.
Of course, Brownback had a very different attitude when Harriet Miers was nominated for the Court, telling ABC that if she “implied” Roe was “settled law” that there was “a good chance” he would vote against her.
On Fox News Sunday, Sen. Lindsey Graham took the defiant route:
... we're not going to sit back and watch a double standard to be imposed here.
People who have come from Democratic nominees have openly embraced the idea that they believe there's a constitutional right to abortion. They were not disqualified.
If Judge Alito advocated that Roe v. Wade was wrongly decided, that's not a disqualifying event...
...the fact that he may disagree with somebody on a particular issue like abortion -- well, that happens all the time.
That happens when Clinton picked [Ruth Bader] Ginsberg and [Stephen] Breyer...
...I disagree with [Ginsburg] about everything she basically advocated. But I can understand why she was given 96 votes [in the Senate].
First off, if the Senate confirms a someone who recognizes that Constitution protects privacy rights, including abortion rights, and doesn’t confirm someone who refuses to recognize those rights, that’s not a double standard. It’s a single standard.
And it’s a standard supported by a clear majority of the country, consistently so for years.
Secondly, let’s get one thing straight about the Senate vote on Ginsburg’s nomination.
LiberalOasis has already discussed how Ginsburg won such wide support because she was recommended by GOP Sen. Orrin Hatch, expressly because she had not been an ideological judge during her long tenure on the lower court.
But put that aside for a moment.
Today’s Republican Senators just love talking about how they all voted for Ginsburg in 1993.
But do you know how many of today’s 55 Republican Senators actually voted for Ginsburg in 1993?
Just 18. (And one of them, Richard Shelby, was a Democrat at the time.) One-third of the current crop. The other 37 weren’t around.
GOP Senators were not as virulently right-wing back then. The few that were – like Jesse Helms – voted No on Ginsburg.
Brownback, Cornyn, Graham, Rick Santorum, Tom Coburn, Jim Inhofe, Jon Kyl, Jeff Sessions, John Thune – can you picture these Dobsonites voting for Ginsburg or Breyer?
Or did your head explode just trying to picture it?
