Monday, October 31, 2005

Judging Alito

The initial reaction to the nomination of Samuel Alito from "The Groups" on the left and right was exactly what you'd expect. Both sides are emphasizing "Scalito's" right-wing credentials, partly because they are real, but partly because this nomination offers the Judicial Armageddon that the Right in particular wants almost as badly as it wants a seat on the Court.

But before we got locked completely into Kabuki Theater, it's useful to seek out and find a reasonably objective Democratic voice, as representing the likely reaction of Democratic (and perhaps a couple of Republican) senators who voted for John Roberts' confirmation.

As some of you may recall, George Washington University professor Jeffrey Rosen penned an article right after the presidential election analyzing possible Bush SCOTUS picks, and separating them into two camps: "Conservative Activists" (bad), and "Principled Conservatives" (not so bad), with the key dividing line being the jurist's willingness to defer to legislative decisions and to respect precedents. John Roberts was listed as a "Principled Conservative." Samuel Alito headed the list of "Conservative Activists." Here's what Rosen had to say about him:

Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade.

What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling.

Based on his typology, Rosen was outspoken in urging Democrats to support Roberts. I'd be very surprised if he advises Democrats to accept Alito.

Obviously Jeffrey Rosen does not have a vote in the Senate, but his views on this nomination are likely to reflect those of pro-Roberts Democrats unless Alito disappoints his supporters with a major de-fanging exercise during his confirmation hearings.

Even if Democrats unanimously line up against Alito, they must make a separate strategic decision about how to handle it (especially in terms of deploying a filibuster that could trigger the "nuclear option" and eliminate this tactic for a future that could include yet another Bush SCOTUS nomination, directly endangering huge precedents like Roe v. Wade.)

Certainly The Groups on both sides have ulterior motives for the loud expressions of delight and horror they are undertaking today. But boil off the overheated rhetoric, and there's a real fight brewing over real principles of judicial philosophy with real consequences--a fight George W. Bush seems to have launched with malice aforethought.

NOTE: When I published this post this morning, I didn't know that Michael Crowley, on The New Republic's blog, The Plank, had beaten me to the punch by quoting the same passage from Rosen's typology (not surprising, since Rosen's piece was itself published by TNR). But I wasn't ripping off Crowley without attribution. Having recently been on a televised panel with Professor Rosen during which we disagreed about Roberts, I had my own reasons for consulting his typology.
-- Posted at 11:06 AM | Link to this post | Email this post

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