Thursday, November 03, 2005

In The Middle: Supreme Court Nominee Samuel Alito, Jr

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left
Subject: Supreme Court Nominee Samuel Alito, Jr

While it is still unclear how Harriet Miers would have turned out as a Supreme Court Justice, her withdrawal last week gave President Bush an opportunity to nominate someone new. Surprising some, Bush nominated a man for the role: Samuel Alito, Jr.

Alito is a judge on the Third Circuit U.S. Court of Appeals in Philadelphia, and is a graduate of Princeton University and Yale Law School. He definitely has the experience Miers lacked. By drawing from inside the judiciary, President Bush picked a man who has left a long paper trail, and there is enough there to resolve the doubts and questions that plagued Miers. Alito is an unabashed conservative.

I wonder how much Bush might be counting on the fact that Alito has twice been confirmed by the Senate in the past, both time by unanimous decision. Might it look bad to vote against him as Supreme Court Justice after voting him as Appeals Court Judge? It seems like that would be a bigger issue if Democrats in the Senate try to block a vote on Alito using the filibuster. After all, a reasonable principled stand could be made, I think, by someone saying that the Supreme Court has a higher bar and therefore deserves a no-vote rather than a yes-vote. But the reasonable principled stand might ring a bit hollow if the same person is relying on political tricks to keep a vote from happening.

Eric, you suggested that Miers had more to fear from conservative Republicans than she did Democrats, and you were right. With a candidate sure to win approval from conservative Republicans, what do you think the Democrats are going to do?

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right

I do think that there is a higher bar in gaining entry to the Supreme Court as opposed to an Appeals Court. From what I understand, lower courts don't have to deal with stare decisis, or the critical issue of whether or not to accept judicial precedents as established law. This comes into play first and foremost with Roe v. Wade, of course, and I thought that new Chief Justice John Roberts did an exceptionally good job of handling both Republicans and Democrats on this matter.

As for Judge Alito, you've set up the equation very well, Phillip. Conservatives surprised the White House by balking at (not Judge) Harriet Miers while Democrats were able to stay on the sidelines. Now, President Bush has nominated an experienced and by all accounts qualified judge with arguably (and we'll see this argument play out, of course) ideological and possibly extremist tendencies.

So, most conservatives are going to support Alito unabashedly, and will jump out of their bones in adulation if he indicates that he will approach law in the mode of conservative Justices Clarence Thomas and Antonin Scalia.

This particular nomination at this particular time will be even more closely looked at than the Roberts nomination because of the balance of the court. Outgoing Justice Sandra Day O'Connor — who I thought was described very well recently as an "open-minded conservative" — embodied the swing vote on many issues critical to the court. A hard right swing — or any significant shift — has the potential to fundamentally change the rights of all Americans. Not a small thing, indeed!

But to get to your question, which I think will be the crucial question: what are the Democrats going to do?

I think the decision of Senate Minority Leader Harry Reid (Democrat from Nevada) to force a closed door meeting on pre-war intelligence and the lead-up to the war in Iraq is a good indication: this could be the big fight on judicial nominations that has been talked about ever since President Bush got re-elected a year ago.

The Fitzgerald investigation (which produced the indictment of Vice President Cheney's Chief of Staff "Scooter" Libby) and several other factors — the response to Katrina, a failure to move legislation on Social Security reform, and overall drooping poll numbers have and will continue to influence the nominating process. Libby's indictment will likely further embolden a newly unified Democratic front.

This is a long way from saying that Harry Reid will try and force a filibuster and thus bring up the specter of the dreaded "nuclear option," but I do think that there will be some very aggressive positioning, questioning, and behind-the-scenes campaigning in the coming weeks.

Alito has every advantage in getting through, in other words, but there may well be a major confirmation battle in the offing.

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left

Actually, the Appeals Court does deal with most of the same issues as the Supreme Court, including the question of settled law. It was over just such a question during Alito's tenure as an Appeals judge that he and O'Connor had a rare disagreement, as he tried to decide a case in keeping with her stated philosophy in a related case, and found that she had a different opinion when it came to wives notifying husbands than she did about teenage girls notifying parents.

As I said before, all of the other dancing around when it comes to Supreme Court nominations is window dressing. The real issue at hand is abortion. On that score, I believe the hard-core conservatives are missing several important clues from Alito's rulings as an Appeals Court judge that might give them less confidence than they currently seem to feel. Alito has issued and supported rulings denying restrictions on abortion and upholding access to abortion within the Third Circuit, precisely because of precedent.

In fact, I would say he's as likely to vote to uphold Roe v. Wade as to overturn it, which is roughly where Justice O'Connor found herself early in her service to the Court. Frankly, I'm not actually sure either Roberts or Alito is as reliable an anti-Roe vote as some believe!

Still, Alito will almost certainly win the nomination, despite potential misgivings from conservatives. Early signals have made it clear that Alito is a candidate worth ending the filibuster for, if that parliamentary rule is invoked to avoid a vote. His opponents may (and should) question him thoroughly and sternly, but it is hard to imagine anyone coming up with any reason to deny Alito the position other than ideological differences. Based on coverage of his rulings over the last fifteen years, he is certainly not an ideological extremist.

Reid is playing hardball politics, that's for sure. Between the publicity stunt of a closed-door Senate hearing and strong words at just the right time about the withdrawal of Harriet Miers, Senator Reid is positioning himself as President Bush's chief political adversary. Dare I say he might be angling for a Presidential nomination in 2008? However, Reid himself voted for the invasion of Iraq, and that will surely color his efforts to criticize the Bush administration on the subject. In the end, hardball politics are still just politics, and won't affect anything other than poll numbers. Poll numbers which, at this point, matter more to Reid than to Bush, I think.

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right

In terms of the Supreme Court as an institution, I think we can agree that as the final arbiters on the constitutionality, meaning, and interpretation of United States law, it requires nominees to pass the highest of bars. Whether or not that bar is a higher bar than for, say, an Appeals Court nominee likely depends on the individual and other factors. I would argue that replacing O'Connor on this particular court raises the stakes that much higher.

I think that abortion is one of the most important issues at stake, but there are many others. I might say on the Big Picture scale (and you know I love to go Big Picture if and when possible) the right to privacy might be one of the most important rights being hashed over by the court.

What's potentially disturbing about Alito, however, is his penchant for conservative judicial activism. (What's ironic here, of course, is that conservatives love to rail against "activist judges," when the fact is that a judge like Clarence Thomas, Love Bird of the Right, overturns federal law something like 65% of the time.)

Again, going Big Picture, is the fact that Alito seems to uniformly rule against the rights of individuals in the cases that come before him. Slate, for example, points out that in many instances, Alito is more conservative than the maestro himself, Antonin Scalia:

While Alito goes to conservative places Scalia won't, the more telling point is that Scalia goes to liberal places Alito won't. ... In the Washington Post, Cass Sunstein examined Alito's dissents and found them "almost uniformly conservative." ... Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn't really an individual-rights case at all; it was the states' rights case in which Alito would have vacated the conviction for owning a machine gun.

So there are really are issues at stake here that are as important as abortion rights. Alito may or may not be an ideological extremist, but he certainly seems to be nothing less than a hard right intellectual conservative. And I think that it's absolutely proper that the Senate thinks long and hard before changing the nature of the Supreme Court for a generation. There may well be several moderate Republicans who waver on this, I'll wager right here.

On to my man Fightin' Harry Reid. I really think he's to be applauded for taking a stand and allowing the Democrat party to stand up and be the feisty opposition party that it should be and that the country needs. As a New York Times editorial said today, "Senator Harry Reid, the minority leader, may have been grandstanding yesterday when he forced the Senate to hold a closed session on the Iraqi intelligence, but at least he gave the issue a much-needed push."

From: Phillip Winn @ Center-Right
To: Eric Berlin @ Center-Left

I agree that the standard for entrance to the Supreme Court should be high, even the highest possible. But so high that a judge who has been unanimously approved twice by that body should suddenly face a majority vote against him? Not without a major change in his record, I would think!

In fact, even his critics agree that he easily exceeds the high standards of the Court when it comes to experience, ability, and respect for the law. Which leaves, of course, ideology.

It should come as no surprise that a Republican President, albeit not one known for conservatism, who has just run afoul of his own party base by nominating someone pre-approved by his political rival Senator Reid, would nominate a conservative judge. This is what the Democratic party warned about during the last two Presidential election cycles, and here it is in reality. In fact, it was mentioned during the last two off-year election cycles as well, and yet there is still a Republican majority in the Senate.

I would ask, rhetorically, whether people expected President Bush to nominate a liberal judge, but in fact that is almost what he did with Harriet Miers. At least he nominated someone whose conservatives credentials were heavily suspect, and as I mentioned, someone who the Democratic party favored. That nomination now withdrawn, though, Alito seems a capable choice.

With Senate elections upcoming for some members, I wish I could say I would be surprised if Democrats tried to paint Alito as an extremist, but in fact I won't be surprised at anything. Make no mistake, though, the objections to Alito are purely ideological. And of course, a Republican minority would object (and has objected) to highly-qualified liberal-leaning judicial nominees on exactly the same grounds.

Picking and choosing, one can come up with a pattern to suggest Alito is an über-conservative, or a moderate. As I have mentioned, he has supported some laws allowing abortion as an Appeals Court judge, and in my view is likely to do the same as a Supreme Court Justice.

You've got the last word this week!

From: Eric Berlin @ Center-Left
To: Phillip Winn @ Center-Right

Again, I think that the bar is higher for the Supreme Court, and that these particular circumstances crank it up another notch or two. I also think that by throwing Miers to the (conservative) wolves and then yanking her back, President Bush and the Republicans have lost credibility on their inconsistent yet shrill demands for an "up or down" vote for judicial nominees. Just for the nominees they approve of, right (wink wink, nudge nudge…)?

I agree with you, Phillip, that Alito seems the polar opposite of Miers in terms of experience and intellectual capacity in terms of constitutional law. To address your point about President Bush's inconsistent rationale for appointing judges to the high court, I'll point out a brilliant column by David Broder of the Washington Post, who writes:

A system that veers from an accomplished and studiously non-ideological John Roberts to a marginally credentialed and often confused-sounding Harriet Miers to an intellectual and experienced Samuel Alito with pronounced ideological views is no system at all.

I think it will take some time for the full story to shake out. And I hope the Senators have an open mind during the hearings to learn about Alito's judicial philosophy and how he might handle matters that came before the court. He might even feel pressure to be more forthcoming than John Roberts, who knew that he wasn't in serious danger of losing confirmation, and is in any case a master of presenting answers in the maximal positive light.

Phillip, I'm not sure if you object to the notion of rejecting a judicial nominee of ideological grounds. My understanding is that it is acceptable to do so if one finds the candidate outside of the mainstream of American values. This is the big question that needs to be answered, and may well determine whether we have Roberts-style picnic or a Bork-esque battle royale.

It will be interesting to see how the political winds blow over the coming weeks. Critical, I think, will be the mood of the Gang of 14 and moderates on both sides. Lukewarm support from moderate Republicans (the two female Senators from Maine in particular) might embolden Democrats to go for the jugular.

In his column, Broder goes on to warn that because of both Bush's weakness and the road that led to Alito's nomination, a political firestorm has "at least as great" a risk for the Republicans as it does the Democrats.

Phillip Winn is a registered Republican, but considers himself independent. He lives in Dallas, Texas, and didn't vote for President Bush in 2000, but did in 2004. He is the co-owner, designer, and technical administrator for

Eric Berlin is a registered Democrat who currently lives in Pasadena, California. Pretty predictable voting record: Gore '00, Kerry '04. He is the Executive Producer of

In The Middle is an attempt to focus more on what unites us than what divides us. Can two reasonable people from opposite ends of the political spectrum put aside partisanship and meet in the middle? We think so. A topic is picked, e-mails are exchanged, and the results are published here.

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Previous articles from the In The Middle crew have addressed Bill Bennett, Harriet Miers, Iraq as a "Media War," and the CIA Leak Case.

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