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No Sale

[ 7 ] November 3, 2005 |

Attempts by conservatives to make the case to progressives that it’s somehow in their interests to have one of the most conservative judges in the Circuit Courts appointed to the Supreme Court remind me of nothing so much as Leon Kass’s efforts to argue that that male supremacy and sexual repression are really in the best interests of women, and they’re about as convincing. Ann Althouse’s Times op-ed certainly fails to transcend the genre. The punchline is her trite (and condescending) argument that liberals ” should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives.” Indeed there are–as liberals are, of course, perfectly well aware. If Bush had nominated a conservative like, say, Anthony Kennedy, this nomination would not be controversial. And, of course, Miers did not face serious Democratic opposition. And then there’s John Roberts, whose confirmation was never in serious doubt. Like Professor B, I never advocated a filibuster of Roberts, and I can’t understand anyone who would withdraw support from Russ Feingold, say, because he voted for Roberts’ inevitable confirmation. The 22 “no” votes reflect the distinctions drawn among conservatives by liberals perfectly: Roberts was about halfway between Kennedy, who was confirmed unanimously, and Bork, who was clearly unacceptable and was rejected. Roberts was conservative enough that a significant number of Senators felt compelled to cast symbolic votes against him, but not conservative enough to be worth filibustering. (And, again, I emphasize the word “symbolic.” Equally as silly as liberals wanting to excommunicate Feingold is Althouse’s endless fulminating about the fact that 22 Democrats had the temerity to withhold their assent. Whether Roberts is confirmed by a 50 or 70 or 100-vote margin has absolutely no consequences whatsoever. Senators are not judges; they are free to openly consider the political and strategic context, and each situation is different. Voting for Scalia to replace Rehnquist doesn’t require you to vote for Bork to replace Powell; this is obvious.) Anyway, there is good reason for progressives to be more concerned about Alito than Roberts: Alito is 1)more conservative, and 2)the judge he’s replacing is less conservative, which raises the stakes of this nomination considerably.

More potentially useful is Althouse’s claim that Alito is, in fact, different from Scalia. She has a clever bit about how the “Scalito” name may be misleading, comparing it to Burger and Blackmun being called the Minnesota Twins, which is true enough. But that’s not the end of the argument; that’s the beginning. The fact that Alito has a couple nicknames comparing him to Scalia doesn’t mean much. What does mean something is the fact that Alito -was perceived by conservatives and liberals alike as being very conservative, and analysis of his voting record would seem to bear that out. There’s also the matter that religious conservative groups–who supported Scalia and Thomas, and were skeptical of O’Connor, Kennedy and Souter, and were right every time–think he’s a homerun. So while it’s certainly possible that Alito would be considerably less conservative than Scalia, and perhaps a careful study of his record would reveal this, the burden of proof is certainly on Althouse to defend her counterintuitive claim. So what’s the evidence? The following is the entire list of cases cited by Althouse on which Alito disagrees with Scalia:

  • Oregon v. Smith

And, that’s it. Uh, color me unconvinced. Moreover, while I do think the difference is to Alito’s credit, as Althouse all but concedes this is a very strange case with which to make the case that Alito is significantly less conservative than Scalia. After all, religious conservatives were as outraged about the decision as civil libertarians, and the RFRA was a classic strange-bedfellows coalition. And, of course, one can make the same argument the other way. While, as we know, Alito used a very strained argument to argue that a search that went beyond the scope of a warrant was authorized and to immunize the officers who conducted the search from suit, Scalia has occasionally shown a libertarian streak on the Fourth Amendment, even where the War On (some people who use some) Drugs is concerned. So, Alito’s attempts to limit Smith–while admirable–fall far short of being convincing evidence that he’s a more moderate conservative than Scalia on balance.

None of this is to say that Alito is exactly like Scalia; he seems less theoretical, more like Rehnquist, and also seems more like Rehnquist on civil liberties issues. On federalism, at least his Commerce Clause jurisprudence seems more like Thomas than Scalia. But, of course, Althouse is framing the question too narrowly; the relevant question is not whether Alito is “another Scalia” but whether he would on balance cast similar votes as the most conservative wing of the Court, and there seems every indication that he will. Perhaps the conservative groups who support him are being duped and he’s more like a Kennedy or even a Roberts, but I’m certainly not going to take Althouse’s word for it unless she can come up with a lot better evidence than this. And Democratic Senators are perfectly justified; Ried said that if Alito was picked there would be a war, and Bush (unlike Clinton, who went with a moderate suggestion of Orrin Hatch both times rather than going with another Marshall or Brennan) wanted a war. Unless you believe that a judge’s constitutional philosophy cannot be used to evaluate her nomination (and I’ll start doing that at exactly the same time as the President and the nominee’s supporters stop taking it into account), based on the existing evidence Democratic senators should clearly reject Alito’s nomination.