No Sale

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

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