I wrote recently about the Streamlined Procedures Act, which has generated signifcant concerns but apparently remains in active consideration. There will be a hearing on Thursday; more information about what you can do is here.
Shorter Ann Althouse: People who oppose Samuel Alito’s nomination because of his remarkably consistent hostility to reproductive rights, rights against unreasonable search and seizure, worker’s rights, and civil rights must be doing so because they believe people don’t have rights.
As many people have argued, I would advocate that Alito be filibustered in the Senate. About the nature of his conservatism, there’s simply no serious debate, as I have argued here and here and here and here; any systematic look at his decisions indicates that he’s overwhelmingly likely to be a Scalia/Thomas/Rehnquist kind of conservative, and until Monday morning this wasn’t particularly controversial. (On any individual case you can construct an argument that it’s a purely legal disagreement, but if that was all that was going on there would be a significant number cases where he used ambigiuous legal materials to produce a more liberal result, but there aren’t. There’s nothing wrong with this per se; it’s just evidence that he’s very conservative. It’s the body of work, not any one case.) Obviously, this is very bad from a progressive standpoint, especially since he will be replacing a moderate conservative swing vote. Most liberals agree that Democrats should certainly vote “no.” But should there be a filibuster?
I should start by saying that I am actually against filibusters, if I could set the rules (which, ironically, is an argument in favor of its use, as I will argue later.) But as I have said before, unilateral disarmament is not a plan. The rules are in place; it’s legitimate to use them until they’re changed. There are, however, some good arguments for abjuring the filibuster, and I’ll discuss the two big ones using a framework suggested to me by Publius. The first is what might be called the “Bush won the election” argument, that since Bush won Democrats can only filibuster someone who’s completely unqualified or an utter crackpot, and Alito obviously is neither. I don’t think, however, that this means that the Dems can’t filibuster Alito. First of all, Democratic (and moderate Republican) senators won their elections too, and they’re entitled to use the Senate’s rules to exercise its advise and consent powers, just as the President has the right to nominate (and will obviously not–and should not– nominate someone progressives will like.) I do agree that the Dems should not be able to double-cross Bush if he appointed someone suggested as part of discussions; Hatch let Ginsburg and Breyer through based on a tacit agreement, and that’s fair. But it’s obviously inoperative in this case; not only did Reid not say he was acceptable, he specifically said that his nomination would provoke a major fight. I also don’t think that a filibuster would be justified if Alito were replacing another staunch conservative, but he’s not. I don’t think that Bush’s “victory” in 2000 and historically narrow win for a wartime incumbent provide some kind of normative mandate to effect a major ideological change on the Supreme Court (and judging by the way they’re selling him as a moderate, the White House doesn’t think it has one either.) Both the President and the Senate have their institutional prerogatives, and the nomination’s outcome can and should be fought on that basis; I don’t think there’s any reason to defer to the President here.
The other important objection is a more pragmatic one: the turnaround-is-fair-play argument. The problem, this argument goes, is that if we filibuster then so will they, with nobody better off in the long run. In a context in which the norms of judicial nomination were stable, I think this would be quite compelling. But, of course, that’s not the case. As their rule changes like doing away with the blue slip rules indicates, there’s no reason to believe that Senate Republicans will respect past arrangements, and nor is their any reason to believe that they will defer to the Supreme Court nominees of a Democratic President no matter what happens to Alito. (We don’t know what would have happened had Clinton ignored Hatch and appointed someone like Babbit, but it almost certainly would have been a very hard-fought struggle at best.) Of course, the most likely outcome of filibustering Alito would be getting rid of the filibuster rule altogether–which, of course, as Yglesias says is the best reason to filibuster of all. To paraphrase Joey LaMotta, if we win, we win. If we lose–we still win:
The filibuster is bad. In the long run, the aspects of the U.S. Constitution that make it hard to enact legislation favor conservatism. On any given day, of course, either side may be helped. At the moment, the Democrats are in the minority so filibusters let them do useful things. But over the long haul, a more parliamentary system would advantage liberals.
Breaking the rules is also bad. This, at the end of the day, is what the nuclear option comes down to: not changing the filibuster rule, but violating some other procedural rules in order to change the filibuster rule. The seven Republican members of the gang are engaging in shameful acts of political blackmail. If they think the Senate rules shouldn’t be violated, they should stand against efforts to violate them, not go around striking compromises.
Last, Judge Alito is bad. Since filibusters are, under the current rules, permitted, Democrats may as well use them to stop bad things from happening.
All that being said, the worst possible outcome here is one in which moderate Democrats allow Alito on to the bench in order to preserve the filibuster — a re-run, in other words, of the original “Gang of 14″ deal. If Alito winds up on the Supreme Court, the best possible way for that to happen would be a way that also eliminates the filibuster rule. If the filibuster rule is to be maintained, then the best possible way for that to happen would be one that keeps bad judges off the bench.
Yes. If the Senate were planning to enact a legitimate change in the rules to exclusively eliminate the judicial filibuster, then this would be a neutral outcome at best. But since they simply plan to pretend that the Senate’s procedures don’t apply to judicial nominations with no justification at all, this would be the beginning of the end of the filibuster; once this precedent is set, whenever you want to break one you just have the Vice President announce that it doesn’t apply to the given case. And, in the long term, although a lot of short-sighted Republicans don’t see it this will be a clear advantage for progressives over the long run. So if a filibuster leads to detonating the nuclear option, this is a good thing.
None of this is to say that I think it’s likely. Alito was a very smart pick, as conservative as you can get without a paper trail that would make him unconfirmable, and it will be tough to sustain a filibuster. But if you’re asking me what Democrats should do, I think it’s a no-brainer.
Preparing links for a new Alito link dump, I notice that this excellent New Republic cover story is behind the subscription wall, and I wanted to get some excerpts online. It’s particularly relevant given this awful Newsweek article, co-written by the hacktacular Stuart Taylor, which argues that Alito is a moderate–but bases this mostly on his personality and tone, which are irrelevant to the question of ideology. The two cases they discuss to make the case in any detail are used to burn down strawmen rather than evaluate them for evidence. Yes, of course, his Casey dissent was not a lawless application of precedent, but it is surely relevant that he (unlike the other two judges on the panel) interpreted an ambiguous precedent in the most conservative way possible (and, needless to say, they ignore the crucial facial challenge issue entirely.) Even worse, they note his willingess to strike down a “partial birth abortion” statute without noting that he filed a concurrence, which many have (correctly) interpreted as sending a signal that he was reluctantly applying a precedent he disliked. And, yes, his Rybar dissent doesn’t mean he was “fronting for the gun lobby,” but it does demonstrate that he will be a strong supporter of the “new federalism,” which unlike Taylor and Thomas’ conclusion is actually relevant to something.
Andrew Seigel, on the other hand, is actually engaged in serious analysis, focusing on votes rather than who’s a friendlier fellow, and draws the right conclusions:
The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.
In 15 years on the bench, Alito has had opportunities to weigh in on almost all of the controversial constitutional issues facing the Supreme Court today–from abortion and the death penalty to the scope of federal power and the role of religion in the public square. The opinions that he has written in these cases share two essential characteristics. First, each is calm, rational, and well-written. Second, on virtually every significant issue where his conclusion is not mandated by direct Supreme Court precedent, the result is conservative.
[...]
Two lessons can be drawn from the substance and tone of Alito’s appellate opinions. First, contrary to what many commentators want you to believe, the individual predilections and judgments of jurists have a substantial effect on the direction of U.S. constitutional law. While many legal questions can be resolved through a relatively straightforward application of reason to the relevant legal texts, most of the controversial constitutional questions that reach the Court are not susceptible to such simple resolution. When confronting such cases, judges are forced back–almost inexorably–to their own, often inchoate, ideas about human behavior, social policy, and the judicial role. For most Supreme Court nominees, we need to guess how these “priors” will shape their jurisprudence, but, for Alito, we have a long and consistent answer: He will tack hard to the right.
The second lesson is really a caveat about the first. With the opinions of most justices–particularly the savvy–it’s hard for a reader to separate the application of legal sources and precedents from individual will. The norms of the legal profession push judges to ground their opinions directly in the legal sources, whatever the wellspring of their decisions. Those who are accomplished at this task have the ability to make even the most controversial result sound inevitable. In a substantial percentage of their cases, Scalia and Luttig eschew these professional conventions and lay bare their motivation. Alito never does. In many ways, the scrupulous fidelity of Alito’s opinions makes him a more powerful advocate for his conclusions and a bigger danger to those who sport opposing legal or constitutional visions.
This is exactly right. Thomas and Taylor, like Althouse, provide literally no evidence–nothing–that Alito’s votes will be more liberal than those of Scalia. (You couldn’t have produced a more conservative outcome than he did in Casey, and Rybar went further than Scalia has been willing to go so far. And, of course, they also skip Groody, which suggests that on search and seizure Alito is likely to be if anything more reactionary than Scalia.) The fact that Alito is less acerbic and more careful than Scalia makes him worse, not better, if you disagree with him philosophically.
Again, evaluating circuit court opinions is inherently uncertain, relying on probabilistic judgments, and we can’t be sure how Alito would vote. But his tendency to push the law in a conservative direction suggests the very strong possibility he’ll be as conservative as anyone on the Court, and whether he’s a nice guy has absolutely nothing to do with how he’ll vote. Thomas and Taylor’s tripe will be the administration line–don’t buy it.
Oddly enough, Republican interest groups aren’t buying the spin of the GOP’s talking points and particularly egregious hacks that nothing can really be inferred from his extremely conservative voting record. Taking a look at his remarkably consistent record of narrow constructions of statutes protecting workers, investors, the environment, and civil rights, “[m]ajor business groups are preparing to spend millions of dollars to lobby on his behalf”. You can see why:
His extensive paper trail of 15 years of opinions reveals a jurist deeply skeptical of claims against large corporations. A review of dozens of business cases in which Judge Alito has written majority or dissenting opinions or cast the decisive vote shows that, with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases.
Judge Alito, President Bush’s choice to replace Sandra Day O’Connor on the Supreme Court, cast the decisive vote in a case involving a major steel company, and in another involving a large chemical maker, over environmentalists in pollution cases.
He has set aside punitive damages in some cases and reduced them in others; has handed down dissents that, if they became law, would impose higher burdens for workers to successfully sue their employers for discrimination; and has routinely upheld restrictive arbitration clauses that have limited the remedies available to plaintiffs. (In a rare instance of setting aside an arbitration decision, he reversed an arbitration panel that had ordered the reinstatement of an intoxicated seaman on a moored oil tanker against the wishes of his employer, Exxon.)
[...]
The judge’s reputation over the last 15 years was such that corporate lawyers relished the prospect of his participation in cases, while plaintiff’s lawyers hoped to avoid him.
“We’re always happy to see Judge Alito on the panel,” said Robert C. Heim, the head of the litigation department at Dechert, a large law firm based in Philadelphia that represents some of the nation’s largest corporations, typically facing accusations of antitrust, securities or corporate law violations. “He’s generally a good judge for the cases we argue because we generally argue that the state of law does not favor the case that the plaintiffs are making and he’s generally very receptive to that. He doesn’t give an expansive reading to antitrust laws or securities laws.”
Officials at the National Association of Manufacturers and the United States Chamber of Commerce said that as they combed through his record, they had been favorably impressed with what they had learned.
“He has come down on a host of issues in a way that the business community would prefer,” said Robin Conrad, senior vice president of the National Chamber Litigation Center, the legal arm of the United States Chamber of Commerce, who has been researching Judge Alito’s opinions. “This is not a guy who is going to go off the reservation.”
Similarly, social conservative groups are sticking with the reputation Alito had among his supporters before Monday morning, and drawing the appropriate inferences from his Casey dissent. Obviously, we should believe them, particularly given that the few people suddenly–in a classic confirmation conversion–arguing that Alito is not a staunch Federalist Society conservative have yet to actually supply any evidence.
…and Jay Sekulo, head of Pat Robertson’s litigation outfit, also doesn’t seem to have received the instructions to pretend to enthusasitically support Alito because he’ll be the next David Souter:
Jay Sekulow, President of the ultra-conservative American Center for Law and Justice, has noted that “President Bush promised that he would nominate Justices in the mold of Justices Scalia and Thomas” and announced that “In choosing Judge Alito for the high court, President Bush has done just that.”
Hey, when he’s right, he’s right…
Wankers just don’t get much bigger than former PMRC shill and Art Garfunkel analogue Mike Love:
In court papers filed this week in Los Angeles, Love accused Wilson, his cousin, of promoting the 2004 release of Smile in a way that “shamelessly misappropriated Mike Love’s songs, likeness and the Beach Boys trademark, as well as the Smile album itself”.
Love, the Beach Boys’ lead singer and the owner of the name of the band, is seeking millions of dollars in damages.
So, to recap, Love’s philistinism prevents the album from being recorded as a Beach Boys album in the first place, and now that Wilson finally recorded it himself Love wants to reap the profits. And has the temerity to want damages for an alleged decline in the value of Beach Boys recordings, although without Wilson’s songs the catalogue would be worth about as much as a box of Milli Vanilli cassette singles.
That is a world-class scumbag.
(Via Julia.)
Ezra provides a valuable service in two ways. First, he accurately summarizes the thesis of Maureen Dowd’s new book (along with her other columns on the subject): “she and her friends are unmarried because their beauty, glamour, accomplishments, poise, wit, interests, intellectual acuity, and overwhelming beauty scare men.” (As Matt correctly pointed out in comments, this seems to be a variant of the “Nice guys don’t get laid” line, and as Coldplay reminds us manipulative self-pity in all its forms gets tiresome real quickly.) More importantly, while it’s not surprising that her random anecdotes from the New York upper class turn out to be distinctly unrepresentative (and, in fact, educated women are more likely to be married, adult men generally like smart, ambitious women, etc.) even I’m surprised how jaw-droppingly shoddy her small amount of evidence is. The study about men rejecting ambitious women was based on a small sample …of college freshmen. The study showing that men dislike women with high IQs was based…on women born in 1921. Jeebus, Tech Central Station would be embarrassed to publish this shit. (Well, not really, but you can see what I’m driving at.)
OK, here’s why I think I’m so bitter after seeing that article; it’s the substitute columnists that appeared in the Times when Dowd was off writing this book. I’m resigned to the fact that the Times will have two conservatives, and it has its two IR people, and Krugman is great and Herbert good. But the fact that Dowd is taking up valuable space that could be used by Dahlia Lithwick or Barbara Ehrenreich is just infuriating. I’ve sort of learned to ignore Dowd’s political columns, the way you skip over Marmaduke and Rex Morgan M.D. when you read the comics, but seeing this article reminds me how upset I was that the Times had great columnists under its nose at let them go so we can get more substance-free columns about Rummy and the Clenis.
Shorter Charles Krauthammer: The rights of adult women and children are exactly comparable.
Really, it’s remarkable how much more sense the GOP position on abortion makes once we get this out in the open.
There seems to be some confusion among the latest set of GOP talking points about the word that comes before “burden.” Saletan has more. Judd at TP also notes that Krauthammer repeats Alito’s bizarre argument that the law is OK because we can simply assume that women will be willing to commit misdemanors to evade it, and nobody thinks that the state is going to seriously enforce the law anyway. (Omitted: how on earth this can be an argument in favor of the law’s constitutionality.)
…Matt also notes that in addition to his awful substantive arguments Krauthammer is also part of the ridiculous new conseravtive “we support Alito because he disagrees with us!” shell game:
One of the more bizarre spectacles in recent days has been the phenomenon of conservative commentators “defending” Sam Alito against liberals’ outlandish “distortions” of his record designed to make people think Alito is hostile to abortion rights (today’s Charles Krauthammer column, for example). The trouble here is that liberals aren’t accusing Alito of being a child molester or something; we’re accusing Alito of supporting long-held conservative goals for the judiciary. Krauthammer is on record as deploring Roe v. Wade and calling for it to be overturned. If he believed that Alito was really innocent of the charges against him, he’d be against Alito.
Kevin Drum thinks that Alito is signaling that he won’t overturn Roe. Well, I suppose this is literally true, but I think Kevin is misreading what this means for his future jurisprudence:
For those of you who don’t read the long boring stuff, it’s true that Alito doesn’t have a Bork-like paper trail, so we can’t know for sure how he will rule. And I certainly hope I’m wrong. But we do know that 1)religious conservative groups for whom overturning Roe is a top priority, and who have correctly evaluated past nominees, think Alito is great, and 2)before Monday, Alito was generally seen by both liberals and conservatives as not being supportive of abortion rights. I don’t think expressing support for a case a nominee could scarcely more viably oppose than Brown v. Board does much to counteract this.
As a break from the relentless Alito posts, why not a little more-MoDo bashing? It has been a few days, after all.
Julia starts things off ny noting that her experiences may not be entirely representative. Anne Bartow provides some political analysis, noting Dowd’s bizarre priorities and the fact that she continually attributes beliefs to “feminism” without mentioning any actual feminists, quoting any texts, etc. (In response to Dowd’s query about whether feminism is a “cruel hoax,” she responds: “I’m asking the same thing about the New York Times’ reputation for quality journalism.” That’s about right.)
And, for the coup de grace, If you think I was mean, Kameron Hurley unleashes some Grade A snark:
To reiterate: Why would you want to marry these men anyway? These are the sorts of guys who’ll tell you to quit your high-powered job, dress more fem, stop eating all together, and dump you on the street when you’re forty and marry their secretary.What the fuck do you want with people like this?
Yep, that pretty much sums it up. Dowd’s argument consisted of a bunch of whining anecdotes about how rich, shallow assholes shockingly want to date dimwitted 23-year-old anorexics instead of strong intelligent women. And this…proves that feminism has failed. A bad argument leading to a non sequitur–I’m not convinced this is going to lead to a good book. (What’s it called–why Title IX Gave Me Bad Taste in Men?) I mean, it’s not unusual to hear whining about how one can’t get laid because of feminism, but I generally expect it to come from frat boys and Father’s Rights activists, not Pulitzer-Prize winning female journalists in front-page NYT Magazine articles…
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:
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.
Paul Campos, Above the Law 2011 Lawyer of the Year
Erik Loomis, HNN Cliopatria 2011 Best Series of Posts
