I recently mentioned Stuart Taylor’s latest collection of evidence-free assertions that Alito is a moderate, which is no better than his terrible Newsweek article. Some of the problems are familiar. The bulk of the column discusses some of his decisions in order to debunk the most implausible claims made about them, often skipping the most important arguments (for example, he completely ignores the critical facial challenge issue pending in Ayotte when discussing Casey.) But even if one agrees with his assessment of the cases, he still wants to have it both ways. If you want to say that he was doing nothing but applying the law and the fact that he generally seems to arrive at the most conservative plausible result is just a coincidence, fine, but you can’t turn around and argue that these cases demonstrate his moderation. Either he’s mechanically applying precedent or he’s not. If he is appointed to the Supreme Court, he’ll no longer be bound by these precedents. Anyway, this is already well-trodden ground.
The two big conceptual problems with his defense, however, seem to come up a lot, so it’s worth saying a little more about why they’re wrong. Taylor’s primary fallacy is his claim that Alito “will try as hard as anyone — and far harder than O’Connor — to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings,” and is therefore a moderate. But this is, of course, a non-sequitur. The most “analytically rigorous” and “intellectually honest”—the most internally consistent–member of the current Court is Clarence Thomas, its most conservative member. Similarly, on the other end of the spectrum Stevens and Ginsburg are far more principled and rigorous than the more moderate Breyer. Alito’s “intellectual honesty” tells us nothing about the content of his legal philosophy. (And this is obvious with the comparison to O’Connor, far less principled and also far more moderate than Thomas.) Taylor argues, without seeming to notice the magnitude of the concession he’s making, that “Alito will probably be to the left of Antonin Scalia, albeit with less of a libertarian streak.” But, of course, that “albeit” is everything; Scalia’s libertarianism means that he will sometimes agree with liberals on civil liberties cases; it’s the same as arguing that Alito will be worse for liberals than Scalia. Similarly, Scalia’s textualism and Thomas’ originalism have sometimes caused them to vote against the business interests Alito has supported so slavishly. Perhaps Alito will be more liberal in some other area of law to counterbalance this–but if Taylor knows what that is, he’s keeping it to himself. The fact that Alito is more incrementalist–in the sense of being less theoretical than Scalia and Thomas–can make him more conservative in some cases, and Taylor is wrong to conflate incrementalism with ideological moderation.
The other strawman erected by Taylor is his assertion that “[t]he notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas.” Taylor at least spares us Ann Althouse’s claim that liberals don’t believe that people have rights. But he engages in a similar false dichotomy. To say that judges will have discretion in deciding cases, and will tend to resolve these ambiguities in ways that are congenial to their policy, moral, and/or theoretical preferences is not to say that judges are merely “politicians in robes” or that law is crudely reducible to politics. Nobody says that Alito was a bad faith judge trying to nullify upper court precedents, and nobody says that he will, say, read capital gains tax cuts into the 6th Amendment. But when he has discretion, he has been remarkably consistent about reaching conservative results–and on the Supreme Court, where he is no longer bound by precedent and virtually all cases have more than one reasonable outcome by definition, his discretion will expand considerably. This doesn’t mean that he’s intellectually dishonest; it just means that he’s philosophically conservative. Taylor, like many of Alito’s defenders, simply can’t understand that people may oppose Alito without thinking he’s a hack or inept.
And what’s remarkable is that Taylor doesn’t really dispute the countervailing evidence that Alito is very conservative:
It’s true that Alito has been readier than many judges to deny jury trials to civil-rights plaintiffs whose claims he considers weak. And some responsible critics argue that in his zeal to protect employers from unwarranted lawsuits, Alito may have stretched the law to make it unduly hard for victims of discrimination to prove their cases. The Senate should explore this.
It should also explore liberal analysts’ concerns that in split decisions, Alito has taken the conservative side so consistently as to suggest ideological rigidity.
Yes, he’s demonstrated his “zeal” with anti-plaintiff rulings so draconian as to provoke zealous disagreement to the tune of 10-1 by a 3CA en banc and 9-0 by the Supreme Court. But what disingenuous buck-passing this is. We don’t need to wait for the Senate–why don’t you tell us if you think the scholars who have studied his dissents are wrong? And, of course, what we’re going to find out about this at these post-Borkian hearings is nothing–do you think he’s going to say that he plans to overturn unpopular precedents and make it extraordinarily difficult for discrimination plaintiffs to sue? Please. Taylor is unwilling to engage with the claims that Alito is as or more conservative as Scalia or Thomas, which makes sense because he doesn’t have any evidence.
Like many of Alito’s apologists, Taylor asks us to take Alito’s moderation on faith. In Taylor’s case, however, his imprimatur is if anything a negative, particularly when he’s extolling the virtues of formalist judging. In a 2004 column Taylor defended that well-known example of principled formalist jurisprudence Bush v. Gore, claiming that “[w]hile its legal analysis was sound, I wonder whether it would have been wiser for the justices to punt the 2000 election brawl to Congress.” This is an inversion of Richard Posner’s argument that while the decision was obviously both internally and externally unprincipled, it was pragmatically justified by the fact that it brought closure to an otherwise chaotic situation. The difference is that Posner’s argument is something that is rationally defensible. (Taylor also uses such well-worn techniques of the decision’s tiny number of defenders as claiming that Souter filed a “partial concurrence,” which is sort of like a “partial pregnancy.” Either you concur or you don’t; Souter didn’t.) Anyway, I’ll listen to Taylor’s lectures about intellectual honesty and the law when I start listening to lectures about accounting transparency from Ken Lay, and his arguments about Alito carry no weight unless he can actually produce some evidence about his fabled moderation.
…some classic Tayloresque non-sequiturs in the Moonie Times article Atrios cites. Given a statement he wrote saying that “I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion,” what’s the response?
A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.
“No, it proves no such thing,” said the Republican, who spoke on the condition of anonymity. “In fact, if you look at some of the quotes of his former law clerks, they don’t believe that he’ll overturn Roe v. Wade.”
Judge Alito sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself.
Ah, OK, so we now have a clear statement that he said that he thinks Roe should be overturned. But, on the other hand some of his former clerks–who, of course, could not have any interest in seeing him appointed to the Court–have made some assertions (which probably used the phrase “judicial restraint.”) And even the MT understands that his willingness to follow binding precdents as an appeals court judge is irrelevant to what he’ll do on the Court. Ack.
Barring some unequivocal repudiation at the hearings, any Democrat who votes for Alito should be a pariah.