It's a beautifully cold and sunny winter day here in Munich -- not a good day to be means-spirited. Nevertheless, I would like to take some time to vent some frustration about a particular Anti-Scalito argument that keeps popping up in the press and in the hearings.
But first, let me tell you something about my great-grandfather. At age 132, he is quite dead. But to the extent he's alive, he is actually quite feisty. I was reminded of my grandfather on several occasions this week. For example, consider the beginning of Adam Lipdak's Op-Ed in today's
New York Times.
Adam Lipdak wrote:WASHINGTON, Jan. 12 - In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.
But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.
Source
Do you notice the similarity in this logic to the nonsensical point I made about my great-grandfather? It's not as extreme, so it isn't nonsense. Lipdak does say "mostly", so it's not his whole story that Alito takes a "methodical and incremental approach to the law rooted in no particular theory." There is a small rest, and to the extent that this rest matters, Lipdak thinks it aligns Alito "with the court's two most conservative members, Antonin Scalia and Clarence Thomas."
But whoever makes headlines and subtitles at nytimes.com didn't care about those proportions, and put Lipdak's article under the following title:
The New York Times wrote:Few Glimmers of How Conservative Judge Alito Is -- Samuel A. Alito Jr.'s judicial philosophy appears to align him with Justices Antonin Scalia and Clarence Thomas.
So now we're from 'he doesn't seem to have a philosophy' to 'we don't know what his philosophy is'. Come to think of it, I don't know what my great-grandfather is so feisty about either. Anyway, please notice how carefully the subtitle pushes the fear button of liberal readers (Scalia! Thomas! Hoooooh!) without
technically saying that Alito has much to do with their agendas.
The second example comes from Cass Sunstein's analysis of Alito's dissents on the appeals court for the third circuit. Sunstein, a distinguished Chicago law professor with a consistent track record of liberal advocacy, spends much of his article going through the dissents subject by subject, noting that Alito consistently dissented on the conservative side. Sunstein comes to the following conclusion in his summary.
Cass Sunstein wrote:It is important not to misread this evidence. Alito sits on a relatively liberal court, and hence his dissents are sometimes from relatively liberal rulings. None of Alito's opinions is reckless or irresponsible or even especially far-reaching. His disagreement is unfailingly respectful. His dissents are lawyerly rather than bombastic. He does not berate his colleagues. Alito does not place political ideology in the forefront.
Nor has he proclaimed an ambitious or controversial theory of interpretation. He avoids abstractions. He has not endorsed the view, associated with Justices Antonin Scalia and Clarence Thomas, that the Constitution should be interpreted to fit with the "original understanding" of those who ratified it. Several of his opinions insist on careful attention to the governing legal texts, but that approach is perfectly legitimate, to say the least.
Nonetheless, it is possible to learn a lot by seeing where a judge dissents from his colleagues. On issues that divide people along political lines, he has rarely been more liberal than his colleagues. But on numerous occasions, he has been more conservative.
Source
So in other words, Sunstein thinks Alito is definitely not 'in the mold of justices Scalia and Thomas'. He thinks he's is conservative, but cautious. Without mentioning it explicitly, his analysis flately rebukes the allegations among liberal pressure groups that Alito is 'outside the mainstream'. And that's not because Sunstein is a peddler of conservative think tank sludge with an incentive to wipe any conservative radicalism under the rug. His track record testifies to the contrary: Sunstein has written a strongly worded book against Thomas and Scalia (
Radicals in Robes), and that another one advocating for new constitutional amendments to implement liberal policy goals (
The Second Bill of Rights). Given his publication history, it should mean something to Democrats that Sunstein
doesn't read Alito's decisions as those of a radical in a robe. If Sunstein thought that, he would no doubt make that clear. Nevertheless, Democratic senators frequently cite Sunstein as a witness of Alito the radical conservative, the authoritarian, the friend of big business and enemy of the little guy.
So my overall impression is this: When people with legal competence look at Alito's record, they see a conservative, which they may or may not like. They consistently
don't see an extremist. Pressure groups then ignore the 'not an extremist' part, blow up the 'conservative' part out of proportion, and arrive at the conclusion that Alito is evil and must be stopped.
The Alito hearings have pushed me several increments closer to turning from a Clinton Democrat into an anything-but-Bush Republican.
