Judge Alito’s Radical Views

The New York Times editorial board entitles its piece urging Senators to defeat Samuel Alito’s nomination for the Supreme Court “Judge Alito’s Radical Views.” It arrives at the conclusion that Alito is “radical” by lumping in arguments he advanced as a client advocate with misleading use of technical language that has a different meaning than in ordinary use. The combination brings to mind Teddy Kennedy’s infamous “Robert Bork’s America” diatribe.

He has supported the fringe “unitary executive” theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution.

The “unitary executive” theory merely holds that the President is the ultimate decision-maker in the executive branch, which is not only not “radical” it is the view of the Framers of the Constitution.

He has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress’s intent in writing and approving the law.

If the Courts are going to try to discern “intent” rather than what the language of the law actually says, then why is it “outlandish” to consider the president’s words alongside those of the Congress? After all, the final compromise bill hammered together by the conference committee often differs rather substantially from those initially voted upon.

Judge Alito would also work to reduce Congress’s power in other ways. In a troubling dissent, he argued that Congress exceeded its authority when it passed a law banning machine guns, and as a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers.

These rulings were not about “Congress” per se but rather the federal government. There is indeed legitimate debate about the scope of federal regulatory power, odd as that may seem nowadays.

Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy. In the same flat bureaucratic tones he used at the hearings, he is likely to insist that the law can do nothing for them.

Alito may well rule that the law can do nothing for aggrieved people who have no legal claim; judges do that routinely. But to imply that Alito would single out minorities and the disadvantaged is an outrageous slur with no basis in fact.

Ironically, the basis of the Times‘ appeal to Senators is a rather bizarre reading of the nature of the confirmation process:

As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O’Connor with Judge Alito be a step forward for the nation, or a step backward?

That judgment is exclusively the president’s. The president alone is charged by the Constitution with choosing judges for the Supreme Court. The Senate’s role is merely to offer advice and consent. Their only responsibility is to ensure that nominees are fit to serve. Alito rather obviously meets that test.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. ICallMasICM says:

    ‘Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy.’

    They shouldn’t expect sympathy what they should expect is justice. If the NYT and any other other advocates of obtaining ‘sympathy’ from the courts object to that they should pursue changing the laws which are strongly in favor of property owners.

    ‘a step forward for the nation, or a step backward? ‘

    The assbackwards assumption is that the 60’s are the future. This is a huge problem for the left in that they are stuck in the past.

  2. Anderson says:

    I can’t personally evaluate Alito’s jurisprudence in general. The one opinion I’ve read by him was a pathetic exercise in trying to protect police from being sued for a pretty flagrant violation of the Fourth Amendment.

    He is reported to have a history of dissenting from decisions by other conservative judges, arguing that they should have been further to the right than they were. (For ex, the above “strip search” case, where Michael Chertoff wrote for the court.)

    People who aren’t lawyers seem to think that judges basically fit Law X into Case Y like a glorified telephone operator. It’s not like that in a great many cases. There’s a great deal of room for discretion, never moreso in the Supreme Court.

    Democrats are probably right to oppose Alito; Republicans are probably right to support him, in party terms. (I’ve seen some criticisms that Repubs are erring because Alito’s expected “executive deference” will hurt them when a Dem’s in the White House, but I very much doubt that Alito’s deference extends to Democratic executives.)

    Politics as usual. How shocking!

  3. Herb says:

    Why doesn’t the NYT write about the radical views we have seen with the present liberal leaning court? It seems to me that the right to own and keep your property without fear of it being “stolen” by a few politicians who would give it to some private developer, to increase their tax base, is a perfect example.

    Let’s face. the NYT is a left leaning radical rag that does not care about you, I or anyone but themselves, and only promotes the far left wing of the democratic party.

  4. Anderson says:

    Herb, the point of the Kelo decision (which I guess is what you have in mind) is that local authorities have lots of discretion in these things, and that it takes a Really Egregious case for the Court to say “hey, we know better than the folks on the spot.”

    It’s ironic that the same people who usually think the feds should mind their own business, are the ones demanding that the Supreme Court should swoop in and save them from their local and state governments.

    Mind you, I’m a Dem, so I think that people *do* often need such salvation. Arguably the cases have moved too far in favor of allowing eminent domain for private benefit not public. But lots of Republican-appointed justices have helped move the cases in that direction.

  5. G A PHILLIPS says:

    I am stiil waiting for one of those lefty senators to burst into flames when he or she holds up a copy of the constitution; sort of like the effect a cross has on a vampire. No, I say not a step forward or backward, but a step towards the Supreme Court returning to its original function.

  6. Cap says:

    Several of the observations do seem to be specious:
    RE: Signing Statement and Conference Committee differing from intent and language of voted on legislation. Clearly unethical to sign a bill he disagrees with and worse to modify a bills intent after a vote.
    RE:View that minorities would be singled out misses the point. They would not be sought out but in a either or cast Alito’s view seems to be that the powerful are entitled.
    RE: Advice and consent. Saying the Senate role is to ‘merely offer’ reads differently than my copy of the Constitution. My copy reads ‘with’. And that is a very vast difference.

  7. Geraldine McCleave says:

    As a woman who lived without the abortion option, and without civil rights for women and minorities it is a frightening future to imagine us under the rule of right wing male chauvinists who believe we should all be at home making their babies. And, every woman I know feels this way. I think in the long run, if this court becomes so extremely out of touch with the American life, we just won’t pay any attention to the court’s rulings. As Al Gore should not have. They (the court) are way too Repuplican or Democrat and seem to loose sight that they are to be impartial judges – instead they come to the court with a great many prejudices and expect us to go along. It is getting absurb to agree with the court conservatives who seem to be out of touch with what our lives are like in 2006. We cannot return to 1960.

  8. J Histed says:

    Why oh why are the American media, various and sundry political pundits, as well as high profile Democrats afraid to refer to the far-right wing of the Republican Party and their media shills by the correct term? They have been called variously ultra-conservatives , arch- conservatives etc. In actuality the most correct term is reactionary. And according to Webster’s New Collegiate Dictionary a reactionary is a believer in reaction which is a “tendency toward a former and usu. outmoded political or social order or policy” Once the far-right is referred to correctly and once their outmoded policies are revealed then and only then can they be refuted and reduced in power!
    Howard Dean, Hilary, Al, Bill et al wake up!!!

  9. noneofyourbusiness says:

    “The Senate’s role is merely to offer advice and consent. Their only responsibility is to ensure that nominees are fit to serve.” -James Joyner

    The conclusion is false. Consent is a responsibility that the nominees are fit to serve the people, not the current president’s ideology or agenda.

    “If the Courts are going to try to discern “intent” rather than what the language of the law actually says, then why is it “outlandish” to consider the president’s words alongside those of the Congress?” -James Joyner

    Because Congress, not the president, makes law. Also, the “intent” part of your argument is a straw man, and you know it. Shame on you.

    “Why doesn’t the NYT write about the radical views we have seen with the present liberal leaning court?” -Herb

    Because the court is not left-leaning, being comprised of about 55% Republicans. Rush Limbaugh has hoodwinked you.

    “The assbackwards assumption is that the 60’s are the future. This is a huge problem for the left in that they are stuck in the past.” -ICallMasICM

    UCM wrong. The ass backwards assumption is that the 50’s are the future. This is a huge problem for the right in that they are stuck in the past, and resent the freedoms of the present.”

    “No, I say not a step forward or backward, but a step towards the Supreme Court returning to its original function.”-G A PHILLIPS

    The original Supreme Court established a very strict balance of power between the different branches of government, and made sure that the presidency was none too powerful, something this nominee (and president) would undermine. Furthermore, despite your attack on liberalism, the founding fathers, who created that original supreme court, and the constitution as well, were, in fact, Liberal. Had THEY been conservative, we’d still be singing ‘God Save the King’. I always find it amusing when Conservatives want to go back to origins, but don’t understand that the Bill of Rights is a part of the original constitution.

  10. floyd says:

    at least we’re fortunate to have one fully qualified supreme court judge,antonin scalia. too bad the democrats hate the constitution or we’d have robert bork as well.

  11. Anderson says:
  12. John Palmer says:

    As an addendum to noneofyourbusiness’s response, the “advise and consent” applies equally to judges (and ambassadors, etc.) as it does to treaties, which stand beside the Constitution as supreme law of the land. Any argument you make regarding Senate deliberation regarding judges could be made equally well for treaties.

  13. Herb says:

    Anderson:

    Sharpen up your reading skills. My topic was and remains,

    Where is the NYT in denouncing the Kelo decision that came from a lefty activists court?

    Could it be that they do not want to say anything that would resemble a disagreement with their leftist buddies.

  14. floyd says:

    thank you mr. anderson

  15. J.Eisner says:

    According to the conservative Heritage Foundation’s originalist guide to the Constitution, the Senate is free to use its power of “advice and consent” however it sees fit.

    http://www.heritage.org/Research/AmericanFoundingandHistory/wm800.cfm

    Advice and Consent: What the Constitution Says
    by John McGinnis
    July 19, 2005

    Editor’s Note: … This essay is part of The Heritage Guide to the Constitution (forthcoming), a line-by-line analysis of the original meaning of each clause of the United States Constitution, edited by David Forte and Matthew Spalding.

    The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential “point of view” were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.

  16. J.Eisner says:

    If the Courts are going to try to discern “intent” rather than what the language of the law actually says, then why is it “outlandish” to consider the president’s words alongside those of the Congress?

    It’s outlandish to give the president’s intent the same weight as Congress’s (which is what the editorial said) because it is Congress’s sole power to shape the law, perhaps through negotiations within Congress. Considering the president’s intent when interpreting the law might change what members of Congress thought they were agreeing to when they voted for it. This is
    why the federal Line Item Veto Act of 1996 was found unconstitutional, for example.

    After all, the final compromise bill hammered together by the conference committee often differs rather substantially from those initially voted upon.

    Why is that relevant? The compromise bill goes back to Congress for another vote.

  17. Diana says:

    Does anyone think that having a court remove abortion protections will make abortion go away? If you use the argument that the states should decide the issue, then why didn’t we let the states decide the issue of slavery?

  18. ICallMasICM says:

    ”The ass backwards assumption is that the 50’s are the future. This is a huge problem for the right in that they are stuck in the past, and resent the freedoms of the present.’

    Maybe in the hysterical magical time travel VW bus that you and Geralding and Hirsted are riding in but for the rest of us who weren’t alive in the 50’s we’re looking to the future. Maybe the Great Society will come back but it’s unlikely since many of us associate the social engineering mindset with abject failure. But you and Ted K. can keep calling anyone who disagrees with you a reactionary bigot and make sure that you keep talking about abortion and Vietnam because as we can all see that’s a sure winner and a great vision for the future.