OTB on the Radio
My appearance on the Brian Lehrer Show, originally scheduled for yesterday morning and then bumped to 11:05 today has just been moved up to 10:05 today.
We’re apparently talking about the Alito nomination and perhaps also about the Libby indictment.
You can listen online.
Update (1020): It’s over. Neither Steven Taylor nor I could get the audio to work but maybe the archived version will be available soon. Brian interviewed me on Alito. The basic Q&A as best I can recollect:
BL: Alito ruled that Congress doesn’t have the right to ban ownership of machine guns. Doesn’t that make him a judicial activist?
JJ: Not necessarily; it would depend on his rationale. I haven’t read his opinions in those cases besides short extracts in the press. Certainly, a strict reading of the 2nd Amendment would support Alito. At the same time, a whole string of Supreme Court rulings have gone the other way and a general consensus has been reached that Congress does have pretty extensive powers in that area.
BL: Alito ruled in favor of Pennsyslvania’s law requiring notification of husbands before a wife could have an abortion but ruled that a partial birth abortion law was unconstitutional. Does that mean his views on abortion are more complicated than people seem to think?
JJ: Certainly. He was, though, in a different position in both cases. Because he is a lower court judge–on the Court of Appeals–he has to defer to Supreme Court precedent, especially recent precedent. In the Casey case, he was ruling in a vacuum because there was no case law. In the latter case, the Supreme Court had already handed down several rulings that restricted where Alito could go.
BL: But, since he will be deciding these big cases if he gets on the SC, surely we can’t dismiss his lower court rulings?
JJ: Absolutely not. But we have to realize that a lower court judge is bound by precedent in a way a SC justice is not.
BL: Most people argue that it is illegitimate to question a judge based on ideology. Isn’t that wrong, though, considering that presidents campaign promising to put certain types of judges on the court?
JJ: I agree. Traditionally, it was considered out of bounds to talk about ideology because judges were thought to be apolotical. Clearly, though, the last half century has proven how very much a part of the political system judges are, having decided issues ranging from civil rights to abortion. At the same time, though, presidents are elected and are the lead figures in the nomination of judges. Nominees, of either party, should be given great deference assuming they are qualified. It is legitimate to argue that a justice is too far out of the mainstream or not intellectually or temperamentally suited for the court; it is going too far to simply say that you’re not going to vote for a qualified nominee because he doesn’t share your view on abortion.
BL: Turning to the Libby indictment, I hear a lot of Republicans villifying Joe Wilson but no one seems to be defending Libby. Are Republicans throwing him under the bus?
JJ: No, I don’t think so. Libby is not a well known figure, since he’s a White House insider, so the rank and file has no real stake in him. Especially in light of the Clinton mess, Republicans can’t very well argue that perjury is no big deal. There is argument over whether Valerie Plame was really “covert” and other issues in the case but, if Libby actually lied to a grand jury, repeatedly, in a way that can’t be explained away by honest differences of recollection by different individuals, then it’s hard to defend him.
By the way, it appears that I got moved up at the last minute due to a cancelation by none other than Sen. John McCain. Heh.