There ya go boys.
Posted on 10/28/2005 8:33:00 AM PDT by Rutles4Ever
Multiple sources are telling RedState that Samuel A. Alito, Jr. of the Third Circuit Court of Appeals will be named by the President at the next associate justice of the United States Supreme Court as early as Monday.
“The situation is still in flux,” says one source, “but not very much.” Says another, “The White House Counsel’s Office is not doing too good at keeping this a secret.”
Still another source says, “Luttig and Alito were the fall backs to Miers. They have both been vetted. Alito seems more palatable. There is no need to drag this out, he’s been vetted a million times.”
And yet another source tells me that he is convinced Alito is the nominee barring some last minute unforeseen issue. All signs are pointing to Judge Alito right now. Things could change, but as the weekend draws closer it seems more and more likely that Judge Alito will be the nominee and conservatives will have a fight on their hands in the Senate — a very winnable fight.
265 AnotherAlitoFan
Posted on October 28th, 2005 at 3:00 pm. About 'Alito It Is (Or So It Seems)'.
Another former Alito clerk here, just confirming what’s been said before:
I think he’d be an outstanding SCOTUS choice. He’s a thoughtful, committed originalist, if not as absolutist on issues of legislative history and the like as Scalia. He’d also bring some deep criminal law experience to a court that doesn’t really have any other prominent crim law practitioners. (Sidenote: This would be especially valuable in the important homeland and national security cases that I’m sure that we’ll be seeing over the next few Terms. As NJ U.S. Attorney, Alito was prosecuting terrorists before it was even fashionable — do a Google search for “Kikumura”.)
Not to mention he’s one of the nicest, smartest. most plain-spoken guys you’d ever want to meet. Obviously, the Dems will be out for blood with any conservative nominee, but I could certainly see him disarming the committee in much the same way that Roberts did.
If you want to get an idea of his federalism jurisprudence, check out the dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996),
http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt
Another interesting constitutional case is his majority opinon in Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001), overturning a school speech code on First Amendment grounds:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=994081
And it’s true — nobody but the newspapers calls him “Scalito”. Nothing against Justice Scalia, who’s brilliant, but Alito stands on his own without the comparison
Let us know what you think. I haven't had time to look closely at it yet.
Alito's seperate opinion is at the bottom.
Sir, you are blaming Bush for the abject failure of conservatism to elect Senators in NY, Maine, MA, VT, IL . . . and continue the list.
You only make your play to do a huge political move of the court When You Have Earned It. You haven't. You've elected a majority of a bare handful of Republicans, some of whom are not strongly conservative. You have failed badly to prove the country is overwhelmingly conservative. You have to do that before you're entitled to assert a mandate.
Elect another 10 GOP and get 5 of them from the Northeast and make them conservative. Then you've earned the right to assert a huge change.
You are the most bizarre creature .....
275 AnotherAlitoFan
Posted on October 28th, 2005 at 3:06 pm. About 'Alito It Is (Or So It Seems)'.
One other thing, on his concurrence in Planned Parenthood v. Farmer (the NJ partial birth abortion case). The majority opinion in that case, which Alito refused to join, struck down the PBA ban in sweeping language that essentially reaffirmed Roe (and Case, and Doe v. Bolton, etc.) in their broadest terms. Alito voted to strike down the ban, but in a separate concurrence based on the very narrow ground that the Supreme Court’s decision a couple of weeks before in Stenberg v. Carhart, striking down the essentially identical Nebraska PBA ban, was squarely controlling. So all Farmer tells us about Alito’s jurisprudence is that, as a Circuit Judge, he followed squarely controlling Supreme Court precedent.
http://laws.findlaw.com/us/000/99-830.html
Stenberg v. Carhart. 530 US 914 (2000)
Alito asserts that Stenberg (Carhart) is the controlling authority. He doesn't attack the Carhart decision, he applies it.
>
You are the most bizarre creature .....
>
It's a gift. :)
I read every one of you and your ilk's mush-brained defenses of Miers. I never used any 'leftist tactics' and I never even really argued with any of you publicly, but I'm sure there are many who will stand with me when I say that I don't give a rat's donkey what the heck you are disgusted by.
You and the rest of your ilk with your juvenile arguments and junior high school debating tactics can take your sour grapes and make whine for all I care.
Why hold them in reserve? If we do, we don't even have a chance to get what we want. We are blessed with a long, long list of possible, highly qualified candidates. This is a risk we can afford to take, and it's well worth taking.
Does the name Toomey ring a bell?
Therein lies the contradiction.
Under stare decisis, an unconstitutional Supreme Court ruling (such as Plessy) could never get back to the Court for review. Precedent would always be upheld. But it goes a step further. Not only are we told that precedent is binding on the lower courts, but on the highest court, as well. That means, logically, that no Supreme Court ruling could ever be overturned. Some believe that even a conservative majority to the Supreme Court would have to uphold Roe V. Wade. That misguided thinking may have already played out, as Sandra Day O'Connor, reportedly pro-life, looked at Roe as binding precedent.
Ridiculous, really, when you think about it. Liberals ignore the Constitution (which is the true precedent), create their own precedent, and then demand that conservatives obey their will and similarly ignore the Constitution.
Originally, the court respected state's rights. That was the precedent, consistent with the Constitution. If there is some controlling principle of stare decisis, how did the court change into the all-powerful, tyrannical body we see today? Truly following stare decisis would have resulted in a court unchanged from its inception.
What got us into this mess? Ironically, the very thing that gets us out.
It’s Marbury V. Madison, from which we are told the Supreme Court gained the ultimate interpretative power over the Constitution. Although no one noticed it for 150 years, Marbury made the judiciary the supreme branch of government, free to define the limits of the other branches, while being confined by nothing but its own self-restraint. Even though the judicial branch was designed to be the least powerful branch, all levels of government must obey the Court’s interpretation of the Constitution, even when it is at odds with the words of the Constitution, itself. That’s what we’re told.
Problem is, Marbury does not say that. Far from diminishing the Constitution, Marbury reaffirms the Constitution as the supreme law of the land, and the people as sovereign. It emphasizes the need to reject any action by government that is unconstitutional. That important principle applies not just to the judiciary, but to all of government.
Said Justice Marshall:
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. (Marbury V. Madison, 1803)
Judges at all levels are required to reject anything, even case law, that runs afoul of the Constitution. They took an oath impartially discharge and perform all their duties according to the Constitution, not to dutifully uphold unconstitutional rulings.
The controlling principle in any given case is not precedent, not stare decisis, but the Constitution as written. Alito was wrong to say: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent."
Bless you!
That's correct. It's worth noting that Stenberg came just as the Farmer case was underway. (The timing was so close that the Farmer decision had already been written, but not yet released, when Stenberg was announced.)
Based on his previous vote in favor of an abortion regulation, it is likely Alito had planned to dissent in Farmer. Once Stenberg came down, however, he voted with the majority to uphold partial birth abortion. His concurring opinion was written separate from the majority, and gave no reason for his vote other than to cite the new precedent.
This indicates to me that Alito has conservative leanings, and would vote accordingly, except where precedent gets in the way. He likely believes that upholding case law is following the rule of law. It is therefore unpredictable how he would vote, should the court revisit previous unconstitutional rulings (Roe, Lawrence V. Texas, Kelo, etc.).
I don't doubt his heart is in the right place, and he would likely vote correctly on many things. Unfortunately, heart doesn't mean much when it cannot be acted on when it counts.
A proper understanding that places the Constitution above case law is what this court needs.
And it's a highly qualified nominee? We raise h*ck, in unison, and break through the MSM blackout... we highlight to the American people how obstructive the dems are, how anti-America they are, putting politics before the country.
And the responsibility goes back onto the people. We must fight a three-front war--if we want laws changed, let's not be like the lefties and put an activist on there to overturn things. Let's elect representatives who will amend the Constitution where needed.
ping for later
Exactly. Not sure about you - but I have hundreds of contacts in my email address book ;)
At least SOME people understand the Constitution!
Besides, I think that we've shown that conservatives CAN get fired up and make a difference!
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