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To: Cboldt
Alito asserts that Stenberg (Carhart) is the controlling authority. He doesn't attack the Carhart decision, he applies it.

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.

214 posted on 10/28/2005 1:40:42 PM PDT by Gelato
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To: Gelato
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.

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.

216 posted on 10/28/2005 1:45:47 PM PDT by Gondring (I'll give up my right to die when hell freezes over my dead body!)
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To: Gelato
There is a way to judge appellate Judges however. When they see precedents that they believe are clearly wrong on the merits but they are bound to abide those precedents they can and should write opinions making that clear.

I have a problem with Luttig for just this reason in a RTKABA case. I give extra points to Edith Jones for her opinion in McCorvey where she did just what I described.

224 posted on 10/28/2005 1:56:48 PM PDT by jwalsh07
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