Alito Prefers Scalpel to Sledgehammer (Good Piece on Alito's Poise)

WSJ ^

[indianrightwinger]

Alito Prefers Scalpel to Sledgehammer By JESS BRAVIN November 16, 2005; Page A4

Judge Samuel Alito may agree on many issues with conservative Supreme Court Justices Antonin Scalia and Clarence Thomas. But President Bush's high-court nominee often has taken a different path toward similar legal conclusions, one that is more subtle and less dismissive of precedent. The administration hopes that tenor may ease his path to Senate confirmation, and, if confirmed, make him more effective in moving the law toward the right.

The approach was evident in a 1975 article Judge Alito, fresh out of law school, wrote about then-recent rulings that began to apply the Constitution's Equal Protection Clause to family law.

Seven years earlier, the high court had struck down, by a 6-3 vote, a Louisiana law barring illegitimate children from suing over the wrongful death of their parents. A series of decisions invalidating statutes that disadvantaged illegitimate children, hippie communes and others at society's margins followed. The Equal Protection Clause, by granting all people "equal protection of the laws," prohibits discrimination by state government institutions.

Since the Nixon and Reagan administrations, conservatives have yearned to overturn many of the Warren Court's equal-protection precedents. Nothing in the Constitution barred laws to "discourage formation of illicit family relationships," Justice William Rehnquist wrote in dissenting from a 1972 ruling that found it unconstitutional to exclude illegitimate children from collecting workman's compensation for their father's death.

Judge Alito approached things differently. In his 23-page article, "Equal Protection and Classifications Based on Family Membership," he offered conservatives a novel way to read the jurisprudence as consistent with "the state's interest in promoting the traditional family." The approach appeared to respect the precedents while denying them the impact that some legal authorities -- including, perhaps, the justices themselves -- expected.

[indianrightwinger]

Judge Alito "massages the precedents to make them say what he wants them to say. That's a very different aesthetic than Scalia," says Prof. Robert Post of Yale Law School, a former clerk to the liberal Justice William Brennan. Judge Alito's "sensibility is not to beat up the Warren Court as illegitimate, but to get what he wants out of the Warren Court."

He will drive liberals nuts. Combined with Roberts, who also shows poise and polish, the two can be solid conservative justices that bring vast majority of Americans to their side of thinking.

I will be nice to see.

[Terpfen]

What really bothers me about the Supreme Court isn't the here and now, it's 10 years from now.

Scalia and Thomas aren't getting any younger, and eventually they'll either die or retire. And chances are, a Democrat will be president when they leave.

[Jeff Chandler]

The Republicans will cave and Alito will be defeated. Also the Republicans who stab Bush in the back will suffer no consequenses.You read it here first.

[indianrightwinger]

Wow, talk about pessimism. :-)

I will bet that Alito will be confirmed. Jeez even Diane F said his abortion stance is a no big deal. For a CA RAT and especially DiFi to say that is major deal.

[Giant Conservative]

Are you French? That is the most defeatist statement of pre-emptive surrender I've ever read. Given that he only thing necessary for the triumph of evil is for good men to do nothing, what will you do to ensure that Alito is confirmed ASAP?

[Deo et Patria]

Wow, talk about "gloom and doom". Alito will be confirmed, no question about it. Republican Senators know that this vote will be a litmus test for them with the base of their party. Book it.

[WestVirginiaRebel]

BS. After the Meirs fiasco they now have a candidate they will be able to unify and rally behind.

[paudio]

The Republicans will cave and Alito will be defeated.

Thank God you're not a Republican. Saying a bad thing so you can claim "I was right" later without even putting a hope for the best, IMO, is a form of self-gratification for a defeatist.

[knarf]

bump for later read.

[Jeff Chandler]

I offer my apology for my cynical remarks. I'm just frustrated with the cowardly Republicans.

[Deo et Patria]

I completely understand the frustration, but I don't want you to get too down ni the mouth about it. Despite all of the setbacks the fact remains that right now we're winning. For the first time, a Republican president was forced to withdraw a stealth nominee because of pressure from conservatives. We have finally gotten the message across that "trust me" is not going to fly anymore. In Sam Alito, we have a nominee who we can be proud of, and we are finally going to have a war in the Senate over this nomination.

[Giant Conservative]

Just remember that though some Republican elected-officials are cowardly, the multi-million-member conservative base is not. We will fight for what's right and accept nothing less than the best of success.

Republican politicians do what the conservative base of America vocally demands they do.

The victories we get are the victories we go all-out fighting for!