On Judge Alito, the San Francisco Chronicle is Unfit to be a Newspaper

Today (Tuesday) the San Francisco Chronicle ran an editorial entitled, “Why Alito is the wrong choice.” Instead of demonstrating what it says, it demonstrates why the Chronicle has failed to do its homework as reporters, in preparing its editorial. Here’s why:

In some ways, Alito's taciturn approach to questions about the great constitutional issues of our time was similar to that of Chief Justice John G. Roberts Jr. But the distinction between the history of the two judges -- and the role of the justice they were nominated to replace -- are important.

First, this fails to note that the “taciturn approach” followed by Judge Alito was exactly the same as Justice Ginsberg’s. It is a gross violation of judicial ethics for any judge on any bench to comment publicly on any issue likely to come before him/her in a case.

As for the Justice that a nominee will replace, if all Justices should mirror the ones they are replacing, many of the current Justices would have been disqualified. If such a policy had always been in force, the Dred Scott case would still stand, upholding slavery.

Of the two, Alito had far more explaining to do about his past, and his answers fell short of satisfying concerns about his record of advocating repeal of Roe vs. Wade, highlighting his membership in a Princeton alumni group with retrograde views of women and minorities and all too frequently siding with government and businesses against individuals seeking redress.

Only laws can be “repealed.” Decisions of the Court, like Brown v. Board of Education which outlawed segregation, can only “reverse” prior decisions of the Court. Or, is the Chronicle just revealing its core belief that the Court is just an unelected supra-legislature with a roving commission to do whatever strikes its fancy on a given Friday (the day that Justices conference and decide the cases argued that week)?

Apparently, the information has not reached the editorial offices of the Chronicle that the anti-minorities and anti-women article from the Concerned Alumni of Princeton that Senator Ted Kennedy quoted from ad nauseam was a SATIRE. One of the tip-offs was that the article claimed for homosexuals “the right to bear children.” Helloooo. Didn’t anyone pay attention in high school biology?

The editorial next attacks Judge Alito’s suggestion as a staff attorney in the Reagan Administration that

Presidents... put... caveats with their signature on legislation. President Bush has been doing just that -- using ‘signing statements’ more than 100 times to essentially reserve his right to ignore a law he might find unduly constraining.

Apparently, the Chronicle missed the Supreme Court case which denied President Nixon the “right” to conduct “hold-backs,” refusing to spend money as authorized by Congress. Both President Nixon and the seminal case he lost were in all the newspapers, presumably in the Chronicle as well (unless it happened during the baseball season, as Tom Lehrer said at the hungry I.) Presidents can issue whatever statements they choose when signing legislation, but none of that changes anything about the laws just passed.

One last point. Apparently the Chronicle wants Alito to be a “moderate” or “centrist” like the departing Justice Sandra Day O’Connor. What do those words mean, in the context of a Justice of the Supreme Court? Based on the example of Justice O’Connor, it means not going overboard in enforcing the Constitution. Enforce it sometimes; rewrite or ignore it in others. A Justice who thinks that way is in violation of his/her oath of office. The Justices are supposed to obey and enforce the Constitution in EVERY case that comes before them.

No one wants a “moderate” policeman, who will capture some of the criminals if he feels like it. No one wants a “centrist” surgeon, who will correct some of the patient’s physical problems, but not others. And perhaps no one wants a newspaper which attempts to write authoritatively about the role of the Justice of the Supreme Court in total ignorance of facts readily available to any competent researcher.

[The author is not merely an opinion writer about the Court and its Justices. He has practiced First Amendment law in the Supreme Court over a span of more than three decades.]

I don't know why it is that people think they can read a few cases, think up a theory that coincides with their political ideas, and declare that they (no, really and truly they do!) understand the practice of law, particularly a specialized area like constitutional law.

We see these folks trying to represent themselves in court much too frequently. It is pitiful. In 25 years in the trenches, I have NEVER seen a pro se litigant prevail . . . although occasionally they manage to survive a motion to dismiss. More often, they get socked with penalties and attorney fees for wasting everybody's time. (Like that fellow that Ted Kennedy is touting as the magic bullet for Judge AliOto . . . he's a hardy perennial down at Federal Square.)

I guess it's the same impulse that makes folks attempt to practice medicine on themselves with all kinds of quack nostrums. People put themselves in serious debt to go to medical school and law school. If it were as easy as reading a few cases and textbooks, the schools would be empty.

And by the way, Congressman, I concur fully in your opinion of Judge Napolitano. He's not a dummy, but he's no constitutional lawyer.

I don't know why it is people think they know everything about someone from a few postings. No, I have not attended a school of law. However, I have followed the SCOTUS rulings for quite sometime and studied the history of the court. I also don't know why someone can't respond to a simple request. To prove that Roberts and Alito are as libertarian (or believers in federalism if the word suits you better) as Thomas and Brown.

It is not a few cases. Of course I don't claim with no evidence I've argued First Amendment cases in front of SCOTUS for 30 years either. Would my claim be more accepted by a Republican like yourself if I stated, almost baselessly, that I worked hand in hand with Ronald Reagan's campaign manager because I voted for him? Should I use that as a tagline now? Will that gain me 'street cred' in your eyes? You know I've been thinking lately about running for office here in NC, maybe against Richard Burr. Yeah that's it....

I guess it's the same impulse that makes folks attempt to practice medicine on themselves with all kinds of quack nostrums.

Oh yes it's exactly the same. Whereas medicine is an objective science, where the wrong move can kill someone, constitutional law is to a large extent subjective. If it weren't cases wouldn't be overturned 50 years later because a judge has decided he's found a new right in the Constitution that no one else has been able to find.

And by the way, Congressman, I concur fully in your opinion of Judge Napolitano. He's not a dummy, but he's no constitutional lawyer.

Of course. He was just a sitting judge, what the hell does he know about the law?

As I see no response is forthcoming (as my point is correct from reading more than a 'few' opinions of all judges mentioned (I'd suggest you do the same before posting again)), I'll leave you to the needless and baseless bashing okay? That seems about par for the course when you can't answer the question put to you.

I've read his opinions in the light of a legal education (which is necessary - do you have any idea how many wrong-headed briefs circulate around the courthouses of this land courtesy of amateur "lawyers"?) He's a sound jurist, though it's difficult to say with certainty whether he will construe the Constitution in the same manner as Scalia and Thomas because as a circuit judge he is not permitted to do much of anything but follow the USSC.

The practice of law, even constitutional law, is largely objective rather than subjective, as a close encounter with the bar exam would inform you. The only subjectivism being practiced is by liberal judges "discovering" nonexistent rights in the Constitution for political reasons. If conservatives do the same thing, they are JUST as wrong as the liberals.

Moreover, whether a profession is "objective" or "subjective" has little to do with whether or not you kill somebody . . . straw man. Of course, I would venture to say that Roe v. Wade may have killed more people even than lousy doctors . . .

Unfortunately, just reading and "studying" the opinions doesn't do the job. Otherwise, why would anybody bother to go to law school? I believe you can still "read law" in a few states, but again in that case the student is studying under an experienced attorney. Unless of course you think law school and the bar exam are just a racket . . .

And re Judge Napolitano - he's not a constitutional lawyer and there's a big difference between a STATE trial court judge and a FEDERAL circuit judge. (This is another reason why some law school time comes in handy.) He's an intelligent man, but his time on the bench did NOT consist of reviewing constitutional issues. It's black letter law in most state trial courts that constitutional issues are avoided if at all possible, and they're usually pretty good at dodging them.

. . . and re the good Congressman - most everyone on FR knows his real name, and since you're so well-versed in Supreme Court matters it should be a simple matter to find a couple of his cases on the USSC website . . . he doesn't need to present "evidence" because anyone can find out for himself. . . . Now WHO did you say is ad homining here?

Oh good, another 'constitutional' lawyer. Geez, ths place is becoming as crowded with legally educated lawyer types as SCOTUSblog....

He's a sound jurist, though it's difficult to say with certainty whether he will construe the Constitution in the same manner as Scalia and Thomas because as a circuit judge he is not permitted to do much of anything but follow the USSC.

Uh-oh, the cover up begins. Roberts agreed with Scalia and not Thomas. Big difference. Alito will fall under the sphere of Scalia as well. Big government, no idea of federalism.

So let me get this straight. You've claimed a legal education and you can't read between the lines of opinions to get the feel of what the judge is thinking? I'd be more than happy to direct you to several of Alito's decisions where his opinion on several issues is easily discernable...Oh but wait, I didn't read them in 'light of a legal education' so I must have read them wrong...

But yet that's what many 'conservatives' would have these judges do. Scalia and Roberts were wrong, Thomas was right. One opinion was a Republican opinion, and one was a Constitutionalist one. If Constitutional law is objective how on earth did 9 people come to three different conclusions?!? Also for you to say that Constitutional law is not subjective, it sort of defeats the point of having nine judges as by your standard of objectivism they should all come to the same conclusion every time. Since they don't.....Geez, I'm glad you're not a doctor

Unfortunately, just reading and "studying" the opinions doesn't do the job. Otherwise, why would anybody bother to go to law school?

If you and the other one were the only instances I had to base my opinion on, I'd say good question. However, we have respected jurists like Janice Rogers Brown, J. Michael Luttig, and Clarence Thomas (even Justice Rehnquist to some extent, God rest his soul) that remind me law schools do have some purpose. Lawyers do have ~~they're~~ ~~there~~ (did I miss one?) their uses

And re Judge Napolitano - he's not a constitutional lawyer and there's a big difference between a STATE trial court judge and a FEDERAL circuit judge. (This is another reason why some law school time comes in handy.)

Well thank ye!! Us unedukated folks don't know them differences between the states and the federal government. Unfortunately most 'conservatives' don't either. Now as Judge Napolitano is such a failure in your eyes at what he does and since you have read 'opinions in the light of a legal education' should I ask you as well why you're only postng on an internet bulletin board? Do you have any books out there I may have heard of? Get your name out there, you could be the next Senator from the state of Georgia!!

and re the good Congressman - most everyone on FR knows his real name, and since you're so well-versed in Supreme Court matters it should be a simple matter to find a couple of his cases on the USSC website . . . he doesn't need to present "evidence" because anyone can find out for himself. . . .

Oh trust me. I have looked at that as well. The information is quite easily found. Why do you think I asked the questions? I believe I may have missed some.....

Now WHO did you say is ad homining here?

Not me...not me..

I do again find it interesting that now you refuse, or can't, answer the question. Let me put it out for you again so you can ignore it and continue the attacks eh? The original poster suggested (actually stated matter of factly) that Roberts and Scalia would agree in most opinions with Thomas and Brown. Do you agree with that? And if so, what is your basis for such a statement? As you will no doubt focus on my rebuttal (that's a lawyer type word ain't it?) instead of answering the question put before you, I will end this conversation post haste. It's boring and for some reason the questions I pose never get answered...

Sorry if you feel that I'm dodging the question, but in the words of one of our (local) appellate court judges, talking with you about the law is like trying to nail a jellyfish to the wall. I'm not even sure I understand exactly what you're trying to say. Maybe the fault is on my part - in which case I do apologize for being unable to follow your argument.

Let me make it as simple as possible for you (although one who has read judicial opinions in 'light of a legal education' should have had no problem with the question the first time)

From post #31 the poster makes the statement..

There is no "Republican" interpretation of the Constitution. Many hold a literal view. Some hold an expansionist view. But both Roberts and Alito hold the literalist view. If you don't see that from their decisions that are a matter of record, you are not paying attention.
Janice Rogers Brown is in the same camp. Justice Thomas is not "the only one on the court."

My question stands. Brown and Thomas are not in the same camp of Roberts or Alito. Brown and Thomas have (more than once I might add) stated in their opinions the concern of the federal government overstepping the rights of the separate and sovereign states. Brown is even on record in a speech as dissenting against the incorporation theory of the 14th Amendment. Considering the stance of Roberts and Alito on more than a few cases (reading their opinions with my 'limited' mind apparently), how can one say those four are in the same camp?* Two of them are true originalists (for the most part) and two are stalwart Republican judges.

*I've emboldened my question so it doesn't slip by as a jellyfish this time...

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