Justice Alito and the Constitutional Option

Hugh Hewitt ^ | October 31, 2005 04:12 AM PST | Hugh Hewitt

[Checkers]

Judge Alito is a great nominee, and as a result a great political battle lies ahead. For a brief overview of Judge Alito's qualifications, see Ed Whelan's post at BenchMemos. Comprehensive background available at ConfirmThem.com's right margin. I am hoping that BeyondTheNews.com or ConfirmThem.com can put together an archive of every opinion, article and speech by Judge Alito to make referencing easier...

...Law prof Jonathan Turley just told Katie Couric that the Senate Democrats will "come out of the dugout on this one," and predicted a filibuster.

As I wrote below, the best way to preempt a filibuster is for the nine Republicans thought lukewarm or hostile to the constitutional option to announce, early and often, that they will vote for the constitutional option if Democrats attempt a filibuster based upon ideology. If the Senate Democrats know they are going to lose the vote, they will have to approach this debate much, much differently. And if the MSM loses their filibuster storyline early, it will be difficult to campaign on air to legitimize the practice.

Senator Graham led the way for the nine yesterday, and the other 8 ought to follow:

Senator McCain mccain.senate.gov/index.cfm?fuseaction=Contact.Home (202) 224-2235

Senator Warner warner.senate.gov/contact/contactme.cfm (202) 224-2023

Senator DeWine dewine.senate.gov (202) 224-2315

Senator Chafee chafee.senate.gov/webform.htm (202) 224-2921

Senator Snowe http://snowe.senate.gov/Webform.htm (202) 224-5344

Senator Collins collins.senate.gov/low/contactemail.htm (202) 224-2523

Senator Hagel hagel.senate.gov/index.cfm?FuseAction=Offices.Contact (202) 224-4224

Senator Specter (202) 224-4254 specter.senate.gov/index.cfm?FuseAction=ContactInfo.Home

Be sure to isit BeyondTheNews.com to get activism tools for this battle. If you have any doubt about what's ahead, visit the DailyKos thread, though it is the typical NC-17 stuff...

...UPDATE: For an example of how a circuit judge ought to apply confusing SCOTUS precedents, read Judge Alito's opinion in ACLU v. Schundler, which upheld a Christmas/Seasonal display on city property, and which Barry Lynn will no doubt view as the coming of the apocalypse:

"Because of the splintered majority in Allegheny County with respect to the constitutionality of the display in front of the City-County Building, we must employ the standard set out in Marks v. United States, 430 U.S. 188 (1977), in order to identify the Court's holding. Specifically, we must examine the positions taken by the Justices needed to form a majority and follow the opinion that supports the majority position on the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94 (3d Cir. 1991), aff'd in part and rev'd in part, 505 U.S. 833 (1992).

In the case of Allegheny County, Justice O'Connor's opinion sets out the position that we must follow. In order to be sustained, a display would have to satisfy, at a minimum, the standards set out in Justice Kennedy's opinion, which was approved by three other Justices, as well as the standards set out in Justice O'Connor's opinion. Although Justice Blackmun also voted to sustain the display at the City- County Building, his position seemingly imposes more formidable standards, and a display would not have to meet those standards in order to survive. Accordingly, in considering how the modified Jersey City display now before us fares under Allegheny County, we will focus on Justice O'Connor's opinion. Before doing that, however, we will first test the modified Jersey City display against the teachings of Lynch.

The display that the Supreme Court sustained in Lynch resembles the modified Jersey City display in several important respects. Both included one or more religious symbols owned by the city (in Lynch, a creche; in Jersey City, a creche and a menorah), as well as a variety of secular ones. Both included one or more secular signs or banners (in Lynch, a banner proclaiming "SEASONS GREETINGS"; in Jersey City, two signs that read: "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples."). Accordingly, Lynch appears to support the constitutionality of the modified Jersey City display unless some constitutionally significant distinction can be shown.

One potentially important difference is that the display in Pawtucket was located on private property in the center of the city's business district, whereas the Jersey City display was situated in front of City Hall on public land. In Lynch, neither the opinion of the Court nor Justice O'Connor's concurrence seemed to attribute constitutional significance to this fact. (The opinion of the Court noted the fact in passing at the beginning of the opinion, 465 U.S. at 671, and Justice O'Connor did not mention this fact at all.) However, Justice O'Connor's opinion in Allegheny seemed to place greater emphasis on this aspect of the Pawtucket display, 492 U.S. at 623, 626 (O'Connor, J., concurring), and therefore we will discuss this potentially significant distinction in connection with our discussion of Allegheny County.

With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display "Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with the Menorah and the Nativity Scene," Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah.10 "

UPDATE: Andrew Sullivan disputes my characterization of the tactics of the left from my New York Times column of last week as indicating that I am "empirically" nuts. Another fine bit of nuance from Andrew. He gets there by taking my comments from the context of SCOTUS nominations and applying them to every political situation ever encountered. If he is in fact so dense to read it that way --when neither I nor the editors at the New York Times did-- that sayas more about his analytical abilities than it does my sanity. But any serious student of the SCOTUS nomination tactics of Dems and GOP from Bork forward --especially the GOP tactics surrounding the nomination of Justices Ginsberg and Breyer-- will not argue with my characterization. If Andrew has emipirical evidence about GOP misdeeds vis-a-vis Justices Ginsberg and Breyer, perhaps he'll share it with us.

[AFPhys]

Me too.

[savedbygrace]

I'll take either victory.

[savedbygrace]

You might be right. We'll soon see what the Dims decide is in their best interest.

[Lexinom]

"No replies."

[rockrr]

I understand McSwain has taken a "wait and see" attitude - what a bold move!

checkers's approach of having the "squishies" come out early could really diffuse this.....but then they wouldn't be "squishies", would they? ;'}

[Checkers]

bump

[George W. Bush]

Hewitt must be a bit off balance from the Miers dustup.

He indicates that Hagel might vote against Alito while ignoring Nelson (D-NE) who seems perfectly willing to go along with Alito on TV tonight during an appearance on MSNBC with Hatch. Certainly, Hatch did the heavy lifting for Alito but Nelson could hardly be described as being in opposition. Still a Democrat but a far more moderate one, one willing to play the Miller card if he likes but without burning his bridges to his base, an aging moderate Democrat and younger liberal Republican base. I don't know that he's too afraid of the GOP recruiting an opponent in his election next year, given that Johanns, the only credible candidate, abandoned his governor's post without completing his term to serve as Bush's ag secretary. This has pretty much ruined Johanns' chances of returning for an '06 run.

Nelson was actually making a tenuous defence of Alito's Casey dissent, mentioning that while he was governor, he helped shepherd a parental notification bill through the Unicameral. I'm not certain everyone in Nebraska would agree with Nelson's characterization exactly but Nelson didn't cause trouble over it either. Nelson also hinted that it may be time to re-visit the abortion issue in general. It is notable that Nelson was willing to provide some cover for Alito on talking points being used against Alito and to try to be positive toward him while not surrendering too much ground. It indicates to me that Nelson is ready to confirm Alito. And that means Hagel must already be fully on board for Alito. Those two are rarely any great distance apart on key issues, especially on red-meat issues. It's not in the interests of either one to be too far apart and Nebraska's conservative voters don't like it.

Anyone who thinks Nelson is going to get to the far Right of Hagel (by Dim and MSM standards) really needs to think again.

Hugh, stop takin' them crazy pills!