Posted on 10/31/2005 9:33:55 AM PST by 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.
"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 "
Knowing that the democrats on the judiciary committee would pull out the long knives on any nomination, Bush was forced to pick another Justice in the mold of Roberts - a Justice that can talk circles around the democrats on the committee and teach them a lesson in constitutional law.
So, has any one of the a-holes, er, senators made a statement in behalf of Alito yet?
So who's this Alito guy? Is George Bush still president? What's been happening?
Just jokin' y'all. Nice to be back on FR after a week...
mark
Silly Talk
[Mark R. Levin 10/31 09:54 AM]
On ABC's "Good Morning America," Linda Douglass reported that Sam Alito "is another white male." Actually, as I think about it, he's less white than the show's anchor, Charles Gibson. Alito's skin tone appears to me to be more olive. I wonder, if Janice Rogers Brown had been nominated, would reporters like Linda Douglass have been more impressed? Of course not. Speaking of Gibson, he said that Alito was "very conservative." I don't know what this means. But more importantly, given that Gibson probably hasn't read a single opinion authored by Alito, he's speaking from talking points.
I applaud Hewitt for being an adult, and wholeheartedly backing this nominee, without a hint of harking back to the recent unpleasantness.
I agree with his opinion here for the most part, but I sincerely think it would be better in the long run if we had the filibuster battle and won it, so it wouldn't rear its ugly head again.
This is a very good reference list for the "squishy R's" as far as the judiciary is concerned.
I'd save my time and forget about Chaffee - he's a lost cause - but the rest are worth going after - though I'm not at all concerned about DeWine and Graham and think they'll be solid.
Hagel and Specter are more important to woo than most realize, though.
I applaud Hugh Hewitt also. Glad to be on the same side this time.
I wouldn't be too concerned about Specter. I think it would be unprecedented for a Senator from the same party as the President to oppose a Supreme Court nominee from a district court bench whose jurisdiction includes the state that the Senator represents.
Chaffee might not be so lost as you may think, now that he's facing a demonstrably more conservative challenger in the next election.
There, that puts things in perspective.
I'd love to think that Alito's being from Specter's area is quite a bit of leverage. It usually is. I just hope and pray that as a consequence, Alito was one of the suggestions that Specter made during discussions with WH... I've heard nothing to suggest that to be true so far, though. That does not bode well, it seems - but still he is from that district... Here's hoping - because I really believe that Specter is THE most imortant now - not just for Alito, but for ANY USSC nominee to have an honest chance after the way Miers (who he supported) was treated.
I'd love to think that is true, but Chaffee's record is one of unabashed liberalism. Most of the "scorecards" have him much more closely aligned as a Demodog than is the case for any other RINO in the Senate. I haven't noticed that his voting has become suddenly more conservative this year in any of the voting that has taken place.
Sorry. Chaffee must be considered one who must be forgotten - just about as important as Jumpin'Jim.
Me too. I honestly don't think we need to have a filibuster battle if we can simply ram this through. If the RINOs behave themselves, if enough Democrats come on board, if they refrain from filibustering, that will also be a major victory.
Sure, we should use the Constitutional option if we have to. But if the Democrats back down, that will be even better in many ways, because it will reverse the momentum of the past few years.
Indeed, it will be the first really solid conservative candidate confirmed to the court in a long, long time. We had Specter's help with Clarence Thomas (which he soon regreted, but not soon enough to block the confirmation). But a victory, with or without calling cloture, would reverse the whole set of unfortunate compromises and backings-down that began with Bork.
Specter will inevitably make liberal statements, but I'm hopeful he will stand behind Bush on this in his own snide way.
But again that would be smart.. never happen..
But the DEMs have to enagage in obstruction before the nuke can play.
I suspect "no filibuster" in the Alito nomination. The DEMs can either "lose" the seat; or they can lose both, the seat, and the filibuster tool.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.