Thursday, January 12, 2006

Judge Alito: Abortion, alumni, and authority

So, the Samuel Alito confirmation hearings are wrapping up, and so far we've learned mostly that Alito may or may not overturn Roe v. Wade, and that he may or may not have been a member of the controversial Concerned Alumni of Princeton. At least the fixation on abortion did not completely crowd out questions about Judge Alito's views on the question of executive powers.

Unfortunately, in the current political environment, any pointed questions on the subject coming from inevitably look partisan (and, coming from Republicans, would look disloyal). But in fact, while I'm sure that Alito is a highly qualified jurist and an intelligent and decent man, I think that concerns about his attitudes toward individual rights, civil liberties and state power are justified. George Washington University law professor Jonathan Turley, no one's idea of a liberal Democrat, thinks so too. (Edit: Corrected link) Here's what Turley has to say in a USA Today op-ed:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito's cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito's bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

Turley adds that Alito's view on the subject have been "repeatedly rejected not only by his appellate colleagues but also by the U.S. Supreme Court." Many of the appellate judge who have rebuked Alito for his reluctance to curb government powers are conservatives -- including current Homeland Security chief Michael Chertoff, who in one opinion wrote that Alito would "transform the judicial officer into little more than the cliché 'rubber stamp.' "

Turley concludes:

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government's most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.

Is Turley overreacting? Maybe. Or maybe not. Either way, it's too bad that such questions are very unlikely to get serious and thoughtful consideration from either side. In any case, the concerns he raises are far more substantial and serious than this babble from Kate Michelman, formerly of NARAL Pro-Choice America, in The Boston Globe. Michelman asserts that Alito is stuck in a Pleasantville-like fantasy world of happy housewives and authoritative husbands. And we know this how? Because he backed the legality of spousal notification for abortion, something supported by about 70% of Americans?

Astonishingly, Michelman writes:

He sought to uphold abortion restrictions that would have treated a grown married woman no differently from a child, forcing her to notify her husband in all circumstances, including abuse and rape, before obtaining an abortion.

This is (to put it politely) untrue. As summarized by the Supreme Court in Planned Parenthood v. Casey, the Pennsylvania statute that Alito voted to uphold
provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Michelman also writes that Alito "seems not to have believed women and minorities deserved equal access to his own educational institution, Princeton University." That's a reference to Alito's much-disputed involvement with Concerned Alumni of Princeton, which sparked a major squabble at the Senate Judiciary Committee hearings.

Ted Kennedy's bombshell -- the supposedly incriminating CAP records -- turned out to be a dud when it was revealed that none of the papers contained any mention of Alito. There is still the fact that he mentioned his CAP membership (along with the Federalist Society) in the letter applying for a high-level job in the Reagan Justice Department years after his graduation. Some commenters here and here suggest that he made it up in order to bolster his credentials as a true conservative.

Let's make one thing clear: CAP is not being unfairly maligned. It was not a mainstream conservative group but a radical reactionary one, with a strong streak of bigotry. (Some Alito defenders, such as Human Events'Terry Jeffrey in a CNN appearance, have tried to suggest that the group was tarred as racist simply it opposed preferential treatment in university admissions; but in fact, CAP opposed merit-based admissions and wanted quotas favoring males.) The real issue, of course, is whether Alito knew that.

Law professor Eric Muller, who personally knows and likes Samuel Alito, poses this question at how likely is it that a Princeton alumnus would not have known much about the group's doings? From my own experience, I can say that I was very aware of some flaps that occurred at my alma mater, Rutgers University, after my graduation, and barely aware of others. Perhaps Alito vaguely heard about the group being accused of racism and sexism but chalked it off to political correctness. If he did mention a non-existent membership in a conservative group (not on a résumé but in an application letter) to impress a prospective employer, it does not reflect well on his character, but I would be inclined to see it as a venial sin. It certainly doesn't make him a bigot; there is no evidence of bigotry in his career or his life, and trying to imply that he was one was a low blow that misfired badly for the Democrats.

More: Over at The Reality-Based Community, Mark Kleiman writes:

Alito, as a thirty-something lawyer bucking for a job with the Reagan Administration, boasted about his CAP membership as a way of displaying his paleo credentials to what was an extremely paleo ruling clique. ... Both Alito's eagerness to flash his credentials as a bigot in 1985 and his modified, limited veracity about the topic today are perfectly legitimate issues in considering him for the Supreme Bench.

First of all, the "boasting" consists of a single line in this letter (scroll down to page 16):

I am a member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings and a member of the Concerned Alumni of Princeton University, a conservative alumni group.

The letter, about 500 words long, was intended to prove Alito's bona fides as a conservative. Flashing his credentials as a bigot? Please. That presumes that not only Alito but the intended readers of his letter in the Reagan DOJ were extensively familiar with CAP's activities. In fact, CAP was clearly so little-known that Alito felt the need to identify it (unlike the Federalist Society) as "a conservative alumni group."

More: At, Jeff Taylor writes:

A Justice Alito on the Court may force the body politic to confront this new reality, where abortion does not play a central role on the socio-political scene. The left will have failed to stop a nominee that, in their construction, threatens to reverse one of the singular civil rights advancements of 20th century America. Moreover, the American public did not pay much attention to their failure.

But the right will creep closer to its long-sought 5-4 court certain—absolutely certain—to revisit and overturn Roe. Except that Alito may never vote that way. Both sides may have to live with the alternative: An armistice in the battle over Roe.


al fin said...

This is a very interesting spectacle, the choosing and confirming of Supreme Court Justices. Everyone feels like he must take a side in the controversy. Regardless of the underlying ignorance of the issues. An enjoyable spectacle indeed.

Anonymous said...

He should become a left-threaded wingnut, then the confirmation process would be simpler. Oh, yes, and freshen Teddy's highball glass occasionally, that drab old fart always looks as if he could use another drink in a hurry.

Anonymous said...

Oh please.

After "KELO ET AL. v. CITY OF NEW LONDON ET AL." just who on the Supreme Court is protecting the little guy from government abuse ?

Certainly not the liberal side of the court, and I'm sure you can cite numerous reasons why the conservative side of the court doesn't either.

Alito will be an "empty robe" among "empty robes."

Anonymous said...

California law bans sterilization without the written consent of the spouse and after a 30 day "cooling off period." Do you believe this treats a woman "as a child "? It was passed by the Democratic majority in the California legislature in the 1980s. It was specifically intended to end the use of post-partum tubal ligation by minority women who feared their husbands. This (tubal ligation) was a supposed "racist" attack on the Hispanic family and the ban condemned these poor women to a life of endless preganany. Unless they got abortions, of course. What nonsense !

Anonymous said...

"Ted Kennedy's bombshell -- the supposedly incriminating CAP records -- turned out to be a dud when it was revealed that none of the papers contained any mention of Alito.'

Re the quotes attributed to CAP and other issues surrounding that organization, you might want to look at this article by right wing propagandist Jake Tapper - . While Sen. Kennedy has largely disproven Dean Wormer's axiom that fat, drunk, and stupid is no way to go through life (admittedly an impressive achievement), he's not a very reliable source for objective information.

And let me second David's first paragraph.

Anonymous said...

I believe this is the correct link to the Turley piece

Your text links again to the WaPo article.

Revenant said...

After "KELO ET AL. v. CITY OF NEW LONDON ET AL." just who on the Supreme Court is protecting the little guy from government abuse?

The Kelo ruling was five to four, and Alito is replacing one of those four.

Anonymous said...

Having watched a good 95% of the hearings, I must respectfully disagree with your analysis. My overwhelming impression is that Alito is an apoliticlal lover of the law.

You must have missed the testimony of his colleagues from the 3rd circuit which included a liberal woman as to his judicial temperment undriven by any political agenda that they could detect. To me that was the best evidence that he will make an excellent supreme court justice.

Anonymous said...

re: Cathy's links on CAP -

The first link - - proves absolutely nothing. It's a link to a link to a link... (you get the idea)... basically piling accusation upon media report of accusation upon link to media report... (Again, you get the idea.)

Hmm... damn... when I followed the second link Cathy provided I found myself at the same page Cathy's initial link (to her own past page) linked me to.

Bottom line... I wouldn't be so quick to accept Cathy's view of CAP.

*** Actually... I'm lying when I write above "bottom line." The true bottom line is that all of our time would be better spent examining Judge Alito's judicial record rather than researching the history of CAP. CAP is a non-issue in my humble opinion.

*** Oops! Sorry, Cath! Don't want to offend you by telling you what to write about! Be my guest to create a whole thread dedicated to CAP if that's what you want to do.

Anonymous said...

I have to agree with the previous comment. I will take the word of the unbiased ABA panel and those who worked closest to him (and sometimes disagreed) who range across the political spectrum over the biased analysis of a significantly less familiar person using a biased sample of cases.

Anonymous said...

Cathy, the supposedly scurrilous article frpm the CAP publication Prospect which Kennedy read from turns out to have been parody

Anonymous said...

DAMN IT!!! Prior to posting my comments on Cathy's comments re: CAP I had posted (or at least I THOUGHT I had posted) my views on the hearings overall.

I must have only "previewed" and clicked out before actually posting. Stupid me!!!

Anyway... let me try again.

Alito "won." He'll be confirmed. In my view he deserves to be confirmed and I generally agree with his legal philosophy. But beyond Alito "winning," the Democrats "lost." Kennedy came across as an absolute disgrace. Biden came across as too "clever" by half. Schumer was obnoxious. Feinstein... Leahy... Durbin... they may all be part of the Democrat's "A-Team" in terms of boosting the morale of Party activists, but as for playing to the average American... not so much. (Hey... this is all my opinion... totally subjective.)

Cath... just a question... you don't think Spector asked any pointed questions on the question of executive power? Hmm... I'd have to actually read the transcripts, but my general take was that the only concession Spector makes to "partisanship" will be to eventually vote for Alito.

Reading between the lines of your frustration with the process, I'm with you. The hearings were more a show than a sincere search for answers. As with all legislative hearings, there was more smoke than fire and the nation would be well-served by procedural reforms and good-faith questioning of nominees.

Here's a proposal: After Senate hearings on USSC nominees end... but before the Committee votes... there should be a day of hearings run by... THE SITTING MEMBERS OF THE SUPREME COURT ITSELF!

Of course the Justices wouldn't be given a vote, nor am I suggesting that afterwards members would share their thoughts and views with members of the Senate or the public, but a day of vigorous questioning by the sitting members of the USSC would give both the Senate and the nation as a whole a far better standard to judge a nominee's fitness and suitability than the 95% blather and partisan snipping coming out of "normal" hearings.

Regarding Jonathan Turley... sorry, Cath... while I'm certainly happy to read or listen to Mr. Turley's opinions I certainly don't give his views the credence you do. No... Turley is no one's idea of a liberal Democrat... but neither is he anyone's idea of a Scalia, Thomas, or conservative Republican of the "Rah-Rah Dubya!" stripe. The Jonathan Turley of 2006 seems to have "evolved" (in a way the New York Times would approve of!) since his days of initial prominence in the 90's. I'm with Dave! (*GRIN*)

Kudos (dittos!) (*GRIN*) to Neo! If the Kelo decision wasn't enough to convince the average American - Republican or Democrat - that the USSC isn't the protector of individual freedom many mistakenly view it as... nothing will. If there was ever a decision that serves to illustrate the downside of judicial review, Kelo was it. (And yeah, Revenant... good point. I'm well aware that the decision was 5-4. That simple terrifies me! )

Cath... thanks for pointing out the theory that Alito simply made up a non-existent membership in CAP to buttress his supposedly "true" conservative credentials. If this was the case... I agree with you that it reflects poorly on him. That said, again I agree with you. Worst case... "venial sin."

"Michelman...???" Responding to her isn't worth my time.

On that note... catch ya later!


Anonymous said...

From the Turley piece in USA Today:

As an assistant solicitor general, Alito strongly opposed the ruling of a court of appeals in the seminal case of Garner v. Tennessee. In that case, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered, a position ultimately rejected by six members of the Supreme Court and decades of later decisions.

From the dissent in Garner v. Tennessee:

Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.

Who wrote that dissent? Sandra Day O'Connor

M. Simon said...

Raich is right up there with Kelo.

Which brings me to my point.

Why no questions about the IXth and Xth Amendments?

Lori Heine said...

The only way I can stand to watch the Alito hearings is to think of them as low comedy. Our elected officials -- on both sides of the aisle -- are making total jackasses of themselves. If the American people had a lick of sense, they'd vote every golldurned one of 'em out of office. Is anybody on that committee really interested in determining whether Alito would be a good addition to the Supreme Court?

When I remember that it's no comedy -- but, in fact, real life -- I always get so depressed, I have to change the channel.

Anonymous said...

Regarding Garner v. Tennessee, my nod goes to Alito and O'Connor.

It's funny (weird funny, not ha-ha funny) that this comes up tonight. Right before I came in to my office to check on this thread I was watching this week's (taped) Law and Order SUV episode. The first half of the show dealt with a child kidnapping case where a woman doctor had driven to meet the kidnapper at an empty building (or maybe an ally... it doesn't matter) to exchange the ransom for the little girl. Detective Stabler was hiding in the truck of the doctor's car. When the doctor and the kidnapper tried to do the exchange the masked kidnapper (NO DOUBT THE KIDNAPPER!) was out of his car presenting a perfect target (and he wasn't actually HOLDING a gun at that point) arguing with the ransom-giver about how to manage the exchange of money for the kid (who was THERE! sitting in the front seat of the kidnapper's car!) and yet Detective Stabler didn't shoot the kidnapper when he had the chance. Well... a private unarmed security guard stumbled in on them at this point and the kidnapper ran back to his car and escaped with his victim.

Yeah, yeah... it's a TV show... but the point is based on reality. The moment the cop had the chance to shot (hopefully disable... but if it's a kill shot too bad) the bad guy he should have taken it. Because he didn't the victim STAYED a kidnapping victim and the kidnapper could easily have killed innocent bystanders speeding away trying to escape the pursuing cops.

Every time they show one of those LA car chases and I see half a dozen cops surround the temporarily trapped criminals and the cops could easily shoot the car thief/criminal/fugitive but hold off only to let him drive over a curb or something to resume his attempted getaway I find myself screaming at the TV, "shoot the SOB!!! Shoot him while you have the shot! Shoot him before he can get away with his vehicular potential weapon and kill some innocent bystander or innocent driver!"

But no... apparently the Garner case is the reason why the cops must not shoot, thus allowing society in the form of innocent potential victims to share the risk of the criminal having freedom of movement and presenting a danger to others for longer than necessary.

America would be a safer country for innocent people if criminals (and yes... SUSPECTED criminals) knew they risked being shot if a cop told them to hold it and they ran instead of obeying the cop's legal order to stop and be questioned.

Anonymous said...

I am not sure Prof. Turley is a good authority on this issue. His act has become well known: he feigns reluctance than invariably takes the Democratic view on everything the Bush administration does. If the guy would just admit his partisanship and stop trying to pretend he is not would be refreshing.

Cathy Young said...

My apologies for posting the wrong link for the Jonathan Turley article. Mistake corrected.

Dave: you clearly have no clue about Turley's political views (he was a strong critic of the Clinton Administration in the 1990s) or about mine. (Hillary Clinton, my hero? Bwahahahaha!) Do you think that everyone who doesn't march in lockstep with the right is a liberal Democrat?

You're equally wrong about CAP; it did not simply oppose affirmative action but the presence of women and blacks at the university, and demanded quotas that would keep the student body at least 75% male. Are you perhaps unaware that Bill Frist, a Princeton alum, was the co-author of a 1975 report that condemned this group?

The article that Kennedy quoted may well have been parody, though as long as Jake Tapper was interviewing Dinesh D'Souza, I wish he'd asked him about CAP's magazine publishing a scurrilous piece about a female student's sex life (all in the guise of upholding traditional morality, of course).

As I said, I don't think CAP is all that relevant here. I don't see any evidence that Alito was involved with the group or sympathized with it. But let's not whitewash what it was.


No... Turley is no one's idea of a liberal Democrat... but neither is he anyone's idea of a Scalia, Thomas, or conservative Republican of the "Rah-Rah Dubya!" stripe. The Jonathan Turley of 2006 seems to have "evolved" (in a way the New York Times would approve of!) since his days of initial prominence in the 90's.

Gee, I sure hope that a "Rah-Rah Dubya" mentality is not supposed to be a good thing in a legal expert, let along a Supreme Court justice. *G* Can't say I'm that big a Scalia fan either, especially considering his votes in Raich and Lawrence and his publicly stated idea that the government derives it authority from God (which runs directly counter to the principles of the American Founding -- remember that little "consent of the governed" thing?).

Turley may be wrong or tendentious in his interpretation of Alito's views. That doesn't mean he has transmogrified into a liberal Democrat or is currying favor with the New York Times. I think he's actually been quite consistent in his views. He was against unrestrained executive power in the Clinton years, and is against it under Bush.

(Btw, interesting point about the similarity of Alito's and O'Connor's views in Garner. I think that on many issues, O'Connor's "moderation" has been substantially overstated simply because of her pro-abortion-rights leanings.)

mythago said...

O'Connor passes for 'moderate' because the Court as a whole is so right-leaning.

Lori Heine said...

People are forever calling me a liberal, simply because I do not toe the line of what now passes for conservatism. As a libertarian, I have simply learned to get used to that.

Back in Goldwater's day, I would have been considered a staunch conservative. We truly live in wacky-land when people consider statesmen like Barry (who SHOULD have been President) extreme.

This country missed its chance when it chose LBJ over Goldwater. And we have been paying the price for it ever since.

mythago said...

Yeah, yeah... it's a TV show... but the point is based on reality

No, it isn't really. A police officer in real life may not be able to safely shoot the criminal without risking the life of the victim. (That's why SWAT teams bring in trained snipers.) Please note also that you are not describing a Garner situation. Shooting a felon who is kidnapping another person is very different than shooting a person who is stealing a TV.

America would probably also be safer if highway cops could execute speeders on the spot. If you prefer swift justice to accurate justice or civil rights, I suggest America may not be the nation for you.

Revenant said...

If you prefer swift justice to accurate justice or civil rights, I suggest America may not be the nation for you.

A thief who is interested in "accurate justice" has the option to refrain from fleeing, submit to arrest, and go to prison. A fleeing thief is trying to achieve *injustice* -- specifically, he is trying to escape the just punishment that awaits him. It isn't clear why shooting him is less just than allowing him to escape capture, nor is it clear why his rights are more important than the rights of his victim.

Anonymous said...

Regarding Judge Alito,

He seems like a responsible jurist.

Regardless, the wacko liberals on the Senate Judiciary Committee are not not going to convince middle America otherwise.

These folks came across as puppets for the various lobbying groups. No original thoughts there. Kennedy my Senator made a fool of himself.

As a main street Democrat I dare say that if these folks only focus on abortion they are going to lose more elections.

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