Though they are sure not to emphasize the point too much when dealing with the general public, the Bush Administration decided to go with a sure conservative this time around -- one with a paper trail (being on the Third Circuit for fifteen years, showing young conservative appointees were popular back then as well). The general public will hear about his experience (now judicial experience is quite important -- one more white male federal appellate judge with a prosecution background is always useful), loyalty to the Constitution (we agree with him, so he's no "activist"), and basic intelligence/nice genes. A supportive Italian elderly mom from central casting is always helpful. [For a laugh, check out here where an apparently serious person says he is a conservative because of how they let competence, not other factors, be their touchstone.]
I took a tongue in cheek approach in responding to his nomination here, but my comments are serious. Note how the first respondent (a serious sort who is no Bush supporter) zeroed in on the competence angle and Roe. Notice how this was not addressed by my post to near the end, but the stereotype continues. Many cases, not just his support of spousal notification when Casey was heard below (though it suggests a conservative spin on questionable precedents), show his conservative bona fides. For instance, though some wrongly make it out to be proof he is sexist, he dissented from a Chertoff opinion (sound familiar?) which held that a warrant for a husband could not reasonably read to allow a search (including removing clothing -- strip search) of the wife and ten year old daughter. But, it's all about abortion, right?
[And Also: See here for more discussion of this case. This underlines how the critics are not just crying wolf. I'll add that the point in such cases is that when privacy interests -- like strip searching -- is at stake, we should not be interpreting government authority overly broadly, and this includes "reasonable" readings of search warrants. So, yes, it is right to focus on the strip search too, not just the more technical points of the case. Ultimately, the technical points have substantive effect, just as technical attempts to limit court review have substantive effect on real people.]
The post starts off with what I see as a troubling point: Miers on some level was a good choice, including in respect to diversity (not just her sex but her non-appellate/prosecutor based background). How can a major nation like ours have a Supreme Court with eight males (seven white) dominated by previous federal appellate judges, judges skewered to the East Coast at that? What about Red America, I say! I follow with a tongue in cheek comment that is actually quite true: Alito as a conservative Italian (Scalia connection) Catholic is deemed a clear religious conservative, emphasis on both words. But, Justice Breyer's daughter is a minister. And, many Catholics (just look at Brennan) are liberal. West Wing was telling on that point last Sunday too: one cannot stereotype here, but oh how everyone does.
Many do feel that competence is the touchstone, the President having a right to be guided by ideology with some assist of those who control the Senate. But, competence is not the only factor involved here. Never is, so let us not be fooled by that canard. Also, when dealing with a swing vote in a particularly troubling time -- a time that might be a turning point in this presidency and perhaps even partisan politics overall -- it especially in not the sole determinant. So, though it surely will be an uphill battle that honestly I have doubts is winnable, the likely fight (Democrats, unlike for Roberts and Miers, made their doubts known right away, forthrightly) is a good one.
And, I say "it's about time." It is about time that a firm defense of a constitutional vision that in many ways clearly are held by the population at large is put forth. This is the sort of thing that should have been forthrightly (and yah, competently) put forth during the election -- guess what guys and gals, the President has a key role in determining the slant of the courts for years to come. It's not just about picking a so-called charming guy who you think has the guts to fight the War on Terror (is the term still active?).
But, it has to be done right. No talk about how he thinks women are the chattel of their husbands because of the spousal notification and search cases -- people who should know better said this, and it's false. Such cases show a conservative support of a traditional view of marriage that is a sorry view of individual liberty. That is bad enough without trying to take it further than necessary. Also, sometimes, Judge Alito went further than precedents compelled him to go ... for instance, Chief Rehnquist himself upheld a federal family leave law as applied to state employees that Alito struck down. Other times, maybe he followed precedent -- but some precedents put forth a wrong vision.
A vision that can be opposed, especially when the person goes out of his way to promote it. So, guard against legalistic defenses ... focus on the important themes. And, don't bite more than you can chew, though cheap shots are always used sometimes.* Finally, remind the few swing Republicans left (as well as those on the Gang of 14) that the public is on your side -- of course, this means you have to do things right so that polls will show this is the case. At some point, moderate Republican senators have to be called to account for furthering conservative legislation. The 2006 elections and overall signs of weakness to their party's leader have some bite to them.
I would add once more that the conservative thing is not my only concern. It is sad that true diversity is not the name of the game ... seriously. A smart, clearly competent justice is good -- quite important. But, on some core level "competence" is a complex thing, not just brains and judicial experience. On some level, Judge Alito is not really competent in respect to who we need to fill Justice O'Connor's spot. Perhaps, given the importance given to the word "competence" these days in respect to judicial appointees, underlining this point is the most important thing in the upcoming fight. Justice Alito will not be the end of the world, but troubling all the same.
President Bush surrendered to the conservatives ... he let forth the dogs of war as a consequence. The fight is joined. It is not one "we" will necessarily win. But, it is worth fighting for all the same.
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* One is his holding that a federal law against machine gun possession (interstate transport would clearly be covered) did not meet the requirements of interstate commerce rulings such as Lopez and Morrison. The fact is that he was not the only judge to so hold: at least one case from the Ninth Circuit, for instance, held something similar. In fact, it also held the same in respect to child pornography (in particular, involving a case that clearly seemed noncommercial and non-perverse).
Other circuits found a way around it, especially after the medicinal marijuana case suggested the rules should not be interpreted so strictly. So, watch out -- your friends also stretched precedents in some questionable ways.