What is the argument against confirming Judge Alito as a justice of the Supreme Court? Some simply do not like anyone President Bush nominates. A supplemental might be that we simply do not like anyone who was a strong supporter of the Reagan judicial department. This might be a sound sentiment, but it does not go too far ... though it does serve as important background, mixed with the state of Bush's popularity ratings and his handling of judicial nominations in the past. Still, it only convinces the convinced, except perhaps if the "crony" factor (Miers) is too glaring.
A more widespread attack basically has this motivation: it is bad enough that the law in various respects is more conservative than we like, but it is a bridge too far that Alito is more conservative than even that. One can cite, as I did, the study of his opinions that supports this sentiment. Likewise, bring out the fact Justice O'Connor is a swing vote, so the matter is more important than if we were replacing Justice Scalia. This sometimes requires downplaying a bit that O'Connor is conservative, which has its problems. But, it is the best shot, tossing in questionable ethical issues such as him "forgetting" his involvement with a controversial group or not recusing himself in cases he said apparently said he would. These sorts of things tend to be "face saving" reasons given for the ultimate defeat.
One answer to this complaint is that the critics sometimes mix in a general distaste of current law, which is their right, but not if they suggest it is somehow "outside the mainstream" to do so. Thus, certain state immunity cases where the disabled cannot sue state employers in various contexts are cited, but sadly the Supreme Court upheld the sentiment. It sometimes seems that the critics best the anti-Bushies in this department, suggesting a bit of tweaking is useful.
I think it totally proper for the critics to make it clear just what sort of people are being offered here. Just what sort of law is being furthered -- "furthered" is the right word, since the nominees would broaden the precedents. To say that just because the people support the President because of the war, taxes, or whatever, they do not in these matters. In fact, if they think about it at all, they very well might oppose them (this works less well in religious cases given Bush's religious image).
I do think it is legitimate to suggest that the critics want to cloud the issue -- to not dwell on the fact that on various issues the current law is not really where they would like. The more nuanced "add insult to injury" theme is a harder sell. But, I think it is one that can be made more forcibly, especially since it is also legitimate to criticize the more conservative aspects of the current law. If critics say "but the Supreme Court agreed!," reply "unfortunately, yes, but we should not be too happy about it. Anyway, these people would go further ...” The current outside the mainstream approach is a bit misleading, and it does not quite sit well with me at times. The more substantive concern with the current direction of the law is totally legitimate and is nothing to be ashamed about.
These themes show up in Slate coverage of the nomination. There tends to be a heavy-handed approach taken, an emotional opposition to Judge Alito as if he is clearly beyond credibility. I voiced by opposition to William Saletan here ... he was as annoying as Charles Krauthammer in a fashion, especially since Saletan is pro-choice (you expect more from your allies). The other two key jurisprudence writers had their problems too, though they are starting to get better and putting forth a more substantive opposition. Still, they are not totally free from sin, so to speak.
I will end with Bazelon's most recent piece, which was labeled "sleaze" by someone who read the Alito memo it was based on. The case involved had explosive facts (shooting/killing an unarmed teenage black boy allegedly guilty of small time burglary), especially since Alito argued it was not unconstitutional. The Supreme Court per White disagreed while Justice O'Connor (with Burger/Rehnquist) argued it was reasonable under the "fleeing felon rule," but even the dissenters accepted that it was a "seizure" (a point that certain people on the Slate fray did not understand -- yes, you can "seize" people, yes, shooting them in the back in effect does just that). Alito suggested it was not a seizure, though focused more on how it is "reasonable." I compare the article and memo here.
I think Bazelon is open to criticism, but not as much as the "sleaze" comments warranted. The focus of the article was that the seizure was clearly unreasonable and that it had racial implications, the article ending with a thinly disguised suggestion that Alito was a bit racist for not bring them up. This was not really unfair, but underlines the breadth of the problem -- after all, O'Connor did not raise the issue either; in fact, the majority (though citing sources as to urban conditions to support its balancing) dare not mention it. So, Alito is not particularly racist, though that seems to be the implication. This was unfair -- which is unfortunate, since it was totally proper to raise the racial implications of the case, especially since the father did and the facts suggest there is a disparate impact (at least) problem.*
Criticism is raised that Alito's position was not really outside the mainstream -- after all, O'Connor (who he is replacing) supported it! Not quite -- as the Alito critics replied, he also argued there was no "seizure" at all. In fact, along with another point, Assistant Attorney General William Reynolds appeared to criticize him on the breadth of his argument. So, all you have is the argument Alito is not quite as bad as suggested, including that others also supported some aspects of his unsound reasoning. Who wins out in that battle? But, along with the fact that she did not mention (therefore, arguably implying otherwise) that Alito counseled against the feds being involved in the case (since the feds already had a policy against this sort of thing!), Bazelon did oversell.
This is unfortunate, since the facts are enough to go against him.
---
* After I first wrote this, I read a suggestion that the race issue was important as a policy matter, and the Reynolds memo suggests as much. It is less important as a legal matter, since an unreasonable seizure is a problem no matter who is seized. True, but the article should have referenced this point. This would have avoided the "are you saying O'Connor is a racist" argument.