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Bush nominates Samuel Alito to Supreme Court
Posted by: Jon Henke on Monday, October 31, 2005

Various sources are indicating that Bush will announce the nomination of Samuel Alito this morning at 8am.
President Bush will nominate Samuel Alito to the Supreme Court, rebounding from a stinging rebuke over his first choice by tapping a conservative federal judge to replace retiring Justice Sandra Day O'Connor, a moderate.

Alito is a very strong choice, but it's going to be a fight. Patterico runs down the likely Democratic talking point against Alito...
If Judge Alito is nominated, the primary Democrat talking point is going to be his dissent in the case of Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion.

We need to be ready to counter this talking point if Judge Alito is nominated. Luckily, we are armed with the truth.

The short version is that Alito's dissent was limited to respect for precedent as written, and expressed no policy preferences—it was merely an expression of judicial restraint. Alito even wrote "Whether the legislature’s approach represents sound public policy is not a question for us to decide." The longer version can be read at Patterico's blog.

Expect critics of Alito to avoid Alito's legal reasoning, preferring instead to critique the soundness of the legislation....which Alito had no hand in writing.

Samuel Alito biography:

Show/Hide

Another Alito bio can be found at the SCOTUSblog; also see this post at Outside the Beltway.

Reaction:

Shockingly, Hugh Hewitt supports Alito and Democrats oppose him. Think Progress starts us down the Bork road by titling their post "Samuel Alito's America".

  • People's Republic of Seabrook: "If there had been any doubt about the state of Our Glorious Leader’s war on women, rest assured that it appears that the war is alive and well and moving full speed ahead. Time to turn back the clock, y’all…."


  • Mahablog: "In other words, husbands can veto a woman’s decision to terminate a pregnancy. We’re just cows, after all." [well, no. Actually, Alito specifically wrote that "Section 3209 does not create an “absolute obstacle” or give a husband 'veto power'." I don't anticipate Alito's clear statement will prevent this talking point from taking hold.—Jon]

Take this to the bank: the Democrats will try to "bork" Alito by arguing against the legislation he had to rule on, rather than his legal reasoning, his qualifications or his character. Democrats will filibuster and Republicans will be obligated to use the nuclear option. Everything between now and then is merely prelude.
 
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Previous Comments to this Post 

Comments
I’ll be among the very first to say I was wrong should he make it, but I have my doubts he will.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
I anticipated this choice last time. Robert’s was a surprise. This will no doubt be a fight from the LEFT, this time. Can the wounded president pull it off? Personally, I doubt it. We’ll see. (Bush needed to do something bold, right away, regardless.)

 
Written By: sdk
URL: http://
It’s official, Scalito is the nominee say USAToday.
 
Written By: mark m
URL: http://
Completely official now, Bush just announced Judge Alito is the nominee.

This wil be a show.
 
Written By: Terry
URL: http://
In other words, husbands can veto a woman’s decision to terminate a pregnancy.

Well, half of the DNA is his. He should have some input into the matter.

 
Written By: Mark A. Flacy
URL: http://
He should have some input into the matter.
See how tempting it is? Mark is already off on the wrong foot. Alito’s dissent was not based on whether the husband should have any input in the matter. It was based on whether the law placed an undue burden, as determined by Supreme Court precedent, on the woman’s ability to have an abortion.

Whether the husband should have any input is a matter for the legislature.
 
Written By: Terry
URL: http://
Let the Holy War begin....
 
Written By: Jack Cluth
URL: http://intellectualize.org/
I’m not going to lie and admit that I was hoping for Michael McConnell but Sam Alito is still a very good choice. From his history, Alito will write smart, codent opinions that deal with the judicial issues at hand. And personally, that and that only is what a Justice should do.

As Terry highlights above:
See how tempting it is? Mark is already off on the wrong foot. Alito’s dissent was not based on whether the husband should have any input in the matter. It was based on whether the law placed an undue burden, as determined by Supreme Court precedent, on the woman’s ability to have an abortion.

Whether the husband should have any input is a matter for the legislature.
Great post, Terry, and an accurate illustration of what a Justice should decide and what Alito did.
 
Written By: William Thomas
URL: http://
See how tempting it is? Mark is already off on the wrong foot.

Why, yes, it is tempting to jump to conclusions. Unfortunately for your point, I wasn’t talking about Ailto’s dissent. I was expressing my opinion on the husband’s input on the matter.

 
Written By: Mark A. Flacy
URL: http://
What are the cases in which a strict, careful judge like Alito holds his nose and upholds something that a political, social, and economic conservative would dislike?

We hear all the assurances about how they "really wouldn’t have voted as legislator" for things like criminalization of sodomy or spousal notification rules, but regrettably, are principled men and must uphold the rule of law. Where are the corresponding examples of liberal laws or positions, e.g. protecting the due process rights of criminals, in which their social inclinations unambiguously point the other way, but their fair and honest adjudicating compels the opposite?

This is a real question, not sarcasm.
 
Written By: Mithras
URL: http://mithrastheprophet.blogspot.com
"Section 3209 does not create an "absolute obstacle" or give a husband ’veto power’.

That’s easy to say, but in the real world of real relationships and marriages, if the wife is required to provide proof that she spoke to her husband before getting an abortion, that amounts to placing a burden on her to get a permission slip.

Note that I happen to think that talking it over is the right thing to do, and I suspect most wives would do so no matter what the law says. But if the wife is absolutely certain she can’t face another pregnancy and another child, and she knows her husband is going to pitch a fit if she wants an abortion, she may have to put her marriage at risk to get "permission." In some marriages she may even get her teeth broken just for bringing it up. It’s a terrible thing, but it’s reality.

 
Written By: maha
URL: http://www.mahablog.com
What are the cases in which a strict, careful judge like Alito holds his nose and upholds something that a political, social, and economic conservative would dislike?
In 2000, Alito upheld as unconstitutional a New Jersey law banning late term abortions.

 
Written By: JWG
URL: http://
"In 2000, Alito upheld as unconstitutional a New Jersey law banning late term abortions."

Thanks for the tip. I read Alito’s concurrence, which is full of disclaimers about this being a LOWER COURT, meaning it’s no indication of what he would do on the SCOTUS bench. Alito seems to be saying "case law being what it is, this is how I have to decide."

One quibble: Please don’t use "late-term abortion" as a synonym for "partial-birth abortion." The D&X procedure is mostly done in the SECOND trimester, which is MID term. (Roe v. Wade allows states to ban elective post-viability abortions, which pretty much covers the third trimester. Last time I checked, only 19 states had managed to do this, however.) And the statute in question was written in a way that it might have banned just about any abortion, including very early ones.
 
Written By: maha
URL: http://www.mahablog.com
What are the cases in which a strict, careful judge like Alito holds his nose and upholds something that a political, social, and economic conservative would dislike?
There would be many. Off the top of my head, I’d suggest a law prohibiting flag burning. As much as a social conservative might like it, he’d probably be obligated to call it unconstitutional. (note: I have no real problem with flag burning, and oppose laws banning it) Alternately, the NJ law that JWG cited.
 
Written By: Jon Henke
URL: http://www.QandO.net
The short version is that Alito’s dissent was limited to respect for precedent as written, and expressed no policy preferences

His policy preference is visible in his decision to allow O’Connor’s dissenting explication of "undue burden" guide his opinion.

The linchpin of the opinion is whether an "undue burden" must be a burden to some significant minority or plurality of women. Notably, Alito answers this question by appealing to a dissent and, in doing so, makes his policy preferences abundantly clear.
 
Written By: jpe
URL: lespritdescalier.blogspot.com
Maha, you get two things very wrong here, and I think it’s important to be clear on this..
"in the real world of real relationships and marriages, if the wife is required to provide proof that she spoke to her husband before getting an abortion, that amounts to placing a burden on her to get a permission slip."
The law in question posed no obligation on a women to provide proof. In fact, Alito specifically took note of that fact. Also...
if the wife is absolutely certain she can’t face another pregnancy and another child, and she knows her husband is going to pitch a fit if she wants an abortion, she may have to put her marriage at risk to get "permission." In some marriages she may even get her teeth broken just for bringing it up. It’s a terrible thing, but it’s reality.
Indeed, and that is why—as Alito pointed out—the legislation contained an exception for women who has reason to "believe that notification is likely to result in the infliction of bodily injury upon her."
 
Written By: Jon Henke
URL: http://www.QandO.net
His policy preference is visible in his decision to allow O’Connor’s dissenting explication of "undue burden" guide his opinion.
As Alito noted, her opinion on the nature of "undue burden" has become the controlling standard.
 
Written By: Jon Henke
URL: http://www.QandO.net
But if the wife is absolutely certain she can’t face another pregnancy and another child, and she knows her husband is going to pitch a fit if she wants an abortion, she may have to put her marriage at risk to get "permission."

We agree ...it’s the right thing to do. However the law in question was not a law which required "consent" or "permission" from the husband, merely notification. Additionally the law had 4 exceptions as well. Notification wasn’t required when:

A) The husband couldn’t be located/found after a duly diligent search

B) The pregnancy wasn’t a result of relations with the husband

C) The pregnancy was the result of a sexual assualt which had been reported to the proper authority or

D) There was a fear of bodily harm from the husband
 
Written By: McQ
URL: http://www.qando.net/
Mithras wrote:
Where are the corresponding examples of liberal laws or positions, e.g. protecting the due process rights of criminals, in which their social inclinations unambiguously point the other way, but their fair and honest adjudicating compels the opposite?
Off hand, I cannot think of anything. And I’m not trying to be sarcastic; I’m being honest.

That is the difference these days between "conservative" jurisprudence and "liberal" jurisprudence: the former is attempts to adjudicate cases based on the law while the latter adjudicates based on their personal preference. I much prefer the term "originalist" or even "strict constructionist" when discussing judicial philosophy.

Indeed, I personally don’t like the term "conservative" in regards to judicial philosophy. "Conservative" refers to a specific political philosophy (or better, a range of political philosophies) and a judicial philosophy should never be that. In fact, I will go so far as to say that, unfortunately, many of my fellow conservatives who are now supporting Sam Alito on the High Court are doing so because they (in my opinion, mistakenly) believe he will use his position to adjudicate in a politially conservative manner.

In fact, I will go so far as to say that a few of my fellow conservatives who say they would have opposed a Michael McConnell nomination to the Supreme Court would do so because, although he is personally conservative and generally does write and adjudicate in what would be consider a "conservative" manner, he has been outspoken in emphasizing and has personally adjudicated as a Appellate Judge that originalism does not always result in what conservatives may want.

Some conservatives would oppose him for that. I personally think it is a credit to not only his exceptional intelligence but also his outstanding integrity.

But enough about McConnell. Sam Alito is the President’s choice and (this time) it is a very good one!
 
Written By: William Thomas
URL: http://
I think conservatives do not support judges like Alito because they think he will adjuticate in a politically conservative manner. Rather, I think they believe that Judicial Activism tilts the playing field toward liberal politics, that with the Judicial Branch doing what it is supposed to do, the political situation favors conservatives. Thus, the more Originalist Justices we have, the more conservative policies can be passed (because they are believed to be more in line with what is written in the Constitution), and the less liberal social theory will be legislated from the bench. More addition by subtraction than Conservative Activism. That’s a specter raised by liberals who are trying to co-opt semantic references.

I could be projecting my personal beliefs, however.
 
Written By: Nathan
URL: http://brain.mu.nu/
Why, yes, it is tempting to jump to conclusions. Unfortunately for your point, I wasn’t talking about Ailto’s dissent. I was expressing my opinion on the husband’s input on the matter.
Which is EXACTLY my point. In a thread where the specific argument is that we should be careful to emphasize the difference between a judicial determination of the constitutionality of a policy and whether the policy itself is wise or appropriate, you could not refrain from debating the wisdom of the policy.
 
Written By: Terry
URL: http://

 
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