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Kinsley: How to defeat Alito
Posted by: McQ on Friday, November 04, 2005

Michael Kinsley has a very interesting article in Slate concerning the Alito nomination and the choices the left has for successfully opposing it. In effect, he says, they really have only two ‘weapons’:
Only two, really: the filibuster and the power of persuasion. And the filibuster—because it seems (and is) unfair and anti-democratic—will backfire unless people are persuaded that it is saving them from something really bad.
He’s right. And to this point, there’s absolutely nothing in Alito’s background which points to him being “something really bad”, unless, the left can successfully use weapon two and manufacture one. That’s not to say that an Anita Hill couldn’t come out of the woodwork, but most don’t expect that to happen. So what is the left to do? Well, Kinsley suggests a simple an fairly straight forward approach:
All that's left is a serious argument: Alito is simply too conservative.
Hmmm. While that may be all that’s left, it’s not an argument that many are going to find compelling. Kinsley thinks it can be made. He’s careful to point to how it shouldn’t be made. As it’s developing, and whether Kinsley likes it or not, it seems what he warns they shouldn't do will probably be one argument the Democrats will use:
So, how conservative is "too conservative"? Democrats like the phrase "outside the mainstream." They also like to emphasize that the next justice will be replacing Sandra Day O'Connor, an icon of swing-vote moderation. The notion is that presidents of all stripes are under some kind of vague, floating obligation to keep the court in ideological balance. This, unfortunately, is a party-out-of-power fantasy. There is no requirement of moderation in the abstract. President Bush needn't nominate a compromise candidate just to show he's a good sport.
It is indeed a “party-out-of-favor fantasy” which should receive no traction among the mainstream. President Clinton certainly felt no such obligation toward ideological balance when he nominated Bryer and Ginsberg, so the argument really has no credibility whatsoever.

So, if one buys into Kinsley’s premise that to beat the Alito nomination one has to successfully argue he’s “too conservative” how can that be done? Kinsley is of the opinion that there are three types of “judicial conservatism”. He distinguishes them thusly:
First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines. All judges are supposed to be bound by precedent, and it's a bit of a mystery when and why they feel empowered to change course. But this meaning of conservatism is mainly advanced by liberals, who like the idea that conservatism itself will stay the hand of conservative judges in reversing great liberal precedents.

Of course each of these liberal precedents—school desegregation, Miranda warnings, abortion choice, and so on—was a precedent-buster in its day, making the argument a bit hypocritical. But recent Supreme Court nominees have found that asserting a deep respect for precedent is a great way to reassure senators that they won't overturn Roe, whatever they might think of it on the merits, and whatever they actually intend.
It is probably here that Kinsley’s argument has some traction, but only if the Democrats can convince enough members on the right that his adherence to precedent would mean that Roe v. Wade survives as the law of the land. Not only is that not likely but it seems counterproductive to their desire to keep Roe as such.

While any Supreme Court nominee will probably discuss his deep respect for precedent, few, if they’re smart, will claim that precedent is something they will and must always follow. As has been shown in our Constitutional history (and pointed out by Kinsley) that’s just not the case. So while precedent is important, only a foolish nominee would state that he unequivocally follows precedent in every case. I certainly don’t expect Alito to make that sort of statement.

The second definition of judicial conservatism?
Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government. Republicans have been waving this flag for decades, reverencing "strict constructionism" and the framers' "original intent" while condemning "activist" judges who are "legislating from the bench." It's not just that the conservative theory of constitutional interpretation is better than the liberal theory. It's that conservative judges have a theory, while liberal judges are just on an unprincipled power grab. This conceit is what allows President Bush to insist that he does not impose any ideological litmus test on judges, as long as they agree with him.
Here I believe that Kinsley attempts to redefine “strict constructionism” to make it out be something which it isn’t. The key to his redefinition is found where he adds “and is reluctant to overrule the elected branches”. “Strict constructionism” does not necessarily require that there be a reluctance to overrule elected branches of government if those branches of government act outside their Constitutional charters. In fact, a strict constructionist would be more likely to overrule than not too. However, if the other branches are within their Constitutional purview, then yes, a strict constructionist would be reluctant to insert the court where the court doesn’t belong.

If Kinsley, et al, are allowed to redefine “strict constructionism” in this way they will obviously make it sound dangerous, especially given the predictable demonization of any conservative government. But their problem is that argument will only appeal to the left and the left, or said more correctly, the Democrats alone, don’t have the votes to stop Alito.

And third:
The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy. A judge who preaches judicial restraint but practices activism would be a good example of how to be "too conservative." But so is a judge whose philosophy of restraint leaves injustices unrectified. Restraint isn't always good, and activism isn't always bad.
There has been a battle over the definition of “activist” for some time with both sides attempting to brand the other side as having ‘activist” judges. “Activist”, for both sides, equals “bad” and both sides claim it is only the other side which as activist judges.

We’ve heard the thus far unsuccessful attempt to label Altio as an ideologue, a prelude to slapping the “activist” label on him. It is here, in the third definition, where the Democrats might find their most successful argument. But again it is an argument which will appeal mostly to their base, and it isn’t at all going to be a convincing argument to those on the right who can, if they so choose, defeat this nominee. That’s not to say it’s an argument with any real foundation or even a particularly good argument, but it is an appealing argument given the unsettled nature of how “activist” is defined.

Bottom line, Kinsley says it is one of those arguments, or perhaps combinations of them, by which the left can successfully defeat Alito.

But let me point out once again that the Democrats can only defeat Altio if they convince enough Republican Senators that their arguments are good and valid arguments (and the Republicans in question are inclined to agree). Make no mistake about it: the Altio ball is in the Republican court.

While everyone is painfully aware of so-called “moderate Republicans” and their track-record on siding with the Democrats in the Senate on various issues, I’m not at all sure these three arguments will resonate with them. An indicator of why I feel that way is the fact that the Republican Senators among the Gang of 14, mostly moderate Republicans, have already indicated that they do not consider Altio to be extreme in any sense of the word and thus would find themselves against any use of the filibuster. If he’s not extreme enough for the use of the filibuster, it is going to be very difficult to make the argument that he is “too conservative”.
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Previous Comments to this Post 

Let’s give Kinsley credit for exhorting his port-side friends to argue the merits rather than engage in cynical posturing or grandstanding. Hopefully more will listen to a reasoned approach.
Written By: D
URL: http://
A judge who preaches judicial restraint but practices activism would be a good example of how to be "too conservative." But so is a judge whose philosophy of restraint leaves injustices unrectified.
Wait. So, a judge who shows restraint, and follows the law, even if it leaves an "injustice unrectified" is an activist judge? That sounds a little Newspeak-y. Or are they just too conservative? But activist judges who try to rectify injustices, if they do so with a convervative viewpoint are also suspect. Damned if they do, damned if they don’t.

You’re right that this approach is unlikely to appeal to even moderate Republicans. It boils down to "too conservative=if you are conservative at all, even a little bit".
Written By: jinnmabe
URL: http://
So, let me see if I understand the first part of Kinsley’s presentation.
“The Republican counterargument will be…”

I know that the news cycle is getting very short, but has it actually become negative? Are we writing about stories that have not yet occurred? In the olden days, making up what one thinks the other side will think was called setting up a straw man and routinely dismissed out of hand as unserious political commentary.
“Actually D), the most valid argument, is one you will never hear…”
Not satisfied with the straw man, Kinsley goes that concept one better; he erects the “ghost argument” which he “admits” we will never hear. [!!] Ooookayyyyy.
“The other Republican arguments are laughable.”
Well, hey, Kinsley, you made them up! Straw man arguments are always laughable, since that is how they are designed to be. Boasting of your
expertise in discerning that they are laughable is….laughable.

After this ridiculous beginning, the article [IMHO] fairly discusses the issue of what conservative might be. That is, until he gets to activism:
“A judge who preaches judicial restraint but practices activism would be a good example of how to be "too conservative." But so is a judge whose philosophy of restraint leaves injustices unrectified. Restraint isn’t always good, and activism isn’t always bad.”
No, my liberal friend, it is not the mandate of the SCOTUS to leave no injustice [real or imagined] unrectified. This is the crux of the primary issue and you sail right past it. Kinsley’s presentation builds from a straw man to a ghost to a leap into outer space without ever discussing the issue at stake in
the appointment, except to declare the liberal agenda talking point. This article is empty calorie fodder for the liberal base.
Written By: notherbob2
URL: http://
Let’s give Kinsley credit for exhorting his port-side friends to argue the merits rather than engage in cynical posturing or grandstanding. Hopefully more will listen to a reasoned approach.

Well yeah, but a reasoned approach should have some substance, don’t you think?

Wait. So, a judge who shows restraint, and follows the law, even if it leaves an "injustice unrectified" is an activist judge? That sounds a little Newspeak-y.

I saw that too, but I didn’t want to be distracted by going off on a tangent. It’s Kinsley wanting it both ways in terms of activism. If he can sell that then he can call whatever activity goes against his ideological preference "activism".

This article is empty calorie fodder for the liberal base.

Absolutely ... and it totally ignores the fact that it isn’t the liberal base which has to be persuaded.
Written By: McQ
The problem with the “out of the mainstream” argument is that you have to be in the mainstream to pull it off successfully. This leaves significant Democratic Party leaders out.

Are Patrick Leahy and Teddy Kennedy in the mainstream of American political thought? If so, they’re in the shallows.
Written By: Dave Schuler
If "He’s too conservative" is a valid argument against an appointee, then "He’s too liberal" should also be a valid argument against an appointee.
Written By: David R. Block
URL: http://
If "He’s too conservative" is a valid argument against an appointee, then "He’s too liberal" should also be a valid argument against an appointee.

And, of course, if that were true, Ginsberg wouldn’t be allowed in the SC building, would she?
Written By: McQ
Just happened to read a transcript of comments made on a liberal cocoon site apparently frequented by liberal college professors. Sample:
“[We] must “Bork” Alito…”
“Move on has materials to help.”
“We must stop Alito at all costs.”
“Pressure any Dem who threatens to cross party lines…vote against Alito or lose your fucking job.”
“The Bush League is Evil and Clueless.”
Talk about a fever swamp! This is the liberal base. Anyway, the site is open for unregistered comments and apparently a conservative, Paul Diegnan (who happens to be a PHD candidate in mechanical engineering) made some comments which were ill-received by the cocoon-dwellers. Sample: (made just following a series of comments about how super a list of talking points re: Alito were, Paul debunked them in much the same manner as the idiocies of MK have been dismantled on this site, and then said):
“Should I bother with the rest of your unexamined talking points? I don’t think it would be worth the effort – I’d be putting in more effort and thought than you are willing to invest yourself.”
Sound familiar? Apparently MK’s faults are endemic with liberals. So far, so what, right? Well, here is the interesting part: one of the commenters, Wallace Hettle, Actual Professor, Google Me, University of Northern Iowa, who is a tenured professor, sent Paul an email in which he 1) chided him for being so foolish and “unprofessional” as to use his real name and homepage in making his comments [!!] 2) threatened to contact his PHD advisors to report his (conservative) comments(apparently confident that Paul’s advisors would be liberals and outing the commenter as a conservative would end his PHD ambitions); and 3) finished by stating that if he couldn’t make acceptable (liberal agenda) comments or none at all, he would carry out his threat.
Well, you say, this sort of arrogant intimidation of conservatives happens every day on liberal-dominated campuses, so what? Well, the interesting thing is that Paul told the professor to go to Hell and published the whole thing on his site (original comments, emails, names, dates – everything, including what is probably actionable tortious intereference by the professor). Check out the whole story if you find it interesting. Or just read the fever swamp comments if you have been wondering what the MK’s of the world are up to when they are not wasting our time.
Written By: notherbob2
URL: http://
Hmmmm. Paul seems to be rather upset with Wally:
"Congratulations Wally, you’re going to find yourself on the end of a lawsuit and there is damn near nothing that you can do about it short of a formal signed, admission of fault delivered to me on your department letterhead by FedEx by Monday."
I would be too if someone saw my picture on my blog, called me ugly in the comments and said that was why I had no dates [althugh this part of Wally’s (or (not work safe) his girlfriend’s) comments is fair comment, I believe, about bloggers]. This will probably all blow over, but arrogant liberals like Wally do get out of line from having stamped out dissenting voices on campus and any criticism from their (also liberal) peers.
Written By: notherbob2
URL: http://
Beatty Chadwick has been in jail in for over TEN YEARS on a divorce case. Where? In China, Iran, or a secret gulag in Siberia? No, he’s in a Pennsylvania County Jail.

Judge Alito wrote the 3rd Circuit decision affirming his "civil incarceration." The facts of the case are uncertain since Chadwick was never tried nor convicted of anything. His ex-wife says he has hidden marital assets off-shore. Chadwick maintains he can’t comply with the court’s order to return the money. He’s lost in the system and can’t ransom himself out. At this point he’s already paid his debt in years, 10 1/2 to be exact.

The founders of this nation wrote a Constitution that abolished debtor’s prisons. The cruel punishment inflicted on this civil detainee in the guise of strict constitutional advocacy indicates that on the subject of civil rights, Alito just doesn’t see the forest from the trees because he is blinded by his own ultra-Con. agenda... a scary trait for a supreme court justice. Can we afford to squander our hard-earned freedom, trusting a judge who uses one standard to measure his own compliance with the law and another for the rest of us? Ask Beatty.

Written By: jack katz
URL: http://
Judge Alito says he’s a strict constructionist, except when it comes to the language in his own job application; he says he won’t legislate from the bench, except when the dispute involves the company that minds his own cash; he says he’s not a conservative activist, except when he volunteered as a soldier of fortune for the radical right; he says he’d go to bat for victims of constitutional injustice... well maybe he’s just applying for his "new job," while feeding us the same old true lies with the falsehood.

Alito’s supporters have successfully buried the Chadwick decision by characterizing it as just another rich man’s nasty divorce. Would were that the real holding. Chadwick’s implications form tentacles that reach far and wide, foreboding dire prospects for our hard-earned civil rights and freedom.

If Alito would imprison a divorce litigant for almost 11 years, what would he do with Patriot Act detainees? Might as well throw the key into Guantonimo Bay if Alito gets to warm that bench.
Written By: jack katz
URL: http://

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