Alito

[Jim]

Let's see if I can stir up some controversy.

 

My take is that Alito has done an excellent job and will do just fine in the Supremes. Some of the democratic questioning has been intellectually dishonest but no more than was to be expected. Fortunately, the only clever tactic they have used is to ask questions the know Alito can't ethically answer (e.g. FISA) and then posture about a predictable lack of response.

 

It does border on the surreal to see Ted Kennedy lecturing anyone about credibility but Teddy has never lacked nerve. Jay Leno joked the other night about him writing a story for kids about a dog named "splash." You just have to laugh...

 

I should start a poll on whether whether Teddy or Howard Dean consistently does the Republican party more favors. I honestly don't know how I'd vote on that one. Kerry would be in the running if he was at all relevant.

[patcalhoun]

Not sure where you're going with this, but I'll just say I like Judge Alito. The hearings have been, if anything, an remarkable exposition of the beauty and richness of law as expressed through a brilliant legal mind. Americans tuning in may have learned something about seemingly dry topics on how federal judges establish or refuse jurisdiction over cases, predictive methods of construction, and more importantly finding the germane issue (the realm of interpretation afforded to police officers over the intent of a search warrant, for example) between two arguments where the participants may strike personal interest goldmines and flashier constitutional issues seem evident to the laymen. To start, I'd recommend looking how Judge Alito's testimony deconstructs Griswold and rebuilds it under justifying tests derived from the 4th, 5th and 14th Amendments.

 

Law is a wonderful, beautiful science, and Judge Alito knows how to present it in a non-judicial proceeding.

[Jim]

I guess in fairness, I should let Teddy speak in his own defense.

 

Nationally Televised Speech of Edward M. Kennedy, July 25, 1969:

 

"This morning I entered a plea of guilty to the charge of leaving the scene of an accident. . . .

 

"Nor was I driving under the influence of liquor. . .

 

"I regard as indefensible the fact that I did not report the accident to the policy immediately.. . .

 

"All kinds of scrambled thoughts . . . were reflected in the various inexplicable, inconsistent, and inconclusive things I said and did, including. . .whether some awful curse did actually hang over all the Kennedys, . . .whether there was some justifiable reason for me to doubt what has happened and to delay my report, whether somehow the awful weight of this incredible incident might, in some way, pass from my shoulders.

 

"In the morning, with my mind somewhat more lucid, I made an effort to call a family legal advisor. . . .

 

"Thank you and good night."

 

http://www.americanrhetoric.com/speeches/tedkennedychappaquiddick.htm

 

Kind of puts Alito's college CAPer in perspective, doesn't it?

[Jim]

Not sure where you're going with this' date=' but I'll just say I like Judge Alito. The hearings have been, if anything, an remarkable exposition of the beauty and richness of law as expressed through a brilliant legal mind. Americans tuning in may have learned something about seemingly dry topics on how federal judges establish or refuse jurisdiction over cases, predictive methods of construction, and more importantly finding the germane issue (the realm of interpretation afforded to police officers over the intent of a search warrant, for example) between two arguments where the participants may strike personal interest goldmines and flashier constitutional issues seem evident to the laymen. To start, I'd recommend looking how Judge Alito's testimony deconstructs Griswold and rebuilds it under justifying tests derived from the 4th, 5th and 14th Amendments.

 

Law is a wonderful, beautiful science, and Judge Alito knows how to present it in a non-judicial proceeding.[/quote']

 

I think Alito is a rare gem. I also am viscerally repulsed by his being questioned about credibility by Kennedy.

[patcalhoun]

I think Alito is a rare gem. I also am viscerally repulsed by his being questioned about credibility by Kennedy.

 

I don't really get that worked up about it. All that concerns me is the objective; carrying the day in the hearings and on the Senate floor. Malice towards none and all that jazz. In that sense, I have to hand it to our political system; it cultivates politicos who would rather take a loss and regroup or a win on a bad play than anguish endlessly over their opponents victories.

[padren]

I think Alito is a rare gem. I also am viscerally repulsed by his being questioned about credibility by Kennedy.

 

I am pretty viscerally repulsed by the risks of a runaway conservative supreme court that ends up hating advocate judges unless they advocate radical departures from roe vs wade and anything non-conservative.

 

 

With politics the way it is now, I wouldn't trust either side to instill non-partisans to the bench, and either side should have to be seriously grilled and dragged over the coals before entrusting them to impartially hold a lifetime appointment to the highest court.

[bascule]

This one kinda freaks me out:

 

http://kvoa.com/Global/story.asp?S=4344749&nav=HMO6HMaY

 

Supreme Court nominee Samuel Alito is defending his support of police who strip-searched a ten-year-old girl at the home of a suspected meth dealer in Pennsylvania.

 

I dunno about you, but there's something that seems... rather wrong about that to me, heh.

[Pangloss]

I am pretty viscerally repulsed by the risks of a runaway conservative supreme court that ends up hating advocate judges unless they advocate radical departures from roe vs wade and anything non-conservative.

 

Which actually is anything BUT "runaway" or "conservative", but rather is likely the last bastion of objective, independent authority in a country rampant with ideological demogoguery and a complete and utter absence of common political sense.

[patcalhoun]

I am pretty viscerally repulsed by the risks of a runaway conservative supreme court that ends up hating advocate judges unless they advocate radical departures from roe vs wade and anything non-conservative.

 

Ask yourself this. Would Ginsberg and Scalia disagree with each other in such terms? If your answer is yes, then I don't think you get the dispute in the first place.

[Pangloss]

This one kinda freaks me out:

 

http://kvoa.com/Global/story.asp?S=4344749&nav=HMO6HMaY

 

I dunno about you' date=' but there's something that seems... rather wrong about that to me, heh.[/quote']

 

Nothing wrong with that concern, but it's just one of thousands of issues raised both by his detractors and by his proponents. He's ruled many times in favor of minorities against corporations, but that doesn't mean he's a closet liberal.

 

What matters (and apparently what matters to Judge Alito) are the merits of the case and the rule of law. He's a judge, not an elected official.

[patcalhoun]

Which actually is anything BUT "runaway" or "conservative", but rather is likely the last bastion of objective, independent authority in a country rampant with ideological demogoguery and a complete and utter absence of common political sense.

 

What makes the Courts, which gave us Dred Scott, Plessy v. Ferguson and Korematsu v. United States the last bastion of objective, independent authority in the US? A layman might argue that the Courts present an even greater challenge to the so-called non-commitalists; ideological demogoguery and lack of "common political sense" (whatever that means) masquerading behind tortured logic. That's not to say the Court is as I've described, but you don't strike me as the type to argue the case list above shows a Court that is structurally more rational than the legislature or executive.

[-Demosthenes-]

My take is that Alito has done an excellent job and will do just fine in the Supremes. Some of the democratic questioning has been intellectually dishonest but no more than was to be expected. Fortunately' date=' the only clever tactic they have used is to ask questions the know Alito can't ethically answer (e.g. FISA) and then posture about a predictable lack of response.

[/quote']

It's possible that republicans would do the same to a democratic nominee, it was definitely present in this case.

 

So it can be clear, the nominee isn't supposed to tell congress how they would rule on any cases because then the senate could would be able to confirm someone who will rule they way they want, thereby controlling the supreme court and violating the separation of the three branches of government, right?

[patcalhoun]

It's possible that republicans would do the same to a democratic nominee, it was definitely present in this case.

 

It's possible, but it didn't happen with either Breyer (confirmed 87-9) or Ginsburg (96 to 3).

[Pangloss]

What makes the Courts, which gave us Dred Scott, Plessy v. Ferguson and Korematsu v. United States the last bastion of objective, independent authority in the US? A layman might argue that the Courts present an even greater challenge to the so-called non-commitalists; ideological demogoguery and lack of "common political sense" (whatever that means) masquerading behind tortured logic. That's not to say the Court is as I've described, but you don't strike me as the type to argue the case list above shows a Court that is structurally more rational than the legislature or executive.

 

In my opinion, that's a straw man. Certainly the courts have made mistakes, but those are not proof of failure of the justice system.

 

I don't know if I could call the judicial branch "more rational", but clearly its operating parameters and indebted constituency dictate a different set of goals and ambitions. So long as we understand what those are, and what their failures and successes mean, then we can evaluate on that basis.

 

And we should evaluate on that basis, not the basis we use to evaluate members of the executive and/or legislative branches.

 

A perfect example of this may be seen in today's testimony by members of the American Bar Association, which can hardly be construed as a friend to the Bush presidency. Certainly Democrats/liberals abound in that body, and yet they give Alito their highest recommendation, with a unanimous verdict. Imagine that.

 

There's no question in my mind that Bush is perfectly capable of nominating an ideologue, and I think it's arguable that we saw that in Harriet Miers. But anybody who believes that that is conclusively the case with Alito is showing their own ideological stripes, not his.

[patcalhoun]

In my opinion, that's a straw man.

 

No. Citing the case list might be construed as an argument from ignorance on my part, but there is no doubt you've argued and continue to argue that the Court is "the last bastion of objective, independent authority". "Last bastion" does exclude the executive and legislature from this realm of objectivity you've defined. I've generously restated that view in a far milder form: the Courts are structurally more rational than the legislature or executive.

 

Certainly the courts have made mistakes, but those are not proof of failure of the justice system.

 

Now that's a strawman, especially in a thread where I've already heaped praise on the beautiful science that is law and my hard on for its application.

 

...clearly its operating parameters and indebted constituency dictate a different set of goals and ambitions.

 

Different from what? The executive? The legislature? Ben and Jerry's? This isn't that profound an observation. On the other hand, you did express a particularly strong view of the Courts superior rationality compared--presumably--to other arms of government. If I'm wrong in this, please show me where.

 

A perfect example of this may be seen in today's testimony by members of the American Bar Association, which can hardly be construed as a friend to the Bush presidency. Certainly Democrats/liberals abound in that body, and yet they give Alito their highest recommendation, with a unanimous verdict. Imagine that.

 

Democrats and Republicans congenially agree to unanimous consent requests on the Senate and House floor everyday. I don't think it follows that the legal profession is special because its participants show remarkable restraint in obstructing the interests of their opponents.

 

BTW, don't be offended if I didn't answer what you saw as your larger points. I wasn't interested at all in your discussion of ideologues and politics and whatnot, only your perception of the judiciary as "the last bastion of objective, independent authority."

[Pangloss]

Semantics aside, I think it's clear that the elected side of American politics has become more divisive and less compromise-oriented in recent years. However, it was a mere exhortation on my part; a statement of opinion, and it was not my intention to open a separate line of debate on that subject.

 

My guess is that it might be an interesting discussion, but would, in the end, amount to merely one opinion against another (i.e. I acknowledge that you have a valid point). But I don't think it's really germain to the discussion at hand. I offset one opinion with another; let's move on.

[patcalhoun]

Semantics aside, I think it's clear that the elected side of American politics has become more divisive and less compromise-oriented in recent years.

 

How would you compare? Conflicting circuit rulings and 5-4 and 6-3 decisions to party line votes? Well, of non-unanimous cases yielding a majority opinion in the Supreme Court between 1994 and 1998 ended in 6-3 or 5-4 splits accounted for 107 (or ]55 percent of the total). And the Supreme Court hears a lot less cases per year than Congress votes on unanimous consent requests. Vetoes are even rarer.

 

However, it was a mere exhortation on my part; a statement of opinion, and it was not my intention to open a separate line of debate on that subject.

 

I know. I just jumped on the point of most interest to me.

 

My guess is that it might be an interesting discussion, but would, in the end, amount to merely one opinion against another (i.e. I acknowledge that you have a valid point).

 

I don't think so. You've definitely addressed some issues we can tackle in a quantifiable way. After all, if the Court is more objective or less partisan than the political branches in practice, then we might gain some insight by doing as the author of the paper I provided suggests--using spectral analysis to better understand how majorities form on the Courts. In this case, the substance of the disagreement doesn't matter, just the fact that particularly disputes keep occuring between politically classifiable groups in the Court system. These are all issues actively researched in political science, so I see no reason to think that this should boil down to a mindless exchange of idle opinion.

 

But I don't think it's really germain to the discussion at hand.

 

I'm the second poster in this thread, and as best as I can tell the topic is free for any reasoned, civil discussion related to the contemporary judiciary. Sometimes threads don't have a core focus, and I don't think Jim even attempted to outline one.

 

EDIT: Here's an excellent resource for professional and amateur legal researchers out there. Lawson grabbed the US Supreme Court Database from here. Registration is free and the dataset isn't restricted. Just if you use it, abide by their terms of use.

[Pangloss]

I don't have a problem with digression and subject changes. I'm simply pointing out that it was not my intent. If you want to continue, I may spin this off into a separate thread just for the sake of clarity.

 

 

How would you compare? Conflicting circuit rulings and 5-4 and 6-3 decisions to party line votes? Well, of non-unanimous cases yielding a majority opinion in the Supreme Court between 1994 and 1998 ended in 6-3 or 5-4 splits accounted for 107 (or ]55 percent of the total). And the Supreme Court hears a lot less cases per year than Congress votes on unanimous consent requests. Vetoes are even rarer.

 

But are those divisions are made more along political lines, or legal ones? You don't know, you're merely stating your opinion. And there is a perfectly logical, well-established counterpoint to your position. After all, just to give one example, every day we hear about Democratic appointees voting like "conservatives" and Republican appointees voting like "liberals". Isn't it just possible that they're not voting with an eye on politics at all? And if it's possible, then isn't the onus on you to prove that that is not the case, if you want your position to be accepted as something more than "a mindless exchange of idle opinion"?

 

 

After all, if the Court is more objective or less partisan than the political branches in practice, then we might gain some insight by doing as the author of the paper I provided suggests--using spectral analysis to better understand how majorities form on the Courts.

 

Well it's funny you mention that, because the bipartisan American Bar Association did essentially that very thing in deciding whether or not to support the Alito nomination. They interviewed hundreds of Republicans AND Democrats, thousands of case files, and came to the conclusion that he was not a politically ideological judge.

 

So obviously it's not only possible, it actually happens.

 

 

In this case, the substance of the disagreement doesn't matter, just the fact that particularly disputes keep occuring between politically classifiable groups in the Court system. These are all issues actively researched in political science, so I see no reason to think that this should boil down to a mindless exchange of idle opinion.

 

Identifiable in your opinion. Others disagree.

 

So here's your choice: You can fan the flames of partisanship by insisting that any decision that a judge makes on a case that you happen to disagree with constitutes the statement of a political position, in the desperate hope that your side will win the war you're trying to instigate, or you can recognize the fact that some people (even if you can't count yourself amongst their number) are actually capable of making objective decisions.

[Skye]

I saw a little of Alito in the jazzed up job interview. He seems to have anticipated the questions and thought out the answers in advance, and answered in a manner that would reassure both the good and evil sides of government (whichever you think they are). This is a little different from my usual 'Bald-faced lies and congenial laughter' approach. I'll have to take it on board.

[patcalhoun]

But are those divisions are made more along political lines, or legal ones?

 

I see the link's not working. Here. Read the paper.

 

You don't know...

 

I do know that in the majority of 5-4 and 6-3 decisions that the splits correlate with identifiable partisan divisions. That is to say I've as much evidence of political division in the Court as I do of political division in the Congress; my point ceases to be idle opinion.

 

...you're merely stating your opinion.

 

Then perhaps I don't understand your definition of opinion. I certainly don't label other well supported claims such as [imath]\nabla \cdot \mathbf{D} = \rho [/imath] or "changes in a population's allele frequency occur over time."

 

And there is a perfectly logical, well-established counterpoint to your position.

 

If there is, then by all means share it with us.

 

After all, just to give one example, every day we hear about Democratic appointees voting like "conservatives" and Republican appointees voting like "liberals".

 

We also hear of Democratic congressmen voting "conservative" and Republican congressmen voting "liberal." The current literature recognizes that not so profound observation that party affiliation tracks closely but not exactly to the more fine grain scale of political preference.

 

Isn't it just possible that they're not voting with an eye on politics at all?

 

Yes, just as it is possible that the Congress is not voting with an eye on politics at all, at least according to the evidence. The Congress achieves an order of magnitude or more unanimous or bipartisan votes than it does partisan ones. The same pattern can be found in the Supreme Court. The point I'm making is your fairly empirical claim that the Courts are less political than the Congress is falsified by the unsurprisingly similar outcomes of their decisionmaking processes. I do not know if this trend continues further into the federal judiciary, but the question now also varies regional political concerns as well as national partisan ones; we'd have to set up a similar model for the Congress.

 

And if it's possible, then isn't the onus on you to prove that that is not the case, if you want your position to be accepted as something more than "a mindless exchange of idle opinion"?

 

I think the onus is on me to clearly state the theory and its supporting evidence. You can critique it, and there are definitely avenues of criticism available to you. I think something a bit more sophisticated than "it's your opinion" is in order.

 

Well it's funny you mention that...

 

 

Mentioned what?

 

...because the bipartisan American Bar Association did essentially that very thing in deciding whether or not to support the Alito nomination.

 

Very same thing as what?

 

They interviewed hundreds of Republicans AND Democrats, thousands of case files, and came to the conclusion that he was not a politically ideological judge.

 

Where did you get the idea that the ABA tests for ideological adherence?

 

So obviously it's not only possible, it actually happens.

 

What is possible?

 

Identifiable in your opinion. Others disagree.

 

Yeah, and others believe there is such as thing as preferred rest frame. I'm not in the business of caring what they consider opinion.

 

So here's your choice: You can fan the flames of partisanship...

 

Stop being dramatic. This is dry discussion of a very dry topic, are the Courts comparably political (in some quantifiable way) to the Congress. If you're going to label any discussion beyond that which is profusely abutted by insincere demotions of evidenced poisitions to mere opinion, then I don't think we have all that much to talk about. In that case, would you mind moving on?

[Jim]

I am pretty viscerally repulsed by the risks of a runaway conservative supreme court that ends up hating advocate judges unless they advocate radical departures from roe vs wade and anything non-conservative.

 

This is something reasonable minds can differ. It has to do with political outlook which is why it pays to win presidential elections.

[Jim]

This one kinda freaks me out:

 

http://kvoa.com/Global/story.asp?S=4344749&nav=HMO6HMaY

 

 

 

I dunno about you' date=' but there's something that seems... rather wrong about that to me, heh.[/quote']

 

 

Without knowing anything more than the quoted language, I would bet $1,000 that there is a substantive legal basis for Alito's decision.

[Jim]

I saw a little of Alito in the jazzed up job interview. He seems to have anticipated the questions and thought out the answers in advance, and answered in a manner that would reassure both the good and evil sides of government (whichever you think they are). This is a little different from my usual 'Bald-faced lies and congenial laughter' approach. I'll have to take it on board.

 

The Democratic questioning was inept.

[Pangloss]

<ponder> Ok, I guess you're right.

 

I'm afraid I must admit that my position seems weak here. The ABA testimony was about Alito and not the larger issue of political influence in the courts. And even setting aside your scientific study, there is a substantial body of work supporting your position.

 

In the end, it's not so much the suggestion that the Supreme Court is conservative that bothers me, but the implication that justice is therefore (automatically) trod upon. Liberals want it to be liberal, conservatives want it to be conservative, and somehow in the process of fighting tooth and nail over that we seem to forget that what matters is that it be capable of rendering verdicts that are fair.

 

We know for a fact that justices are capable of "crossing" those boundaries. So if the court is 60% to one side or the other, so what? If the court is affected by politics, then isn't it likely that it's always been that way? And yet, here we are, safe and sound.

 

It's like global warming, in a way. Even if we acknowledge that there is a validity to the warming data, this does not address the issue of whether humans are responsible -- we may simply be seeing a larger trend. By the same token, even if we acknowledge that there is a validity to the claim that the Supreme Court is "conservative", there's no reason to think that this is a danger to society -- we may simply be seeing a larger trend.

 

But you were not claiming otherwise and I don't mean to lump you into that boat. I'm simply saying that in my zeal to point out that bias doesn't mean injustice, I seem to have reached beyond that to make the less supportable claim that no bias exists at all.

[Pangloss]

The above was to patcalhoun, btw. I must have cross-posted with Jim. Took me a while to swallow all that crow.