Rashidi and Hatch

Judge Alito's Record
Washington Post, November 22, 2005; A28

My latest musings appear in today's Washington post. I don't know what pleases me more, being published in the Post or sharing the page with Senator Orrin Hatch. I have also posted the full text below:
Harold Meyerson ["Alito's Smoking Gun," op-ed, Nov. 16] is correct to point out that under a "strict construction," Judge Samuel A. Alito Jr.'s assertion that "the Constitution does not protect a right to an abortion" represents a legal conclusion, not a personal opinion or a political declaration.

However, in 1992, when Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter voted to uphold the central holding of Roe v. Wade , they apparently did so not because they thought the Constitution contains a right to an abortion but because, they said, "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.

That is a question that Judge Alito, as a Supreme Court nominee, needs to answer: Does he agree that certain decisions are best left settled as opposed to being resettled correctly?

Like some of us, perhaps, he may not be able to answer that question until he is presented with the issue in an actual case.

UPDATE: On Saturday, 12/3/05, the Washington Post published this response to my musings, in which Ruth Kastner accuses me of having “misconstrued” the plurality opinion in Planned Parenthood v. Casey.

I had previously charged that Justices O’Connor, Kennedy, and Souter upheld the central holding of Roe v. Wade “not because they thought the Constitution contains a right to an abortion but because, they said, ‘liberty finds no refuge in a jurisprudence of doubt.’ In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.”

Ms. Kastner thought that this was “quite a leap” and that the reference could have been to “the principle of the Ninth Amendment – that liberty is jeopardized when we deny or disparage any right not explicitly enumerated in the Constitution.” There are two main problems with her criticism: (1) the justices never even mention the Ninth Amendment, and (2) they spend much of the time discussing the principle of stare decisis (precedents should be followed).

My position is also buttressed by the recently released Blackmun papers. Linda Greenhouse's account paints a picture of how closely the court actually came to overturning Roe v. Wade.

Update: Here is a quote from Joan Biskupic's biography of Sandra Day O'Connor that further supports my argument: "In her opinions, she typically explained why the Court ruled as it did. A prime example was the 1992 ruling she forged with Kennedy and Souter that upheld abortion rights. She explained that although the justices might not agree with Roe v. Wade, people had lived with it, reordered their lives around it." p.313Or as Ed Lazarus -- Findlaw.com columnist and former law clerk to Justice Blackmun -- has observed, "[a]lthough Kennedy still thought that Roe was incorrectly decided, he had come to feel even more strongly that overturning Roe 'under fire' from anti-Roe groups would importantly damage the Supreme Court's institutional integrity."

Further update: Professor Kenji Yoshino writes in Slate: "Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. 'Under normal stare decisis analysis,' the three justices' opinion stated, 'the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it.'"

Also, in an interview with the New Republic, Justice Ginsburg remembers, "This Court had an opportunity to [overturn Roe] in the Casey case. There was a strong opinion speaking for Justice O'Connor, Justice Kennedy, and Justice Souter, saying Roe v. Wade has been the law of the land since 1973, we respect precedent, and Roe v. Wade should not be overruled...."

Fathers' Rights

We are somehow supposed to feel sorry for Kate Michelman having to notify her husband before having an abortion. What is this world coming to if we can no longer kill a man's child in secret? And how unreasonable of Alito to demand this of a woman!

Update: A slightly modified version of this post was published by the Los Angeles Times online on 11/17/05 and is available here.

Arrogant Specter

Arlen Specter's demand for "due process" for Bush's judicial nominees is nothing more than a demand that his desire for the limelight not be short-circuited again as it was with the Harriet Miers nomination. His chairmanship of the judiciary committee marks the pinnacle of his political career and he resents anyone raining on his parade.

Also, it is worth noting that, Specter, who fancies himself a constitutional scholar (deeming himself worthy to take on Bork in 1987), would make the argument that commenting on the Alito and Miers nominations somehow deprives them of "due process." It is hornbook law that there can be no constitutional violation, including due process, absent state action!

The Little Supremes

Must read. My favorite line is: "They [The Little Supremes] were more engaged by the wonky so-called 'plumbing' courses, including ... federal courts and administrative law. One Little Supreme described the latter as 'electrical engineering for lawyers.'"

Misconstruing Alito

Anna Quindlen makes some good points in this essay, published in Newsweek, until she starts making the I’m-a-woman-hear-me-roar argument. She finds fault in Alito’s dissent in the Casey decision by misconstruing what he has written (I am assuming she has at least read it!).

She claims that the only rationale behind the Pennsylvania law – mandating, with exceptions, that women inform their husbands before obtaining an abortion – must be “pay[ing] lip service to the marital bond[,] lump[ing] spousal and parental notification together, so that women become children and husbands guardians[,]” or “play[ing] some cynical game with complex decisions of conscience for the sake of the folks back home.” This assumes, incorrectly, that men have no interest in a fetus and states have no interest in protecting that interest. As Judge Alito correctly pointed out: “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems – such as economic constraints, future plans, or the husbands’ previously expressed opposition – that may be obviated by discussion prior to the abortion.”

The other thing that should be noted is the fact that Alito agreed with the other two judges in striking down the Pennsylvania law, only dissenting from the portion that required spousal notification.

Ups and Downs

In this New Yorker piece, Mr. Herzberg misleads his readers by claiming that since Harriet Miers did not receive an up or down vote, we can no longer demand that the Senate not filibuster future nominees. The demand for an "up or down" vote, after all, was a demand that a minority of Senators, using Senate procedure, not be able to impose their will on the majority. It had nothing to do with the administration, or the nominee herself, withdrawing the nominee.

Mr. Herzberg also claims that Clinton was only able to get his nominees through the Senate "because his nominees were mild-mannered moderates, and because he consulted Republican senators ahead of time." If Ginsburg (counsel to ACLU) and Breyer (counsel to Ted Kennedy), with their voting records, are "moderates," I don't know who would qualify as a liberal.

Another thing that may have been lost in the history of Clinton's Supreme Court nominees is the fact that neither one of those justices was Clinton's first choice in replacing Justice Byron White. Clinton's first choice was Mario Cuomo and I seriously doubt he consulted Senator Orrin Hatch.

More importantly, as George Stephanopoulos pointed out in his book "All Too Human," the White House consulted w/ Hatch not because they wanted to comply with the advice prong of the "advice and consent" clause of the Constitution but because "Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination." (p.168)

Alito v. Luttig

Conservative Ponders Other Possibility for High Court Pick
Los Angeles Daily Journal, November 3, 2005, at 7

In the days leading up to Judge [Samuel] Alito's nomination to the Supreme Court, the press was reporting that the White House had narrowed down the list to two possibilities. On Sunday, the Los Angeles Times reported that "President Bush will announce another Supreme Court nominee within days, and he appears to have narrowed the field to conservative federal appeals court judges Samuel A. Alito Jr. and J. Michael Luttig."

Though both were on every conservative's shortlist to replace Justice Sandra Day O'Connor, some were disappointed that Luttig had once again been passed over. I speculate that the reason for that may have been Luttig's close personal friendship with those justices that the left most despises.

Though both judges are deemed to be in the mold of Justices Antonin Scalia and Clarence Thomas, Alito was not actually "tainted" by his association with these justices. Luttig was not only a former clerk to Scalia when he was a judge on the D.C. Circuit, but was in the Justice Department and charged with getting Thomas (as well as Justice David Souter) through his Supreme Court confirmation hearings.

Some had even objected to the fact that after his confirmation to the 4th U.S. Circuit Court of Appeals, he deferred taking the bench until Thomas had been confirmed.

His friendship to these two justices was close enough that when the death penalty case of Napoleon Beasly reached the Supreme Court, Scalia and Thomas (along with Souter) recused themselves. Beasly was convicted of murdering Luttig's father and has since been executed (since then the Supreme Court has banned the execution of juvenile offenders).

I gather some of us conservatives, though thrilled with Alito's nomination, would have rather seen Luttig appointed, but I don't know how much of that is just the desire to see Scalia serve with his former clerk - something akin to Mr. Miyagi fighting along side Daniel-son.