Wednesday :: Jan 11, 2006

A World Of Alito Change

by pessimist

There is no getting the real story about any current event from the American media. The vast majority of it is economically controlled by multinational corporations, and thus cannot present an unbiased view. So, in order to get a more clear picture of what is going on in America, I turn to the foreign media. That way, all the hidden domestic agendas don't stand in the way of important information. Cut the crap and get to the core of the issue:

Court battle will cast a spotlight on Bush legacy

[T]he real interest in the confirmation process is likely to be what it tells us about the battleground issues of US politics in the sixth year of the Bush presidency. The stakes are high. Not only a new Supreme Court but, potentially, a new political landscape for America.

One of the best succinct explanations about the importance of the Alito confirmation hearings comes to us from The Land Down Under:

Eddy Gisonda: A fiasco best left in the US

Why the circus? The answer comes down to three simple words. Bill of Rights.
Whatever that document was once designed to do, today it gives Supreme Court judges the power to socially engineer America as they see fit. The judiciary, unhappy with its traditional role as the least powerful arm of government, has exercised its right to bear arms and come out firing.

That's why Americans ignore Congress and go straight to court when an issue bugs them. Whatever you want [like an electoral victory! - ed.], just turn up at the Supreme Court and see if you can't get five of the nine judges to give it to you.

Amazing isn't it? Despite America's claim as a thriving democracy, elite lawyers who will never face a ballot box in their life can change the nation with one knock of the gavel. And don't worry if your agenda is as popular with everyday Americans as French cowardice. Once you win your case, neither you, nor the judge you manipulated, can ever be called to account.

I know that I started this post on the premise that the foreign media is a better source of information than the domestic variety, and I intend to return to foreign news sources in a moment. But first, I wanted to present an article from the USA Today, of all things, which looks at the stakes being fought over in the Alito hearings:

Neither Alito's judicial record nor his political history is a perfect predictor of how he'd rule as a justice. But given the stakes for every American, he needs to provide reassurance that he would not strip away protections the Supreme Court has guaranteed. Alito's position could be crucial to the future of individual rights, protection of minorities, and the exercise of unchecked government power.

As a lawyer and judge, Alito has promoted an expansive view of government power generally and presidential power specifically. Alito has voiced a laissez-faire attitude toward use of government to promote the religion of whoever happens to be in charge, a challenge to the distinctions drawn carefully by O'Connor when government power was being exploited for religious purposes.

He singled out high court rulings involving criminal procedure, separation of church and state, and even the principle of one person/one vote. In the same memo, Alito enthusiastically embraced the argument that the Constitution does not protect a woman's right to an abortion — a contention that has been consistently rejected by the court for more than 30 years.

Alito's paper trail as a government lawyer and federal judge raises doubts as to whether he would respect those and other court precedents.

Having presented the contentions, it's back to the contentious:

U.S. Supreme Court nominee Alito gives views on abortion, president power

Given the strong possibility of a party-line vote in committee, it seemed at times Alito was testifying at two parallel hearings. Democrats peppered him with questions about his rulings in cases involving civil rights, presidential power, criminal cases and more. Republicans often invited him to defend his actions and rulings of the past.

Alito Pleases His Republican Backers

Supreme Court nominee Samuel Alito is carefully weaving his way through Senate confirmation hearings, saying enough to please his Republican backers while trying not to give Democratic critics any new material to use against his high court nomination.

He appeared to be trying to reassure Democratic senators – many of whom sharply criticised his 15-year record as an appeals court judge during the hearing – that he would not let his politics get in the way of his job on the highest court. He said he would administer justice equally to all: “No person in this country … is above the law and no person is beneath the law,” he said.

An interesting development: Judicial witnesses are being called to rebut that statement!

Federal judges called as character witnesses for Alito hearings

IN AN unusual move, Senate Republicans have called seven federal judges, all of them colleagues of Judge Samuel Alito on the 3rd US Circuit Court of Appeals, to testify as character witnesses for him this week at his Supreme Court confirmation hearings. Of the seven judges to testify, two are retired; three carry the title of senior judge, meaning they hear cases part time; and two are active. All but one were nominated by Republican presidents.
The judges' testimony could shed light on one area of controversy: Alito's failure to recuse himself from cases involving Vanguard, a mutual fund company that manages his investments, as he had earlier pledged to do. One judge, Edward Becker, said he intended to raise the issue.

A bad case of "Heed what I say and not what I do"? It wouldn't be the first time for Alito to be caught in this trap!

It is alleged by his supprters that he 'personifies judicial restraint' and 'has championed a government with limited, defined powers', but that doesn't seem to apply when the issue involves the Executive branch of the government:

"We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the constitution in the president," Alito said.

In fact, Analysis shows Alito favors authorities:

A Knight Ridder analysis of more than 300 written opinions by Alito, for example, reveals that he has almost never found a government search unconstitutional and that he has argued to relax warrant requirements and to broaden the kinds of searches that warrants permit.
Alito also has argued that the scope of warrants should be interpreted broadly, sometimes beyond what the warrant says.
His work regarding evidence-gathering and surveillance frequently has drawn sharp disagreement from his colleagues on the 3rd U.S. Circuit Court of Appeals in Philadelphia, one of whom accused him of approving an 'Orwellian' invasion of privacy in one case.

Just how conservative would the high court become with Alito - including in the murky area of White House authority to wage the war on terrorism?

"It seems to me pretty clear that you can identify a half-dozen areas of the law that will probably change decisively from an O'Connor to an Alito vote," says Bruce Fein, a Washington, D.C., lawyer who served with Alito in the Reagan Justice Department.

Alito is seen as inclined to back government:

"No way am I saying he's a government hack," said Craig Green, a professor at Temple Law School, who also worked in the Justice Department and with the Solicitor General's office, [who] was quick to add, "but it's the strongest theme of his work."

Alito Sounds Death Knell for Individual Rights

Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents. In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

In a 196-page report [PDF] released last week, the Alliance for Justice (AFJ) determined that in split decisions - the 'difficult cases' - "the reasoning Judge Alito employs and the results he reaches are not balanced."

Speaking of 'not balanced', there is another aspect of Samuel alito that hasn't been examined yet - his political and religious supporters - and their activist agenda:

Sen. Rick Santorum and Focus on the Family founder James Dobson were among conservative leaders expected to headline a rally Sunday on the eve of confirmation hearings for Supreme Court nominee Samuel Alito. The event, with the theme "Proclaim Liberty Throughout the Land," will be at Greater Exodus Baptist Church. Its pastor, Herbert Lusk, made headlines — and earned the ire of separation-of-church-and-state activists — when he endorsed President Bush from the pulpit during the 2000 Republican National Convention here.

Tony Perkins, president of the Family Research Council, which organized the event, denied a desire to create a theocracy. He said a 5-4 Supreme Court ruling prohibiting a display of the Ten Commandments in Kentucky, and a federal judge's declaration that reciting the Pledge of Allegiance in public schools is unconstitutional, are reasons for the rally. "The demand by judges that a Christian check his or her faith at the door before entering the public realm is a tyrannical use of judicial power and it must cease," Perkins said at a news conference before the event.

"The threat to our religious liberties has not diminished," Mr Perkins told journalists. He cited rulings against the Pledge of Allegiance, restrictions on the public display of the Ten Commandments and a decision barring the Indiana House of Representatives from beginning sessions with prayers that refer to Jesus Christ.

"These are not theoretical threats. They present a clear and present danger to religious freedom in our country," Mr Perkins said. "We are not interested in creating a theocracy in America, we have no interest in a church state. What we want is a church that is free to speak the truth."

Pennsylvania Sen. Rick tore into what he called "liberal activist judges on the Supreme Court." Santorum cited an 1821 quote from Thomas Jefferson - "the germ of the destruction of our nation is in the power of the judiciary" - and declared that "the Supreme Court has become the supreme branch of the government, imposing its unrestrained will upon all of the people."

As Santorum spoke, two radically different views of where religion and politics should intersect in American life were playing out on North Broad Street.

Inside the sky-blue walls of Lusk's church, speakers like Tony Perkins of the Family Research Council, the main event organizer, and Dr. James Dobson, of Focus on the Family, claimed that judges are restricting religious freedom.

But about 150 or so protesters - including AIDS activists and a group seeking Bush's removal from office - who blocked off a part of Broad Street charged that the religious right is not under attack from judges but rather has become too powerful.

However, there is no such term as 'too much power' in the conservative playbook, which is why [A]n e-mail fundraising appeal went out from a prominent conservative under the heading "The nomination of Judge Samuel Alito is in serious trouble" -- though few conservatives believe that is the case. Republicans have a majority of 55 to 45 in the Senate, although some moderate Republicans may be worried about Judge Alito's views on abortion and executive powers.

But with 55 votes, the Republicans are only five short of the 60 required to override an attempted filibuster. The 44 Senate Democrats would have to remain united, while Republicans again threaten to use the "nuclear option" of a rules change to allow a majority to prevail. Democrats could retaliate by bringing the chamber's business to an effective halt. Democrats would dearly love to deny Mr Bush's hopes of chalking up a much-needed victory before his State of the Union address at the end of the month, when he intends effectively to relaunch his battered presidency.

But, a filibuster battle would also probably be welcomed by Bush because it would energize his base at a time when he is reeling from corruption problems in the Republican party, brought into sharp focus by Texas Representative Tom DeLay's decision over the weekend to stop trying to regain his party leadership post in the House. If, as expected, the Democrats focus their questions on the spying and wartime powers issues, it could be a sign that they have decided they cannot — at this point — muster forces to filibuster the nomination, forcing 60 Senate votes to confirm Alito.

"The administration is pulling out all the stops on this nomination, and radical right groups will bear down on any Republican who might break away," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, who writes on judicial nominations."But if Democrats can show that he has opted for the most conservative positions on choice points throughout his career, they may be able to convince enough Republican senators to support a filibuster," he adds.

The issue of executive power resonates with some Senate Republicans, who broke with the White House last month on the extension of the USA Patriot Act, citing privacy concerns.

Privacy seems to be something that Alito values personally, as Heated Democratic questioning appears not to damage Bush nominee’s SC chances:

As President George W. Bush’s pick for the Supreme Court enters his third day of the hearings, he is showing that he has mastered the language of politics: Say nothing - at least nothing controversial. The conservative Alito’s by-the-book responses to the grilling by Democrats in the Senate Judiciary Committee has earned him nods of approval from Republican supporters.

Such an approach clouds the issues being examined by the Senate committee:

Alito's reticence makes it almost impossible to tell how and where his conservatism was shaped - and even how conservative he may be. A rare break in that nonpartisan posture came 20 years ago when Alito was applying for a job in the Reagan administration. "I am and always have been a conservative," his cover letter began. He detailed his admiration for the writings of William F. Buckley and his opposition to many of the liberal rulings of the Supreme Court under Chief Justice Earl Warren.

Speaking of Mr. Buckley, he has something to say about this process:

It is vexing for American conservatives, who think of themselves as presumptive critics of the accretion of government power, to be put on the defensive here. The difficulty is that conservatives have warned over the years that any increase in the size of government is innately threatening to individual freedom.

But having made his point, Buckley reverts to partisanship:

Judge Alito isn't likely to show any more patience for abuse by public authority than would the head of the ACLU.

Maybe - but the right questions would have to be asked of Alito:

[T]he idea that being a judge is merely a matter of accurately consulting the law, the Constitution, and the precedents of previous court decisions is widely considered to be conservative - at least in a legal sense.

And how would he answer this if questioned on this topic? Probably not in a satisfactory manner:

Skeptical constitutionalists have another scenario sketched out: Alito would preserve precisely the kind of big government “conservatism” embodied by President Bush.

They believe Alito will oppose the Roe v. Wade decision on abortion, but otherwise be loyal to the view that the president should have more power.
“Sam Alito is just what George Bush is looking for: a big government conservative who will almost always side with the government against the individual, and the federal government against the state,” Fox News Channel commentator and former judge Andrew Napolitano told the Daily Princetonian of Princeton University for Oct. 31.

But even such an admission by someone who knows Alito well (Napolitano and Alito both attended Princeton as undergraduates in the early 1970s and have been friends ever since) isn't going to save the Democrats from charges of partisanship when they state the obvious:

Bush nominee 'believes in an all-powerful presidency'

To make his argument, Senator Kennedy cited several cases from Judge Alito's 15-year stint on the federal appeals bench in which, he claimed, the judge had sided with the state even when some of his conservative colleagues disagreed.

And what of any claims that Alito can be unbiased? His past doesn't support that assertion:

Bush court nominee plays down past record

The Democrats sought to present Judge Samuel Alito as too "out of the mainstream" and too close to the White House to serve on America's top court. They pummelled him over his outspoken anti-abortion position and his former membership of a Princeton University group that opposed admissions to women and ethnic minorities.

But Alito's script has that point 'covered':

Supreme court nominee eases abortion stance

Supreme court nominee Samuel Alito yesterday attempted to mollify Democrat critics by distancing himself from a statement he made 20 years ago opposing abortion, and said he would deal with the issue with an open mind in office.

However, he also defended his 1991 judicial vote that women seeking abortions must notify their husbands, telling the committee: "I did it because I thought that's what the law required."

And which law would that be - Catholic Canon Law?

Alito's religion - and it's influence on his decisions - is a valid topic of discussion. If confirmed, Alito would be the fifth Catholic on the court, the first time Catholics have held a majority.

And, true to form, there is controversy over this fact - and the attention being paid to it:

It is a remarkable development, considering he would be only the 12th Catholic justice on a court that has seen the service of more than 100 justices.

But in a country with a tradition of separation between church and state, any focus on Catholicism seems to some analysts more a relic of anti-Catholic prejudice than a well-intentioned effort to examine Alito's temperament, intellect, or judicial philosophy.

Many older Americans are aware of the so-called Catholic question from the way presidential candidate John F. Kennedy responded in 1960 to a group of ministers who expressed their concerns that a Catholic president might have dual loyalties to both the US and the Vatican.

Mr. Kennedy answered: "I do not speak for my church on public matters, and the church does not speak for me." The response went a long way in opening doors for American Catholics seeking positions of leadership in a country once dominated by Protestants. But many are asking why the question is still arising in 2005.

"The question is fidelity to the law," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law. "So it is entirely appropriate for the Senate to make that inquiry. What is inappropriate is for the Senate to only make that inquiry of Catholics."

Some see such questions as a form of anti-Catholic bigotry. Others see complaints about religious questioning as being part of a campaign to head off aggressive interrogation. "It is a tactic aimed at shutting down discussion on a crucial area of legal philosophy," says the Rev. C. Welton Gaddy, president of the Interfaith Alliance. "It is very difficult to get into the process without being labeled anti-Catholic - and that is by design by people on the religious right."

Mr. Gaddy adds, "In reality, it is not about religion. It is about politics."

"Some of the people who will be asking hard questions of Judge Alito are Catholics," says James Hitchcock, a history professor at St. Louis University and author of "The Supreme Court and Religion in American Life."

Professor Hitchcock says the divide over the so-called Catholic question has less to do with religious doctrine than with the increasingly contentious liberal- conservative political divide in the US.

"The kind of people back in 1960 who were questioning [John] Kennedy were Baptist ministers," he says. "I think that insofar as Baptists belong in the category of religious conservatives, they are not likely to object to a man just because he is Catholic if they feel he has a view of the world somewhat similar to their own."

Case in point:

Sen. John Cornyn (R-Texas) noted a 2000 case from his home state in which the Supreme Court ruled a school district's practice of coordinating student-led prayers before football games was unconstitutional. Cornyn told Alito he hoped the judge would rule differently in such cases. "It is clear from your record that you understand that our Founding Fathers intended neutrality -- not hostility -- towards religion," Cornyn said.

Interestingly, however, the best suggestions for a line of questioning that the Democrats might undertake of Alito comes from a nation [Cuba] whose own reputation for openness is questioned:

US: Prez on Trial through his Nominee

As members of the Judiciary Committee approach what should be their most solemn duty -- since they are being called upon to accept or reject a nominee who could serve on the high court long after they have left politics -- senators of both parties should be looking for a way to crack the facade of deceit and disrespect that Alito will erect.
They may ask the nominee how he would have ruled in the case of Bush v. Gore.
* Does he agree that the court was right to intervene, for the first time in history, to stop the counting of the ballots that could have determined the result of a presidential contest?

* Does Alito believe it is possible to reconcile the high court"s intervention in an electoral battle with a strict constructionist reading of the Constitution that says Congress, not the court, is charged with settling disputed contests at the federal level?

* Does he believe that Justice Antonin Scalia, whose sons were associated with firms that represented George W. Bush"s campaign, and Justice Clarence Thomas, whose wife was working with Bush"s transition team, should have recused themselves from the deliberations?

* Does he worry that the decision to intervene in the case might have damaged the court"s reputation as an independent body that stands apart from the partisan politics associated with the executive branch?

Alito will have no excuse for not answering, as the case of Bush v. Gore will never come before the court again.
[T]he court itself has ruled that the decision should not be interpreted as setting a precedent. Thus, it is one of the few court decisions that is entirely, and appropriately, open to discussion by a nominee.

Ah, if only we were getting such a discussion! Reverting back to the domestic media, the correct point is being raised:

With many Americans still in the dark as to Supreme Court nominee's positions, tough questions and candid answers are needed.

AS Senate confirmation hearings enter the third day of questioning for President George W. Bush's pick for the Supreme Court seat held by Justice Sandra Day O'Connor, the polls offer conflicting data as to how much Americans know about Judge Samuel Alito.

* A Washington Post-ABC sampling trumpets a narrow majority in favor of the federal appellate judge's confirmation and an expectation that he would not vote to overturn the landmark Roe v. Wade decision that women have a right to choose abortion.

* At the same time, a CBS News poll found 77 percent of respondents didn't know enough about Alito to make a decision about his fitness for the high court.

ABC must be tapping into a more informed pool of citizens, because there seems to be a genuine void when it comes to citizens' knowledge of the views Alito would bring to the pivotal swing position on an often divided court.

There's nothing wrong with senators from both parties asking the nominee pointed questions and following up if clear answers are not forthcoming. Particularly in times when constitutional safeguards are under fire, Americans need to know where high court nominees stand on such issues. Judge Samuel Alito will likely be confirmed to the Supreme Court, but the majority of Americans should have a much better feel for the man by the time he gets there.

Here's the poll referred to by WaPo:

Alito’s Confirmation Splits Views in U.S.

Americans adults are divided over whether Samuel Alito should join the Supreme Court, according to a poll by Harris Interactive. 34 per cent of respondents think the Senate should confirm Alito, while 31 per cent disagree.
Polling Data

President George W. Bush has nominated Samuel Alito to be an associate justice of the U.S. Supreme Court. Do you believe he should be confirmed by the Senate?

Should be confirmed 34%
Should not be confirmed 31%
Not sure 34%

Source: Harris Interactive
Methodology: Online interviews with 1,961 American adults, conducted from Dec. 8 to Dec. 14, 2005. Margin of error is 2 per cent.

As this poll and all of the quotes presented above indicate, there are a lot of unanswered questions that need to be asked of Alito, as both the stakes and the consequences of a bad decision are high for both sides. The good of the nation demands that a thorough examination of any candidate be undertaken, and a candidate's past is always a good indication of future action, no matter what disclaimers are applied by supporters.

If, for example, Justice Souter were up for confirmation right now, would not his record be considered fair game by the conservatives who believe he has betrayed them and their principles? If Justice Ginsberg were the nominee, would not every ruling she ever issued be torn asunder in search of that suspect turn of legal phrase which would disqualify her for confirmation in conservative minds?

Logic dictates that this would be so. So why is it that conservatives can claim outrage when the Democrats are doing their jobs (for once, however poorly)?

Partisanship, or as George Washington put it in his Farewell Address - 'factions' - is the source of much discord in our nation today. He tried to warn us of its dangers:

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts.

The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth...

... whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations ...

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.

... cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government ...

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

Would that we had heeded this advice! Once Alito is confirmed, the truth of Washington's visions will become ever more clear as it becomes too late for anyone to do anything about the "... cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government ..." - and the fears of the Father of Our Country will be realized instead of the hopes.

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