Senator Schumer from New York just asked the question I’ve been waiting to hear the whole time: Why did you make the government’s argument for them in the Smith case but didn’t do this in other cases?

Alito seems to have a good answer. According to him congress explicitly said that the issue of exhaustion of state relief must be considered in habeus corpus cases whether or not the argument is raised.

There are some other examples (Alito’s dissent in the Dillenger case). For this case Alito didn’t remember the details.

At this point I’m just out of my depth. I don’t know if Alito’s position was defensible and the other justices were swayed by intuitive considerations of fairness or sympathy or if Alito was the one swayed. I need advice from someone who is an expert but I don’t know who to trust or ask here. So few people seem to be able to analyze even easy issues (the Vangaurd case) in a fair manner when partisan politics come into play. If anyone has any good links on the subject I would appreciate them.

So I’ve been watching the confirmation hearings on CSPAN and I have to admit Alito has been pretty impressive. While he still certainly wouldn’t be the judge I would nominate I’m wavering again on whether he should be appointed. Several cases and examples have been pointed out where Alito ruled, or even dissented, in favor of a criminal defendant asking for relief. Of course a few examples can not definitively settle the question of whether Alito has significant ingrained bias but these examples do rebut the presumption against him that earlier examples had created.

Unfortunately rather than focusing on issues of serious concern many of the democrats on the committee have insisted on making stupid political accusations. I’ve previouslyexpressed concern over Alito’s choice to supplement a prosecutor’s arguments with his own research in order to procedurally bar a defendant from relief but despite listening to well over half the confirmation hearings and skimming scotusblog’s live summary I didn’t hear or see this case mentioned once. Instead many (though not all) of the democrats on the committee kept banging away on stupid issues like Alito’s membership in CAP or the Vanguard case. Senator Kennedy in particular didn’t seem interested in doing anything but hearing himself rhetorically imply Alito was a racist/sexist for being a member of CAP and unethical for not recusing himself in Vanguard.

I’ve already argued that Alito’s statement to the Senate in his prior confirmation hearings saying he would recuse himself in Vanguard was not a promise. I think he was just saying (truthfully) what he intended to do in the future but even if we take it to be a promise the entire issue is absurd. Obviously Alito just overlooked or forgot the issue when deciding to hear the Vanguard case as it would clearly have been in his political and personal interest to recuse himself. Once he realized that their might be the appearance of a conflict of interest he recused himself and ordered the case retried.

I just don’t see how any reasonable unbiased person could think the Vanguard issue is a big deal. Any friend of mine who forgot one promise out of many you made him swear for a minute and then corrected his actions which would have violated the promise would deserve praise not condemnation. All the ethics experts, including the ones the democrats have previously cited, universally agree that Alito did nothing wrong in this case. Obviously Ted Kennedy and to a lesser degree other democrats are just trying to give partisans an excuse to dislike Alito and make good sound-bytes for the evening news.

While not ridiculous like the Vanguard issue there just isn’t any real substance to the CAP criticism. Sure in 1985 Alito included membership in a group which, among other things, advocated racist and sexist policies at princeton, on his application for a justice department job. However, Alito has explicitly disavowed holding any of these views and a search of records showed he was not an active member. Even the democrats don’t seem to think it is plausible that Alito shared the goals of a group which likely would have denied him admission if it had its way. Various democrats have acted like it is completely baffling how Alito might be a member of this organization innocently but I think we all know that lots of people join random organizations just to put them on resumes or even just to get rid of the damn person bugging us to join. Sure Alito won’t say he put it on his resume to get a job with the Reagan administration but that question is deeply unfair. Putting membership in a conservative organization on a job application for a conservative administration is perfectly within normal ethical practice but if he says that might be the explanation democratic senators and media will jump on him and accuse him of tolerating racism to get a job.

Not all the democrats are behaving badly. Feingold for one has some very good questions. Some of Alito’s answers to these questions are troubling and I’m still quite worried about his nomination. However, the focus by many democrats on these silly no content issues overshadows all the real issues. Whether or not there are real problems with Alito the focus on sound-byte issues by Kennedy and others guarantees he will be confirmed. I can only guess they feel confirmation is inevitable and are attempting to score points with democrats who are too partisan or ignorant to realize how shallow these issues really are.

So gay marriage has come up several times in Alito’s confirmation hearings so I figured it was time to finally get around to finishing up this post. In those hearings senator Brownback even threatened to revoke judicial jurisdiction if an activist court ‘created’ a right to gay marriage. More on the confirmation hearings later now for gay marriage.

That title is a bit misleading. As a policy issue there is no problem except how to overcome bigotry and puritanical values and allow for gay marriage. Even better we could eliminate the legal institution of marriage entirely and allow people to enter into contracts assigning the benefits and responsibilities traditionally associated with marriage to whomever they see fit (later post). However, as the legal problem of justifiably protecting gay rightsis much thornier. Justice calls out for fair treatment of gays and unsurprisingly many conclude that the courts ought to rule gay marriage is a constitutional right. Like other emotionally charged legal issues where belief in the ‘right’ result precedes acceptance of any particular argument or even knowledge of the relevant laws and constitutional clauses I am generally skeptical. Of course in some states their constitution probably does demand this outcome but in this post I am going to consider the situation in New York and the recent appellate decision reversing the Hernandez v. Robles decision declaring a right to gay marriage in the state. Since the equal protection clause (sec. 11) of the New York constitution is pretty much the same as the one in the US constitution the arguments are the same both for the federal situation and the New York situation. In fact while I will use the Robles decision as a jumping off point most of this discussion is about the federal situation.

My original conclusion, just having read the constitutional clauses and the arguments at issue, was that the appeals court was correct. Unfair and unjust as it may be there seemed to be no valid constitutional ground, even on an extremely broad reading, to support the contention that homosexuals have a constitutional right to marry. The constitution doesn’t prevent legislatures from treating distinct classes of people differently, otherwise child tax credits, sin taxes, regulations protecting journalists from revealing their sources and virtually every act of congress would all be unconstitutional. So long as there is some legitimate government interest served by the law and the differing treatment is not based on a suspect class (race, religion, and kinda gender but not sexual orientation). While outlawing gay sodomy serves no legitimate state interest as the supreme court opinedopined there is a valid interest (though not a very strong one) in denying gays the legal advantages of marriage. Marriage benefits cost money and there is a greater need to discourage straight couples from having unplanned children without parental commitment because homosexuals don’t accidently get pregnant (before you get angry and accuse me of missing something read the rest of the post).

However, I do not think this position (despite its justification on first principles) can be maintained in the face of the many court decisions declaring legal marriage to be a “fundamental right”. Moreover the court has maintained the status of marriage as a constitutional right even inside prisons where issues of procreation or sexual relations are not relevant. While I think this decision, while perhaps justified in a past time, is in error (now legal marriage is just an eclectic collection of financial and minor legal benefits) it is blatantly incompatible with denying gays the right to marry.

While recognizing the right to marry as fundamental has great outcomes in the situation with gays applying this principle in the same unbiased manner which guarantees gays the rights to marry would protect bigamy and incestuous marriages . Additionally it would imperil laws banning underage marriage or stringently regulating marriages we intuitively regard as exploitative, e.g., marriages where one partner is severely retarded. This is for the simple reason that in order to restrict a fundamental right the government must show a compelling governmental interest and if that requirement is to have any substance it must require more than mere intuition or assertion. If conservatives bald assertions that gay marriage causes social deterioration are to be disregarded unless they can provide evidence so too must widespread assumptions about incest or bigamy.

Ultimately, though I don’t think this is such a bad standard (in terms of results). I expect age minimums for marriage will be able to be supported with evidence and married cousins or group marriage probably ought to be legally allowed. Some harmful but rare practices will probably slip through but by definition they don’t happen often. So even though I think it is a bad standard , maintaining marriage as a fundamental right has fairly good results. Whatever you feel about this point it is abominable for the court to treat marriage as a fundamental right for straight people but not for gays.

If any of my arguments didn’t convince you they are laid out in full detail below. (more…)

So I’ve been sitting on the fence about the Alito nomination for awhile. While my values are quite liberal I think insisting that judges inject these values into their constitutional decisions endangers core constitutional rights like freedom of speech and protection from unreasonable search which should be at the core of a liberal approach to government. These rights only remain secure if the supreme court is bound by tradition and cultural understanding to apply principled legal interpretations to the constitution. It is therefore our responsibility as liberals and citizens to evaluate any supreme court nominee on their judicial philosophy and ability to impartially apply that philosophy rather than encouraging a view of the supreme court as a policy making body by demanding the ‘right’ positions on particular issues. I think in this situation it is in our best interests to (grudgingly) accept the fact that Bush will appoint a justice with a mainstream conservative philosophy and focus on making sure they will fairly apply that philosophy with minimal personal bias.

The upshot of this is that focusing on Alito’s position on abortion is both a theoretical and pragmatic mistake. Demanding Alito support Roe despite it’s obvious lack of justification on any conservative judicial philosophy further undermines the idea that the supreme court should apply principled legal interpretations not make policy decisions. Demanding Bush nominate someone with a liberal judicial philosophy who could coherently support Roe is a political mistake. Moreover, I think that this focus on Roe is somewhat selfish. Even if Roe is overturned it is quite unlikely that abortions will become illegal again though they will become significantly more difficult to receive. While I don’t want to trivialize the emotional and social consequences of waiting periods for abortions or a narrowed window or abortion it isn’t as significant as being jailed or even executed unfairly. Being raped in prison or otherwise severely mistreated should surely be of greater concern than having to carry a baby to term (just ask yourself which you would choose) and allowing police to terrorize minority and poor communities using drug laws is a serious concern as well. These are all issues on which the supreme court has significant influence but gain little attention compared to Roe. Likely because abortion is an issue relevant to non-minority middle class voters who realize that they or someone they know might need an abortion but are unlikely to be touched by the criminal justice system.

Unfortunately news stories have been circulating for some time suggesting Alito has a very narrow conception of defendant’s rights (though I agree with Alito that the fact the girl was 10 is not of legal importance). While the stories suggest he does strongly support free speech (though I’m not so sure) they also show he thinks almost none of these rights extend inside the prison. Most troubling was the apparent pattern of rarely ruling in favor of a “criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.” Still in and of themselves these decisions were not enough to make me oppose Alito. It made me suspect that he was allowing a pro law and order view to influence his legal analysis but it was possible he had some principled legal interpretation which mandated these results.

What finally convinced me Alito was doing more than consistently applying a philosophy which happened to construe the rights of defendants narrowly was this report from a clerk who served in the Third Circuit with Alito. Apparently in addition to merely ruling in favor of the prosecutor in this case Alito actually went out and did research to manufacture a new argument for the prosecutor. Whether or not judges should ever take such an active role (I think they should when the defendant has inadequate representation) Alito’s action is troubling as there is no evidence of him going to similar efforts for defendants, something I expect would have been trumpeted by his defenders to counter accusations Alito is pro-government. Additionally the argument Alito manufactured for the prosecution was a procedural argument, he pointed out the defendant hadn’t exhausted his options in state court, making it highly unlikely his additional effort was motivated by some concern over overlooked evidence or other substantive issues. So unless you believe Alito feels so strongly about procedural bars to appeal that he goes far out of his way to make sure they are enforced it is hard to avoid the conclusion that he was motivated by a desire not to see the defendant overturn his death sentence. Since it is far more plausible that someone went to great effort to prevent a murder from escaping justice than to enforce a rule designed to avoid overburdening the federal court system I can’t avoid thinking Alito is indulging in outcome oriented judging, a thought which is quite disturbing given his apparent pro-government leanings.

Admittedly this is not proof that Alito is particularly willing to inject his personal prejudices but it makes it far too probable for comfort. The prospect of a conservative supreme court justice who searches for legal justifications of his preferences instead of trying to interpret the constitution in good faith is too disturbing to risk. Moreover, if Alito is willing to cloak the real motivations for a decision in apparently objective legal reasoning might he not be willing to cloak his real legal beliefs in order to get on the supreme court? Overall the risk that Alito will use the supreme court to further his own policy preferences seems too great and there are other conservative justices who will apply their legal philosophies in good faith.

No, but the Bush Administration ought to take the heat for falsely implying it was all just a computer error. The real concern one should have about Alito is an excessive deference to the other branches of government and if anything this incident helps (very slightly) allay those fears.

For those who don’t know what I’m talking about the liberal blogs have been going nuts over the revelation that Alito did not recuse himself from a case involving Vanguard corp. despite submitting a sworn statement (page 43) to the Senate that he would do just that during his confirmation hearings. To my knowledge no credible source has yet claimed hearing the case in and of itself was an ethical violation. The complaint is just that he violated his sworn ‘promise’.

The primary problem with this complaint is that there is no such thing as a sworn promise. Yes Alito submitted a sworn statement to the Senate saying he would recuse himself in such cases but what he is swearing to is the truth of his statements not some future commitments (go read the end of the questionnaire if you don’t belief me). Given that 15 years elapsed between his statement and the case in question there is every reason to believe he really did intend to step aside in such cases when he submitted the statement. Not only does his statement not legally obligate him not to change his mind it would be wrong of him to let an ancient ‘promise’ force him into making a decision on the bench he thought was unjust. Of course recusing himself is hardly a big deal but the principle is the same.

If you are still unconvinced that this is just a liberal witch-hunt let’s consider the question on page 46 of the same questionnaire. This question asks how Alito feels about judicial activism. Suppose (falsely) that Alito had said he would decide constitutional issues in accordance with philosophy of strict constructionism. If on the bench Alito realized that this philosophy was flawed and a much broader interpretation of the constitution was warranted should he still abide by his ‘promise’? Unless you feel it would be wrong of Alito to vote to uphold Roe v. Wade after making such a statement it just isn’t consistent to call him out for changing his mind on this issue. You just can’t have it both ways, either these ‘promises’ are binding or judges have the right to change their mind.

Ultimately I find the idea that judges are morally, even if not legally, obligated to respect such promises very troubling. Such an attitude would gravely imperil the independence of the judiciary. If judges faced a strong societal censure for revising opinions they shared with the Senate they would not have the chance to grow and evolve as justices. Yet it is equally important that the Senate have enough information to evaluate the nominee and be able to ask what philosophy the nominee intends to apply.

This entire discussion makes me embarrassed to be a liberal. I mean jesus christ people is this really the reason you are opposed to Alito? If you had found out your favorite supreme court nominee had done the same thing would you really change your mind about them? I very much doubt it so lets keep the discussion focused on the real issues.

Many groups have raised the issue of Judge Alito’s dissent in US v, Rybar where he ruled a federal law banning machine gun possession unconstitutional. If you listen to all the attacks on Alito you would think his decision was based on a deep preference for gang bangers to have machine guns instead of a state’s rights issue.

I have to admit that Alito’s decision on the machine gun issue had actually made me somewhat hopeful about his judicial philosophy. Rumors have been floating around that Alito is particularly deferential to government and other established authority and this case would have suggested otherwise. If my conception of this case had been correct it would have actually challenged the famous Filburn decision which held that congress had the power to regulate purely intrastate activity so long as it dealt with a fungible commodity that did impact interstate trade.

Breathing life back into the commerce clause has long been a conservative clause but especially now that the republicans control the national government devolving power to the states benefits everyone. Overturning Fliburn might prevent machine gun legislation but it would also overturn Ashcroft v. Raich and give the states the right to experiment with marijuana. I think this model of state experimentation clearly reflects both the intent and text of the constitution and the decision in Filburn was coerced by undue pressure from Roosevelt’s court packing plan. More than just being what is required by the constitution it is a good idea. Different states have differing populations and there is no reason to suppose the risk/reward calculation that works for one also works for another.

Unfortunately all this speculation is for naught. Actually reading Alito’s decision (see bottom) it becomes clear that he struck down the law on a mere technicality. Apparently congress had forgotten to include a section justifying the power exercised under the commerce clause. All congress needed to do is append a little note saying there is interstate commerce in machine guns and everything would have been fine.

Here is an interesting quote from Judge Breyer where he seconds my complaint that most people seem to misunderstand the role of the court. This is of particular interest as he is probably one of the most liberal justices on the court. Not to suggest that conservatives are any less likely to make this mistake, the anti-abortion lobby seems to believe their moral cause establishes constitutional justification, but when one looks at actual constitutional scholars and justices the liberals seem to have been more receptive to the idea of the justice inserting policy judgements.

And also, I think there’s a misconception. I think that many people believe that we’re deciding what’s good or bad for Americans. That’s not the job of the court in constitutional cases. The job is really to look at the Constitution which sets boundaries, vast space in between those constitutional boundaries. That space is for people to decide for themselves what they want. And we’re just policing the far boundaries of that space.

From pbs newshour

UPDATE: I don’t take the controversial point to be that the supreme court should not decide what is good and bad rather that much of the country seems to misunderstand this. More on this in another post.

In a couple of previous posts I talked about what a principled broad interpretation of the constitution could not look like. In particular I argued that an expansive reading which looked to underlying principles would necessarily protect gun rights and prostitution. In an upcoming post I will justify my bald assertion about prostitution but here I want to turn away from the intellectual background to the actual behavior of liberal activists and commentators. In particular I suggest the reason behind these unprincipled positions is the very dangerous attitude fostered by liberal activists identifying morally righteous with legally correct.

I already complained briefly about this attitude in my post about Alito. The liberal activists groups are jumping to condemn him because he issued decisions making it more difficult to prove discrimination in the workplace and for voiding the family and medical leave act. While almost no liberals I have met are familiar with the legal basis for Roe v. Wade perhaps these organizations are just assuming familiarity with the law in this area. However, it would be absurd to suppose the average citizen has familiarity with the technicalities of federal power involved in the family and medical leave act or even the legal and constitutional principles behind his discrimination decisions. In short it is obvious that the complaint really leveled against Alito is not an incorrect or poor judicial philosophy but one which doesn’t support liberal policy goals (which is not to say there aren’t valid criticisms of him as well)

In case it is still unclear that liberal groups confuse what is legal with what they think is right consider the recent protest at UC Berkeley. Here students broke into Professor Yoo classroom to protest the legal memo he wrote supporting the position that neither the Geneva convention or other laws of war applied to the conflict in Afghanistan. Of course I think it would be good if these rules applied to the conflict in Afghanistan but this doesn’t mean they do any more than the fact that G.W. is a terrible president means the constitution bars him from the presidency. Now it may be that Yoo’s analysis was in error, though we should allow for the possibility of honest mistakes here as we would elsewhere, but these protesters have no idea if this is the case. Just like the position of the liberal groups on Alito the complaint is not that some passage was interpreted poorly but rather that they simply didn’t like the results of the analysis.

Ultimately I think this attitude that unpalatable legal opinions must be wrong is more than just stupid. It is incredibly dangerous. It might lead to short term victories but in the long term it imperils all our rights. As I shall argue below it risks making all our rights and legal protections hostage to public opinion. If this attitude prevails we might as well follow the English model and not have a constitution at all. (more…)

So if you haven’t been living under a rock you know that judge Alito was nominated today by president Bush. You may not, however, know that my blog has had a spiffy redesign and this is the first post in the new design (Warning About link doesn’t work yet). Anyway I know that many of the liberal sites have already started railing against Alito. If you are a liberal just looking to get your blood boiling you can look here and here (summary of 24 page report.

A less biased view can be found on ACSBlog. Admittedly he would hardly be my top choice for the court, reports about his narrow construable of criminal rights are a bit worrying but as this comes second hand I’m taking a cautious view of the claim. On the plus side he seems to be willing to protect certain kinds of speech (see the school case at the end) and while it probably shouldn’t affect my judgment its hard for me not to feel positively about someone who decided the school embarrassment case as he did (i.e. ruled that not protecting a boy from the embarrassment of his peers constituted a failure of the district to provide him with an education).

Ultimately he is a judge of a conservative persuasion so if you believe in construing constitutional rights broadly you probably won’t like him. Unlike Miers, however, there is reason to believe he really does believe in interpreting the law and constitution and thus has limits on how far he will bend interpretation to suit his ends. While I haven’t read enough to be sure he has a principled take on constitutional law its a lot more likely than with Miers. Since Bush will obviously (and perhaps even reasonably) appoint a justice with conservative inclinations the best we can hope for is a principled philosophy which will prevent the conservatives from having their cake and eating it too, i.e., restricting the governments power to achieve liberal ends and expanding it to achieve conservative ones.

Overall I’m not yet sure how I feel about Alito. The one thing I am sure of is that the last thing that should sway one’s opinion is the type of emotional policy driven crap you see in the first two complaints I linked. I’m completely disgusted with entire approach taken by liberal groups in respect to judicial nominations. The fact that someone authored an opinion that helped or hurt workers, women or whatever your favorite group might happen to be is irrelevant to their qualification as a justice. The question is whether their decisions properly reflect constitutional and legal principles. If you believe the constitution limits federal power in any way this limitation will sometimes block good actions as well as bad ones. If a judge doesn’t strike down some federal laws protecting women, minorities or some other ‘good cause’ while preventing other exercises of federal power he should be suspect.

Miers has withdrawn!. Thank god. The next nomination will undoubtedly be better. Even if they are a hard core conservative so long as they are smart and principled they will be much better than Miers. Principled conservatives at least check their narrow reading of constitutional rights with narrow readings of federal power. Miers seemed likely to be a social and religious conservative without enough intelligence or a judicial philosophy to prevent her from imposing those views on the rest of us. Besides even if you disagree with Scalia and Thomas they do not disgrace the court as her writing samples and general incoherence suggested Miers might.

As an aside I was just reminded that Mier’s had been recommended by Reid. I’m ashamed he is the democratic minority leader. First he refused to vote for Roberts because Roberts would have represented the anti-enviornmental forces suing the state to the best of his ability if they had hired him as he did when representing the state showing a deep misunderstanding of thee principles behind our legal system. The fact that he suggested Miers shows his judgement is flawed as well.