Monday, October 31, 2005

"To the right of Scalia"

According to the George Washington Law prof. Jonathan Turley on the Today Show,
There will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues.

COURIC: Not even Antonin Scalia?

TURLEY: They’ll have to make a race to the right, but I think it will be by a nose, if at all
This is from the prescient commentator who pointed out that Harriet Miers was "an amazingly bad choice."

Video here.

On a related note,
Nina Totenberg, NPR's veteran court watcher, said:
if Judge Alito is confirmed, the court will move dramatically, dramatically to the right. There are conservatives who are less conservative than he
With Roberts, there were things that he wrote that were questionable. In the end, he showed himself to be part of the mainstream of American law, albeit hugging the right bank. Alito is stuck in the malarial swamps next to the river.

What John Roberts showed (other than the benefits of having two first names) is that Democrats would offer real deference to the President's selection, assuming the candidate was qualified and fell within that part of the spectrum of legal ideas which are subject to modern debate. I bet that you'd have seen the same dynamic form if McDonnell were nominated. He would have faced opposition, but Roberts style opposition, criticism of disturbing decisions, demands for paper. In the end, McDonnell has shown that he's a thinker and is willing to cross political lines in pursuit of jurisprudential consistency.

Alito (like Scalia) is less of an intellectual force, and more of a political force. While there is a handwave of judicial philosophy that Scalia and his proteges can offer, Scalia's rulings tend to be driven by consequences on the political landscape rather than a clear reasoning from the law, the given case, and constitutional understanding. Political conservatives don't mind because it's convenient, but in abstract, that's the definition of the "judicial activism" that they bitch about so much.

Alito would offer a third member of the "Constitution in Exile" wing of the court. That movement has the explicit goal of rolling back a body of Supreme Court decisions dating back to the New Deal which broadened commerce powers and granted broader deference to legislative bodies. These changes allowed laws like the Civil Rights Act (justified under the Commerce Clause, not the 14th amendment), Endangered Species Act, minimum wage laws, worker safety laws, etc.

While 3 people are not a majority, that's a solid bloc that can build consensus around rulings that crack the foundation of modern American government.

There are those who'd say that the government shouldn't rest on a Supreme Court decision. Fine, but even worse would be to have it rest on how Judge Alito defines "commerce." I'd rather let the courts offer broad guidance on commerce (simply possessing a gun isn't commerce), and let legislative bodies work out an understanding that has some flexibility.

Judicial conservatism ought to be minimalist. A conservative judge (legally conservative, not political conservative) ought to write narrow decisions which respect the other parts of the government. The Scalia/Thomas/Alito approach – strict originalism – is judicial supremacy. It substitutes a judge's linguistic analysis for rational reading and the judgment of elected representatives about what something means.

For more on that, I refer you to
this excellent post on non-originalist textualism by Publius.

The point I want to draw from this is that an approach which gives a judge absolute power to interpret the constitution turns a democracy into dictatorship. By fiat, Alito can declare,
as Billmon notes, that women and children should be treated as equally needing of a man's consent before undertaking a medical procedure. And I bet that one wouldn't have trouble finding that attitude in 18th century Virginia or New York (homes of Madison and Hamilton, principle authors of the Constitution), and in the Washington, DC of Reconstruction. But that originalism doesn't make the attitude any more right.

So the opposition to Alito should come not just from politically interested and intellectually consistent liberals, but also from intellectually consistent conservatives, the ones who reject the premise that judges should seize as much power as they can.

Make Bush come back with a sensible judicial conservative. An honest-to-god centrist is too much to ask, but a man who positions himself to the right of
Scalia is too much.