Friday, January 13, 2006

O'Hare on Alito

A piece missing:
He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice. Not a case came up for discussion in which he registered that one or another outcome was just wrong, outrageous to a sense of decency, or to him. … It wasn't exactly Pilate washing his hands, but the man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office. Sometimes the Court has to do this, but to Alito it's an especially good day's work, not a disappointment.
As someone pointed out, Ginsburg and Scalia voted together 91% of the time. The fact that most of Alito's rulings are compatible with what other judges ruled is not the interesting datapoint. The relevant datapoint is the places where he differed.

In the afternoon panel, reference was made to Riley v. Taylor, in which Alito compared racial bias to differences in the frequency of left or right-handed presidents. As we discussed before, how you evaluate evidence of racial bias depends to some extent on how important you think bias is to begin with.

As I wrote back then:

Alito doesn't want to see discrimination, or worse, doesn't want to remedy it. This is a trend throughout his jurisprudence, and a disturbing one.

This is… a clear pattern emerging from multiple independent examinations of his record, from multiple different starting points. When people come into his court with an inherent societal disadvantage, they tend to come out with that same disadvantage.
And now he's cruising toward the Supreme Court. There's no one to stand behind him and catch the victims of discrimination that he overlooks.

Is he minimally competent to be a judge, even at the highest level? Sure, he has legal experience, he doesn't gibber like a buffoon, and he doesn't eat puppies on live television. If that's all that someone needs, he's ready.

But if we want a justice on the Supreme Court who seeks truth and opportunities to bring justice to those harmed, he's the wrong man. This shouldn't be about avoiding the very worst people (the standard many on the right are implicitly taking), it should be seeking out the very best.

Is Judge Alito the finest legal mind of his generation? Doubtful. And when you only have 9 seats on the Court, and seats open up rarely, why pick from the middle of the peloton if you could get Lance Armstrong.

I'd love to see Cass Sunstein put up. Judge Kollar-Kotelly has impressed me. Laurence Tribe is widely revered. He's not young any more, but maybe the court needs a voice of experience. Orrin Hatch would sail through, as would many Democratic Senators. Larry Lessig has a rather narrow specialty, but one that's likely to come before the court more often. The list could easily go on. These are big names, smart, well-respected judges, advocates and scholars. Judge Alito is an opportunity missed.