Tuesday, January 10, 2006

Third time's the charm

ACLU Announces Opposition to Alito Nomination:
Judge Alito's record shows a willingness to support government actions that abridge individual freedoms.

Throughout his career, Judge Alito has promoted an expansive view of executive authority and a limited view of the judicial role in curbing abuses of that authority.

The ACLU vote came after a special meeting of its 83-member national board this weekend, which has voted to oppose only two nominees in its 86-year history: Justice William Rehnquist (in his initial nomination to the Court) and former Solicitor General and law professor Robert Bork.
Let's just meditate on that last sentence for a moment before moving on. Justice Clarence "Pubic hair" Thomas? Not opposed. Justice Antonin "Do you use heroin with your wife?" Scalia? Not opposed.

So, even though the ACLU has a certain reputation for liberalism, it hasn't opposed even the most radical judges on the current court.

Now, it should surprise no one that I oppose the nomination of Judge Alito. His knee-jerk opposition to abortion rights is a part of it, but that, on it's own, wouldn't be enough for me to actually think he doesn't deserve the seat (though it would be enough for me to prefer a different nominee). What I don't like in looking at his rulings is that there is a consistent pattern, detectable whether you read a few key rulings (as I've done) or if you statistically analyze his corpus of appellate court rulings.
Knight-Ridder did that, and found that:

Although Alito’s opinions are rarely written with obvious ideology, he’s seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.
That's a problem.

The Washington Post analyzed every dissenting vote he cast on the Third Circuit, and got the same basic result:

he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.
The revelation that, as a lawyer in Reagan's Justice Department, he endorsed the monarchal executive branch, pushed for the presidential signing statement, an unconstitutional and unwarranted expansion of the President's power, and spoke in favor of a "unitary executive," in which all executive power lies in the President (not, for instance, in an independent counsel).

This is a recipe for disaster. It's a problem not just for liberals and civil libertarians, but for small-government conservatives and anyone who thinks the Founding Fathers had a good idea when they divided the powers of government.

Madison wrote, in Federalist 47 of the following "political truth" which is "stamped with the authority of more enlightened patrons of liberty":
The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may be pronounced the very definition of tyranny.
Madison goes on to advance a strong defense of the principle that not only should the totality of those powers lie in any single person or body, but that those powers themselves should be shared, not divided, among the branches. On the "unitary executive," Madison writes:
As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have … violated the rule [of maintaining each type of power within a different branch]
In Federalist 48, he continues on the theme:
Will it be sufficient to mark with precision the boundaries of these departments in the Constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American [state] Constitutions. But experience assures us, that the efficacy of the provision has been greatly over-rated; and that some more adequate defence is indispensibly necessary for the more feeble, against the more powerful members of the government.
Now, conservative love to talk about their "originalism," the idea that the constitution should be understood as it was by the Founders, that we shouldn't read things like a right to privacy into the Constitution if they wouldn't have seen it there.

By this standard, honest originalist conservatives will oppose Alito as they would any other judge who would read his own bias into the Constitution. I'm not holding my breath.