The news is in: President Bush has nominated Samuel Alito as the next USSC Justice to replace Sandra Day O'Connor. His credentials are impeccable: ivy league degrees; judge on the circuit court of appeals for fifteen years.

http://news.yahoo.com/fc/us/supreme_court


Here are a few links discussing Justice Alito's background and relevant judicial opinions:

http://www.scotusblog.com/movabletype/arch...5/10/alito.html

http://en.wikipedia.org/wiki/Samuel_Alito_...tion#Opposition

The salient question is whether his nomination will trigger the constitutional option:

http://en.wikipedia.org/wiki/Nuclear_option_%28filibuster%29

Questions for Debate:

(1) Do you think Justice Alito is a good choice for the USSC?

(2) Will he be confirmed?

(3) Is there a risk that the constitutional option will be triggered?

Do you think Justice Alito is a good choice for the USSC?

Yale Law. Young. Experienced. He is similar in terms of qualifications to Roberts. The difference is that he has a paper trail.

Will he be confirmed?
Tough to say. I think that it will be close but I see him getting (just)over 60 when it's all said and done.

Is there a risk that the constitutional option will be triggered?
There is always a risk, especially since this candidate is neither a woman nor minority. I think that the Gang of 14 deal made earlier will keep that from happening here though.

(1) Do you think Justice Alito is a good choice for the USSC?

No, too conservative.

(2) Will he be confirmed?

My prediction is that he will get an up/down vote, and he will be rejected on his clear record. The Q/A session ought to be good.

(3) Is there a risk that the constitutional option will be triggered?

I'm suspecting that this is part of the strategy. Have to do this due to the obstructionists who oppose the President. The transparency of this power play might work against Republican retention of power in Congress, and that's why the rush to the up/down vote.

Any chance you could expand on that just a touch? Specifically, do you think he has an improper understanding of the Constitution?

(1) Do you think Justice Alito is a good choice for the USSC?

Absolutely not, Bush has gone from nominating someone completely incompetent (Miers) to now nominating a heavyweight conservative idealogue.

Think Progress has a good run down on Alito's past decisions and what it might mean for the surpreme court. I think people really ought to ask themselves if they want to live in that America.

I don't want to quote the whole thing but I'll quote the headlines and the cases here and you can read the site for the details:


It appears to me from the cursory reading of his record I have done this morning that this guy has absolutely no respect for stare decisis and is bent on bringing his own viewpoints into law.

This isn't a conversation about someone who is a strict constructionist or originalist, this is a conversation about a conservative activist with no regard for the laws of the land.

(2) Will he be confirmed?

I honestly don't think that he will. It is pretty much a given that most democrats will be against him and those in the social conservative / religious wing of the Republican party will be for him. Where it gets interesting is in the middle for both Democrats and Republicans.

You should be looking to the gang of 14 (and possibly others) that opposed using the nuclear option to be against this guy because he is wrong for the court and wrong for the country.

The other thing to consider is that many Republican senators are facing tough races in their districts in 2006. The current poll numbers (which don't necessarily mean much this far out) have a lot of them down quite a bit in line with Bush's approval ratings generally showing the country is tiring of Republican "leadership". Will that be the case in 2006 on election day? Who knows. But right now I think that these senators who are up for re-election will be considering that question very carefully. Can they afford to confirm a judge that believes it is ok for police to strip search 10 year old girls and have that used against them on the campaign trail? Can they afford to lose all of the minority vote in their districts because they confirmed a judge that has no problems with race-based discrimination?

You are going to increasingly find that the GOP is going to distance itself from this White House if they hope to salvage some of their power in 2006 and 2008. It has started with the pundits and there have been several statements by various congressmen as well.

(3) Is there a risk that the constitutional option will be triggered?
I don't think that it will in this case, I believe Alito will get voted down by Congress. If the constitutional option is invoked I have a feeling it might be Republicans invoking it.

His vote in that case was simply to uphold a law that would have required notification of a woman's husband before she gets an abortion. This would not have overturned Roe, and I think it's a law that many people in this country would have supported. If it's not unconstitutional to require consent of both spouses to dispose of certain kinds of property common to the both of them, then it's not immediately obvious that it's unconstitutional to require one of them to notify the other before disposing of the baby that's common to both of them.


That's exaggeration to the point of being a falsehood. First of all, it's not the job of a judge to "support" or "not support" anything. His job is to uphold the law. You even alluded to that point yourself when you condemned judges who substitute their personal views for the law. Secondly, what happened in that case was that the officer had obtained a warrant to search the premises for drugs, and Alito, citing precedent, made the case that such warrants are understood to include searching the persons found on the premises. And surely you're not putting it past drug pushers to hide drugs on children, are you?

Generally speaking, it's not enough to say, "Alito voted this way", unless you want to leave yourself open to the charge that you let your preferences cloud your understanding of the law. If you want to make the case that he's an inappropriate choice, you'll need to show how he actually came down on the wrong side of the law. That means looking at the actual opinions he wrote, not just summing them up in single, often wildly exaggerated, statements.

Uh, not its not. The police had a warrant to search the man's home and possessions for drugs. I don't care if drug dealers use children to smuggle drugs it wasn't named in the warrant and from a legal perspective she was protected by the 4th amendment. Legal issues aside if you can seriously sit there and tell me that a police strip search of a 10 year old girl is acceptable then we really won't have much else to say to each other.

Alito has several times been overruled by the supreme court and I noticed you didn't bother to comment on the other portions of his record.

The police had a warrant to search the man's home and possessions for drugs.

And as I've explained, searching the home was understood by him to mean persons as well as things within the home, and he backed up his reasons. All you have to do is read Alito's opinion in the case, which starts on page 14, to look at his arguments. In fact, all you'd really need to read are the first two pages of his opinion, because he establishes all the pertinent points there. The rest is just drawing the obvious conclusions from them.

Legal issues aside...

No, there's no "legal issues aside". This is a court. It's whole job is to deal with legal issues. You're doing the exact thing you condemn Alito for allegedly doing. You're substituting your own personal views in place of legal reasoning.

And the reason I haven't commented on the other cases you mention is that the summation you give of this one gives me strong reason to believe that your source's other summations are similarly exaggerated and distorted. We can deal with this one before moving on to the others.

Do you realize that every argument you made, in reverse, could be made against Ruth Bader-Ginsburg? A lifelong "movement" liberal, appointed by Clinton and confirmed 97 - 3.

A conservative group could put together talking points about "Ruth Bader-Ginsburg's America" and list all of her extreme liberal views, posters like me could quote them, listing her 5 or 6 most egregious ones, and it would sound just as horrible and terrifying as the silly hack piece that you posted.

Of course, reality is different from extremist talking points. Her record at the DC Circuit was not really that of an extremist. She upheld death penalty cases, and in most if not all cases ruled based on the law, not on her ideology. I can't speak to her jurisprudence on the Supreme Court, but I think having a civil rights advocate and yes ACLU lawyer rounds out the ideological diversity in a positive way. Now, a Republican President gets to pick. See how this works?

Do you see what you've done here? The Supreme Court is not supposed to have feelings. It is not supposed to decide what is "acceptable." It is supposed to judge cases based on the law. If you want a law against strip searching drug dealers' kids, fine. You can pass one, and every drug dealer in San Fran will use kids for couriers (not that they aren't already). This is the type of unproductive rhetoric that we have to look forward to as this nomination proceeds. Wonderful.

(my underlining)

Isn't AD a place where we come together to discuss topics with people who have different view points? C'mon Cube, this is where you and Blackstone should be starting the discussion, not ending it. I'm assuming that if everyone here didn't like to talk to people who had different interpretations of the law, current events, and everything else then AD would be a pretty lonely place. Civil discussion, even if one thinks the other is completely and 110% wrong, is what we're here for and what keeps us coming back.

Also, shouldn't we be discussing how Alito interpreted the law in the Doe v. Groody case? Isn't that what's important here? Assuming we can understand Alito's line of reasoning in it we can discuss how he interpreted the law in that case and try to determine how he would do on the SC.

As I read the Doe v. Groody case, this is what I interpret: first off there was a search with a warrant and affidavit of the residence of Doe. The warrant was incorrectly filled out as the part about who can be searched was left blank, which was interpreted as no one (even the drug dealer apparently). So when contested the officers stated that the affidavit allowed them to search all persons on the premises. The way an affidavit has been interpreted in conjunction with a warrant is that an affidavit may only help narrow the meaning of a warrant. As an example the court cites a case in which the affidavit gave the specific number of an apartment to be searched whereas the warrant just gave the street (if the street was used then the police could have searched the entire length of the street under the warrant). So in this case, the affidavit was held as making the warrant scope larger rather than smaller and thus giving the police more power than granted by a warrant. Specifically the court found a distinction in "what is authorized in a warrant, and what is merely an application by the police."

In his dissenting opinion Alito states that the warrant should be read in a "commonsense and realistic" manner, which is also agreed by the court. The problem is that one must infer and assume what that is in this case, when looking at the warrant. From the ridiculous headline "ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES (of 10 year old girls)" one gets the idea that Alito thinks strip searches of 10 yr old girls is fine and dandy, when really he is saying that, as it is viewed in this case, Jane and Mary Doe could be held and searched or frisked if thought to have evidence or contraband on their person.

After reading most of the majority opinion I'm inclined to agree with it and against Alito, but not because of the wildly over-emotional title, which I feel does more to hurt the anti-Alito cause than help it.

Well Carlito I'd say that is irrelevant for several reasons.
1) was not around back then
2) This topic is not about Ginsberg nor does it ask anyone to draw parallels to her appointment. If you choose to use that in your argument that is your business but do not expect me to do the same nor should you expect me to feel a certain way about something.
3) I have no idea how I'd feel about a ginsberg nomination because that happened far before I cared about politics. I don't care to try and determine that now because it is a pointless exercise. Also, trying to attribute how you think I'd feel about this appointment when you have nothing on record of my thoughts on the subject isn't going to cut it.


Gee carlito, I thought that the required discussion here was on Alito's record. Since he does have a record that means that we can discuss the cases he has written opinions for. It is logical to assume that he won't all of a sudden start arguing the other side of things if he is confirmed. The court cases in question here are cited, if you disagree with them or the meaning of the headline then why don't you spend a little time trying to make an argument to debunk them. I was just trying to bring a little more substance and something to discuss to this debate than "alito is conservative, I don't like him."

If you feel there are cases that positively highlight why we should confirm him then you can spend a little time to post those too and we can all debate them.

In the process everyone might learn something and positions might change, but why bother with that - calling these "talking points" is a whole lot easier.



Here's what the 4th amendment says:

A "common sense and realistic" manner would be to apply the 4th amendment and allow the police less power, not more. Alito seems to be a judge that doesn't particularly care about the tactics employed as long as they yield the desired result.

The headline, while sensational, is accurate and an example of exactly what can happen if a judge doesn't protect our constitutional rights. Even if no one was specifically named on the warrant I would think that giving a strip search to a child and her mother should definitely be considered an "unreasonable" search considering the circumstances.

Had the drug dealer been busted in the act of smuggling then personal searches of his family might have been warranted but this warrant was executed at his home. I'd find it hard to believe that drug dealers are in the habit of keeping drugs on their child's person on a routine basis.

The police were out of line and Alito went along with it and in fact tried to defend them from a legal perspective. A judge that holds beliefs such as that isn't abiding by the constitution, he has an agenda.

Exactly and I agree, and so did the court.



I agree with part one, but not part two. Had the dealer been dealing at the moment when busted then anyone on the premises should have to be searched. But I think you're looking past something in the second part: it's not that dealers usually keep a kilo on their kids at all times, it's just then when they realize the police are there then they might (as has been done in the past, which is cited in the Doe v. Groody case) try to hide particularly incriminating evidence on other people who probably wont be searched, such as kids. Now having a strip search of the 10 year old is a bit much, but they never actually stated that it was in fact a strip search. I believe the court document said both Jane and Mary were frisked, patted down, or told to rearrange clothing, and remove certain articles (could've been her shirt, could've been her shoes). The point is the police power was excessive in this instance.

I agree. It's startling how a couple of users here have dismissed Alito as too conservative. At least Cube has attempted to back up his points. But ideology should not be what is voted on. As mentioned, then R.B.Ginsberg would have had a much more difficult confirmation process than she endured. We should instead care about qualifications and how the prospective justice interprets the law.

If it's obvious that the prospective justice cares more about pushing an ideological agenda than he does about interpeting the law, then there is cause for concern. But no nominee should be dismissed as "too conservative" or "too liberal" until the decision-making process of the prospective justice has been analyzed at depth.

I agree with DA that is a place to discuss differences, not walk away when they appear.

As to the case mentioned, I think a quote from Alito's dissent is enough to show the reason used:



Italics mine. I think a reasonable person, using the "commonsense and realistic" interpretation of the warrant (as is the standard acknowledged by the majority), can read the warrant as authorizing all individuals on the property. The affidavit which accompanied the warrant spent 3 paragraphs on the probable cause surrounding individuals who may be present which were not the target of the warrant. I think a "commonsense" reading would (or could) agree that the officers in question would have adequate reason to believe that any individuals present were subject to search.

(1) Do you think Justice Alito is a good choice for the USSC?

Yes, I do. Alito is the type of judge that we need on the court. It seems to me on the cursory review of his record I have done that he sides with the legislative intent. Bush is being true to one of his campaign promises, to nominate judges in the vein of Scalia and Thomas.

Alito has been on the Federal Appeals Court for 15 years. He has a good track record. He is a member of the Federalist Society (which advocates original intent).

Alito ruled against the city of Newark NJ when it tried to force two Muslim police officers to shave their beards. They refused on religious reasons and Alito upheld their right to religious freedom.

Alito is for limiting the use of the Commerce Clause to regulate everything under the sun. This should appeal to any libertarians in the crowd who think that the federal government has overstepped its bounds of governance.


(2) Will he be confirmed?

I think he will be, with 60 to 65 votes. Mike DeWine (R, OH) of Gang of 14 fame says that he has seen nothing in Alito's record that would make him susceptible to filibuster. I read that to mean that filibuster is unlikely.

(3) Is there a risk that the constitutional option will be triggered?

As stated, I doubt it.

Let's just put this to rest shall we? Here is the link to this case courtesy FindLaw. On page 4 first column you'll find this paragraph:

Sounds like the very definition of "strip search" to me and this is right from the court document. Patting them down, searching their pockets might have been warranted since they could have been handed drugs but giving them the turn around and drop your pants routine was not unless they were suspected drug mules.

Edited to respond to Amlord and Izdaari:

Really, then I suppose you wouldn't mind commenting on the cited cases in my first post or supplying some of your own to show us the virtues of Alito?

Unless the original intent of the constitution was to toss the bill of rights out the window this man is not in any way an originalist.


Pretty much every response so far in favor of Alito has had absolutely no substance in this thread. If you are going to claim he is a strict constructionist then prove it by arguing the cases that have been cited or present your own.

(1) Do you think Justice Alito is a good choice for the USSC?

Yes, Alito appears to be an outstanding choice, a brilliant, superbly qualified, very experienced judge who seems to be a judicial conservative, not just a political one, who believes in following the Constitution, the law and precedent rather than his personal policy preferences.

(2) Will he be confirmed?

My crystal ball is broken, but I think so. If Democrats played fair, they'd vote to confirm him by 97-3, just like Ginsberg, a similarly qualified nominee who was just as much "outside the mainstream." That won't happen, and there'll be a fight, but that's ok. We (that is, those of us who favor strict constructionism vs. the "living Constitution" people) are not afraid of it and we'll win it.

(3) Is there a risk that the constitutional option will be triggered?

Yes, but that's not a bad thing. The Senate needs to make that rule change.

That seemed to be the majority's contention, but they weren't able to back it up with precedent. They cited a case, Groh v Ramirez, in which the ATF was denied immunity for a warrant under somewhat similar circumstances, but in that case (as Alito noted on page 19), the warrant had contained no references to supporting documentation, such as affidavits, nor were such supporting documentation made available to the plaintiffs. He noted that that's different from the situation in the case he was opining on, and in fact, that the Supreme Court in Groh explicitly refused to close the book on circumstances where the application and affidavit could be incorporated, "if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. . ."


I don't know if anyone else here is able to see the irony in these two sentences, but it's certainly not lost on me. "Common sense and realistic" doesn't mean, with a view toward a predetermined outcome, such as reducing the power of the police. That would be judicial activism. Interpreting it in a common sense and realistic manner means reading it based on what the obvious intent is, especially when that intent is written in supporting documents that are attached to the warrant, and are referred to by the same.


Well, the officers made it abundantly clear in the affidavit why they didn't find it so hard to believe. This case is not at all about whether there was good reason to believe that there would be drugs on the children. Not even the majority contested that point. It only hinged on a technical question of whether the warrant authorized it, despite the overwhelming documentary evidence, attached to the warrant, that that's how both the issuing magistrate and the officers understood it.

I was making a sincere comparison to Ruth Bader Ginsburg, and even said nice things about her and that she should have been confirmed. The fact that you weren't interested in politics at the time makes my point no less relevant. And, again, you've referred to how you would "feel" about the nomination. This is not about feelings! (Not to mention, the Fourth Amendment was written long before I became interested in politics, but I'm still reading your argument on the drug dealer search case ) The point is the Constitution. President nominates - Senate advise / consent. Hasn't changed since Ginsburg.

Yes, "conservative activist with no regard for the laws of the land" is much more than "I don't like him." Thanks for that.


hayleyanne posted many links to many cases. You chose to quote and parrot the talking points put out by ThinkProgress.org. Calling them "talking points" is merely factual. "ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES OF 10 YEAR OLD GIRLS" is nothing more than a ridiculous talking point and you know it.

Since you'd like my take on the cases, I'll give it a go. I only know a couple of these. You all seem to be progressing nicely on the strip search case...

ALITO WOULD OVERTURN ROE V. WADE: [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

Alito's dissent in Casey looks spot on. Apparently, it was cited by Renquist at SCOTUS. If a husband is financially responsible for a child, it seems logical that he should be at least informed if his wife is to kill it. The law said "informed" not consent. Perfectly reasonable, and nothing to do with "outlawing abortion." Those of us still living in a constitutional republic have no issue with notification laws. I don't know what a Pennsylvania notification law has to do with OVERTURNING ROE V. WADE.

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: [Chittister v. Department of Community and Economic Development, 2000]
Nothing in this decision would "strike down" the FMLA. What Alito wrote is that the Federal Government had overstepped its authority. As a states-rights guy, I'm with Alito. The Feds should stay out of making laws that give citizens rights to sue their respective states.



I haven't read the rest, but so far I like what I read. For the record, I think that the Constitution is still clear - President nominates justices to the Supreme Court. Senate advises and consents. The President has every right to nominate a conservative activist, liberal activist, his personal lawyer, a sitting governor, whomever. The Senate should give them all a vote, up or down.

You don't need precedent when you have the entire 4th amendment. The 4th amendment is designed to side with citizens over the government and if we err then we should err on their side, not the side of the police.

In all but maybe a few situations giving a ten year old girl a strip search is an "unreasonable" search by any standard.


The obvious intent of the warrant would be to search the drug dealer's car, house and person - not his family. I read through most of that document and I didn't see anything in there suggesting that his family should be suspected of possessing drugs and lo and behold they came up clean after being searched. If you believe that exists in there please click the PDF link I posted above, cite the page and quote the passage.

It doesn't "side" with anyone. It simply imposes a limit on government's authority. This case presents a case which rides up against that limit. The court is no more obligated to skew it in one direction than the other. When they're facing a close case, that simply means they need to pay a much more scrupulous attention to detail and examine the facts and legal precedents that much more closely.


If you say so, but I can only wonder how much of that opinion of yours is based on actual experience in dealing with these types of situations. Either way, though, it's irrelevant. This decision wasn't about whether a strip search would have been less justifiable than, say, a pocket search. It was about whether the warrant authorized a search at all. Alito made a pretty good case that it did in this instance.


I looked over your posts on this thread twice, and I didn't see a link to a PDF file. The only link I saw was to the site that contained those hyperbolic charges against Alito, and that wasn't a PDF link. Which post number was this link you're referring to contained at?

I wonder what I could have dug up from the Heritage Foundation's website when Ms. Bader Ginsburg was on the table...Anyway...


Looka like. From what little I know about him, he appears to share my would-be judicial philosophy which is : (see the Constitution).

So what? As far as I'm concerned, he is very right if he thinks that Roe v. Wade was wrongly decided, so I'm not sure what the problem is here. This is a talking point made by several liberal groups in an attempt to make people flip out. Think about it, if abortion was left up to the states, like, uh, it's supposed to be, most states would legalize it anyway.


This is misleading...I expect better from Think Progress . "Allowing race-based discrimination"...Ha...You mean like Affirmative Action...Sorry that was a cheap-shot, albeit, completely legitimate. "Allowing" a business-person to hire or fire anyone he/she wants for whatever reason he/she wants seems like a pretty legit concept. A private citizen should have the right to make management decisions without government intrusion.


Again, so what? He would allow a private businessman to hire and fire who he chooses and live with the consequences...what a monster.


Okay, one strike for Mr. Allito...Nothing to vote against him for, but I'd ask him a question or two about this gem.


There is not enough information for me to comment on this one.


Sure, if the moderates in the Senate keep to their word. I'll be very curious to see liberal reaction to conservative outrage when they attempt to nominate a liberal justice...Good God hypocrisy is annoying. "Mr. President, perhaps you don't understand...We get to nominate liberals, but you have to nominate a 'moderate'."

I don't think so.

So far, I'm all for Alito...And did I mention he's from Jersey?

CP

Here is a link to the post which mentions the PDF - link.

...accepting an offer to post some Alito cases that I agree with, I'll expand on his dissent in Casey. It's brilliant. And doesn't say a darn thing about Roe v. Wade.

link to text of dissent

editing to add the start, which better explains the 2 tests. and to kill those pesky smiley faces in the (b)'s




He then notes that it's a notification, not consent, or not a "veto" by the husband. He also notes the exceptions in the law, and how he's interpreting them.



And here's how he closes, noting that the plaintiffs had not met the legal tests in his eyes, and wrapping things up nicely.

I took some time to read through the case and tried to find some background on it. This wikipedia article provides some useful background (I hope we can all agree it is an impartial source).


This provides perspective on the reason why some groups are trying to use this as a way to say he is against abortion. After carefully reading through his arguments I don't really feel this is a controversial decision. From his dissent: "These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her." That sounds good to me, I didn't realize that was in the law. I don't like the law but I don't think he was out of line with his decision.

For reference, the wikipedia article on Alito is also interesting and informative.

On page 3 of the court's opinion, it noted that the affidavit was attached to the warant. ("The warrant was attached to a separate printed face sheet, entitled 'Search Warrant and Affidavit.'") And on page 15, Alito stated, "In this case, as noted, the affidavit submitted in support of the warrant application claimed that there was probable cause to search all persons, and the warrant expressly incorporated that claim."

I went into further details about the implications of this at #17, particularly in my response to Devil's Advocate.

Ok so it said that all persons could be searched - you don't feel that the strip-search treatment was "unreasonable"? The police overstepped their bounds and Alito backed them up, it seems that even with this affidavit this is still a 4th amendment violation and I would think that anyone described as a "strict constructionist" or "originalist" as many in this thread have described Alito would adhere to that legal viewpoint.

Edited to add:
I was just conferring with a friend in the legal profession about this and learned a little something about the legal process which I didn't know. You are correct that the affidavit was submitted requesting a search for all persons on the property. However, it is the judge's job to either accept that request or narrow the request if he doesn't believe there is probable cause. It was excluded from the warrant in this case meaning the judge must have believed the request to be too broad. The police can't fall back on their own request as evidence.

Had the original affidavit been referenced in the warrant then this would have been an open and shut case and the police would have won. It wasn't.

The police tried to fall back on qualified immunity during the case. Qualified Immunity is based on reasonable beliefs about appropriate behavior. I see nothing presented that states the officers had any reasonable belief that their searches were justified - they just did them.

That makes this a pretty clear violation and Alito was wrong in this case, the majority was right. If he was willing to cede the fourth amendment here then it is reasonable to assume he might do it in the future, especially in regards to terrorism/the patriot act, etc.

The reasonableness or unreasonableness of the strip search wasn't even at issue in this case. To answer that question, assuming it was even contested, would require a whole different line of inquiry from the one pursued by either the majority or by Alito. All that was being contested was whether the warrant should have been understood to authorize a search at all.


What happened in this case, and Alito pointed this out on page 15, was that the officers drew up the warrant themselves, presented it, along with the application and the affidavit, to the magistrate, and the magistrate, after looking over everything they presented, simply signed the warrant they had drawn up, without making any alterations. It was clear to him, because it was clear from the affidavit mentioned in the warrant, what the officers were requesting authorization to do, and if he disagreed with the idea of searching the persons in the premises, he would have said so.


The affidavit was mentioned in the warrant, although it could be argued that it wasn't mentioned where it really should have been mentioned. The court states, on pages 3-4, "In response to the questions '[d]ate of violation' and '[p]robable cause belief, the face sheet specifically referred to the typed affidavit of probable cause attached to the warrant. But in answering the question '[s]pecific description of premises and/or persons to be searched,' the attached typed affidavit was not mentioned."

In either event, the majority's decision didn't hang on whether the affidavit was mentioned in the right place. It simply said that the affidavit shouldn't be read to expand in any possible way the scope of the warrant. But Alito, I think, makes an effective rebuttal to that argument in his dissent.

1. Not a good choice, but hardly a surprising one. This is a very conservative president who has to please his political base and has done so by choosing a very conservative nominee. It seems to be what most Americans seem to want as they essentially decided the issue last November when they returned Bush to the White House and solidified the Republican control of the Senate.

2. At this point, unless there is a significant issue where Democrats can draw some moderate Republican support, it's probably a given that "Scalito" is going to be the next associate justice.

3. Much of it depends upon the Democratic senators that joined with their Republican cohorts to defend the filibuster and avoid a bloody fight. If they stand with the GOP then there will be no filibuster. But it's a fight that the partisans on both side seem to be spoiling for.

A few weeks ago I wrote:



Sometimes I can't stand being so right.

1. Depends on your point of view. If you want total control of all branches of government to go to one wing of one political party, it's great. If not, it's bad. If you're a fan of Phyllis Schafly, Pat Robertson, and Gary Bauer, it's great. If not, it's bad.

Yes, I'm bitter. I'm getting really tired of the right wing getting everything it wants.

2. Yes, but not as lop-sided a vote as Roberts. Maybe more like Thomas.

3. I don't know. Either way, the Good Guys lose.

So you think Bush should nominate a liberal judge? I don't understand if that is the only basis of your opinion. Hasn't the country spoken by re-electing Bush?

Are you saying that no conservative judge can be a good judge? Is there a particular case that makes you feel that Alito cannot be an impartial judge?

A man who clerked for Alito (a self-described "left-liberal") said last night on a news show (forget which one...) that he agreed with Alito on at least 95% of the cases that came before him. Alito is very much a believer in precedent, which he cites in all of his decisions. Alito voted to strike down a New Jersey law which banned partial birth abortions, citing the fact that no exception was made for the health of the mother. Seems fairly balanced to me.



So conservatives are the "Bad Guys"? Seems pretty harsh to me...

I should point out something here. As a lower court judge, he's pretty much hamstrung by Supreme Court precedents. It's very rare for a lower court to go directly against an SC precedent, because it's almost guaranteed be overruled in two seconds flat.

I think the last time a lower court was successfully able to accomplish this was back in the '80s, when a lower court held that the internment of American citizens of Japanese descent during WWII was unconstitutional, despite the fact that the Supreme Court had held it constitutional at the time. The Supreme Court never reversed that '80s ruling.

Good point.

What this point out to me, however, is the fact that Alito has a respect for established law, rather than a penchant for going maverick. I could be argued that he could (or would) go a different way if he were on the Supreme Court.

(1) Do you think Justice Alito is a good choice for the USSC?


No. But - another ultra-conservative white guy Reaganite elevated to his present position on the third circuit by Bush pere? Certainly no surprise here.

Whether he’s a good choice depends on your point of view. If you’re an anti-choice, anti-privacy, misogynistic, race-intolerant ideologue who worships the ground George W. Bush walks on, he’s an excellent choice.

On the other hand, if you’re an individual who believes we as US citizens have a constitutional right to privacy, that women have the right to make their own reproductive choices, that no one should be discriminated against because of their race, gender or religion, and that no one should have to accept working in a hostile workplace, this contrarian judge is the worst choice.

(2) Will he be confirmed?

Nighttimer hit the nail on the head. Miers was tossed to the lions as a sacrifice, and now, even though the left was largely silent on Miers, any opposition by them to this qualified candidate will be spun by the right as sour grapes. The opposition will no doubt kick and scream, but in the end, Scalito will be confirmed and the Supreme Court will wind up looking like Salem in 1692.

(3) Is there a risk that the constitutional option will be triggered?

Depends whether the Democrats have found any courage.

I'm curious about something: is Conerned Women of America a mysogynistic organization?

I don't know if you're aware of how much wild statements like that will help Alito's confirmation. That's because regular Americans will look at it and conclude that you're the extremist here. If you want to argue against his appointment, it might help to make some actual debating points against it. This is America's Debate, after all.

Do you think Justice Alito is a good choice for the USSC?
Much as I want to jump up and down and declare the End of Times are upon us it's too soon to say. I've heard Alito has hinted he thinks it’s unconstitutional for states to permit women to have abortions and need to read his holding in Casey and Alexander v. Whitman. If I can confirm this I’ll have to throw him under the bus with every other social conservative that has jumped on the Republican bandwagon to play lip service to federalism. Dahlia Lithwick, along with almost every Slate correspondent, cracked Charlie Brown jokes, but she rooted for Roberts. Not so for Alito. It gives me pause.

Will he be confirmed?
Most likely.

Is there a risk that the constitutional option will be triggered?
It may, but it’s not necessarily a bad thing. Hopefully the precedent it sets will last long enough to make Republicans gnash their teeth when Democrats (or 3rd parties) resume majority status.


If I didn't know better I'd say that's a plastic olive branch you're extending, Amlord.

I’d like to add my own feelings to what Victoria said. Personally it has become increasingly difficult to avoid painting conservatives with a wide brush since the Republican convention and cyber commentary. It’s not the scandals or even the hypocrisy that ups the rancor for me. Every party in power will go through these phases and Republicans will similarly wallow in the muck though they outwardly project they’re too moral for it.

It is the perpetuating sense of Republican entitlement based on the “win more elections” acquittal that gets under my skin. Win more elections and... what does that mean, exactly? The next Democratic president won’t have to consult with the Senate prior to making appointments like Clinton did? Perhaps it means Democrats can one day have a bigger, badder K-Street project if they want it badly enough?

Have sundry conservative talking heads actually convinced legions of listeners and viewers that a congressional Democratic majority got around a stupefied public for 30 years doing whatever it wanted and now it’s their turn? Who’s duping who here. It’s time Republicans put a little maturity in their majority.

It could be considered so. I wasn't familiar with the organization, so I had to check it out. Considering it bills itself as:

I'd say they are in lockstep with the misogynistic values espoused by the religious and political right. They "know their place", and are happy as clams to remain there. And they blatantly espouse bringing religious and Biblical law into government - something I am vehemently against. I'd hate to see Biblical law (or their version of it) become the law of the US.

So, do you deny that Alito is anti-choice, anti-privacy, etc. after reading his opinions and dissenting opinions? I stand by my so-called "wild" statement.

And my argument against his appointment is based upon his decisions, of which I've read enough to know he votes his ideology, of which I disagree.

OK, now that you've defined well over half the U.S. population as misogynistic, I now have a better understanding of what you mean by the term. I can only reiterate, therefore, that your better option for advancing your views is through persuasion, rather than shouting epithets at those who disagree.


If by "anti-choice" you mean that his understanding of the Constitution is that it doesn't forbid states to make their own choice of abortion policy, I'd say that's likely true. As for "privacy", what exactly are you referring to? A lot of things are claimed to be covered under "privacy rights", despite the fact that privacy is only tangentially at issue, if at all.


And how exactly do you know he's voting his ideology, rather than his understanding of the law?

Would you agree that reasonable people (and lawyers) can disagree with the merits of Roe v. Wade without being "anti choice" or "anti privacy"? Does my opinion that killing a baby is not in the purview of "privacy" make me a mysogynist?

The state of Indiana regulates ear piercing for those under 18, but can't even legally notify parents that their daughter is having an abortion. To point this out makes me, what, a Federalist mysogynist? These labels and generalizations are not helpful.

Did Alito "vote his ideology" when he upheld death penalty cases? (hint - he's Catholic)
Did Alito "vote his ideology" when he "voted" to overturn a partial-birth abortion ban?

It would be nice if we could all agree on selecting judges that don't "vote," but rather judge cases dispassionately based on the law. If you don't like something, pass a law. The courts should be much less involved in our legislative branch.

I wouldn’t know – are you? Perhaps misogynist is too strong a word - I seem to have struck a nerve. How about anti-women’s rights? From his decisions, I gather that as long as a woman knows her place, then women are just fine. When they deviate from their place is where the problems arise (see his decisions on sexual harassment, abortion, etc.)

This is a facetious argument. I’m sure we could all pull silly laws out of our hats and compare them to more important issues.

Wouldn’t that be nice.


See above. And I don’t think I was “shouting” anything. You keep haranguing everyone else to provide proof – where’s yours?? Where's your persuasive documentation? Just deriding those who disagree with you doesn't prove your point.

I'm not a lawyer or a legal scholar. I do not pore over legal transcripts like they were a fascinating novel. I'm just a poor ol' layman (layperson? ) who tries to stay reasonably well-informed. What I have read I don't much care for; such is my prerogative. There's really no surprise or shock here; Bush did what Bush does - offered a nominee that closely matches his own belief system. So the Supreme Court becomes ultra-conservative, and many hard-won rights are potentially at risk; half the population is upset about that, the other half is cheering.

It's a perfectly legitimate argument. Roe v. Wade conferred a zone of privacy around women, which is now interpreted as giving 11-year-olds the right to abortion without telling their parents. At the same time, states have a legitimate right to regulate health issues regarding minors. Replace ear-piercing with appendectomy - it's not "facetious" in either case.

"Hard won rights" like the Civil Rights act of 1964 should be passed by the people and their legislators.

Arguing about this is like arguing about the sun coming up tomorrow. Liberals inherently will not like Bush’s appointments and Conservatives will not like Liberal appointments. The key difference here is that until recently Judges received up or down votes based on whether or not the person was qualified to be a Supreme Court justice. Ever since Bork, this has gotten nastier and nastier. A fair-minded assessment of recent appointments to the Supreme Court shows that Clinton’s liberal appointments received the benefit of the doubt. The Democrat party is tied so strongly to unhinged interests groups that any nominee that is appointed by Bush will be not receive the 80+ votes Clinton’s nominee received.

The question should be whether or not the judge is qualified. I already know what liberals think of conservative ideology.

Just so we're clear here, this argument we're having is about whether Alito votes to make rulings on the basis of his ideology, or of his understanding of the law. Charging that a judge does it based on his ideology is essentially accusing him of being dishonest and failing to do his job. It's a pretty serious charge, and so the burden of evidence should fall on the person making it.


You're still going overboard with these statements. Half the population can not, by definition, be "ultraconservative". If you're going to fight a war of labels instead of a war of ideas, you won't succeed in attracting anybody to your cause outside of those who already agree with you.

Which decisions by Alito are "anti-women's rights" (your term, Daffy)?

His abortion decisions?

Was it the one where he required spousal notification (in which he used the Sandra Day O'Connor principle of "undue burden") or was it the one in which he overturned a partial birth abortion ban because it did not include a provision for the health of the mother?

It seems to me that to have a decision on both sides of the abortion debate would make one judicial rather than ideological. Certainly a staunch anti-abortionist would never allow a partial birth abortion law to stand.

Is he against individual rights? He ruled in Shore Regional High School Board of Education v. P.S. that a school did not provide a student an equal education if that student is subject to harassment and bullying in school. The bullying in this case was over his "lack of athleticism" and "perceived sexual orientation". So a high school boy who is harassed for being thought of as gay is being let down by his school system. What a gay-basher!!

Anti-minority? He granted a writ of habeas corpus for Ronald Williams who claimed that a juror in his case uttered racial slurs in the court house after the trial was over.

Alito has ruled for and against deportations. He has ruled for and against prosecutors. Every lawyer I have seen who has tried cases before him has said he is very fair and very honest. He views both sides of an issue before ruling. He looks to precedent.

Alito was confirmed unanimous vote in 1990. Incidentally, by a Democrat-controlled Senate. The fact that the bar should be moved now seems strikingly odd to me.

Actually, I would place The Year of Nasty Filibustering around 1968.



Is that why in 1999 the Senate confirmed only 25 of Clinton's 70 judicial appointments? (Link)



Oh, and your interest groups are saintly?



Perhaps you believe Miers is an anomaly.



Too bad this high minded statement applies to 1999 as well as Rule of Law applies to 2005. There'd be fewer appointments for Democrats to fight since 2000 if it did.

I do not have much to add to my previous comments. Clinton appointed 70 people to the Supreme Court? If you look very closely at my statement, I said "recent appointments" to the Supreme Court. Holding up lesser appointments is standard political practice for the Majority Party, it's new for the Minority Party. It appears that knee jerk ideological rants have also become the standard practice of the left when it comes to the Supreme Court. There is no surprise then that there is increased hostility towards Republican Supreme Court appointments.

I'm offended Daffy Girl...People who hate black people, steal from babies and laugh when old people fall also think that Alito is a good choice.

Well, as a libertarian who values privacy, choice, isn't sexist or racist and doesn't like Bush, I think Alito's a good choice...But how can that be?

Alito isn't an ultra-conservative, he's a conservative...But you see, in America, you can't be conservative, you can be either, moderate, "progressive", or ultra-conservative. Somehow, conservative has been taken out of the equation. Alito follows the law, even when everyone else [cough, the Supreme Court] ignores it. Seems to me that he respects the law and that is his first priority, not "conservatism". On that note, I find it someone curious that being a Constitutionalist is equated with being "ultra-conservative"...Wouldn't that mean that the other side of the equation, that being someone who ignores the Constitution, is a liberal?