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What Would People Think?

Monday, November 14, 2005

The Judicial Battle of the Ages Begins

I'm currently reading a couple opinions by Supreme Court nominee Samuel Alito in the area of securities regulation. They are actually interesting and well-considered opinions on that area of law, specifically on the duty to disclose insider information. But, frankly, it's really boring, too. The general public is not going to get up in arms about the distinction between a corporation's duty-to-update and its duty-to-correct.

This, on the other hand, ought to get everybody's attention. Everybody knows Alito's a conservative. But everybody knew John Roberts was a conservative, too. It's just that nobody had anything concrete to attack him with (or defend him, for that matter...it's just that the default was affirming him, so the opposition needed ammo). Roberts could always say that positions he had advanced previously were those of his clients (i.e. Republican administrations) and that he could approach each issue without having made up his mind. An unlikely fiction, but nobody could rebut it.

Looks like Alito's not going to have that luxury. In the 1980s he wrote a document in which he brags that, working for the Reagan administration, he advanced "legal positions in which I personally believe very strongly."

Among the juicy tidbits where Alito stakes out his position:
I am particularly proud of my contributions in recent cases in which the government argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion . . .
In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment.

Well, this is what a lot of people wanted....a chance for an all-out ideological war about the role of the judge and, more to the point, the hot-button judicial issues of our day. Since Alito directly says that these are his personal views, there's no room for evasion now.

For better or for worse, the battle has begun.


  • What bugs me the most is this: he claims that the government has a right to protect "traditional values." Where the hell is that in the Constitution, Mr. Strict Constructionist Boy? Hmmm, let me check... nope, not in there. Doesn't that assertion kind of undermine his ability to use the "not written in the Constitution" argument for anything else?

    By Blogger Jeff, at 11/15/2005 11:27 AM  

  • ...and has anyone talked about his views regarding war powers and deference to the executive?

    By Blogger Jeff, at 11/15/2005 3:08 PM  

  • In fairness, I thought Roberts is more the strict constructionist, whereas Scalito was more the straight-up conservative. Regardless, yes, it undermines his ability to use such an argument, but I doubt it will deter him.

    As to the latter question, I believe Jeff Woodhead mentioned it at some point. Other than that, no.

    And Ben, I thought you'd be pleased with Alito's views on abortion. Hooray for hot-button issues! They distract people from the stuff that's actually important.

    By Blogger Mike, at 11/15/2005 4:44 PM  

  • Whoever said I wasn't pleased with Alito's views on abortion? I merely said it would be controversial.

    Also, I am very concerned about his objection to Warren Court criminal procedure jurisprudence. Does he oppose Miranda v. Arizona (reading people their rights)? Does he oppose Gideon v. Wainwright (right to appointed lawyer)?


    By Blogger Ben, at 11/15/2005 6:16 PM  

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