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Random thoughts about Alito

Posted by Richard on October 31, 2005

Every news story and program about Alito has brought up the same talking point: he’s been dubbed "Scalito" because his thinking so closely follows Scalia’s. My reaction? I guess he’s OK, but I’d like him better if he’d been dubbed "Thomasito."

The first diss of Alito that I heard gave me pause. Someone said he’d given a husband veto power over his wife’s abortion. Could that be true? It would make him unacceptable to this pro-choice libertarian, that’s for sure.

Well, it’s not even remotely true. The case is Planned Parenthood v. Casey, and the way its being misrepresented is utterly contemptible. Fortunately, Jon Henke at QandO has done the heavy intellectual lifting, and I can point you to this excellent post for a comprehensive explanation of the case and Alito’s dissenting opinion — which appears to me to be correct. (The same Henke post also challenges the left’s version of another Alito opinion, Doe v. Groody.)

The short version is this: (1) the state law involved no spousal veto or consent, only notification, and with several gaping loopholes; (2) Alito specifically said the law may be bad public policy and "would be difficult to enforce and easy to evade"; (3) but Alito concluded that the law didn’t impose an "undue burden" as defined by Justice O’Connor and was therefore not unconstitutional. It’s ironic, given the left’s adulation of O’Connor and harsh condemnation of Alito, that his opinion explicitly relies on O’Connor’s definition of "unduly burdensome interference" with the right to abortion as "the governing legal standard." 

David Hardy at Of Arms & the Law thinks Alito may be a pretty good pick for us gun nuts. He cites Alito’s dissent in U.S. v. Rybar, involving unlawful possession of machine guns:

Majority upholds conviction, rejecting both commerce clause and 2d Amendment arguments.

Alito dissents, focusing on the commerce clause, and beginning "Was United States v. Lopez, 115 S.Ct. 1624 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power? The statutory provision challenged in this case, the portion of 18 U.S.C. Section(s) 922(o) that generally prohibits the purely intrastate possession … of a machine gun, is the closest extant relative of the statute struck down in Lopez…" I paste the full dissent into the extended entry.

I’d take this at the very least to mean (1) he has a proper view of the commerce clause, and (2) at least is not hostile to guns.

If confirmed, Alito will become the fifth Catholic on the Supreme Court. Will all five follow orders from the Vatican, thus giving the Pope control of our legal system? Given the Constitution’s "no religious test" dictum, you probably won’t hear the issue raised quite that bluntly (at least not by Senators), but you can expect Alito’s opponents to imply, insinuate, and allude to it in every way they can think of.

Limbaugh was practically giddy today. He wants Ralph Nees (PFAW), Nan Aaron (AFJ), and Senators Schumer, Kennedy, and Boxer to get as much air time as possible in the coming weeks. Limbaugh thinks that the more these people appear on TV arguing against the Alito nomination, the more they’ll appear out of the mainstream to most Americans. I suspect he’s right.

Hugh Hewitt, who recovered quickly from his depression about Miers and now seems to believe the Republic (or at least the Republican Party) will survive after all, interviewed Sen. Mike DeWine, one of the "Gang of 14," this afternoon. RadioBlogger has the transcript, but here’s the nut:

HH: Your colleague on judiciary, Lindsey Graham of South Carolina, said yesterday on Face The Nation, that if Democrats attempt to filibuster, he will work to break it, meaning that this is not something the Gang of 14 had in mind. Do you agree with Senator Graham that this is not a filibusterable nomination?

MD: Oh, I absolutely do. I mean, this is not under what our definition of extraordinary circumstances is. This is a nomination that’s clearly within the mainstream of conservative judges. …

HH: So absent any extraordinary revelation, is it fair to say, Senator DeWine, that if the Constitutional option has to be deployed, that you will vote for it?

MD: Oh, I certainly would. I would think, though, that this will not be necessary.

Hewitt also played a clip (MSNBC? I’m not sure) in which Chris Matthews revealed a Democratic Party talking points document he got, which Matthews described as disgusting and the worst kind of politics. The first talking point against Alito, the son of an Italian immigrant, was that in the 80s as a prosecutor, he failed to win a conviction against an Italian mob family.

Meanwhile, Sen. Schumer suggested that Alito would "reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place." This is a millimeter away from calling Alito a segregationist. And practically every woman on TV has pointed out that he’s "another white male." Katie Couric this morning said (paraphrasing from memory) "I guess this means ideology trumps gender" — as if that were a bad thing. 

I suspect the liberals will badly overplay their hand, sound shrill and hateful, and give Limbaugh another "see, I told you so" moment. Two or three more Republican Senators from the "Gang of 14" will join DeWine and Graham, and Alito’s confirmation will be assured.

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