Jonathon Turley comes out against Sam Alito, and he comes out hard:
Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.
In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.***
Likewise, Alito authored another memo that argued strongly in favor of giving immunity to officials who violate the rights of citizens — a position long rejected by the federal courts.
As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.***
An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.
The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.
Again, if there is a basis for opposing Alito, I would think this would be it, and not the absurd attempts to portray Roe v. Wade as good law. The complaints listed by Turley are but a sample of his rulings, and they are troubling. Despite the fact that Alito is clearly qualified to be on the Supreme Court, I don’t know if I could vote for him were I a Senator. In fact, I would probably have to say I would vote against the man, the more I learn.
*** Update ***
Stuart Taylor has an interesting take.
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Hugh Hewitt says, in essence, I am all wet:
This is a curious, and ultimately reflexively anti-majoritarian position given that “the government” is simply the accumlation of the laws proposed, refined and eventually passed by a bicameral legislature and signed into law by the executive, operated by a largely career civil service of more than a million overseen by a few thousand political appointees the most important of whom must pass through Senate confirmation, watched over by a judiciary that is diverse and jealous of its powers. Reflexively pro-governemnt is the same as “reflexively pro separation-of-powers and checks and balances.”
A preference for the laws and actions of the government –except in those cases where government treads on established Constitutional rights– is a preference for the politics of the many as opposed to what Justice Scalia had branded the “democratic vote of nine unelected judges,” nine justices who are pretty much products of the elites. Those nine change slowly over time in response to political tides. Bill Clinton got two. Now W is getting his second. I hope he gets a third and a fourth, and not because of a cavalier attitude towards civil liberties, but beecause of a deep regard for self-government under the sturdy dictates of the Constitution, not made-up decrees driven by elite opinion as to what is “just” and “good.”
I like elections.
Example: Would Alito be more or less likely to vote with the majority in Kelo? No more reflexively pro-government opinion can be found than Kelo’s blank check to the condeming authority, but Alito is much, much more likely in my view to be with the dissent than the majority. Is John pro-Kelo, or is he, like I suspect Alito is, anti-government in that case?
Read Hugh’s whole post. Hugh is correct on my opinions regarding Kelo, and, I hope to goodness, Alito’s position on issues such as Kelo. I do, however find some of his opinions (and we must be clear- I am not a lawyer, so most every opinion I have read is actually a distillation of his opinions by another source and subject to the biases of those authors) to be curiously slanted towards granting additional government authority. I don’t think there was anything in the hearings that would disabuse me of that notion.
Hugh touches on something else:
Unless John and the like-minded are proposing a set of rules which dictate that they will always win, they ought to recognize the great wisdom in the many and not encourage senators to posture rather than acknowledge that presidential elections have consequences. I am happy that the GOP did not throw such tantrums when Bill Clinton sent forward his nominees. The disturbing trend of obstructionism in ever instance displayed by the Senate Democrats is far more troubling than one justice’s alleged “reflexive vote” for the government.
Hugh probably would agree with this piece from earlier, and I will have to cede that pointless obstructionism, particularly for show, is to be avoided. As to whether or not I have come out against Alito, I think Hugh has me pegged wrong- my position on Alito has been one of reliable and fixed vacillation. One minute I think Alito is little more than a right-wing statist, other moments I think he is merely someone who I probably would not agree with on much, but who I see no real reason to vote against. And you thought Kerry was a flip-flopper?
In general, though, I do agree with Hugh- Alito is qualified, and Senators should not be urged towards shows of obstructionism. I have the luxury of not being a Senator, but I probably shouldn’t encourage the behavior. I know I do not agree with Alito on a number of issues, but I really can not muster the strength to oppose him. He seems like a decent man who is supremely qualified for the job, and I don’t see how my possible political disagreements disqualify him.
Which gets us back to the point of this post to begin with- the Democrats could possibly have made a case that resonated- had they tried. Instead, they decided to show some leg to the NARAL crowd by pretending Roe v. Wade is the only issue that Alito will ever look at, they engaged in a little recreational race-baiting with the CAP nonsense, and they tried to play absurd games with the Vanguard non-issue.
In the end, Hugh is right. Elections do mean things. If Alito decides cases solely on the merits of the case and possesses the temperament my conservative friends state he has, I doubt that Alito will be as good as some Republicans think he will be and he most certainly will not be as bad as many Democrats claim he will be. And if we don’t like it- well, we can vote accordingly in 2008 and again in 2012.