Monday, January 09, 2006

Alito will be confirmed-- but he won't uphold the Constitution.

Today, the Samuel Alito hearings began.

To begin with, the outcome is a foregone conclusion: Because Republicans won 55 seats in the Senate, they have the votes to confirm Mr. Alito, and unless he makes a major gaffe on the stand a la Bork's 'intellectual feast' remark (and he is smart enough to avoid that, and further has been prepped to an unprecedented degree in order to avoid it), they will vote to confirm him. Just in case anyone forgot, I was fully in favor of a hearing for Harriet Miers, and this is one reason why.

Alito's past leaning (and it is not a unanimous lean, to be sure, but a most-of-the-time lean) has been to support restrictions on individual rights, and a strengthening of the powers of the state and especially the executive branch. This is a serious concern, especially coming just at the moment when we see an unprecedented assault on individual rights by the state through such mechanisms as the Padilla case (remember that in theory if they can hold US citizen Padilla indefinitely without charges, as they were until a few weeks ago, then they can do the same to you-- a label like 'enemy combatant' means whatever the administration in power at any given time decides it means), and the recent revelations that they are monitoring many, many telephone calls and opening the private mail even of people who have no ties to terrorists. It is hard to imagine that Alito will be anything other than a vote to greatly expand Federal power.

Conservatives like to claim that they are 'strict constructionists' in explaining, for example, opposition to abortion rights, the right to privacy and other rights not specifically listed in the Constitution. They claim that if it isn't listed there, then it is not a right. It seems, however, that some of them haven't read the Constitution all the way through. Probably the least well known article in the Bill of Rights, the IX amendment, states quite clearly that:

Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words, it is very true that the Constitution doesn't specify a right of privacy (which there was hardly a need for in the days of the founding fathers, where even a President like James Madison, when he first moved to Washington, could go out and buy household goods and generally was not recognized unless his more social wife was with him.) But the IX Amendment means that the lack of a specifically written right of privacy should NOT BE CONSTRUED (Websters: 'construed' means 'interpreted') as meaning that there is none. The idea that because it isn't there allows an unprecedented assault on your privacy is exactly what the ninth amendment was designed to protect against (what else would you call someone from the Homeland Security Department thumbing through your personal mail (and 'papers' ARE mentioned in the IV amendment as not to be searched except for probable cause, by the way.)

It is amazing how conservatives are willing to cite the Constitution as the basis for their argument and then avoid actually following it.

What is really frightening is this: With Alito joining Scalia, Thomas and new chief justice Roberts on the Supreme Court, the back-and-forth unpredictability of Anthony Kennedy, and the health of Stevens' heart, is all that stands between the conservatives and their gaining ultimate control over the last branch of government that they haven't yet. If there is one silver lining to the Alito confirmation it is this-- most people, even a lot of Republicans, aren't completely comfortable with neo-cons having 100% control over the whole government. If you are like me and live in a state with a Senate race, you may want to take advantage of the fact and point out that the results of the 2006 Senate elections will be crucial in this matter-- Bush may very well get to name another nominee, but Democrats control (or at least gain working control) over the Senate, then it won't be another Alito.


EAPrez said...

The dark side also like to say they don't want judges who legislate from the bench - communities should pass laws not judges - theyy claim to want judges like Thomas and Scalia however Thomas has voted to overturn 'legislation' more than any other justice - I would consider that judicial activisim. They are just trying to cover up their real agenda with 'acceptable' language. Nothing they say is to be believed.

jen said...

damn Eli, i am afraid he will be confirmed too and i have no doubt he won't uphold the constitution if so. we are so screwed.

dorsano said...

Alito is no Roberts - that's plain after only one day.

It's really tough to figure out just how much these people are politicing when they testify and just how honest they are.

I'm not sure that the nominee knows him or herself.

The office itself has some weight which will influence the justice once he or she is confirmed.

This appointment is crucial but Democrats can't fillibuster until 2008.

If this court goes bonkers, it'll redefine the meaning of "judicial activism"

And the GOP will need god to save it.

Lily said...

I am thrilled that you are talking about this particular aspect of the hearings process and indeed, the view on rights as protected/not protected. I think that an inherent difficulty comes in the fact that they see this huge distinction between 'settled law' and 'fluid' law. Settled laws, in their minds, are laws that require no further debate, essentially laid to rest, where the 'right' so to speak is apparent, universal, and obvious.
On matters like Roe, they take the position that this is not settled but rather fluid,dynamic law subject to revisiting because its clarity regarding rights is not 'specific'. They seem to view things they disagree with as being more 'unsettled' than other questions.
For those of us on the left though, we view Church/State matters as 'settled law' and yet they contradict themselves in their zeal to muddy the lines. That is one of many indicators that Alito and his ilk have no intention of taking an objective view on settled law, but rather will revisit that which they deem to be politically compelling.

dorsano said...

Very astute observation, Lily.

C.H. Truth said...

The issue Lilly... is when do we determine that a law is settled?

For instance... were you aware that for nearly 200 years that Abortion was legal or illegal at a state level. It was only in 1973 that the Roe V Wade ruling 'required' that all states make abortion legal based on a creative combination of the 1st, 4th, 5th, 9th, and 14th amendments.

Interestingly while the courts can find abortion a privacy issue, they cannot find a privacy issue for smoking weed in your own home. While the courts find homosexual sex a privacy issue, they don't see heterosexual sex a privacy issue if it involves one person giving the other a twenty.

Now I am pro-choice and in favor of gay rights... but clearly it would be unreasonable for me to suggest that you can overturn 200 years of precedent with one ruling, but then say that that one ruling is settled law.

The first amendment issues are similar. Until the mid 21st century the courts always ruled in favor of religious expression based on the first amendment. That included Supreme Court rulings that allowed for school prayer and reimbursment for people who bussed their children to parochial schools. It was only over the past few decades that 175 years of seeing the 1st amendment as freedom of religious expression... did Justices determine that the 1st amendment was about freedom 'from' religious expression... to the point where we now had a court ruling that stated a school was correct to not allow a drawing of Jesus to be put up with other drawings that some elementary school kids made during art class. You can draw Darth Vador killing someone with a light saber, but you cannot draw a picture of Jesus? I question that as an avid Star wars fan who also happens to be agnostic at best when it comes to religion.

So who were these judges to determine that 175 years of previous rulings were wrong... and why should today's judges respect these rulings as settled law today?

The truth is that over the past 40-50 years we have seen a new type of Justice that didn't see Stare Decisis as important if they held different personal views. Now these same types want the fresh faces to respect their decisions under Stare Decisis... even if those decisions are suspect when viewed against the constitution.

Seems hypocritical to me... doesn't it seem that way to you?

Eli Blake said...


As a matter of fact, although I engage in neither, I would like to see marijuana and prostitution legalized simply because neither of these should be the state's business, and nothing happens in either case that is commensurate with prison sentences and the disruption that they cause families. However, these will have to be passed legislatively. Just keep in mind that Barney Frank has introduced a bill to completely legalize marijuana (including its production, sale and transport) every year for at least a decade, and the twenty votes he gets every year for it usually include at least fifteen Democrats.

However, the issue in the case of abortion had to do with whether a person controls their own body, or if someone else can physically compel them to do something against their will. That was what the XIV amendment said, in regard to slavery. And it is true that it took a hundred years after the XIV amendment was passed before abortion was legalized, but then a lot of that was because even when blacks were granted equal rights, women were still considered less deserving of the full rights of citizenship than men-- it took half that century before women were even allowed to vote. Then the other half was a continual battle for women to be treated equally. Now, it is true that issues relating to pregnancy will always cause women to be treated differently in that one area because of biology, but the concept that a person can control their own body is fundamental, so the judges were correct in applying the fourteenth amendment to Roe v. Wade, even a hundred years after it was passed.