Tuesday, November 01, 2005

Alito Perspective, Alotta Accusations

I'm not quite ready to jump on the anti-Samuel Alito bandwagon just yet. To tell you the truth, I believe the Dumbya-hating crowd needs to proceed cautiously before they, as is so often the case, overplay their hand in the eyes of the public. If the Democrats want to try casting Alito in the mold of a Robert Bork ideologue, the branding can't be done overnight -- if at all. The Democratic-controlled Senate, after all, unanimously approved Alito's 1990 appointment to the Third U.S. Circuit Court of Appeals.

We're not sold on Alito's credentials in the same way we were, say, John Roberts, whose intellectual honesty won plaudits from plenty of liberals, too. Certainly, it's troubling that a swing vote (Sandra Day O'Connor) would be replaced by a right-winger like Alito, but whether that marks an insufferable blow to the Supreme Court is open to debate. U.S. history is peppered with would-be conservative appointments (Earl Warren, Anthony Kennedy, etc.) who turned out to be much more centrist once they arrived on the high court. Besides, it's the prerogative of the commander in chief, even if the aforementioned commander in chief is a monkey, to appoint the justices he wants -- provided they are qualified and not wild-eyed crazies.

Alito is definitely qualified. Certainly, he's more qualified than Harriet Miers was. Hmm. There goes the White House again, a master of exploiting a political advantage by setting the bar exceptionally low.

As for the wild-eyed crazy part, so far there has only been one Alito opinion that has given me serious pause. Not that I agree with all of them, mind you, but again I would suggest to you that disagreement alone is not enough to scuttle a Supreme Court nominee.

I am not particularly troubled by his dissenting opinion in Planned Parenthood v. Casey, in which he argued that a wife can be mandated to notify her husband about an abortion. Regardless of one's views on abortion, there is a compelling legal argument to be made about the soundness of such a notification; Alito's opinion did not contend that notification was synonymous with seeking approval. Besides, I don't consider notifying the guy who supplied the baby batter nearly as potentially nefarious as forcing a minor to notify a parent. Patterico's Pontifications boasts a concise window into Alito's reasoning in Planned Parenthood v. Casey.

Similarly, I don't buy the fear-mongering by many on the left that Alito sees nothing wrong with strip-searching 12 year olds or roaming the countryside with machine guns. Or strip-searching machine guns, for that matter.

What does bother me? Maybe it's just that I'm an expectant parent, but I seriously question the wisdom and compassion of someone who dismisses the Family and Medical Leave Act (thank you, Bill Clinton) as an overreaching abuse of legislative power. Alito's opinion was part of a three-judge panel that determined state workers were not subject to the Family Leave Act.

While Alito certainly wasn't alone in his view -- his opinion was reflected by many other lower courts -- he went much further than most.

From The New York Times:

"In the Family and Medical Leave Act case, Judge Alito also took a constrained view of Congressional power. He wrote that the asserted source of Congressional authority there, Section 5 of the 14th Amendment, was insufficient to allow suits against the states in cases on the leave act.

"Section 5 allows Congress to 'enforce, by appropriate legislation,' that amendment's guarantees of equal protection and due process. But the leave act, Judge Alito wrote, does more than protect against discrimination.

"It 'does much more than require nondiscriminatory sick leave practices,' he wrote, adding, 'It creates a substantive entitlement to sick leave.'

"That, he concluded, does not 'represent a valid exercise of Congress's power.'

"The Supreme Court effectively overruled the decision in a 2003 case,
Nevada Department of Human Resources v. Hibbs. Writing for majority, Chief Justice William H. Rehnquist said that the act did indeed combat sex discrimination. The act, Chief Justice Rehnquist wrote, was 'narrowly targeted at the fault line between work and family - precisely where sex-based overgeneralization has been and remains strongest.'"

One's got to wonder about someone whose idea of nurturing family amounts to a "substantial entitlement." Christ, babies can be such ... crybabies.

What concerns me most of all? Mad as a hatter Pat Robertson calls the Alito nomination a "grand slam home run."

Now that's troublesome. When you've got Pat Robertson calling it a grand slam, chances are someone is waaaay off base.


At 11:30 AM, Blogger MDC said...

What is troubling is Alito's history of being the lone dissenter in several instances in which the majority reached a moderate, mainstream decision.


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