Sc-Alito nominated for the high court

[Surfrider]

Bush nominates Alito to high court
Top Democrat says choice could pose a 'lot of problems'

Monday, October 31, 2005; Posted: 8:21 a.m. EST (13:21 GMT)

Manage Alerts | What Is This? WASHINGTON (CNN) -- President Bush said Monday he has nominated 3rd Circuit Appeals Court Judge Samuel Alito for the U.S. Supreme Court to replace retiring Justice Sandra Day O'Connor.

"Judge Alito is one of the most accomplished and respected judges in America," Bush said from the White House, with Alito by his side. "And his long career in public service has given him an extraordinary breadth of experience."

Alito, a former U.S. attorney who has been a judge for 15 years, is considered a favorite of the conservative movement and is Bush's third pick for O'Connor's seat.

His first, Judge John Roberts, was later nominated and confirmed to replace the late William Rehnquist as chief justice of the United States. (See video on Bush effort to rebound -- 2:27)

The second nominee, Texas lawyer and White House counsel Harriet Miers, withdrew from the process Thursday after weeks of opposition from both liberals and conservatives, who questioned her qualifications and record.

Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito."

In 1991, in one of his more well-known decisions, he was the only dissenting voice in a 3rd Circuit ruling striking down a Pennsylvania law that required women to notify their husbands if they planned to get an abortion.

He also wrote the opinion in 1999 in a case that said a Christmas display on city property did not violate separation of church and state doctrines because it included a large plastic Santa Claus as well as religious symbols.

Alito was put on the circuit court bench by President George H.W. Bush in 1990 after his service as U.S. attorney for the District of New Jersey.

He also served as assistant to Solicitor General Rex E. Lee from 1981 to 1985, where he argued 12 cases before the Supreme Court.

He was deputy assistant to Attorney General Edwin Meese from 1985 to 1987.

A Trenton, New Jersey, native, Alito graduated from Princeton in 1972 and earned his law degree from Yale in 1975.

Monday's announcement returns focus to the Supreme Court after a week of political difficulty for the White House and Republicans, with Miers' withdrawal coming a day before a grand jury indicted Vice President Dick Cheney's former chief of staff on charges including perjury and obstruction of justice. (Full story)

Sen. Arlen Specter, a Pennsylvania Republican who chairs the Judiciary Committee, said Sunday he had been consulted by the White House about Miers' replacement but had not been informed of who the president plans to nominate.

Specter said he is "very worried" that Democrats could filibuster a candidate they perceive as an extreme right-wing jurist.

The topic that "dominates the discussion," Specter said, is abortion.

Both sides of the debate want to know in advance how a nominee will vote on the issue, but that is an answer that "no one is entitled to," he said.

Confirmation could be tough battle
"There could be a real tough battle here and a real tough fight, depending on whom the president puts up," said Specter, who supports abortion rights.

Senate Minority Leader Harry Reid -- a Nevada Democrat who had recommended Miers -- said Sunday he feared Bush would "try to placate the right wing" with his next nominee, "and that's a mistake."

"If he wants to divert attention ... he can send us someone who's going to cause a lot of problems," Reid told CNN, saying the "radical right wing" was "pushing all his buttons, and he may just go along."

Reid said the choice of Alito "would create a lot of problems."

"That is not one of the names that I've suggested to the president," he said. "In fact, I've done the opposite."

Bush nominated Miers on October 3 to replace O'Connor, often a moderate swing vote, on the high court.

O'Connor, who has announced her retirement, will stay on the court until the Senate confirms her replacement.

A senior administration official told CNN last week that the next choice will be based at least in part on the "lessons learned" from Miers' nomination.

In addition to Miers' perceived lack of conservative credentials, the White House also could consider two other points of criticism on her nomination: her lack of experience as a judge or with constitutional law; and her close ties to the president, which prompted Democratic concerns about her judicial independence.

Poll: Experience important
A poll released Sunday suggests Americans consider experience as a judge as more important than choosing a woman or a conservative.

The CNN/USA Today/Gallup Poll of 800 adult Americans, conducted by telephone Friday through Sunday, found that only about one in seven said it is essential that Bush nominate a woman, and one in five said it is essential he nominate a conservative.

But half believe it is essential that Bush nominate someone with experience as a judge.

Sixteen percent said it is essential that the nominee would vote to overturn the 1973 Roe v. Wade decision legalizing abortion, and another 16 percent said it is a good idea.

But 42 percent said a nominee who opposes Roe v. Wade would be a bad idea.

The poll had a margin of error of plus or minus 3.5 percentage points.

CNN's Dana Bash contributed to this story.

[pilferk]

I'd say Ms. O'Conner shouldn't make any retirement plans for awhile....

This is going to be a messy, heated, and probably LONG confirmation process......

[Booker Floyd]

This is going to be a messy, heated, and probably LONG confirmation process......

I think you might be right...

[sandman]

This is going to be a messy, heated, and probably LONG confirmation process......

I think you might be right...

that's exactly what bush wants - he's taking the attention away from "scooter".

and the republicans have the votes, so the dems only chance is to filibuster. BUT, that will give bush some sympathy among the general public (especially if Alito turns out to be clean and deserving of the position). puts the dems in a tough position. it may be a win-win for bush.

brilliant move. and i like what i know about this guy. nice choice. 

[Booker Floyd]

that's exactly what bush wants - he's taking the attention away from "scooter".

and the republicans have the votes, so the dems only chance is to filibuster. BUT, that will give bush some sympathy among the general public (especially if Alito turns out to be clean and deserving of the position). puts the dems in a tough position. it may be a win-win for bush.

You might be jumping to conclusions a bit too soon, but well see...

You can probably guess how I feel about this, so Ill just save my time posting on it right now.



But I will say that this is a very amusing picture.

[Booker Floyd]

Heres an interesting article to keep in mind during this judicial debate:

So Who Are the Activists?
By PAUL GEWIRTZ and CHAD GOLDER
Published: July 6, 2005


WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O?Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.

Correction

Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.

Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.

[Surfrider]

Funny, I have noticed that those on the left have attempted to redefine the term "judicial activist".? Traditionally, it has meant deviating from the text and original understanding of the Constitution.? Defining an activist by how many Congressional laws they vote to overturn is misleading.?

Here are some examples:

Congress passes a law establishing a religion.? A judge votes to strike it down.? Another votes to uphold it.? Who is the activist?? The one voted to strike down the congressional law?

Congress passes a law regulating the intrastate use of medical marijuana.? One? votes to overturn it, the other votes to uphold it.? Which one is the activist?



It is also misleading because the statistics only refer to voting to overturn congressional laws and doesn't take into account overturning state laws.? Thus, cases such as Lawrence, Roper, Roe etc. would not be included in those stats.  Another thing to consider is that activists that find certain rights not in the Constitution (ie abortion, right to privacy, right to homosexual sodomy) remove these debates completely from the democratic process.? On the other hand, Justices such as Scalia and Thomas, in striking down such laws are determining that they are state's right issues.? Thus, instead of taking them out of the hands of the people, it is simply sending it to a different forum.? In other words, in order for someone such as Scalia or Thomas to take something out of the democratic process it has to be clear based on the text and original understanding of the Constitution (the understanding that the people had when they democratically agreed to the provision).?

[pilferk]

The dems are going to have a tough fight, and I think we're both going to see a fillibuster AND the Repubs excersize the "nuclear option".  They're not going to have a choice.

The guy is emminently qualified.  He was a State AG, he's argued in front of the SC before on multiple occasions, he's a constitutional scholar, he has judicial experience, and he's a Yalie.  Unless the guy has some BIG ole' skeletons in his closet, there's just no way you can argue his qualification for the Court. 

Ideologically, the guy is not my cup of tea, from what I've read of his decisions.  But, the fact remains....the Repubs won the White House back in '04 and so have the right to appoint any qualified candidate they see fit.  You can't argue this guys qualifications.

[Surfrider]

Yah, the guy is darn qualified.  Too bad the "most" qualified person, according to W, didn't make it on to the court: Harriet Miers.


On a side note, I think it is cool that Bush nominated someone with a background in criminal law.  I don't think any other justice has a background primarily in criminal law.  In fact, there probably hasn't been one since Earl Warren.

[pilferk]

I'd be very leary, if I were the dems, of using the filibuster.  It might be winning the battle but losing the war, so to speak (and they wouldn't really win the battle...they'd just prolong it a couple of weeks).  This administration has had sooooo many problems, of late that the dems would be wise to pick their battles.  The mid-term elections are about a year away and, with the Repub party and leadership in a rough state right now, the dems shouldn't, provided they want to pick up some seats, give the Repubs any ammunition if they can help it.  If he's that polarizing of a candidate, just give him the straight "no" vote.  It'll convey exactly what the public wants to see from the party:  A strenuous objection rather than a temper tantrum.  Alito will still get appointed, but, again, the Repubs won in '04.

The Repubs, on the other hand, if the Dems DO filibuster,  need to balance their glee at getting to excercise the "nuclear option" of abolishing the judicial fillibuster with the realities of what happens if they actually do it.  The Repubs, no matter how optimistic they are, have to be squirming just a bit over the mid-terms and beyond. The party is in a rucus right now, and the leadership is having some substantial "issues".  IF they use the nuclear option, they gotta realize, they also remove THEIR ability, should they be in the minority at some point, of using the same tool.  I know that everything is hunkey dorey and rosey (relatively speaking) right now, but if history has taught us anything it's that tides and times change.  They might want to start thinking seriously about that before "pushing the button".  An SC judge is a pretty important legacy to be able to leave, never mind appointing 2 of them, so maybe it is worth it.  But they should at least give pause to consideration of just what doing it might mean.

[Surfrider]

Good analysis.