Alito's "You Lie" Moment

Randy E. Barnett, writing at the Wall Street Journal, takes the President to task: Obama Owes the High Court an Apology

In his State of the Union address, the president of the United States called out the Supreme Court by name for sharp condemnation and egged on his congressional supporters to jeer its recent decision.
....
Even before he finished, hundreds of Democratic senators, congressmen and cabinet officials surrounding the six seated justices stood, applauded and cheered.

Suppose for a moment that you were a justice seated there as the president of the United States singled you out for criticism and the room stood and cheered. Could they take it? Yes, of course. Should they have been put in this position? Absolutely not.
....
Judge not the words themselves, but their effect on the audience. The president fully expected that his hundreds of supporters in the legislative branch would stand and cheer, while the justices remained seated and silent, unable to respond even afterward. Moreover, the president's speech was only released about 30 minutes before the event, after the justices were already present. In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly. If you missed it, check the YouTube video. No one could reasonably believe in their heart that this was respectful behavior.

Then there is the substance of the remark itself. It was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation.

While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

That is a whole lot to get wrong in 72 sanctimonious words. Clearly, this statement had not been vetted by the president's legal counsel. Solicitor General Elena Kagan, for example, would never have signed off on such a claim. Never.
....
If the president, himself a Harvard Law School graduate, is going to criticize a judicial opinion, it is incumbent upon him to be legally accurate and responsible in his commentary. If that is too much to expect of a politician giving a nationally televised speech to the general public, then this again illustrates the inappropriateness of making this remark in this venue.

For those who strongly object to the ruling in Citizens United and still do not see the impropriety of criticizing the Court this way, consider Rep. Joe Wilson's "You lie!" outburst during the president's address to a joint session of Congress in September. No one denied the right of a congressman to criticize the accuracy of the president's remarks. The objection was to the rudeness and disrespect shown the president, for which Mr. Wilson promptly apologized. So too should the president.

What have Kennedy and Kerry wrought?

Ed Whelan notes that by forcing a vote on cloture, the Democrats have done three things.

1. Absent the filibuster effort, lots of attention would mistakenly have been focused on whether Judge Alito would reach the filibuster-proof level of 60 votes on final confirmation. If he were to fall short of that, the media would proclaim that the vote level sends a warning shot that another nominee like Alito could be filibustered. By forcing an actual vote on cloture, Kerry and Kennedy have deprived the Left of this pretend-filibuster argument.

2. Kerry and Kennedy have turned the wrath of the Left against those 19 Democrats (nearly half the caucus) who voted for cloture.

3. By using the filibuster weapon against a nominee whom the public rightly recognizes to be superbly qualified, Kerry and Kennedy have undermined Democrats’ future use of that weapon.

If you doubt that those 29 Democrats are the subject of anyone's wrath, may I call your attention this post? Terry Karney names "those sonsabitches" in his tirade and recommends his readers give them large pieces of their minds.

Ribstein on Alito

Larry E. Ribstein, Corman Professor of Law at the University of Illinois College of Law, has another take on (soon to be) Justice Alito.

The past decisions of Alito, should he win confirmation, suggest how he might approach the pending cases. This analysis undercuts the simplistic description of Alito during the nomination hearings that he won’t give the "little guy a fair shake."

...while politicians try to fit a Justice Alito into sound bites, this ignores the complexity of issues Alito will face in day-to-day cases, and his attention to these competing concerns throughout his judicial career.

Prof. Ribstein is the author of http://www.ideoblog.org/.

Dershowitz on Alito

To what extent does a justice's rulings depend on the law, and to what extent on personal beliefs? Alan Dershowitz believes he knows.

Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality, especially on the Supreme Court, where precedent is not as binding, and where cases are determined less by specific facts than by broad principles.

The broad outline is obvious for all to see. Justice Alito will generally favor big government, big corporations, big religions and big majorities over ordinary citizens, consumers, minorities, religious dissidents, immigrants, persons suspected of crime and disenfranchised voters. He will have a narrow view of civil rights, women's rights, disability rights and immigrants' rights, and he will have a broad view of presidential power and states' rights (except in cases like Bush v. Gore). His membership in the Princeton alumni group that opposed the admission of women and affirmative action for minorities suggests that he will be unsympathetic to affirmative action.

The Alito hearings

Captain Ed observes that Sen. Schumer may have gotten in trouble because he likes to hear himself talk. He asked one question too many.

What did Schumer accomplish here? He got the ABA to emphasize that Alito has a mainstream judicial temperament as well as a high sense of ethics -- and that an extreme temperament would have damaged his rating from the ABA. But even more damaging, the answer that the ABA "doesn't do politics" slaps at the committee's handling of the hearings and the question of the confirmation itself. Politics shouldn't enter into it for two reasons. The first is that the position should be non-political and would remain so if the Court stuck with an originalist approach to Constitutional issues. Secondly this hearing itself shows the danger of allowing the Court to drift into legislative tasks.

Executive power

(Hat tip: Bill Keezer.)

Executive power was a big topic during the Alito hearings, with a great deal of "concern" directed at the question of whether Alito would vote to keep it in check.

Part of the problem is that people are not clear on what the limits of this power properly are. In the Weekly Standard, Harvey Mansfield makes the case that executive power extends beyond the scope of the laws passed by Congress, and grants the ability to do things perhaps not allowed by these laws.

One reasons for this is that the executive may have to deal with matters that aren't addressible by law.

A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force. [Emphasis added.]

Of course, this leads to problems of its own:

Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. "Necessity knows no law" is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it--and that twofold need is just what the Constitution provides for.

And this tension is why the character of the person who holds the office of President matters, and matters more than anything else.

Final bloviation ratings

Sisyphus has compiled the final rankings for the Judicial committee.

The final aggregate score actually went up a bit – to 61.6%.

I was a bit curious, and since Sisyphus has given the party affiliation for each member, I figured I'd do a quick comparison.

The aggregate verbosity index for the eight Democrats was 63.0%; for the ten Republicans it was 60.3%. Not enough to be significant.

It might be interesting to sort by length of time served in the Senate. Maybe Senators become more long winded as they serve.

Alito hearing word counts

Nihilist in Golf Pants has compiled a list of "verbosity indices" for each Senator on the judiciary committee. The index is W_Si/(W_Si + W_Ai), expressed as a percentage. (W is the word counts taken from the transcript. W_Si is the word count for each individual Senator, W_Ai is the word count for Judge Alito during each individual Senator's questioning.

The index ranges from a low of 42.7% (Sen. Kohl) to a high of 79.8% (Sen. Cornyn). Adding up the word counts for all the senators, I find the committee's aggregate verbosity index is 59.6%.

And I had always thought the purpose of a "hearing" was for the Senators to hear the witness.

Biden v. Alito

Radioblogger links to Biden's questioning of Judge Alito, noting that in half an hour of questioning, Biden took up the majority of his time making speeches asking his questions.

First off, Senator Biden had half an hour today with Samuel Alito, and the judge's word count, according to John Podhoretz at the Corner, was about 72 words.

I sent Hugh Hewitt a comment about the length of time Biden spent asking his questions:

Subject: Joe Biden Nightmare: Joe Biden winds his way through to a question mark, and Alito says, "Could you rephrase the question please?" ................................Karl Lembke

Hugh's response:

Subject: RE: Joe Biden Oh my gosh that's funny. HH

Heh.

Alito

So far, the consensus seems to be Judge Alito is extremely well qualified, but then he wiped out the Jedi academy and fell into that volcano...

Groody to the max

Q and O offers this take on Doe v. Groody

TBogg writes...

Clarence Thomas to be joined by man after his own heart. In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

What's this? Alito argued that the Police had a Constitutional right to search somebody, despite not having them listed on the warrant? Well, actually, no. The search warrant specifically did allow for their search. As Judge Alito wrote...

First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the application made this request in three separate paragraphs.

The actual warrant was typed (and authorized by the magistrate, unchanged) by the same officers who had written the application—and presumably had reasonable expectation that it meant the same thing. Most important, however, is the fact that the officers had probable cause to search the other occupants of the house. I'm very curious to know when Duncan Black, TBogg, et al, decided that "probable cause" was no longer operative.

Strip-searching Doe v. Groody

Hat tip: Memeorandum...

...continued in full post...

Patterico comments:

The question at issue was whether the warrant, when read together with the affidavit, covered the other occupants (or at least provided the police a good-faith basis to believe that it did). I heard Erwin Chemerinsky on Hewitt today claiming to have read the decision, yet he didn’t even mention that the issue was the scope of the warrant. He just ranted about how Alito wrote a decision protecting cops from liability for strip-searching a 10-year-old.

I can’t yet say whether I agree with Alito’s dissent; my initial impression is that, while Alito has some good points about how to read warrants, the majority has the better of the argument. But it’s only an initial impression; I don’t criticize decisions until I have read them thoroughly.

---

John Hinderaker comments:

The majority held that the warrant did not authorize the officers to search anyone but the drug dealer himself. Alito disagreed. In my opinion, Alito got much the better of the argument. You can judge for yourself by reading the decision here. Alito wrote:

First, the best reading of the warrant is that it authorized the search of any persons found on the premises. Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

Voice of Reason comments:

the crowd over at Democratic Underground is having a field day with. Let's look at a few choice comments:

Although the case is technical, what it boils down to is this: Alito approves of cops strip-searching little pre-pubescent 10 year old girls. Read that again: Alito approves of cops strip-searching little prepubescent 10 year old girls.

Scalito's a creep. When a man thinks like that, you have to wonder what he's done to his own children.

The whole case just makes me shiver. I have daughters that age. Who wouldn't I try to kill, cop or not, if they tried to do that to my babies? What's more, Scarlito has a teenage daughter. And he'd let the cops do that to HER?

For a ten year old prepubescent girl that's tantamount to a lesbian rape. And to have your Mommy powerlessly forced to watch! Jesus! You couldn't show that in a Quentin Tarrantino movie w/o an NC 17 rating! Larry Flynt would be banned in Cincinnati if he showed that in Hustler. But Scalito thinks it's OK. Let's destroy him with this. He's a sick, perverted rape-enabler.

Morons. Should ten-year-old girls ever be strip searched? Whether the answer is affirmative or negative, that was not what Alito was called upon to decide, and it is not what he should have considered. Here's what was at issue: <snip> The question before the Third Circuit in this case was whether the reading given the warrant by the executing officers went beyond the bounds established by Vantresca.

His conclusion?

Personally, I don't think it did. The officers clearly acted in good faith and in accordance with what they believed was their authority. The only question is whether their belief was reasonable, and given the contents of the affidavit attached to the warrant and the warrant's clear deference to the affidavit on other matters, I believe it is. But again, this is a matter on which reasonable people can disagree.

Alito and Casey

Carol Platt Liebau gives her take on Judge Alito's dissent on Casey.

Even from this account of the Supreme Court deliberations in Casey, it's clear that Judge Alito's opinion was hardly bizarre or out of the mainstream. In fact, if Justice Kennedy had stuck by his original vote, Judge Alito's position would have been that of the Supreme Court. Given that fact, it's (predictably) both inaccurate and misleading for the left to act as though Judge Alito's decision was clearly and obviously out of bounds, when in reality, the entire Casey opinion ended up being governed by Justice Kennedy's last minute change of heart.

Alito

Powerline's John Hinderaker looks at Alito's dissent in Planned Parenthood v. Casey.

And here's his take on the "Strip-Search decision.