The Right Coast
November 17, 2005
By Tom Smith
The Alito battle heats up. The 1985 memo makes it inevitable.
Interestingly, some of the conservative groups are attacking the organizations running the attack ads on Alito, rather than defending Alito. I wonder if they know what they're doing.
Law professor and media commentator Jonathan Turley opined this morning on XM public radio that Alito had now to answer questions about how he would rule on abortion cases, since he had opened the door with the 1985 memo. At least, that seemed to be what he was saying. Perhaps one should assume that it was not, since it seems so obviously wrong. Can it really be that Justice GinsbUrg had expressed no controversial views before she became an appellate judge when she invoked the now so-called Ginsburg rule? I recall something about bizarre views on marriage and the age of sexual consent. But whatever. I think Alito should stick to the line that the 1985 memo reflected his views 15 years ago, and that in any event his job as a judge is far different from what it would have been and was as a legal advocate in the Reagan administration, that Roe v. Wade is much more settled law now than it was then, that his record shows what his attitude is toward settled law, and that in any event, it would be improper to discuss how he would rule on any particular issue, including whether to overrule a case that was based on entirely fabricated grounds when decided, but has since become part of the very fabric of the law, such as it is, which raises the difficult if not impossible question of what to do with it now, and thus is a very good case in point for not making things up on the bench, lest you do something as unbelievably stupid as Roe. But so very well intentioned, of course, that one can only regard Justice Blackmun et al as virtual latter day saints. Alito should never say again I vas only applying for zee job! I am relieved to see Alito is not perfect; I am only recently getting over my depression at not being Roberts.
I hope Frist is not bluffing that he is willing to use the nuclear aka entirely Constitutional even downright patriotic option. At least the left wing of the Democratic Party has staked out the position that conservatives simply are not allowed on the Supreme Court, relying on risable arguments. It is the O'Connor seat; Alito might not follow settled law; Alito is a radical. But they all boil down to, liberals (or what ever you want to call them) should be able to exercise a veto power over Supreme Court nominations. It is past time to get that issue settled. It is not going be settled by arguments. It will only be settled by votes, for Presidents and Senators and judicial nominees, respectively. I still put the Miers nomination down to a boneheaded blunder, but it's an ill wind that blows no good, and the good in Miers case may be that it sent a strong signal not only to the WH but also Republican presidential aspirants that a big part of the people who vote GOP are not kidding about the Supreme Court. This ups the chances that Frist and the Senate leadership will hold firm. And though I am no expert vote counter, I think they will have to. I don't see how RINOs such as Snowe and Chafee can do anything but vote against confirmation; they come from liberal states and are called RINOs for a reason. Unfortunately, much will depend on Specter and other moderates. Bearing in mind I am always wrong about these things, I predict a close vote. Tradesports today has Alito getting over 60 votes at 63/70 bid/ask, and confirmation at 82, which strikes me as a bit optimistic. But that's why we have markets, at least in free countries such as Ireland.