Amazing how hard it is to blog when you spend the holiday weekend out of town and in the course of setting up their wireless, unplug your parents' DSL. For which the login information isn't written down and the provider's tech support office is closed on the weekend. Anyhow, before I get to adventures at Full TiltPoker, we have a Supreme Nominee to talk smack about.
Part 1 of 2.
The confirmation hearings for Bush's new Supreme Court nominee, Samuel Alito, have been more filled with code words than anything since Jimmy Carter accused Ronald Reagan of filling his speeches with “code words.” I wonder how long it will be before I start having Cronenberg-style dreams where I see the emergence of rotating alphabet wheels emerging from Softball Sam's forehead, because the only thing clear in his testimony is that he wants to be considered an enigma.
As Dahlia Lithwick noted in her Thursday coverage for Slate, Alito has gone beyond the usual “I can't speak on hypothetical situations which might come before the court” argument to say that he will take every case on a case-by-case basis.
In one of the most poignant exchanges of the morning, Sen. Herb Kohl, D-Wis., asks the nominee―almost pleadingly―whether he thinks he might become a justice who "fills the same role" as Sandra Day O'Connor; if "in your opinion, you will turn out in a general way to be that sort of justice?"
Alito's response speaks volumes. He says the quality he most admires in O'Connor is her "meticulous devotion to the facts," the appreciation of her "dedication to a case-by-case approach." That, oddly enough, is precisely the quality for which O'Connor has been most roundly criticized. Detractors, from the right and the left, never tire of accusing her of approaching every case from scratch, creating "good-for-one-ride-only" precedents, and fashioning new rules that depend entirely on her own subjective determinations. There is, say her critics, a terrific grandiosity in a jurisprudential approach that elevates one justice's views over those of her colleagues and allows her own judicial process to trump the wishes of her colleagues, the states, or the other branches of government.
Theoretically, there should be comfort in hearing a judge promise to approach each new case as an open book; to drill deep into the relevant statutes and the case law and emerge with an opinion only after a meticulous analysis of the matter at hand. It suggests that past decisions aren't predictive and that every case brings a fresh start. It hints at a totally neutral process, untainted by personal views or preferences. It says there is no jurisprudential theory at work but only a mechanical process.
But doesn't Alito's open-mind mantra imply that with each fresh, new start he will be the lone, final, unfettered arbiter of every question? Do we really want every legal question to be open and every rule to be mutable? Is there something to be said for a nominee, like John Roberts, who didn't insist that the answer to every question reside exclusively in his own open mind?
GWB is already the Humpty-Dumptiest of all presidents since the invention of broadcast equipment. To him, a word means whatever he thinks it means... at that moment. What he thinks words means do not have to match what the dictionary or anyone outside a small pocket of the beltway or Falls Church, Virginia, agrees with. In contrast with the ubiquitous “people die,” bumper sticker, Bush can't really lie if he's truly ignorant of the meaning of words like “accomplished,” “responsible,” or even “doing.” According to Lithwick, his pick to replace the very particular O'Connor may be willing to do the same interpremetation thing for the law.
Far more disturbing is another exchange Alito and Kohl had last Tuesday. Asked to explain his take on the meaning “traditional values,” Alito gave several shadings and variations of the term as he, well, held court.
I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value.
I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value.
I think the ability to raise children in a way that they're not only subjected to―they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value.
I think that the ability to practice your own conscience is a traditional value.
Well, as I have said to some of the freshlings whose writing needed to be clarified, let's expand on that.
During the Warren years, how were peace and safety threatened? Most obviously, Watts and the South Bronx caught fire a few times; not that that had much to do with the Supreme Court, even if arsonists were suddenly required to be informed of their right to a legal aid attorney after Miranda.
Of course, there were a Brobdignagian handful of cases involving separation of church and state, busing, fair housing, and access to college, in which the Court declared that it was necessary for America, in fact it was the opposite of unAmerican, to end decades of discrimination which had enforced the monocultural nature of many schools and neighborhoods. Or, in the words of Concerned Alumni of Princeton founder Shelby Cullom Davis, "A student population of approximately 40% women and minorities will largely vitiate the alumni body of the future," and, well, there goes the Quad.
The Warren Court took school prayer away from him after sixth grade. In middle school, he suffered under the burden of "one man, one vote." At Princeton, he began to identify with the rights of minorities after Princeton students voted to postpone classes to protest the war. A classmate recalls Alito thinking that "a majority vote to suspend classes would be unfair to a minority who wanted to study." [Bruce Reed for Slate]
Ok ,so he's a studious guy. He's also a Phillies fan. We can agree on two things. Beyond that, however, I take issue with the idea that someone who thought he was an oppressed minority once in his life has no problem with the oppression of others, 33 years after his graduation from the Ivy League.