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Thoughts on Alito nomination

I won't bother to link a bunch of Brady Campaign press reports, since it's no more than the media picking up their press release, linked below. But they appear to be taking the lead on the Demo counterattack. That in turn ducks the question of qualifications (good choice) and goes direct to "this guy, if on the Court, will vote against legislation we like or maybe for legislation we don't." In short, the same considerations you'd have if he were running for Congress. A few thoughts:

1) The nastiness of fighting over Supreme Court nominations has escalated lately, I think largely because the judicial role is increasingly seen in this light. (After 30 years experience, I would be the last to say judges are impartial decisionmakers unswayed by their own values. BUT I would expect the Supreme Court to try harder than most). It's not so long ago that we had the younger Justice Harlan striking down a prosecution of a guy for wearing a "Fuck the Draft" t-shirt, when it's safe to say that Harlan found the shirt appalling. Today ... look at the campaign finance decisions. It's hard to say that they were based upon anything much more than "campaign reform is a good idea."

2) The split between originalists and positivists and the-law-is-what-I-want-it-to-be types is becoming more and more sharp. It's become so different that a while back I read a law prof. arguing, and rather cogently, that the most one can expect of a judge is that he is consistent to his approach. That is, if Scalia is a textualist, and Thomas an originalist (which are close but not identical), they will not depart from that analytical mode in a case because they want a different result.

3) In fighting on this ground, though, that will be brought out from under the rock. The bottom line becomes "to hell with the Constitution, and principled reading of it -- we want a guy who will vote to uphold certain things, and vote our way." By "principled reading" I do not mean "agrees with me." I mean simply "honestly tries to figure out what it means, without resort to whether he likes the result." I tend to think most of the American people are less cynical than I on whether this happens, and that almost all would agree it SHOULD happen. Even if they get POed over a result now and then. And they probably would be disturbed to hear arguments over an "evolving constitution" and suchlike, and feel great security in a person judge who believes that his job is to find meaning in the original. (And who can respond: if you don't like the original meaning, it is within your power to change it, and then I'll follow that).

4) The confirmation battle will be fought out between, by all accounts, a first-rate legal mind, opposed by Ted Kennedy, Diana Feinstein, etc.. I think I know where I'll put my money.

5) In short, the Demos are attacking the high ground, with indifferent weaponry wielded by their worst troops. Reminds me of the last ten or twenty years. And to think this is a party that once controlled both Houses and the White House for decades (or at least long periods of time!

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