Althouse on Alito

Tue Nov 1 15:06:48 PST 2005

I had the honor of clerking for RBG during her confirmation hearings.  I did
not observe any strong  perception that she was extremely liberal.  In fact,
she had just published her "Madison Lecture" at NYU Law which criticized the
legal rationale for Roe v Wade.  The article stated (i) that equal
protection should have been used, not privacy, and (ii) that courts should
rarely if ever move in more than "measured steps."  The only reason the
article supported for courts moving ahead by themselves is that the harmed
persons were unable to use the political system, (shades of Democracy and
Distrust).

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, November 01, 2005 2:51 PM
To: conlawprof
Subject: RE: Althouse on Alito

    Ginsburg is quite moderate and cautious as a Justice across the range of
issues, but of course, a staunch defender of the right to choose abortion,
which counts disproportionately for lots of people on both sides.  Her
general moderation has a Justice for 12 years may be misleading as to how
she was perceived as a nominee.  In addition to being a law professor, she
had been a movement lawyer and an architect of the legal arm of the women's
rights movement.  But of course by 1993, the legal right to equal treatment
for women had been accepted in principle by both sides.  I don't think she
looked nearly as radical to Republican Senators in 1993 as Thurgood Marshall
looked to Southern Senators in 1967.  It's hard to reconstruct 1993, I think
current Republican claims that she was a hardliner for the other side and
they swallowed it in deference to the President are probably more true than
Dems remember but considerably less true that Repubs now claim.

Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX  78705

   512-232-1341 (phone)

   512-471-6988 (fax)

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, November 01, 2005 4:38 PM
To: Scarberry, Mark; conlawprof
Subject: RE: Althouse on Alito

Ginsburg is definitely more liberal than White on abortion.  But White was,
with some exceptions, a staunch liberal on race, so I think it's a wash
there.  And, no doubt, Ginsburg is more liberal on women's rights, but I
don't recall, save for abortion, that White was a mossback.  Wasn't he with
the majority in Hogan (a case that I have some genuine trouble with)?  I
think "pushing the envelope" for Clinton would have been nominating Larry
Tribe.  

sandy

  _____  

From: conlawprof-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Tue 11/1/2005 4:18 PM
To: 'conlawprof'
Subject: RE: Althouse on Alito

How does President Bush's nomination of Judge Alito push the envelope any
more than President Clinton pushed it by nominating Justice Ginsburg (for
whom I have great respect)? She is much more liberal than the justice she
replaced - Justice White - or, if some list members argue that she is not
liberal, can't we at least agree that she is much less conservative than was
Justice White? And she was confirmed 93-7, IIRC.

Mark S. Scarberry

Pepperdine University School of Law

-----Original Message-----
From: Don Crowley [mailto:crowley at uidaho.edu] 
Sent: Tuesday, November 01, 2005 1:59 PM
To: 'Sanford Levinson'; 'Ann Althouse'; 'Mark Tushnet'
Cc: 'conlawprof'
Subject: RE: Althouse on Alito

With regard to Sandy's comment below about Republican's being willing to
"push the envelope" while Democrats aren't, Harry Reid has taken the Senate
into a secret session today in order to discuss manipulation/withholding of
intelligence related to the War in Iraq.  This, of course, has nothing to do
with Alito but it might suggest a new willingness on the part of Senate
Democrats to draw "a line in the sand."

Don

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, November 01, 2005 1:13 PM
To: Ann Althouse; Mark Tushnet
Cc: conlawprof
Subject: RE: Althouse on Alito

Ann writes:

Do you win elections by fighting down a man like Alito?

I don't think that Alito has much to do with winning or losing the next
election.  Rather, the arguments for fighting his nomination to the bitter
end (in spite of what seem to be genuinely attreactive qualities in the man)
are twofold:

a)  This is drawing a line in the sand with the current Republican
leadership and its take no prisoners style of governance.  If they want this
nomination, they're going to have to "go nuclear," which means, ironically,
that a Democratic President would in fact be able to make some liberal
nominations.  As I wrote earlier, I just don't trust the current Republican
leadership to play fair with a Democratic President in this regard, which is
why I think it's uterly beside the point that Ann would like some strong
liberals as well as strong conservatives on the Court.  There are a lot of
things I'd like, but the question is how do you get that happy result, and
it's not by having faith in the good will of people who have been
demonstrating for the past decade that they have only contempt for those who
disagree with them.

b)  The brilliance of the Bush nomination strategy  (save for Meirs) is that
he's trying to tie up the Court for the next 25 years.  The conservatives
are relative youngsters, given todays lifespans.  The most likely next
retirees are Stevens and Ginsburg.  With Roberts, Alito, and Thomas on the
Court, that is a strong conservative presence for the next 25 yeas, when
Alito will be only 80.  It's a good calculation that Republicans will be
able to make two appointments among the successors to the other six
justices, when the time comes.  This is one reason why life tenure on the
Supreme Court is so pernicious.  If we were talking about a single 18-year
term for Alito (and if everyone else were serving 18-year terms), then I'd
be open to Ann's generosity of spirit, which speaks well for her.  But,
again, that's not the world we live in.  

A totally gratuitous comment:  More and more, I understand why some friends
of mine exhibited more trust in George Bush to fight terrorism than in John
Kerry.  (Whether Bush has the slightest idea how to do that is an entirely
separate question.)  Republicans really and truly stand for things, and
they're willing to push the envelope, as demonstrated by this nomination.
Democrats fall all over themselves to be understanding and to figure out
good reasons not really to make waves with regard to the nomination, just as
Republicans (falsely, I believe) accused Kerry of bending over backword to
be understanding of our adversaries.  Pat Buchanan was speaking accurately,
but indiscretetely when he spoke to the 1992 Republican Convention about
enlisting in a culture war.  That's what has been going on for at least the
past decade.  It's even true, incidentally, that liberals have been winning
important aspects of that war.  I can understand some of the conservative
fury at cases like Lawrence, which "shouldn't have happened" in a Court
dominated by Republican appointees.  So conservatives are out to win. Do the
Senate Democrats simply want to wait a few weeks before surrendering, or are
they willing to fight, not necessarily because they think they will in fact
stop this nomination, but becasue it's worth "going nuclear" for long-term
reasons.  Ever since Cliff White took over the  Republican Party for the
Goldwaterites in1964, they've have a long-term strategy that included a
willing to accept short-term defeats in behalf of long-term goals.
Democrats seem to have no sense at all of what their long-term goals are
other than "saving Roe," which, as I've argued at length before, is probably
counter-productive to the actual electoral interests of the Democratic
Party.  (What we will probably get is the worst of all worlds, a completely
"hollowed-out" Roe that at once does not adequately protect truly vulnerable
women, unlike middle-class women who can effectively fend for themselves, or
set the stage for a real electoral shoot-out that the Democrats could in
fact win.)  .  

A last point:  I would be thrilled to have Samuel Alito on my faculty,
unlike Harriet Meirs.  I assume that almost everyone on this list would be
similarly thrilled.  I also assume that that's totally irrelevant with
regard to picking someone for a life-tenured appointment on such a
completely peculiar institution as the Supreme Court of the United States.

sandy

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