Skip to main content

I've been wanting to write this diary for some time.

Many Kossacks and Democratic officials have commented on Judge Alito's legal views on a checklist of issues.  These Kossacks and Democratic officials have focused on Judge Alito's views on issues ranging from abortion to presidential power to discrimination to voting rights.

(more below the fold)

But the debate about Judge Alito's fitness to become the 111th Supreme Court justice should be much broader than whether the nominee holds mainstream views or even plausible views on a checklist of issues.  It's not about even the broader issues such as privacy in general, allowing Congress to pass laws protecting the environment, supporting the little guy against corporations, etc.  No, the debate over Judge Alito's fitness to be an associate Supreme Court Justice should be much, much broader than even that.

The debate over Judge Alito's fitness should be about whether a Justice Alito would restrict freedom and the protections of human dignity and human liberty or whether a Justice Alito would expand freedom and the protections of human dignity and human liberty.  Will Judge Alito have the courage to do the unpopular to expand justice?  This is how history ultimately judges any Supreme Court justice and why history has and will not be kind to William Rehnquist, whose tenure is marked by restricting freedom, and pays testimony to Earl Warren, Thurgood Marshall, and William Brennan, Jr. -- all who expanded freedom and the protections of human dignity and human liberty.

Even more important, my gravest reservation of Judge Alito is the same I have of Chief Justice Roberts -- his values and his sense of justice.  Judge Alito certainly has a great sense of the law, but what about a sense of justice?  Judge Alito's approach to the law is very mechanical, dispassionate, precise, and plausible, but does it serve the interests of justice?  As UC Berkeley Professor Goodwin Lieu pointed out in a Time magazine article,

[Judge] Alito can be seen as overly focused on details and technicalities while missing the fundamental values embedded in such matters as job discrimination and jury selection. "He approaches law in a formalistic, mechanical way abstracted from human experience," says Goodwin Liu, a professor of constitutional law at the University of California, Berkeley.

Almost every time an individual's interest is in conflict with a government's authority (particularly on the rights of the accused and discrimination cases), Judge Alito defers to the government, and places the burden of proof on the individual to show he or she is worthy of protection rather than place the burden on the government to demonstrate a compelling interest to make a regulation.  This is certainly a plausible approach, but does it do justice?  Does this approach provide relief or even protect those who have a moral claim on society?  Would this approach leave injustices unrectified?  Does Judge Alito even care who is crushed by his intellectual theories?  Why should those who need relief or mere protection believe they have a fighting chance in Judge Alito's court?  Where is Judge Alito's passion to do justice?  

Senators must inquire about Judge Alito's values at the hearings.  Why does Judge Alito want to be a Supreme Court Justice?  Hopefully, Judge Alito will give a better response than Robert Bork, who thought serving on the Supreme Court would be an "intellectual feast."  How does Judge Alito want to be remembered if confirmed as a Supreme Court Justice?  Hopefully, he'll say that he did justice.  Was Judge Alito bothered by some of his colleagues opinions saying that some of them would leave manifest injustices?  These are questions that Senators must ask Judge Alito.

Originally posted to jim bow on Mon Jan 02, 2006 at 12:43 PM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Excellent (3.50)
    Send this to those who will question Alito. Shit, they should simply read your diary here to Alito's face. I particularly like this:

    Will Judge Alito have the courage to do the unpopular to expand justice?  This is how history ultimately judges any Supreme Court justice and why history has and will not be kind to William Rehnquist, whose tenure is marked by restricting freedom, and pays testimony to Earl Warren, Thurgood Marshall, and William Brennan, Jr. -- all who expanded freedom and the protections of human dignity and human liberty.

    That is good framing, and should be repeated over and over.

    Nice job.

    •  Thank you (n/t) (none)

      The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

      by jim bow on Mon Jan 02, 2006 at 12:43:32 PM PST

      [ Parent ]

    •  As an aside.. (none)
      ..it might be noted that a Republican, Eisenhower, appointed two of those Justices.
      •  And neither then-Gov. Warren nor ... (none)
        ... then-New Jersey State Supreme Court Justice William Brennan, Jr. were exactly considered among the best and the brightest intellectually in their day.  The best and the brightest included, as Colby King pointed out, John W. Davis, who argued in 1953 on behalf of South Carolina to retain Plessy v. Ferguson in Brown v. Board of Education.  Here was fmr. Rep. Davis's argument:  that separate but equal was better for blacks and that
        [s]omewhere, some time, to every principle there comes a moment of repose when it has been so often pronounced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.
         Both are certainly plausible arguments, but thankfully the Warren Court saw otherwise, and overruled that abomination called Plessy.  Human experience is what told us that the Court was right in Brown to overrule Plessy.  And that's why the nominee matters.

        What Chief Justice Warren and Justice Brennan had was a compassion and passion to do justice, and never forgot that the ultimate role of the law is to serve the interests of justice.

        The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

        by jim bow on Mon Jan 02, 2006 at 01:05:03 PM PST

        [ Parent ]

      •  and he came to regret both appointments (none)
        quoting from the Wikipedia article on Eisenhower
        Of his appointments to the U.S. Supreme Court, Eisenhower is purported to have said that his September 1953 appointment of California Governor Earl Warren to Chief Justice of the United States was "the biggest damn fool mistake I ever made". Some sources place this act on Eisenhower's own list of "My Top Five Lifetime Mistakes". Eisenhower disagreed vigorously with several of the Chief Justice's decisions. Warren's

        Those who can, do. Those who can do more, TEACH!

        by teacherken on Mon Jan 02, 2006 at 01:54:54 PM PST

        [ Parent ]

    •  Frankly (none)
      The gravest concern I have of Judge Alito is the same I have of the entire Supreme Court (though some justices more than others).  Where is the Court's passion to do justice?  We haven't had a Supreme Court Justice with a passion to do justice since at least Justice Blackmun (remember Poor Joshua!).

      Sadly, we seem to be in an era when Justices compete for the best intellectual theory regarding the case regardless of the real-world consequences instead of what intellectual theory is Constitutional and can best serve the interests of justice.

      The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

      by jim bow on Mon Jan 02, 2006 at 12:50:30 PM PST

      [ Parent ]

  •  Tips, recs, etc. (4.00)
    For further good reading, please read this excellent Colby King column.  Also, here is the diary Mr. King inspired me to write.

    The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

    by jim bow on Mon Jan 02, 2006 at 12:42:48 PM PST

  •  Doesn't Have To Be Warren, Brennan or Marshall (none)
    When 9 unelected officials who meet in secret and serve for life make decisions we like, we tend to call it something like "expanding justice", and when they make decisions we don't like, we tend to use less favorable terminology. However, there are many across the ideological spectrum who prefer to have most issues decided by the elected branches of government.

    I don't think "expanding justice" makes a very good issue for the confirmation process, since no nominee is going to say much about how he or she would rule on issues that could come before the Court.

    While William Rehnquist might not be everybody's favorite S. Ct. Justice, and certainly not what we'd expect from a Democratic President, I don't think there is anything unconfirmable about another Rehnquist - which is about what I think we'll get with Alito. This is just what happens when the GOP wins the White House, as we got Ginsburg & Breyer only because Clinton won in 1992.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site