Will kossacks please stop calling Alito "Scalito"? It is not that I don't love the moniker. I really do. It actually sounds better than Alito.
However, in light of recent events, it actually hurts our position to morph him into Scalia II.
Keep reading for my reasoning . . .
If it wasn't for the NSA spying scandal, I think that the "Scalito" pet name would be fine. On many critical issues, such as abortion rights, Alito would probably vote in a similar manner to Scalia. This is not true for the issue that is most important to me -- criminal law (I am a public defender) -- since Scalia actually has not been a bad judge in that area. He has expanded the rights of criminal defendants under the Sixth Amendment (see Apprendi v. New Jersey, 530 U.S. 466 (2000) and Crawford v. Washington, 541 U.S. 36 (2004)). However, it didn't bother me that Alito was being compared to Scalia since I know that criminal law is not in the forefront of people's minds and the other issues were typically more central to the question of whether or not we could argue that he shouldn't be confirmed.
However, I now believe it is entirely counter-productive to try and turn him into Scalia II. If we assume (and hope) that the confirmation hearings will focus on the issue of the day -- namely, whether or not there are limits to Bush's use of executive power, then it would actually be to this country's benefit if Alito turns out to be Scalia II. Scalia was only one of two justice's on the Supreme Court (Stevens, the other) who actually found that indefinitely detaining individuals as enemy combatants without charges was unconstitutional. Here is an excerpt from his dissent in Hamdi (sorry i don't know how to indent in these diaries):
"The Founders well understood the difficult tradeoff between safety and freedom. 'Safety from external danger,' Hamilton declared, 'is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.' The Federalist No. 8, p. 33. The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent."
Hamdi v. Rumsfeld, 542 U.S. 507, 578-79 (2004) (Scalia, J., dissenting).
I know how Scalia is used as the boogeyman Supreme Court justice. However, Scalia is not across-the-board bad. He is horrifying on many issues we care about -- such as gay rights, abortion rights and voting rights. But not on every matter, and he has a keen understanding of the Founder's beliefs that executive power has its limits. At the hearing, we should hope that Alito would follow Scalia's view on one of the most important issues we face.
Nevertheless, I believe that Alito, for some strange reason, has clear totalitarian impulses. I think he would not only sanction Bush's actions in the NSA spying scandal, but offer broad suggestions that presidential power has few limits. Currently, I don't think there is a justice on the court that is as radical as Alito on this issue (except for maybe Roberts, but we know little about his views, even after congressional hearings).
If we keep calling Alito "Scalito" and use Scalia as the enemy here, it may actually play into the Republicans' hands. They can say, "Look, you guys claim that he is just like Scalia. Well, Scalia has your back on this executive power thingie, so what are you worried about? You should be happy with Alito."
Alito must be viewed as "ALITO" -- the extreme radical. He is a very different type of monster than Scalia. He needs to be confronted as the different and scary kind of extremist that he is, and not as the "Scalito" that he is not.