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One decision doesn't make a career, but an alarm should have sounded when Chief Justice Roberts joined Antonin Scalia and Clarence Thomas in overriding the will of Oregon voters and attempting to overrule Oregon's Death With Dignity law. Although the Court's current majority sustained the law, this was the first major split decision of the Roberts court. And by contradicting all his fine-sounding phrases about Federalist principles (much as the five justices did in Bush v. Gore) Roberts made clear that his political beliefs will guide his interpretations.  If there are doubts about his agenda, and where his loyalties lie, I'd suggest that this should bury them.

Many of us believed this would happen when we urged a no vote on Roberts. But he was well-spoken and pedigreed, praised moderation at every turn, and evaded the hard questions. The Democrats never mounted a serious challenge. Now the Senate faces Alito, who has left a far more unambiguous trail supporting centralization of executive power, incursions of government into private life, and the right of corporations to avoid oversight and regulation. After hearings that illuminated nothing except his ability to play dodge ball, he's likely to receive considerably more negative votes. But for the moment, the Democrats are still hesitant to filibuster.

The Oregon decision should remind them of the stakes. It should remind any Republicans who'd remotely lay claim to the attribute of "moderate." It should give an incentive to challenge the nomination with every tool available, including the filibuster--particularly in a time when Bush has squandered his political standing through his own evasions, incompetencies, and lies.  Just as valuable New Deal programs like the National Recovery Administration and Agricultural Adjustment Act were struck down by a court that was the legacy of Presidents Hoover, Taft, and Harding (some of whose justices also opposed progressive taxation, the minimum wage and any attempts at corporate regulation), the confirmation of Alito and Roberts could cast a shadow over American politics for the next thirty years.

As the Oregon opinion reminds us, the threat of Alito's nomination isn't abstract.  It's a clear and present danger that can only be stopped by our Senators finding the courage to challenge an administration that respects only power. That means using the filibuster to talk about the assaults by this administration and their judicial surrogates on our democracy and on our ability to address our most urgent common problems. If not now, then when?

Paul Rogat Loeb is the author of The Impossible Will Take a Little While: A Citizen's Guide to Hope in a Time of Fear, named the #3 political book of 2004 by the American Book Association, and of Soul of a Citizen. See www.paulloeb.org  

Originally posted to PaulLoeb on Mon Jan 23, 2006 at 10:35 AM PST.

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Comment Preferences

  •  I agree totally (none)
    and you should be making this argument to every democrat and moderate in the senate. We have to stop singing to the choir and instead making these really great points to the people who can do something about this nomination.
  •  Amen, Bro!!! (none)
    The OR case removed all doubt.  We already have 3 results-oriented right wing hacks who will do whatever they have to in order to reach a desired result.  Scalito would be a 4th--it's as obvious as the day is long.

    The Senate Dems have reached a moment of truth--I just wish that past experiences hadn't made me worry how they'll respond this time.

    Some men see things as they are and ask why. I see things that never were and ask why not?

    by RFK Lives on Mon Jan 23, 2006 at 10:46:51 AM PST

  •  Re-frame the debate (none)
    MSM and the GOP has turned this debate inside out. It is not the job of the Senate in their role of "advise and consent" to tear Alito down it is Alito's task to prove himself worthy of a lifetime appointment to our highest court.

    Roberts did and he deserved to be appointed when he answered to his past and declared respect for precedence.

    Alito wouldn't even answer a question about whether he was a fan of Bruce Springsteen. Alito has not explained his past, he refuses to acknowledge where he stands on precedence, unitary executive and therefor should not be confirmed. 43 votes against (with DINO's Nelson and Landrieu voting for?) filibuster the bastard and force the bluff of the "nuclear" option.

  •  yes! (none)
    wyden has come out with a "no!" to alito - any fellow oregonians out there, please join me in haranguing smith!  

    and everybody else - call your senators, too!  if you have one senator voting no and the other one on the fence, throw this at them:  "well, i'm your constituent as well - how can my senators have two completely different senses of what the state wants?"  of a balanced judiciary, etc.

    weather forecast

    The palaces of kings are built upon the ruins of the bowers of paradise. - Paine

    by Cedwyn on Mon Jan 23, 2006 at 11:17:12 AM PST

  •  It was a Chevron case (none)
    I share the concern about Alito, but I think you make a lot more of Gonzales than one should.

    The only issue in this case was whether the AG's Interpretive Rule was entitled to deference under the Chevron doctrine.

    Frankly, the majority stretched quite a bit to avoid  Chevron and one of its progeny, a case called Auer.  

    The majority pulled out all sorts of reasoning as to why Chevron should not apply to give deference to the AG's admittedly "reasonable" interpretation, types of reasoning not normally relevant in a Chevron type case.  Under this doctrine, if the interpretation is entitled to deference, it will stand as long as its reasonable, even if the court would reach a different construction.

    Really, Scalia's dissent is much more in line with the Chevron line of cases.  I don't think it's any surprise that Roberts would vote to follow Chevron and not bend over backwards to avoid its implications.

    If any opinion is more "results-oriented," in the sense that it really avoids precedent, it is by far Kennedy's opinion for the Court.

    Not that I have a problem with that result.  It's what I favor, and I find the reasons for avoiding Chevron mostly convincing.  I wish the court would redefine Chevron and make clear that nondelegation concerns will trump agency interpretations in certain situations.  

    But, if I felt the other way about the result, I might call the Gonzales decision a case of "judicial activism."

    So I think that all it says about Roberts is that he favored applying Chevron the way it usually is applied in these cases. It doesn't necessarily say that he's against state's rights when it suits his purposes.  The federalism question was NOT before the court.  It was only a question about deference to the AG's interpretation.

    That said, the case against Alito is strong and the circumstances dire, without regard to Roberts or any of the rest of the court, really.  He's extreme, period.  I think Roberts will be very close to Rehnquist and we probably can't complain there, being that a Repub had the nomination.  But Alito is probably most equal to Thomas, and he would replace O'Connor.  

    In fact, I think what I mean in part is that Alito is so beyond the pale that comparing him with Roberts is probably way too unfair to Roberts.  Alito's record shows him for what he is--a right wing judicial activist.  Roberts doesn't have much record, but you get the feeling he isn't as much a "movement conservative" type activist as is Alito.

    Anyway, I supported the Roberts nomination but I strongly oppose Alito.  Roberts for Rehnquist was an OK deal; Alito for O'Connor will in many ways be a travesty for our democracy.

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