Samuel Alito is the next new Supreme Court nomination

-Washington Post

-AP

The planned parenthood decision bodes well.

The white house press release says "as United States Attorney for the District of New Jersey... he (wa)s best known for prosecuting white collar and environmental crimes, drug trafficking, organized crime, and violations of civil rights," which sounds like they're pandering to me, which always makes me suspicious coming from the Bushoids.

Note that he was the lone DISSENT in the court's decision to strike down the law.

Miers may have been set up for failure in order to grease the wheels for Alito's nomination.

Or not.

1. White male
2. Not an oval office crony

Too early for that bullshit. Whoopsie!

As unqualified as she clearly was, I'm beginning to think some rightwing columnists were right when they said her withdrawl would be ultimately regretted by the left for years to come.

em.

m.

thats good!!!

http://www.ukar.org/temp/ito01.jpg

Also, this is pretty much what everyone was expecting and probably what Reid feared when he decided to back MIers to the hilt. Better a quasi-moderate fool than lil' Scalia.

probably what Reid feared when he decided to back MIers to the hilt

He most certainly did not do that beyond the initial commentary. He wasn't Hugh Hewitt for heaven's sake!

Was Alito on that list that Reid initially gave the White House?

If by "the left" you mean "Democrats" ... Jesus.

One outraged Republican strategist claimed, “If Alito were a liberal there would be no way Democrats and Washington’s media elite would use such a ethnically insensitive nickname. Italian-Americans should not have to face these types of derogatory racial slurs in 21st century America.�

Can someone explain this to me? I don't get it.

at this point, all i know about alito is largely anecdoctal -- (a) he's been on bushco's short-list from the get-go; (b) he was a favorite of my law school Federalist Society friends -- since he presides in the same fed. district where i went to school, a number of them wanted to clerk for him (so that's probably not a very good thing).

this guy probably sucks, but i reserve judgment on just how bad he's going to be.

Me too. At the moment I'm just happy we weren't presented with Janice Rogers Brown.

Yes. I'll take a 20% chance that we get someone not to the far-right on every issue, 'integrity' be damned. Every indication is that Alito is even more of an ideologue and more predictable than Scalia - which doesn't bode well for the next fourty years.

xpost with Eisbar - you aren't going to find a smoking gun opinion from his appeals court.

Alito is 55.

I'd be entertained.

And yeah, integrity be damned. It's a political body, why pretend otherwise? I fail to see why I should cheer on qualifications and worry about integrity when they just mean that for my lifetime, the Supreme Court will consistently be ruling against me on everything I care about.

Over at National Review's The Corner, Jonah Goldberg is also prepping for a fight, writing that "this is the guy. Cokie Roberts said a senior Demcratic senator has already denounced Alito as a 'rightwing whacko' or words to that effect. Nina Totenberg called him 'filibuster bait.' Even now, Federalist Society and NARAL types are running around town ducking their heads into barber shops and shoe shine parlors, shouting 'It's on! It's on!' Those inside throw down their newspapers, haircuts unfinished, and race to the law libraries ... The seventh seal has been broken, the goat entrails point toward gotterdamerung, it's on."

Presumably if all the fundie wackos get swept up in the rapture, they won't have the votes to break a filibuster.

Does it matter?

Is there an epidemic of anti-Italian discrimination I'm unaware of?

what is your basis for the assumption that he will rule against you on everything you care about?
Every last thing I've read about him?

The idea that an Italian-American nominee is as much a victory for diversity as, say, a Latino or African-American nominee, is laughable at best. Next thing you know, the Irish will be an "ethnic minority" again, too.

what is your basis for the assumption that he will rule against you on everything you care about?

Probably won't on everything, but if I'm not unhappy with a sizable majority of his most important opinions, then the people who are backing him are gonna be really pissed. He's being put up as the fulfillment of the conservative dream. This is more important to them than the presidency.

Neither, really, are the Italians but that's just quibbling.

Effectively, no, there is no mass discrimination policy against Italians, no one seems to care that much these days, but calling them "fully integrated" with white America is a stretch, I mean we're talking large pockets of mostly Italian culture in certain areas of the country only, not really as wide spread as the Germans and Irish and Englishes have done.

Also go fuck yourself with the language thing, most Hispanics and Asians I know speak English. Most even as a first language!

That all being said, wtf? I mean isn't the Scalito joke obvious? It's a combination of their two names, what in the hell. It's not like they're calling him Guido McGuidoface.

Don't worry, my operating assumption is that you are always right.

It's nice that most you know speak English (me too!), but language - and accent - is still a major barrier for Asian and (esp.) Hispanic acceptance in white America.

When was the last time a Papist got lynched?

rasheed and Ally OTM -- the issue of wop-WASP integration w/r/t Alito's nomination is a total non-starter.

Body of work, plz. Ethan, continue.

If he's like Scalia, then his vaunted sharpness and intelligence will be used to come up with plausible 'consitutional principles' tailored to fit the desired outcome.

The problem with this kind of tailoring is that it isn't actually principled at all. If 'state's rights' is the bus going east and you want to go east, then you get on the 'state's rights' bus. If you'd rather go west, you get on the 'federalism' bus. Look at Scalia in Bush v. Gore and you'll see these kind of pseudo-principles at their finest.

This is exactly what conservatives want when they speak of judicial qualifications and fitness for the court. Scalia represents everything that gave Jesuits a bad name.

watch this greasy, garlic-eating wop go straight to hell
http://www.chick.com/tractimages38973/0082/0082_12.gif

xpost re the "tailoring": right, which is why these guys are just as "activist" as anyone else, and their pretense that they're defending some constitutional purity is offensively disingenuous.

Oh, sorry, a REAL Jack Chick tract. I know he speaks for a majority of Americans.

But Sam Alito will suck for years and years.

But this is the best possible scenario for Democrats as well. We now have a vehicle upon which to showcase the differences between us and Republicans, between liberalism and conservatism. This is a golden opportunity, and one wisely denied by Bush and Rove with the Robers and Miers nominations.

This is a gift to Democrats. Katrina, massive budget deficits, and continued economic hardship have proven that Republicans can't govern. Iraq, Plame, and Osama Bin Laden have proven that Republicans can't run an effective foreign policy or protect our nation. Now Scalito, along with Bush's social security debacle, will prove to the American people that conservative ideology doesn't have their best interests at heart.

Not that debates ever really happen anymore, but...

As for Alito, I don't know shit about him other than what everybody's talking about today. I will say that I have learned never to trust media/blog/think-tank portrayals of jurists, regardless of political leanings.

give it a day or two.

also, over at Arthur Silber's (restarted) blog quoting a Salon piece about how the Admin will probably try to push the "reset button" with a successful Nomination and a State of the Union address, just in time for the mid-terms... Hell, they already hold the po-mo ideas about no objective reality, why not?

(That's aimed totally at DK, not at gypsy.)

A dissenting opinion in Planned Parenthood v. Casey), arguing that a Pennsylvania that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems--such as economic constraints, future plans, or the husbands' previously expressed opposition--that may be obviated by discussion prior to the abortion." Chief Justice Rehnquist's dissent from the Supreme Court's 5-4 [corrected] decision striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for Judge Alito's reasoning.

(the 3d circuit opinion isn't on findlaw, which has cases from that circuit no earlier than 1995 or so)

i think that this is a bit more interesting than all of this hoo-haw about "scalito."

ALITO, Circuit Judge, concurring in part and dissenting in part.

I concur in the court's judgment except insofar as it holds that 18 Pa.Cons.Stat.Ann. § 3209 (Supp.1991) (spousal notice) is unconstitutional. I also join all of the court's opinion except for the portions concerning Section 3209 and those interpreting Justice O'Connor's opinion in Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 2949-51, 111 L.Ed.2d 344 (1990), to mean that the two-parent notification requirement without judicial bypass imposed an "undue burden" and was thus required to satisfy strict scrutiny.
*720 I.
As the court suggests, the crux of this case concerns the identification of the constitutional standard that the lower courts must now apply in cases involving laws regulating abortion. For the reasons carefully explained in the court's opinion, I agree that Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and Hodgson changed the law that we are bound to apply and that the test set out in Justice O'Connor's opinions now represents the governing legal standard.
My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O'Connor's two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an "undue burden" must serve a "compelling" state interest. By contrast, a law that does not impose an "undue burden" must simply be "rationally" or "reasonably" related to a "legitimate" state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a "compelling" interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is "rationally related" to a "legitimate" state interest.
Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a "legitimate" interest. See majority opin. at 715, 716. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an "undue burden," and I will therefore turn to that question.
II.
A. Justice O'Connor has explained the meaning of the term "undue burden" in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting), she wrote that "an 'undue burden' has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." She noted that laws held unconstitutional in prior cases involved statutes that "criminalized all abortions except those necessary to save the life of the mother," inhibited " 'the vast majority of abortions after the first 12 weeks,' " or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an "undue burden" would not be created by "a state regulation [that] may 'inhibit' abortions to some degree." Id. She also suggested that there is no undue burden unless a measure has the effect of "substantially limiting access." Id. at 463, 103 S.Ct. at 2509, quoting Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977) (emphasis added in Justice O'Connor's opinion).
Justice O'Connor reiterated the same analysis in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169 (1986). She wrote (id. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting)):
An undue burden would generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree."
*721 She also criticized the majority for taking an approach under which "the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it." Id. 476 U.S. at 829, 106 S.Ct. at 2214 (emphasis added).
Justice O'Connor's application of the undue burden test in several cases further illustrates the meaning of this test. In Hodgson, 110 S.Ct. at 2950-51, Justice O'Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion. Justice O'Connor reached this conclusion despite statistics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of minors from obtaining abortions (id. at 2953-54) (Marshall, J., dissenting) and despite the district court's finding, noted in Justice Marshall's dissent, that the judicial bypass option "so daunted" some minors that they felt compelled to carry to term (id. at 2959, quoting 648 F.Supp. at 763).
Justice O'Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), which required parental notice prior to any abortion on an unemancipated minor. Instead, she has stated that this statute merely inhibited abortions to "some degree." Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting); Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). In dissent in Matheson, Justice Marshall argued that the statute would result in substantial interference with abortions sought by minors. He wrote (450 U.S. at 398, 101 S.Ct. at 1164) (Marshall, J., dissenting) that "the minor may confront physical or emotional abuse, withdrawal of financial support or actual obstruction of the abortion decision." These harms are almost identical to those that the majority in this case attributes to Section 3209. See majority opin. at 711-12. See also Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 505, 103 S.Ct. 2517, 2532, 76 L.Ed.2d 733 (1983) (O'Connor concurring and dissenting) (statute requiring parental consent or judicial authorization "imposes no undue burden").
Finally, Justice O'Connor has concluded that regulations that simply increase the cost of abortions, including regulations that may double the cost, do not create an "undue burden." See Akron, 462 U.S. at 434-35, 103 S.Ct. at 2494-95 (maj. op.); at 466-67, 103 S.Ct. at 2511-12 (O'Connor, J., dissenting). Justice O'Connor reached this conclusion even though it seems clear that such increased costs may well deter some women.
Taken together, Justice O'Connor's opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing "severe limitations," rather than simply inhibiting abortions " 'to some degree' " or inhibiting "some women." Thornburgh, 476 U.S. at 828, 829, 106 S.Ct. at 2213, 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). Furthermore, Justice O'Connor's opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs. Since the laws at issue in those cases had inhibiting effects that almost certainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.
In this case, the plaintiffs, who made a facial attack [FN1] on Section 3209, did not *722 prove that this provision would impose an undue burden. Section 3209 does not create an "absolute obstacle" or give a husband "veto power." Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions.

FN1. Because the plaintiffs made a facial attack on Section 3209, they could not rely on a "worst-case analysis" (Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 2981, 111 L.Ed.2d 405 (1990)) or on proof showing only that the provision would impose an undue burden "under some conceivable set of circumstances" (United States v.

Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)). Thus, proof that the provision would adversely affect an unknown number of women with a particular combination of characteristics could not suffice.

The plaintiffs also failed to carry their burden [FN2] of proving that Section 3209 if enforced would have the kind of broad practical impact needed to establish an "undue burden" under the opinions discussed above. Clearly the plaintiffs did not substantiate the impact of Section 3209 with the degree of analytical rigor that should be demanded before striking down a state statute. Cf. Akron, 462 U.S. at 463, 103 S.Ct. at 2510 (O'Connor, J., dissenting) (citation omitted) (courts should exercise " 'deliberate restraint' " before finding an undue burden " 'in view of the respect that properly should be accorded legislative judgments' "); id. at 465, 103 S.Ct. at 2511.

FN2. In Thornburgh, Justice O'Connor made clear that a party challenging the constitutionality of a statute must bear the burden of proving that the law imposes an undue burden. After arguing strenuously that the case should be sent back to the district court for "additional factual development" (476 U.S. at 827, 106 S.Ct. at 2213 (O'Connor, J.,

dissenting), Justice O'Connor repeatedly stated that the appellees, who were challenging the statute, had the burden of proving that individual statutory provisions would impose an undue burden. She discussed whether "appellees could succeed in making the threshold showing of undue burden" (id. at 831, 106 S.Ct. at 2215), whether "appellees [could] establish that the abortion decision [would be] unduly burdened" (id.), and whether the appellees "could succeed in establishing an undue burden" (id. at 832, 106 S.Ct. at 2216).

At the outset, it is apparent that two factors imposed a low ceiling on any showing that the plaintiffs could have made. First, as the district court found, the "vast majority" of married women voluntarily inform their husbands before seeking an abortion. Planned Parenthood v. Casey, 744 F.Supp. 1323, 1360 (E.D.Pa.1990). Indeed, in the trial testimony on which the district court relied, the plaintiffs' witness stated that in her experience 95% of married women notify their husbands. App. at 701. Second, the overwhelming majority of abortions are sought by unmarried women. [FN3] Thus, it is immediately apparent that Section 3209 cannot affect more than about 5% of married women seeking abortions or an even smaller percentage of all women desiring abortions.

FN3. Since 1973, abortions on unmarried women have consistently exceeded 70% of the national total and at times have surpassed 80%. United States Department of Commerce, Statistical Abstract of the United States 1990 at 71.

The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209. As previously noted, Section 3209 contains four significant exceptions. These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her. If Section 3209 were allowed to take effect, it seems safe to assume that some percentage of the married women seeking abortions without notifying their husbands would qualify for and invoke these exceptions. The record, however, is devoid of evidence showing how many women could or could not invoke an exception.

FN4. The form prepared by the Pennsylvania Department of Health for use in implementing Section 3209 requires a woman to certify that she has not notified her husband "for the following reason(s)...." (744 F.Supp. at 1359). Moreover, a false statement is punishable (as a third degree misdemeanor) only if the woman did not "believe [the statement] to be true" (18 Pa.Cons.Stat.Ann. § 4904(b) (1983)).

Of the potentially affected women who could not invoke an exception, it seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering*723 substantial ill effects. Again, however, the record lacks evidence showing how many women would or would not fall into this category. Thus, the plaintiffs did not even roughly substantiate how many women might be inhibited from obtaining an abortion or otherwise harmed by Section 3209. [FN5] At best, the record shows that Section 3209 would inhibit abortions " 'to some degree' " or that "some women [would] be less likely to choose to have an abortion by virtue of the presence" of Section 3209. Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). [FN6] And even with respect to these women, the plaintiffs did not show that the impact of Section 3209 would be any greater or any different from the impact of the notice requirement upheld in Matheson. Consequently, the plaintiffs failed to prove that Section 3209 would impose an undue burden.

FN5. In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Proving that a woman violated the law due to a false statement concerning one of the exceptions would also be hard. As noted (see footnote 4, supra ), the Commonwealth would have to prove that the woman did not "believe [the statement] to be true" (18 Pa.Cons.Stat.Ann. § 4904(b) (1983)). Consequently, if a woman certified that she did not notify her husband because he was not the father, the Commonwealth would have to prove that she subjectively believed that the husband was the

father. Or, if a woman certified that she did not notify her husband because she had reason to believe that this would lead to the infliction of bodily injury upon her, the Commonwealth would have to prove that the woman subjectively believed that she would not be harmed. It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim.

FN6. The plaintiffs' proof may be separated into five categories. First, they offered testimony that a spousal notification requirement would sometimes delay an abortion or necessitate an extra trip to the abortion provider (see 744 F.Supp. at 1360). But as the majority properly concludes in rejecting identical objections to the 24-hour waiting period required by Section 3205(a) (see majority opin. at 706-07), these potential effects do not amount to an undue burden. See Akron, 462 U.S. at 472-74, 103 S.Ct. at 2515-16 (O'Connor, J., dissenting).

Second, the plaintiffs offered testimony that the exceptions in Section 3209 would not cover a case in which a woman did not want to notify her husband for fear that he would retaliate in some way other than the infliction of bodily injury upon her, such as by subjecting her to

psychological abuse or abusing their children (see 744 F.Supp. at 1360- 62). The plaintiffs, however, do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute.

Third, the plaintiffs introduced general evidence about the problem of spouse abuse (see 744 F.Supp. at 1361). They offered widely varying statistics concerning the dimensions of the problem, as well as evidence that battering occurs in all socioeconomic groups and is sometimes fatal. This proof, while documenting the existence of a broad national problem, provides no basis for any estimate of what is relevant here--the impact of Section 3209.

Fourth, the plaintiffs offered evidence that "mere notification of pregnancy is frequently a flashpoint for battering" (see 744 F.Supp. at 1361). This proof indicates when violence is likely to occur in an abusive marriage but provides no basis for determining how many women would be adversely affected by Section 3209.

Finally, the plaintiffs offered the opinion of one of their witnesses that most battered women would be psychologically incapable of taking advantage of Section 3209's fourth exception, i.e., the exception for cases in which the woman has reason to fear that notification will lead to the

infliction of bodily harm upon her (see 744 F.Supp. at 1363). However, the plaintiffs failed to show how many of the women potentially affected by Section 3209 (married women seeking abortions without notifying their husbands) are victims of battering. Thus, the opinion offered by their expert, even if taken at face value, merely describes the likely behavior of most of the women in a group of unknown size. Clearly, then, this evidence does not show how many women would be inhibited or otherwise harmed by Section 3209. I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women.

Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of *724 this provision is a matter of grave concern. It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent Section 3209 from causing adverse effects by adopting the four exceptions noted above. Whether the legislature's approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards. The first step in this analysis is to determine whether Section 3209 has been shown to create an undue burden under Supreme Court precedent, and for the reasons just explained it seems clear that an undue burden has not been established.
B. This conclusion is not undermined (and may indeed be supported) by the portion of Justice O'Connor's opinion in Hodgson regarding the constitutionality of the two-parent notice requirement without judicial bypass. The majority in this case interprets Justice O'Connor's opinion to mean that this requirement imposed an undue burden and did not serve a "compelling" interest. Majority opin. at 696. I interpret Justice O'Connor's opinion differently. I do not read her opinion to mean that the two-parent notice requirement without judicial bypass constituted an undue burden. Rather, I interpret her opinion to mean that this requirement was unconstitutional because it was not reasonably related to a legitimate state interest. Thus, I do not believe that her opinion (or the Court's holding) supports the majority's conclusion in the present case that the spousal notification requirement in Section 3209 imposes an undue burden.
In Hodgson, Justice Stevens wrote the lead opinion discussing the unconstitutionality of the two-parent notification requirement without judicial bypass, and Justice O'Connor joined most of Justice Stevens' opinion (see 110 S.Ct. at 2949 (O'Connor, J., concurring). Thus, in interpreting Justice O'Connor's position, it is helpful to begin with the relevant portions of Justice Stevens' opinion.
Two portions of Justice Stevens' opinion, Parts III and VII, are most important for present purposes. In Part III, Justice Stevens discussed the applicable constitutional standard. Nowhere in this portion of his opinion (or indeed in any portion of his opinion) did Justice Stevens make reference to "strict," "exacting," or "heightened" scrutiny or any of the terminology associated with that level of review. Instead, he concluded that the statute failed to satisfy even the least demanding standard of review. He wrote (110 S.Ct. at 2937): "Under any analysis, the ... statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests."
In Part VII of his opinion, Justice Stevens explained (id. at 2945) why the two-parent notice requirement did not "reasonably further any legitimate state interest." Thus it seems clear that Justice Stevens' opinion concluded that the two-parent notice requirement without judicial bypass was unconstitutional because it failed some variant of the rational relationship test.
In my view, Justice O'Connor's opinion in Hodgson did not subject this requirement to a more exacting level of scrutiny. Although Justice O'Connor did not join Part III of Justice Stevens' opinion (in which he discussed the general constitutional standard that he applied), Justice O'Connor wrote as follows (110 S.Ct. at 2949-50 (emphasis added)):
It has been my understanding in this area that "[i]f the particular regulation does not 'unduly burde[n]' the fundamental right, ... then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." .... It is with that understanding that I agree with Justice Stevens' statement "that the statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests."
I interpret this to mean that Justice O'Connor agreed with Justice Stevens that the challenged statute should be judged under the rational relationship test. I do not think that she would have expressed general agreement with Justice Stevens' statement of the governing legal standard if she believed that the statute imposed an *725 undue burden and was thus required to satisfy an entirely different legal standard. I also do not think that she would have concluded that the statute created an undue burden without explaining the basis for that conclusion. Moreover, Justice O'Connor joined Part VII of Justice Stevens' opinion, in which, as previously noted, Justice Stevens concluded that the two-parent notice requirement without judicial bypass was not "reasonably" related to any "legitimate interest." I do not think that Justice O'Connor would have joined this portion of Justice Stevens' opinion if her position regarding the constitutionality of the provision was based on a fundamentally different analysis. Thus, I conclude that Justice O'Connor found the two-parent notice statute unconstitutional under the rational relationship test. This must mean either (a) that she did not believe that this requirement constituted an undue burden or (b) that she did not find it necessary to reach that question because she believed that the requirement could not even pass the rational relationship test. In either event, her position in no way undermines my conclusion that Section 3209 has not been shown to create an undue burden. [FN7]

FN7. In the portion of her opinion concluding that the two-parent notification requirement with judicial bypass was constitutional, Justice O'Connor wrote (110 S.Ct. at 2950 (emphasis added)): "In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion." I interpret this statement to mean that a judicial bypass option prevents a consent requirement (which would otherwise amount to an absolute veto) from creating an undue burden. This statement is therefore fully consistent with my view that Justice O'Connor did not find that an undue burden was created by the two-parent

notice requirement without judicial bypass.

III.
Since Section 3209 has not been proven to impose an undue burden, it must serve a "legitimate" (but not necessarily a "compelling") state interest. The majority acknowledges that this provision serves a "legitimate" interest, namely, the state's interest in furthering the husband's interest in the fetus. See majority opin. at 715, 716. I agree with this conclusion, and I do not think that this point requires extended discussion.
The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). The Court's opinions also seem to establish that a husband who is willing to participate in raising a child has a fundamental interest in the child's welfare. Michael H. v. Gerald D., 491 U.S. 110, 123, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1969); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). It follows that a husband has a "legitimate" interest in the welfare of a fetus he has conceived with his wife.
To be sure, the Supreme Court held in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-72, 96 S.Ct. 2831, 2840-43, 49 L.Ed.2d 788 (1976), that a potential father may not be given the legal authority to veto an abortion, and thus the Court apparently held that the potential father's interest was not "compelling." But the Court did not question the legitimacy of this interest. On the contrary, the Court wrote (id. at 69, 96 S.Ct. at 2841 (emphasis added)): "We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying." See also id. at 93, 96 S.Ct. at 2852 (White, J., dissenting) ("A father's interest in having a child--perhaps his only child--may be unmatched by any other interest in his life"). Since a "deep and proper ... interest" appears indistinguishable from a "legitimate" interest, it seems clear that a husband has a "legitimate" interest in the fate of the fetus.
This interest may be legitimately furthered by state legislation. "[S]tatutory regulation of domestic relations [is] an area *726 that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975). See also Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977); Scheinberg v. Smith, 659 F.2d 476, 483-94 (5th Cir.1981). Accordingly, Pennsylvania has a legitimate interest in furthering the husband's interest in the fate of the fetus, as the majority in this case acknowledges.
IV.
The remaining question is whether Section 3209 is "rationally" or "reasonably" related to this interest. Under the rational relationship test, which developed in equal protection cases, "legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality." Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S.Ct. 2376, 2386-87, 69 L.Ed.2d 40 (1981). This test does not permit the invalidation of legislation simply because it is "deemed unwise or unartfully drawn." U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1981). Legislation does not violate this test simply because it produces some adverse effects. Id.; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). As the Court wrote in Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970):
"The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 68- 70 [33 S.Ct. 441, 443, 57 L.Ed. 730 (1913) ]....
... [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.
See also Dallas v. Stanglin, 490 U.S. 19, 25-27, 109 S.Ct. 1591, 1595-96, 104 L.Ed.2d 18 (1989); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3253-54, 87 L.Ed.2d 313 (1985). Rather, "those challenging the legislative judgment must convince the Court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979). See also Hancock Industries v. Schaeffer, 811 F.2d 225, 238 (3d Cir.1987).
Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here. The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems--such as economic constraints, future plans, or the husbands' previously expressed opposition-- that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. "We should not forget that 'legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.' " Akron v. Akron Center For Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O'Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904). Clearly, the plaintiffs have not shown that "the legislative facts on which [the statute] is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." *727 Vance v. Bradley, 440 U.S. at 111, 99 S.Ct. at 949. Thus, Section 3209 is rationally related to a legitimate state interest and may not be invalidated under the Supreme Court's abortion precedents. [FN8]

FN8. The plaintiffs argue that the district court's decision may be affirmed on alternative constitutional grounds not adopted by that court, i.e., that Section 3209 violates the rights to marital and informational privacy and equal protection. Because the majority has relied solely on the abortion right in affirming the district court, I do not address these alternative grounds.

C.A.3 (Pa.),1991.
Planned Parenthood of Southeastern Pennsylvania v. Casey
947 F.2d 682

My unwillingness to read a fraction of that is probably one of several reasons I'm not a lawyer. Is it interesting stuff?

wtf

I'm going to suggest that Casey/Roe is not in any real danger unless they get one more vote. Kennedy is the swing vote--he switched sides in Carhart over something akin to this very issue. But on the big nut--whether the Constitution contains a right to privacy that encompasses the right to choose--Kennedy's a solid vote. That means that in order to really cut back on the right to choose that Alito will have to vote against the interpretation of "undue burden" that is described in Casey and Carhart. Given this dissent and what appears to be his interpretation of Carhart from that clip of Ethan's above, I think he's unlikely to go too far down that road for fear of looking like an idiot.

That's probably overoptimistic, though.

(xpost)

(xpost)

xpost ned, it seems to be more true now than ever, although that may be my personal disaffection talking

short primer -- the Commerce Clause is the constitutional hook upon which much Congressional legislation has hinged, and which the Rehnquist Court (in the Lopez case) has scaled back.

The question before us is therefore whether the spousal notification requirement rationally furthers any legitimate state interests. We conclude that it does. First, a husband's interests in procreation within marriage and in the potential life of his unborn child are certainly substantial ones. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 69 ("We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying"); id., at 93 (WHITE, J., concurring in part and dissenting in part); Skinner v. Oklahoma ex rel. Williamson, 316 U.S., at 541 . The State itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse's intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him. This participation might in some cases result in a decision to proceed with the pregnancy. As Judge Alito observed in his dissent below, [t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed [505 U.S. 833, 975] opposition - that may be obviated by discussion prior to the abortion. 947 F.2d, at 726 (opinion concurring in part and dissenting in part).

The State also has a legitimate interest in promoting "the integrity of the marital relationship." 18 Pa.Cons.Stat. 3209(a) (1990). This Court has previously recognized "the importance of the marital relationship in our society." Planned Parenthood of Central Mo. v. Danforth, supra, at 69. In our view, the spousal notice requirement is a rational attempt by the State to improve truthful communication between spouses and encourage collaborative decisionmaking, and thereby fosters marital integrity. See Labine v. Vincent, 401 U.S. 532, 538 (1971) ("[T]he power to make rules to establish, protect, and strengthen family life" is committed to the state legislatures). Petitioners argue that the notification requirement does not further any such interest; they assert that the majority of wives already notify their husbands of their abortion decisions, and the remainder have excellent reasons for keeping their decisions a secret. In the first case, they argue, the law is unnecessary, and in the second case it will only serve to foster marital discord and threats of harm. Thus, petitioners see the law as a totally irrational means of furthering whatever legitimate interest the State might have. But, in our view, it is unrealistic to assume that every husband-wife relationship is either (1) so perfect that this type of truthful and important communication will take place as a matter of course, or (2) so imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife. See Planned Parenthood of Central Mo. v. Danforth, supra, at 103-104 (STEVENS, J., concurring in part and dissenting in part) (making a similar point in the context of a parental consent statute). The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but the existence of particular cases in which a feature of a statute performs no function (or is even counterproductive) [505 U.S. 833, 976] ordinarily does not render the statute unconstitutional or even constitutionally suspect. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 800 (WHITE, J., dissenting). The Pennsylvania Legislature was in a position to weigh the likely benefits of the provision against its likely adverse effects, and presumably concluded, on balance, that the provision would be beneficial. Whether this was a wise decision or not, we cannot say that it was irrational. We therefore conclude that the spousal notice provision comports with the Constitution. See Harris v. McRae, 448 U.S., at 325 -326 ("It is not the mission of this Court or any other to decide whether the balance of competing interests . . . is wise social policy").

Beat all ya like! Just as long as you stay married!

that's an understatement.

the idea that opposition to Alito on the basis of ethnicity is racist is a shell game designed (in typical Rovian weakness-into-strength fashion) to go on the offensive before beign attacked for replacing the second woman on the court with the second Italian-American man.

but if he was dissenting with breyer and souter im cool with that

what do you have against breyer and souter, ethan?

"In addition, as I explain below, 18 U.S.C. section 922(o) might be sustainable in its current form if Congress made
findings that the purely intrastate possession of machine guns
has a substantial effect on interstate commerce or if Congress or
the Executive assembled empirical evidence documenting such a
link. If, as the government and the majority baldly insist, the
purely intrastate possession of machine guns has such an effect,
these steps are not too much to demand to protect our system of
constitutional federalism."

(xpost)

which of course is the similar shell game designed (in typical faux-moral pontificating by minority leadership) that somehow O'Connor's replacement should be similar to her, either by gender or political standards.

I'll share my one amusing Sam Alito story. When he left the U.S. Attorney's Office for the Third Circuit, those of us in the Appeals Division decided to give him a going-away present. You know those office ink-pad stamps that say "CANCELLED" or "DRAFT" or "RECEIVED" or whatever? We had one made that said "AFFIRMED," to make Sam's job in criminal appeals that much easier. A little prosecutor's in-joke, you know?

A few months later, an unmarked envelope arrived for us in the Appeals Division. Inside was a slip opinion of the first criminal appeal Judge Alito had heard, with the word "AFFIRMED" stamped about 20 times all over the front page.

WRONG. (with examples)

Now: Gay marriage is happening, but it freaks some people out
Then: Gay what? hahahaha

Now: Women are underrepresented among the CEO ranks
1980: Why the hell is this coffee pot empty?

Now: We need to root out race bias wherever it rears its ugly head, and always be vigilant against subtle, ingrained institutional, cultural, and attitudinal biases.
1980: We need to hire a black guy.

Intolerance and discrimination obstruct the smooth, predictable, and maximally profitable quarterly operation of multinational corporations.

If you think people aren't still saying "We need to hire a black guy," you are massively deluded.

xpost hah trife otm

By the way, I know this is something that hip econ and business majors tell themselves to justify their libertarianism, but it has always been and remains a load of utter crap. There are multinational corporations, hell entire areas of commerce, that depend upon keeping nonwhite populations subjugated.

From Reason's hit and run

I had in mind James Watt's classic "a black, a woman, two Jews and a cripple" zinger (1983). I would indeed be loco if I wanted to argue that workplace discrimination had become a non-issue, but I'm only interested in mixing it up over this if you honestly think things have gotten worse since the early 80s.

damn simultaneous posts!

walter obv. not the asshat in question

J, I didn't say anything about not preying on the powerless.

But it's a crime of opportunity, not bias. Multinationals are just as happy to fux0r white populations (Eastern Europe, Russia, Love Canal), but they're also best served if it's a diverse, meritocratic group of corporate managers doing the fux0ring.

Per Marx/Engels, the ruling ideology will always be the one that best serves the ruling class. In this case, the ruling class is best served if it's a diverse, meritocratic group doing the fux0ring. The presence of collateral social good should not be taken as an index of the corporation's social mission. It has none beyond returning value to shareholders.

I wasn't in the workplace in the early 80s so I don't know. I do know that I can count the number of black people I have worked directly with during the ten years of my professional career on one hand.

well, there's still dudes kissin'. that worked last time.

one would think so, and he is ostensibly at the head of it. Or at least, that's how the narrative goes...

http://cache.boston.com/images/bostondirtdogs//Headline_Archives/KR_12.8.jpg

http://www.thousandrobots.com/blog/files/palpatine_02.jpg

I do not believe that there is any evidence to back up this statement.

no, it's expressive of principles, the leading one of which is probably that the composition of the court by identity factors should be at least vaguely reflective of that of the society (in which woman are the majority), or at least of that of the subclass of lawyers (of which women make up nearly 1/3)

http://www.fortune.com/fortune/blackpower/0,15274,,00.html

- the Boards of Directors reponsible for CEO hires don't represent the ruling class?
- the executives listed on that list are any less ruthless than they are dynamic and polished?

If so, you win by forfeit.

The point about Miers was she had neither the resume nor the demonstrated chops to justify going forward with the philosophy question.

Good ol' Karl has had other things on his mind of late. I would be very surprised to learn that Miers was his choice.

The NBA needs this too. The owners are all about winning and making money and about getting the "best" players but if they got stop the greed for winning I know I'd go to more games if there were more players who look like I do (white). I think the NBA would get a cleaner image and would be more fan friendly if it wasn't all filled with tall black men who can run fast. Anybody with me here? Could definitely benefit for looking more like America imo. Remember when Jewish players were the stars? Jewish people making millions of dollars "looks more like America" to me LOL right guyz?

xpost

"identity factors" is so nebulous it makes me think you are joking, gabb.

Although it does kind of warm my tummy knowing that having a uterus and passing the bar is a "leading principle" in some circles.

Brigham Young University has a basketball team. They're terrible.

Although it does kind of warm my tummy knowing that having a uterus and passing the bar is a "leading principle" in some circles

it's even good for reduced partnership prospects!

Much like this thread.

Well, your first quote was this: "Intolerance and discrimination obstruct the smooth, predictable, and maximally profitable quarterly operation of multinational corporations."

I think that's a crock of shit, for the reason that by your own logic, corporations follow culture, and in no culture no where are intolerance and discrimination nonissues. Hence in the U.S. things like "we've got to hire a black guy," class action sexual discrimination lawsuits and so-called "reverse-discrimination" lawsuits are still pervasive. By your argument, they shouldn't be.

Your second quote was that "the ruling class is best served if it's a diverse, meritocratic group doing the fux0ring." Once again, I think the evidence to back this up is lacking. The fact that you can point to the existence of black CEO's and domestic partner benefits doesn't cut it. All we can say is that the interests of the ruling class are currently being served by those things; we can't say that they are the best way to serve them, or even that they're being served particularly well.

I don't buy that the Meiers nomination was any sort of Rovian gambit or underhanded political chess move. Putting any nomination out there and having them forced to withdraw is a slap in the face and loss of political capital for Bush. It will only make it easier for opponents to challenge Bush on future issues and make the base more restive and Bush's allies more nervous.

I think the only possible explanation for the Meier's nomination is that it shows the extent to which cronyism dominates Bush's political decision-making. As the scion of a successful political dynasty, Bush is well aware of the value of having friends in high places. You never know when having a hand-picked lieutenant who owes you big-time on the Supreme Court may come in handy to the Bush family and its allies. As someone who owes his first term to a Supreme Court ruling, Bush is surely well aware of this. Alito may be well-qualified, but he is not a personal friend of Bush.

xpost

I think the only possible explanation for the Miers nomination was so they could withdraw it later and nominate someone else and further distract the media from talking about Plamegate. Oh, and also insulate themselves from attacks based upon gender bias.

Not exactly. The timing did work out quite nicely for the administration. Friday is the day you typically send out your bad news because nobody is paying attention and they forget about it over the weekend while Monday is when you want to announce good news so that it dominates the discussion during the week. In that sense the Libby indictment -> Alito nomination was timed perfectly.

Not that I think the Miers nomination was devised specifically for that outcome but they obviously made the most of the situation.

Nobody in DC purposely wastes political capital the way Bush did with Miers.

Yeah, but Bush's people didn't have anything to do with the timing of the Libby indictment announcement - that was the special prosecutor's doing.

"I am a sellout" vs "A litmus aloe"

But thanks for clarifying that, just so we're all on the same page. It's good you did that.

How much emphasis will(should?) be placed on the guy's support for letting the Executive Branch run wild, as the linked-to author recommends, as opposed the usual stuff(e.g. abortion)? Will it help that the same committee who'll be grilling the guy will also be holding NSA/Pentagon/wiretap hearings?

I dunno, if you know there's going to be a fight, you might as well put up someone you know is going to lose, let the media/public tire of the issue, and then try to rush your favorite guy in behind them. Some speculated Bush would pick someone really unpleasant first, lose, and then pick someone just as right-wing but more warm and fuzzy-seeming, hoping that pressure would build on Democrats to just confirm someone already. Miers had the same advantages - she wasn't going anywhere, but could drag the issue out - without the disadvantage - she wasn't unpleasant enough to allow the Dems to try to paint the next guy with the same brush.

from the WSJ.

...The three ministers insisted they weren't taking sides in the Alito debate. "This is not a pro-Alito prayer," insisted the Rev. Patrick Mahoney, director of the Christian Defense Coalition. With abortion, public prayer, gay marriage and right-to-life issues among those topping public debate, however, "God...is interested in what goes on" in the nomination hearing, Rev. Schenck said.

The two men, along with Grace Nwachukwu, general manager of a group called Faith and Action, read three Psalms outside the committee room, knelt to say the Lord's Prayer and marked a cross in oil on the committee door before leaving.

Rev. Schenck said he and Rev. Mahoney had blessed the same room before hearings for Chief Justice John Roberts last year. That hearing "went very well," Rev. Schenck said...

WASHINGTON (Reuters) - Christian conservative leader Rev. Jerry Falwell said on Sunday that confirming Federal Appeals Court judge Samuel Alito to the U.S. Supreme Court would be the biggest victory for his constituency in three decades.

"What we've worked on for 30 years, to mobilize people of faith and value in this country, what we've done through these years is coming to culmination right now," Falwell said at a rally on the eve of Alito's confirmation hearing.

"Now we're looking at what we really started on 30 years ago, reconstruction of a court system gone awry," Falwell said at a rally at a Baptist church in Philadelphia and broadcast on Christian radio and television.

"There could be a reconstruction of the U.S. Supreme Court in our immediate lifetime," said Falwell...

if they are, then so is the entire legal community

or maybe people are thinking of this guy...

http://www.ukar.org/temp/ito01.jpg

Alito falters on CAP, and Specter and Kennedy explode

Ted Kennedy and Arlen Specter just came to blows, at least of the verbal kind, over Kennedy's attempt to obtain more information about Samuel Alito's involvement in the conservative group Concerned Alumni of Princeton.

In his 1985 application for a political appointment in Ronald Reagan's Justice Department, Alito called attention to his membership in the group as a way to bolster his conservative bona fides. "As a federal employee subject to the Hatch Act for nearly a decade, I have been unable to take a role in partisan politics," Alito wrote then. "However, I am a lifelong registered Republican and have made the sort of modest political contributions that a federal employee can afford to make to Republican candidates and conservative causes ... I am a member of the Federalist Society for Law and Public Policy and a member of the Concerned Alumni of Princeton University, a conservative alumni group."

In testimony before the Senate Judiciary Committee Tuesday, Alito said that he had "racked" his memory about CAP and has "no specific recollection of that organization." Kennedy served a reminder on Alito today, reading him excerpts from a CAP publication in which authors railed against minorities who demand to be hired simply because they're minorities and suggested that members of a gay-rights group at Princeton volunteer for scientific experiments that had been carried out on monkeys.

Alito said he wasn't familiar with such writings and didn't agree with the views expressed in them. So why did Alito join CAP, and why was he so proud of his membership that he listed it on his job application in 1985? Alito said Tuesday that he probably joined CAP "around" the time he completed his job application, and he probably did so out of concern over Princeton's decision to bar ROTC from its campus. But Kennedy pointed out that ROTC was back on campus at Princeton long before the mid-1980s -- and didn't seem to be much of an issue for CAP at that time.

Alito didn't have much in the way of answers to any of that, and Kennedy -- saying that Alito's testimony didn't "add up" -- suggested that the Judiciary Committee go into executive session to decide whether to subpoena documents about CAP. Specter responded with sudden anger, saying that Kennedy had never raised the issue with him before. Kennedy said that he sent Specter a letter on Dec. 22 in which he asked that the committee seek such documents. Specter suggested that he'd never received it.

Kennedy said he would appeal Specter's refusal to entertain a motion to subpoena the documents and would do so again and again and again until Specter acted. Specter shot back that he hadn't ruled against anything yet, then reminded Kennedy that he's not in charge. "I'm not going to have you run this committee," Specter said.

Specter eventually gaveled the conversation to a close, but Kennedy got the last word, for now: Just as the committee broke for lunch, he established that Specter's office had, in fact, received his request by introducing into the Congressional Record a copy of the letter it had sent in response.

At a press briefing a few minutes later, Kennedy made it clear that the letter from Specter's office had, in fact, rejected his request that the committee subpoena the CAP documents. He added: "It's extraordinary to me that this nominee can remember all 67 of his dissents in great, great detail, but he's still mystified about an organization that he used in his job application."

Update: The Specter-Kennedy dust-up ultimately seems to have been much ado about very little. In this afternoon's hearing session, Specter said his staff has followed up with the man who holds the records in question, and that he's happy to turn them over to the committee without the need for a subpoena.

-- Tim Grieve

Maybe the fight over that will happen while the Scooter/Fitz/Delay/Frist investigations & trials are going on

A new tactic might be Teddy's stellar academic career or history of beating raps, but as we like to say around the old news desk, "If it bleeds, it leads."

this is awesome in movie announcer voice

or did I miss him?

Entire list of things that most conservatives find hilariously funny:

1. Ted Kennedy's tragic life of failing upward (because, of course, it distracts from idiots like Bush, Quayle, et al)
2. Feminists
3. Environmentalists

When your list is this short, words like homocidal tend to never lose their staying power.

I remember reading in Bruce Bawer's *A Place at the Table* about this bizarre-ass "comic" story printed in the *Weekly Standard* that compared the heads of gay men at gay pride parades to the various kinds of squash (ie the vegetable).

Not really sure how this explains a straight man's (stereotypical) lust of hot girl-on-girl action though.

Also, his eyes creep me out. Like Cillian Murphy's.

"As a matter of pride, if not terminological exactitude, the homosexual community should have a fresh designation, unsullied by the past and emblematic of some genuine characteristic of homosexual life. Homosexuals need not endure slur terms but should be given an attractive appellation that pleases them and represents them as they are. I think we can all agree that the word squash is such a word. Cephalic indices and empirical observations of homosexuals at public demonstrations and on Halloween night in San Francisco have established that many homosexuals develop heads shaped very much like squash (Curubita maxima). Youthful, nicely-muscled homosexuals often have heads shaped like the well-known butternut squash, best served plain or with butter. Homosexuals less favored by nature frequently have heads reminiscent of the squat acorn squash, which is even tastier than the butternut, particularly when braised in brown sugar...Let us henceforth speak of our homosexuals as squashes. Let the universities hold their Squash Rights Week. And let us accord proper respect to the Squash Community."

Worthy of Martha Stewart.

http://www.wonkette.com/politics/alito-shot.jpg/alito-shot.jpg
http://www.wonkette.com/politics/brand2.jpg/brand2.jpg

Rachel Brand
The USA PATRIOT Act is a very important piece of legislation that Senators and Representatives came together to pass shortly after the horrific attacks of September 11, 2001. With this bill, Congress gave law enforcement (such as police officers and prosecutors) and national security investigators additional tools to protect Americans from harm. One thing the bill did was try to make sure that people going after terrorists and spies could use the same tools as people going after mobsters and drug dealers, which was not always the case before September 11. The bill also tried to make sure that the law was keeping up with the amazing changes in technology that have happened. The bill also tore down the so-called “wall” that prevented some FBI agents from sharing information with other FBI agents, even if they were all investigating Osama bin Laden. For the last four years, the USA PATRIOT Act has formed a cornerstone of this Administration’s efforts to protect Americans and our civil liberties. We are proud of our record over the last four years.

Check and Balances to Martha-Ann: BOO FUCKING HOO

But it no doubt will be made illegal in 30 or so states the day after Roe v Wade is overturned. This could be a galvanizing force for Democrats in the same way the opposite has been a galvanizing force for conservatives for the last 33 years.

With all due respect, I can't picture 500 far-lefties lying down in the streets of Wichita to legalize abortion.

Keep making stuff like that happen, Teddy the K. The Repubs will thank you when Alito gets 60+ votes.:

Er, it sort of has been the galvanizing force for the center-left in recent years - the threat of Roe being overturned, that is. It's certainly been the issue by far and away in front of many, many others, as well the cash cow for some of the larger organizations. Both sides use it to be sure.

Tom Coburn was going on about this yesterday, saying how "well you're twice as likely to use drugs if you have an abortion" etc

Ewwwwaaahhh ... the name alone inspires dread

in other news, i like this op-ed about the attacks on Knight-Ridder when they tried to portray Alito as conservative, but i would take issue with this bit:

...On the radio, on the Internet, on cable television and in print, partisans on both sides attack any news reporting that fails to advance their agendas or confirm their biases. Zealous partisans in both major parties have adopted a "with us or against us" attitude. It's not only unhealthy but also, I believe, dangerous...

Of course, the Democrats held a majority in the Senate back then, so a filibuster would've been unnecessary.

A president is allowed a certain amount of discretion when nominating someone for SCOTUS. It doesn't particular bother me that he's a "far-right wingnut." I didn't expect Clinton to nominate anyone but a far-left wingnut in Ruth Bader Ginsberg (and I'm not calling Clinton a far-left wingnut).

So Alito won't answer questions. Boo fucking hoo. Breyer, Roberts, Souter, and Ginsberg didn't either, which should tell you something about the absurdity of holding hearings. Sixty years ago these things were debated before the whole Senate and were probably less a waste of intellectual energy. To hear the likes of Coburn, Lindsay Graham, Kennedy, Biden, and Brownback sound less cogent than the hack before them does the American political system no favors.

uh, you do know how she was nominated, right?

So let's not get all sanctimonious about Clinton taking Hatch's advice.

Joe Biden was Committee chair.

Bleh. Why should we need a guarantee? The direction of the court shifts depending upon the president appointing its justices. Besides, Kennedy and Souter showed that they could morph beyond what their supporters (and their own statements, mind you) expected.

Although I really don't think your point says much about anything until a Democrat on the Judiciary Committee comes forth with a list of right-wing judges that Democrats in the Senate would have supported en masse instead of Alito.

Also,

a Democrat on the Judiciary Committee comes forth with a list of right-wing judges

dude, they did. A coupla times, wasn't? This was all going on late last summer when there were the Admin headfakes that a latino women might be nominated.

On a different note, are there ANY "far-left wingnuts" actually in public office right now? I mean folks who are open Maoists or something, calling for the govt to own all means of production, etc. Or is that just the usual "deliberately paint your opponents as whackos" kinda thing?

-First, John Podesta wrote this bit last May, when all the filibuster noise was going on, about an idea that Robert Byrd & Arlen Specter proposed in 1997:

...that the White House and the bipartisan leadership of the Senate enter into a formal consultative process that would yield a list of nominees who are broadly acceptable to both sides.

-The Moonie Times later complained that the list submitted by Democratic Leaders in July was bullshit and "a setup".

-A bit here from October about Harriet Miers probably being on that list. We all remember Harry Reid & Dick Durbin being all-a-smiles and openly supportive of her nom, right?

GRRRRR a latino women => woman, obv

Their anatomy is our destiny.

Only on a Supreme Court with Scalia and Thomas, can anyone see Kennedy's decisionmaking as morphing. Thomas has not morphed and I do not expect Alito to morph.

sorry.

"It seems pretty clear that, if they are still serious about trying to defeat a candidate who has made it seem very likely that he will vote in favor of the democracy-destroying constitutional coup d'etat being attempted by Bush, Cheney, Yoo and the rest of those traitors to the American Constitution, then the Democrats had better try Allard Loewenstein's principle that you can't beat somebody with nobody. The Democrats had better make clear that there are lots of moderate Republicans for whom they would willingly and gladly vote, and that Specter is an immediately available example of this willingness."

http://counterpunch.org/velvel01132006.html

Meanwhile, a filibuster is looking more and more unlikely. Or maybe the Reid Revolution is just playing some kickass poker.

Our new Bush-appointed Chief Justice John Roberts just sided with Justices Scalia and Thomas in a minority opinion upholding ex-AG Ashcroft's assertion that the feds could shut down Oregon's assisted suicide law, because they can regulate "dangerous drugs" any way they damn well please. There's no possible doubt that a Justice Alito would form a fourth leg of this growing voting bloc.

Oddly, it used to be that upholding states' rights against federal hegemony was considered a conservative position. Nowadays, "conservative" justices swing both ways, based on whatever the religious right declares is Fealty to God's Will.

In these arguments they have scorned in choice language the very idea that this clause grants the Congress sweeping powers over aspects of national life that have only a marginal connection to "commerce" between the states. They also have rejected as flawed the reasoning of earlier Supreme Court opinions that extended these powers and set the precedents for wider Congressional powers.

Of course, this principled philosophical stance of Scalia and Thomas is highly fungible in, um, certain kinds of cases - like this one, for example. Suddenly, their strongly expressed scorn for others who used this reasoning has no discernable effect on their ability to employ it for their own purposes, when this type of reasoning becomes convenient and can be stretched into a shape they find pleasing. And they have no compunction in extending this theory of federal power to wholly new and novel applications when it serves a political agenda they approve.

I perfectly recognize that many, many justices can be arraigned for this tendency, but few of those other justices have posed and postured so hypocritically as Scalia and Thomas have in this regard.

their dissent is in line with the Court's ruling last year

Of which ruling are you thinking? The Ninth Appeals Court ruling last year was based on solid precedents against applying this legal theory in this context. Six SC justices just affirmed this ruling was correct.

Lierberman, nay

Jeffords, nay

xp: Lieberman is a traitor! Byrd is an anti-war hero!

blount, I'm just following up on this link from this thread.

but to answer your question, no.

http://www.johnkerry.com/action/filibuster/

yeah, he's going to try to, apparently, but it's not going to get very far - the dems don't have the votes to continue debate

If anyone is actually surprised by how this has turned out, I'd be surprised.

And the point made would be that the Democrats were not just too weak to defeat the Republicans, but also too afraid of being beaten up to stand up for their rights.

Lieberman, who was supposedly on board or at least on the fence, is apparently going to vote for cloture now.

Thing is, I don't think that Senator Pryor feels this way.

please. Rove wants Chafee to vote no.

And the GOP choosing a non-maniac for its 2008 nomination would be sweet. Doesn't mean I'll vote for him/her, but at least we won't have a maniac in one way or the other.

Real impressive Democratic show of force there, guys.

They didn't bring it when it counted.

Was there any chance that Bush would've pulled the nomination with a majority of the senate ready to vote in favor? No.

Would a filibuster seemed to most Americans like Democrats were "obstructing the process" again? Probably.

Will Bush's next nominee make Alito look like Roberts? No doubt.

"Justice Samuel Alito said Tuesday that the leak of his draft opinion to overturn Roe v. Wade made his colleagues in the majority on the U.S. Supreme Court 'targets for assassination.' "

BY ANN E. MARIMOWTHE WASHINGTON POST

How is the leak what caused this and not the opinion/ruling itself

How is the leak what caused this and not the opinion/ruling itself

His reasoning on this is pure Alito, iow, badly flawed.

He said that by leaking his horrific opinion before it was ratified by a majority and issued from the bench, it provided a "rational" motive to kill some member of the court who would presumably join in that majority, thus forestalling it. Which presumes that potential assassins would shrug and accept the court's ruling because it was a done deal and there'd no longer be any point to an assassination, rather than someone becoming sufficiently enraged at the majority to kill one of them for their duly recorded crime against the nation.

Was Alito expecting that his opinion would be leaked?
Is he aware that he is delegitimizing the court?

He did not anticipate it being leaked. It came as a surprise to him.

Alito does not consider anything he does to have even the slightest trace of illegitimacy and anyone who disagrees with his jurisprudence is simply wrong.

Again, the thought that a pro-lifer may have leaked the opinion is completely beyond their imagination.

No one is above the law - except the Supreme Court

Can't believe Thomas hasn't stepped down considering his wife's crazy acts

I can believe it.

No one is above the law - except the Supreme Court

SCOTUS justices are subject to impeachment and removal just like all those presidents we've impeached and removed from office.

"The only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives passed Articles of Impeachment against him; however, he was acquitted by the Senate."

https://www.supremecourt.gov/about/faq_general.aspx#:~:text=The%20only%20Justice%20to%20be,Have%20there%20always%20been%20nine%3F

Another Samuel!