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Monday, October 31, 2005

Bush Nominates Alito: Is Third Time a Charm?

President Bush has nominated Samuel Alito, judge of the 3rd Circuit, to the US Supreme Court. Alito is the third nominee to be named to replace Justice Sandra Day O'Connor.

Alito is 55, was a selection for the Federal bench from Bush I, and had previously served as a US Attorney in New Jersey. He also previously served as assistant to the Solicitor General, Rex Lee, during the early years of the Regan Administration and (this should give you a cold shiver) was deputy assitant Attorney General to Edwin Meese.

He is a Princeton undergrad, and a Yale Law grad, and a proud member of the Federalist Society. His nickname is "Scalito," because of his similarity in approach to the law to Justice Antonin Scalito. (Yep, more cold shivers here.)

To earn the nickname, "Scalito" wrote the sole dissent in the Casey case, recommending that women should have to notify their husbands that they planned to get an abortion. Because, well, you know, husbands ought to have complete and total veto power over that sort of thing and clearly because we can't trust women to talk with their husbands about one of the the most wrenching decisions of their lives. I mean, who cares if the woman is in a very abusive relationship and the preganancy occurred as a result of a rape that she had been keeping from her abusive husband?

Why is it that Republicans preach non-stop about making government smaller and the thing they most want to do is stick their noses directly into the most personal part of our lives?

I mean, honestly, is it at all possible that a woman and a man who live together as husband and wife wouldn't talk about this sort of thing if the relationship is safe and solid? Hell, my husband worries about me if I've had a bad day from a slight headache.

UPDATE: I'm putting this update in here, to be sure it gets read in context. Reader J.B. pointed out to me that there was a clear exception for abusive situations in Casey that I missed in my quick read-through this morning (toddler blogging will do that to you, sometimes). I wanted that to be clear, since I don't want people opposing this nomination on grounds that don't hold water, when there are so many which do.

Additionally, the WaPo has quotes pulled from the Casey dissent that are illuminating about Alito's reasoning, and I wanted to add them in here.

"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," he wrote.

"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," he wrote, "the legislature could have reasonably concluded that Section 3209 [the spousal provision] 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. . . . 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. "
That's a lot of presumptions and assumptions on what the Legislature was or was not thinking for a judge who is promoted as a conservative one. And it is certainly illuminating that the husband's interest was a driving factor for him in this dissent. How does that square with balancing the wife's considerations? No idea at this point, but I'd sure as hell be asking him were I a Senator.

I'm worried about this nomination. I'll wait for hearings, give the man a chance to explain himself on the Casey dissent, and on other issues. I'm slightly cheered by the fact that some of his other opinions and dissents appear to show that he has an independent streak along libertarian lines, but when you are moving up from seriously disgusted, a little cheer does not go a long way.

We'll see.

The fact that Gary Bauer is on CNN talking about how Alito will not rule in favor of same sex marriage, which most Americans oppose (Um, hello?!? Maybe the Americans you invite over for potluck, but don't be painting all of the rest of us with your closed-minded brush. Some of us like to be tolerant and supportive of our friends in long--term relationships, no matter the gender of their partner.), is not helping my opinion. (Personally, I haven't been able to listen to Gary Bauer with a straight face since he fell off that platform at that pancake breakfast during the primaries. Now THAT was funny.)

And here's a nifty fact, Alito is married to a librarian, just like the Preznit. "You can't go wrong married to a librarian," Bushie said this morning. Heh. Heh. (My hubby said this morning, "Do you think that nominees hope that Bush will be sick and Dick Cheney will have to fill in for the public announcement? This is painful." Mwahahaha. Had to share that one.)

In any case, the hearings should be a bumpy ride for Alito. He's very conservative, but not quite as bad as Luttig would have been, for my money. I have a lot of questions, will review some opinions in more depth, and get back to everyone on this one.

My thought? If Bush wanted a fight, he's likely to get one on this nomination. Consensus choice? Erm...not so much.

I'm just hoping there isn't some cache of mash notes again. Blergh...that was just painful reading for everyone.

UPDATE: TalkLeft has more, and none of it is good.

UPDATE #2: The WaPo has its initial article up on the Alito nomination. Keep an eye on their Supreme Court blog, which will update continuously. WaPo has been doing a fantastic job with this, in terms of keeping up with all the statements, allegations, etc., as they hit the wires.

UPDATE #3: Reader Craig points to this great article on analyzing the Alito nomination by comparison to O'Connor. Great stuff and well worth the read.