Hatch and Brownback spoke right out.

Have we heard from Snowe, Chafee or Collins?

Specter?

It's not like there's a lot of doubt about this nominee, or his positions. Have they no comment? 

Collins does not have a statement out.

Here's Snowe's, via email from her DC office:

“As the Senate begins considering this nomination, I will be in close contact with my Senate colleagues, including our group of fourteen senators who brokered the compromise earlier this year to move us past a deadlock on judicial nominees."

I've done a little bit of research on Alito, note:
http://en.wikipedia.org/wiki/Samuel_A._Alito,_Jr.#Case_history

which shows some of his cases and opinions.  I also spoke with a lawyer friend of mine (a staunch liberal) who said Alito is a very well respected judge among his peers, conservative, yes, but not a "whacko" and not as skeevy as Scalia.

I think it is important, not for political reasons, but to provide a quick and urgently needed antidote to the Rovian poison that is trying once again to inject itself into our body politic, to look at the candidate without preconception, as an individual.

This view was further reinforced to me when I watched Fitzgerald's press conference.  Granted, he is a prosecutor and not a politician, two very different jobs.  But he spoke of facts and used reasoning based on an excellent understanding of the case.  He didn't disrespect anyone or tell anyone what to think.  He did his job.

Let's hope our Democratic representatives in the Senate do the same.  Yes, this is a political tactic by Bush and Rove, who would like nothing better than for all those who oppose them to go wild and irrational with anger.  But their tactics should not goad us into smearing and misrepresenting Alita.  I've already seen some of Alita's opions being taken out of context, and that is not the way to go, as far as I'm concerned -- using Rovian tactics are not good for anyone and certainly not good for America.

If we are to have a real ideological discourse in the halls of the Senate, let it be with the view towards uniting Americans, not dividing them.

If Bush resents the religious right embarrassing him over the Miers nomination, then sending one of theirs to the Senate and watching him get eaten up would be payback.

The objections to this theory would be: first, Bush isn't smart enough to think three moves ahead like this, and the people around him who are smart enough don't share his sense of injury; second, sending Janice Rogers Brown, or someone similarly off the hook, would achieve this end more.

But at the very least, you have to guess that Bush (and his circle) feel at least some ambivalence towards the religious right, and thus the fight they put up for Alito might be less than total.

Ummmm.... is there any legality or practical consideration that would prevent Sandra Day O'Connor from withdrawing her resignation? How could Bush refuse? I think somebody needs to talk with her about it - she just needs to hang on for a few more years.

http://www.hairytruth.blogspot.com 

Nightprowlkitty

Would you know if Alito has expressed his views as to where either the American government gets its power or Americans get our rights?  Scalia's Augustanian view that government gets its power from God is rather unnerving.

You said:

The substantive opposition should be tied to Roe, it seems to me -- although lots of Alito's other opinions are, as is appropriate for Halloween, waay scaarrry, it is the real spectre that he will rule to allow the outlawing of abortion that could mobilize swing voters enough to provide enough incentive for "moderate" Republicans to vote against Bush's nominee.

I don't know how much I would stake the argument against Scalito on the right to choose. While that does seem to be the one issue on which the dems clearly contrast with the Repubs, it doesn't seem like the best strategy to me.

First, since this appointment was made by the 18th century women for 21st century america (or whatever the else they call themselves), dems should remove the pro-choice groups from an easily ignored "pro-lifers vs. pro-choicers" script. By taking Naral et. al out of the front of the attack, we can hopefully avoid that frame (which is bad for the overall picture). I, for one, would like to see an argument advanced that puts the question "why should a fringe radical group of Americans get their own justice when most of america feels they are not represented by the government?" front and center.

Daniel, I don't know the answer to that question, but it is a good one.  I know I will be doing more research on Alito's opinions.  I think it is important to find out the facts and argue from them rather than surrender to knee-jerk reactions, which is just what the Bush supporters want.

I don't agree with Alito on his opinions, but I think it is a good idea to read them.  From what I have read they are not "whacky," but they also are not views that I would subscribe to.  Dissent is good but it is even better when there are facts behind it.

You can talk about various political implications of this fight, but not about its eventual outcome.  Barring some non-judicial controversy, indeed, scandal that we cannot, of course, anticipate, Alito will be confirmed.  The math is incontrovertible:

55 Republicans--only 4 might peel off, the pro-choice Northeastern bloc of Specter, Chafee, Collins, and Snowe, and it's no guarantee that all four of these will vote 'no'--although Chafee, supported by women's groups in RI, likely will.

That only gets the Dems to 49 even if they unanimously (plus Jeffords) oppose--but at least a few conservatives Dems, like Ben Nelson, the two Arkansas Senators, and Mary Landrieu, will likely vote for Alito--and perhaps others.

Alito's going to the Court. The only interesting question is figuring out how Bush can lose even if his court nominee wins. 

I really believe that the Democrats can defeat this nomination, but they have to be smart in order to do so. 

The problem is that Alito is really not all that different than Roberts in terms of ideology, judicial approach, and temperment, and Roberts sailed through.

The difference?  This is for replacement of the moderate O'Connor, not the right-wing Rhenquist, which makes all the difference in the world for the Democrats' chances for defeating this nomination.

No more so than requiring a father to share in providing support for the child until it reaches adulthood.

Huh? So not only does the State get to tell a woman what she can do with her body, but now her husband can, too?

Wow. So much for that whole "liberty" thing.

And of course it wasn't Alito's idea.

I haven't read Casey yet except for some excerpts, and I disagree with what Alita says there -- but again I do not think he is "wacky" or irrational.  I can strongly disagree with him without thinking that.

The case I was thinking of was one posted about on Daily Kos, John Doe v. Joseph Groody; Michael Aulenbach, et. al., where Alita dissented on a case where police officers searched a wife and her 10 year old daughter in a drug case when their warrant said only to search the man of the house.  The Kos post was titled something like "Alita Supports Strip Searching 10 year old girls" and went on about how Alita was a big pervert; the many comments afterwards blew the whole thing up into something it was not.

But to answer your question, I certainly do not agree with Alita's opinion on Casey (at least what I have read of it), nor do I support Alita for SCOTUS.  I am only saying we should oppose him on the facts, and dissent on matters of philosophy and ideology based on those facts.  Sorry if I was unclear about that.

Requiring women to inform their husbands of an abortion seems pretty wacky to me, no?

You know, I wouldn't pick that one out.  I agree with the ruling, agree with the principle underlying the argument, and all that.

But, really, how would you feel if your wife came home and said "Um honey, about that baby.  I decided we wouldn't have it after all."?

Saying "This Alito guy's crazy. He thinks that women should have to tell their husbands before they get an abortion." just doesn't play well in ordinary discourse. It's like the 70s era comparison of  a fetus to a cancerous growth.

It bespeaks a callousness and disregard for an early pregnancy that is not only bad politics, but  an inaccurate way of presenting the views of people who believe the government should have no role in these kinds of decisions.

This kind of line feeds the false pro-abortion meme rather than the true pro-choice, pro-family meme. 

I suspect it will take the GOP moderates in the Senate a few days to avert their eyes from the wingnut lovefest going on right now.  At some point, however, people like Spector and Chafee and Snowe are going to have to face the reality that under Alito, Roe v. Wade will fall.  Because it will fall under Alito and Roberts.  We're not talking about some watering down of abortion rights or a weakening of the "undo burden" doctrine.  We're talking about killing the constitutional Right to Privacy altogether.

It's going to take a few days for the full implications of this nomination to sink in.  The media will focus on the reanimation of the conservative right after the Miers debacle...but that story will fade.  In a month, I think the starkness of the Alito nomination will take hold.  This is a man who will change America dark and drastic ways.  

Saying "This Alito guy's crazy. He thinks that women should have to tell their husbands before they get an abortion." just doesn't play well in ordinary discourse

But this notification requirement is not going to affect women that can tell their husbands things like that.

It will affect women who are living in fear of their husbands, forcing them to deliver a baby. Hell, what if her husband raped her?

How does a notification law help women who really need help?

they say that federally funded vasectomies require a 30-day waiting period, and they recommend counseling together with the partner.

Permanent sterilization is not time-sensitive the way terminating a pregnancy is-- a vasectomy, or a tubal ligation, next month is not a different or riskier procedure than one tomorrow would be, while waiting a month for an abortion is another matter entirely (the only reason I oppose waiting periods is because of the derth of abortion providers).  Suggesting consultations with one's partner is simply common sense, and I can understand why individual physicians will ask for spousal consent before performing a permanent sterilization procedure, since I'm sure they don't want to have to testify in divorce court later on... however, the state compelling a partner's release for a procedure on an individual in full possession of his/her faculties is another matter entirely.  

When you're talking about the stake your next of kin has in your physical person, it's more like rights of survivorship or a power of attorney than joint ownership-- they may be a default authority should you be incapacitated, but they don't have equal rights by any means.

Yes, of course that's why such a restriction is a bad idea.

But the whole reason it's in the statute is so you'll get up on your hind legs and start yelling about it.  The reason for these provisions is to make pro-choice people look unreasonable, if not crazy.  Win or lose in the Supreme Court, you look like a radical saying that a woman should be able to just go off and get an abortion without even telling her husband.  By the time you've finished your explanation of why you don't really feel that way, they've left the room.

It's why they talk about parental notification and late term abortion. It's not because these cases are frequent. It's not because they're really worried about the number of abortions that take place in these circumstances.  In the case of late term abortion, the statutes are written in such a way that they really aren't limited to the last trimester. They aren't real attempts to stop late term abortions. They're meant to give a sledgehammer to those who want to talk about 8 month old fetuses.

It's a profoundly dishonest effort to make the pro-choice people look like they're radical nut jobs with no sense of proportion.

Yes, I agree. Republicans are the extremists on this issue. I think there's ample lumber to frame them that way with this nomination. The failed Miers appointment over the litmus test of the government intruding in decision of whether and when to have children, of how you want to die, and how you want your children to grow up is exemplified by this nomination.  Miers wasn't sufficiently radical for the likes of Jerry Falwell, who blames Americans for 9/11, not radical enough for the people who wanted the government  to decide Terri Schiavo's fate, not moral enough for the people who think Katerina was God's punishment of New Orleans.

Miers wasn't indisputably willing to take away decisions about raising your own children. So Bush, acting as their compliant tool, went with a guy who doesn't even respect Supreme Court precedent, who would tear at the fabric of the family to advance a radical, fundamentalist agenda of an intolerant few.

That's your story. Your story is not "But he'd make women talk to their husbands before getting an abortion."  That  story is ripe for distortion, which is why they want you to tell it. 

Here's as good a place as any to put the republican talking points on this issue. I do so, because Hymie's "wasn't Alito's idea" is right from them.  Fascinating coincidence. 

Odd too, because it would be very strange for a judge to introduce something like notification requrement in the process of reviewing legislation. 

Thank you for that excellent explanation.  Your post illustrates the point I was rather clumsily trying to make.  In order to dissent and disagree it is not necessary to call your opponent a wacko, extremist or any other name characterizing the person and not the action, statements or reasoning one is objecting to.  I think it far more powerful to do what you did, explain the facts of the case and then make the argument against what Alito wrote in his opinion.

And you still don't want to make it the focus of an attack on Alito, IMO.

So you're saying ignore/avoid the abortion issue when fighting Alito?

That assume's there's enough. In this case, there probably is.

But what if there wasn't?

How do you fight for women's rights without ever talking about it?

See, this is why you don't to get into this. There's an exemption if the baby is not the husband's. This statute was crafted to trap you into sounding extreme by making statements like that, and having them thrown back at you.

The point here is that O'Connor herself didn't agree with the interpretation of the law he attributes to her.  He, alone in the appeal, voted to overturn the law of the land, without precedent. He's an extremisit, and activist judge out to impose his idea of morality on every American family.  He doesn't think that the decision of whether to have a child should be up to a mother and her doctor. 

I didn't see Dean.  Dean certainly should stand up and say that he's pro-choice, the party's pro-choice and America's pro-choice, and that these scurvy little spiders who want to creep into your bedroom need to be slapped down.

Take a look at the righwing blogs, like Redstate.com and confirmthem.com -- I was reading them over the weekend, during the run-up to the Alito nomination, and they seemed very, very pleased with the prospect of an Alito nomination.  Of course we need to do our homework (hopefully, some of our Democratic brethren who do this kind of work for a living are already up to speed on Alito), but my initial take is strongly leaning towards putting on a full court press to defeat this guy. 

Consider the following:

1.  The consensus seems pretty clearly that Alito is to the right of Roberts (if anyone has been arguing otherwise, it would be interesting to read).  If we don't put up a fight on Alito, the next pick (which, given the age and health status of some of the current justices, could come anytime, God forbid) will be even worse -- they are going to keep pushing us until we push back.

2.  The key issue on Alito is whether he is an activist conservative in the mold of Scalia and especially Thomas, or a more minimalist conservative who respects precedent, in the mold of Potter Stewart, Kennedy and, hopefully, Roberts.  If we have reason to believe that he falls into the former camp, if there is even a significant chance of that possibility, we absolutely must do everything we can to block him.

3.  Obviously Roe is a big issue, as is Affirmative Action.  But I think the really key issue is federalism and the extent of the Federal government's power, as well as the Takings Clause and the issue of Regulatory Takings, and the limits they have on the government environmental regulation.  That is where the greatest threat from the activist right comes, where they are most likely to do damage, overturn precedent, under the guise of Originalism and Strict Construction (which, of course, are nothing more than cover for their own results-orientated judicial activism).  Jeffrey Rosen at The New Republic and Cass Sunstein have written extensively about this and have set out the intellectual ground work to make this case.

4.  Potentially, these areas of rightwing judicial activism -- federalism and regulatory takings -- offer us opportunity to defeat Alito and other radical jurists like him.  We need to do an careful study of the dissents of Thomas and Scalia in commerce clause and takings clause cases over the last 15 years and look at the implications if these dissents become the law of the land.  If Alito is a justice in the mold of Scalia and, especially, Thomas, then he would be a significant step closer to making those dissents the majority view, with potentially radical limitations on the power of the federal and state governments (which, of course, is the rightwing's Holy Grail).  And don't forget, we don't know for sure that Roberts isn't a rightwing activist too -- Cass Sunstein thinks it's unlikely, be this time it could be our side watching a Justice "grow" in office. To take the argument to its logical extreme, how many major (and popular) government programs would not be possible under a Thomas-Scalia view of the Constitution.  For example, would Social Security, Medicare, the Clean Air Act, etc., survive the scrutiny of a Thomas-Scalia majority on Takings and the Commerce Clause?  If they really took Originalism seriously, how could those programs be constitutional?  If they don't take Originalism seriously, then they are exactly the unprincipled judicial activists they argue liberals are.

5.  We have the votes to sustain a fillibuster, at least according to what people I know who work for Senate Dems tell me.  This is especially true if we make all of these arguments.  If we don't have the votes to defeat Alito outright (seems like a longshot, but too early to tell), we absolutely must use the fillibuster and force the Republicans to deploy the nuclear option.  There are many GOP Senators who are extremely wary of going nuclear.  For one thing, it's givinig up substantial institutional power, something many Senators on both sides are very reluctant to do.  Secondly, what happens if the Dems win back the WH and the Senate in '08?  Then the GOP will have no way of blocking our picks.  And don't think they are above pulling a 180 on this issue -- they are absolutely shameless and have done such u-turns countless times before.  They bottled up many, many Clinton picks in the Senate Judiciary Committee and never allowed them to come to a floor vote, so it's not as if they gave our guys an up or down vote.  And if they use the nuclear option and get away with it, so what?  We effectively don't have the fillibuster power now anyway -- is there any nomination that would really qualify as extraordinary circumstances to DeWine and Graham?  If so, it would almost certainly be someone we could defeat outright, like Janice Rogers Brown.

In conclusion, assuming that Alito is truly in the mold of Scalia and Thomas, we must put up a fight, we have a good chance of prevailing on a fillibuster, and we have some strong potential arguments against Alito that we can bring out, particularly that his view of the constitution threatens the existence of popular programs, like Social Security, Medicare, and the Clean Air Act, among others.  If this strategy works, the rightwing will be crying for decades how once again we have "borked" a nomination.  If you understand the true meaning of "to bork", which is to shine a bright light on the ugly implications of a rightwing jurist's view of the Constitution, then hearing such complaints will be very satisfying indeed.

I wish I could knock down the almost universally accepted baloney that a "brilliant jurists" (meaning they can sight 43 precedents and 12 original reasons for every position) is more desirable on the court than an ordinary jurist, who may only be able to find 6 precedents and 3 original reasons. In the case of these last two nominees, elegant reasoning and a gift for blah-blah are only games to window-dress shallow, already made-up minds.