Malice aforethought . . . perfectly said.

Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it.

I'm curious why you think this is evidence against Alito rather than in favor of him. If he applies this principle consistently, that's a good thing. For example, try replacing the words "machine guns" and "gun" in the quote with "medical marijuana" and "marijuana". Or imagine the same view applied to Right-to-Die laws.

I am thinking along similar lines Hymie.  I don't want to see machine guns in the hands of the US public, but I don't see any problem with Allito's reasoning (I am no constitutional scholar).   The key question to me then is he consistent in his reasoning or does he bend it to fit right-wing causes.   Would he apply such reasoning to right-to-die lies?  

Is Bush "surrendering to the right" such a bad thing?  Or, is it such an unprecedented thing?  After all, Mr. Bush heads the 'right.'  Naturally the conservative president is going to choose a conservative nominee; the reciprocal would hold true if a Democrat were in office.  The left is naturally infuriated and disappointed by the bad luck which sees the hated Bush have the opportunity at nominating two judges to the Supreme bench.  If John Kerry were president do you actually think he would pick a so-called "consensus nominee?"  Absolutely not, nor likely would any president.  In fact, you can probably count on one hand the number of "consensus candidates" which have EVER been confirmed to the bench.  When the CEO of a company retires and must name a successor, naturally he is going to tap a trusted associate who he has confidence in.  It is no different with Bush: he is the head of the GOP and will thus nominate a person who he knows shares a similar political ideology.  This wishful thinking on the part of the Democrats that Bush would nominate somebody other than a conservative is as idealistic as it is unrealistic.

Isn't this reasoning essentially an attack on the use of the Interstate Commerce Clause?  I'm pretty inexpert, but my understanding is that a large body of progressive federal legislation is dependent upon the ability of Congress to regulate interstate commerce, so that the uniform application of Alito's reasoning would be to undo the New Deal and most other progressive elements of federal law.

This line of reasoning is at the heart of the Rehnquist revolution.  It is an attempt to undo precedents stretching back to the FDR.  It is used to limit all types of federal civil rights legislation and environmental legislation, and other federal regulation of business.  (The quote of Roberts about the toad that never left California is about this issue -- if a toad doesn't cross state lines, Congress cannot at to protect it, the reasoning goes.) It is true that there are potentially libertarian uses of such a principle, but 1) the principle does not create a vacuum, it simply allows state governments to operate as they will, and 2) the Court has not applied the principle to drug issues including medical marijuana or right to death issues.  The history of the principle is that it is exercised in favor of unregulated big business.

I think this thread is beginning to limn the coming debate which we will win:  we have twisted the original federal scheme into non-recognition in order to acheive the social ends we require.  Scalia, Alita & Co. are right: the commerce clause jurispruence is fraudulent.  It has been cobbled together by a judiciary that sees a legislature trying to pass responisble laws.  But the truth is that the constitutional framework is totally out of date, imagining as it does the states as somehow sovereign.  As a society, we have been rejecting this idea for 200 years, and the original fount is well past spent.

We will in the coming decade or two meet these conservatives fair and square on the political field, and the American people will decide whose vision they value more: their backward-looking vision of fear and despair, or our vision of a bright and hopeful future.
 
Seems like a slam dunk for us to win.

I hope you are right politically but the legal issues are a bit more complicated than you suggest.  There are two related but separate issues.  The first is as you said the commerce clause.  The second is the issue of who decides.  Prior to the New Deal the Supreme Court showed little deference to the Congress and struck down much of Roosevelts legislation.  After his court packing scheme failed the Supreme Court saw the error of its was and found that if Congress acted in a reasonable manner they would defer to the elected branch of government.

What this thread and Bush's actions all suggest how phoney the Republicans really are. All this talk about originalism and judicial restraint is about justifying results you like.  If Republicans really believed what they said they would want a bench full of Souters.

I agree with your points regarding efforts of the conservatives to limit the power of the commerce clause as an effort to destroy the regulatory power of the feds.  It actually goes hand in hand with the conservative judicial reanimation of sovereign immunity under the XI Amendment which seeks to take the teeth out of regulatory legislation.

That being said, I have a minor quibble with the notion that the commerce clause impacts the ability of Congress to enact civil rights legislation.  Congressional authority to enact civil rights legislation derives from the XIV Amendment clause 5 stating that Congress shall have the authority to enforce the provisions of the XIV amendment through legislation.  As such, that amendment specifically grants authority to Congress to regulate the behavior of the states in terms of civil rights. 

Mr Kilgore, by nominating Mr Alito.. it appears he has put you and Armando and Kos and Marshall Wittman on the same page.

Maybe this pick will end up uniting the various squabbling factions of the Democratic Party and form them into a cohesive opposition.

<i><span class="Apple-style-span">If John Kerry were president do you actually think he would pick a so-called "consensus nominee?"  Absolutely not, nor likely would any president. </i></span&gt<span class="Apple-style-span">
</span&gt<span class="Apple-style-span">Clinton did, more than once. QED. What's radical is Bush's departure from the "advise and consent" process that was so carefully framed in our Constitution. Notice that "consent" and "consensus" have a lot in common.  </span&gt

BRIAN OC:

 The Miers nomination was Bush's idea of gender equality.  There certainly was pressure for him to nominate a woman or a minority, an argument which is being waged by the left after Alito's nomination.  Clearly the president, for whatever reason, was not comfortable with the short list of women candidates, Ms. Clement at the top.  Miers has been a long time friend and ally and as we have seen throughout Bush's presidency, he rewards those who are loyal; very reminiscent of Jefferson Davis, president of the Confederate States of America.  Bush's justification for Miers lack of judicial experience comes from precedent.  Several Supreme Court judges of yesteryear had no prior judicial experience: Rehnquist, Warren, etc.  Make no mistake about it: the Miers fiasco had nothing to do with her credentials.  It had everything to do with the angry Republican base.  After her resignation, Bush was essentially put in a lose/lose situation.  He could a)retaliate against his base by picking a consensus nominee, or b)appease his base by nominating an uber-conservative.  The former would damage his image within his own party most likely beyond repair and would likely compromise the rest of his presidency in terms of legislative support.  The latter option would bring out a firestorm of criticism from the left.  While neither option is desirable, if alienation of one party is essential, he certainly would not direct it toward his own party; to do so would be political suicide.  As I've said before, the Democrats indulged themselves by keeping quiet and letting the Republicans in-fight for a change.  In reality, they should have SUPPORTED the Miers nomination whole-heartedly because that would have a)shocked the Republican base by supporting the president, thus causing even further in party fighting, and b)given them as close to a consensus candidate as Bush would ever allow.  But Democrats hate Bush so much that they could not even support him on the one issue where it would have helped them.  And the result is Alito.  The hearings will be brutal, but make no mistake, his confirmation is guaranteed. 

 BRIANCOC:

 It isn't so much apologia as it is pointing out his justifications.  Perhaps the Miers nomination was cronyism as you suggest.  Even assuming it was, so what?  The bottom line is Harriet Miers is a centrist when compared with the far right Alito.  The entire premise of the cronyism argument is that of a moral nature and nothing more.  As we all know, moral arguments do not go very far in Washington; and never have.  My point here is that Bush was under pressure to nominate a woman to replace Sandra Day O'Connor.  He clearly did so with Miers.  The argument being waged by you is that she was not qualified and is nothing more than a presidential bedfellow (for lack of a better term); which is, in essence, a moral, qualitative argument.  Even if it was cronyism, she was still fairly moderate and as I mentioned in my previous post, her credentials should have little or no bearing on the nomination because there are already plenty of precedents for ill experienced Supreme Court nominations (and confirmations for that matter).  Did Bush back himself into a corner as you suggest?  I do not believe so.  I believe his base backed him into a corner.  His greatest error, as I see it, is that he assumed (incorrectly as it were) that he could persuade his party to trust him and go along with his decision of picking Harriet Miers.  Once the GOP rejected her nomination and put pressure on her to resign, Bush was forced to either alienate the GOP or the DEMS.  The choice was never in doubt.  You obviously do not agree with my assessment that Democratic support of Miers would have genuinely hurt the GOP.  I think it would have.  It would have put the "behind the scenes" Republican leaders in a very tough spot.  Furthermore, it is the Democrats who constantly argue that Bush himself is no more than a puppet leader for these "behind the scenes" men like Karl Rove and Dick Cheney, by whose assumption is that Democrats will always disagree with their president; thus freeing them to pull Bush's strings whichever direction they choose.  If the DEMS had supported the president, however, these men would have had little choice but to drop their opposition to Miers, otherwise risk public isolation against the Democrats and the president.  I consider myself to be a Libertarian with Republican leanings and I can tell you truthfully that the DEMS were given a real opportunity to hurt the GOP here and either did not realize it or hesitated to act.