Fighting Alito: Why Chittister is the Key Case
So this is my strategy memo, for what it's worth.
To build the case against Alito, we do need to document all the ways that Alito opposes the rights of the accused, threatens abortion rights, and endangers workers rights.
But we need at least one decision that encapsulates what's wrong with Alito's view of the law, unites the maximum voters against him, and divides the potential opposition.
And that case is Chittister v. Department of Community and Economic Development, the decision where Alito ruled that the Family and Medical Leave Act did not apply to millions of state employees across the country. This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.
There is little question that the Family and Medical Leave Act is one of the popular laws passed in recent decades -- a lifesaver for many mothers and fathers who want to stay home with a newborn or a sick family member without fear of being fired from their job for taking that time off.
Opposition to Alito's decision is a unifier-- it unites feminists, oganized labor, public employees, and soccer Moms. And by alienating working mothers especially, who depend on FMLA leave, Chittister has the potential to deeply divide the Republican base.
Other issues that motivate progressive activists-- Casey for abortion rights activists, Alito's deeply disturbing anti-union attacks or his disdain for criminal defendants -- will motivate key groups, but the question is how to we make the danger of Alito on the Supreme Court clear enough to swing voters that their Senators fear the backlash.
Politically, the pressures on parents in balancing work and family is overwhelming. That Alito would attack a common sense law like the Family and Medical Leave Act in the name of "states rights" will seem to most such voters as pure rightwing ideology. And it can be painted as exactly the judicial activism, the "legislating from the bench" that Bush claimed his judges would not engage in.
If we want to encapsulate what the "federalism revolution" means, what the "Constitution in Exile" means for average families, it is this: ordinary laws enacted by democratic majorities will randomly be struck down in the name of rightwing ideology.
It's worth thinking about why Renhquist, the original architect of the federalism legal revolution, decided to uphold the Family and Medical Leave Act when it came before the Supreme Court. A pretty fair analysis is that, aside from the legal arguments, Rehnquist recognized that a decision against the Family Leave law would create such a backlash that it might endanger the whole legal movement in the long term.
So raising the profile of Chittister should be a key strategy, to raise that spectre of a shift of the Court not just to the right of O'Connor but to the right of Renhquist and to raise pressure on those swing Senators.
Doesn't seem the Dems have the votes to stop the nomination. How do you plan to overcome that?
November 3, 2005 7:49 AM | Reply | Permalink
They have the votes to filibuster and can they get enough moderate Republicans to wimp out on the nuclear option.
The question that has to be put to the voters is not just should there Senator vote for Alito, but is it worth blowing up the Senate rules to confirm someone with such rightwing views.
Some swing Senators might be able to justify the vote for Alito, but will they feel they can justify an eliminating the filibuster.
Here's what I would ask Arlen Specter:
How come you think eliminating the filibuster is needed to confirm Alito, but you don't support eliminating it to pass pro-worker laws-- which he claims to support?
And if he or others agree that both are equally important, we can demand his and other Senators vote in support of other legislation.
Put them in a bind where they prefer to preserve the status quo, since the elimination of the filibuster means all sorts of hard questions are going to follow for these moderates in other votes.
November 3, 2005 7:56 AM | Reply | Permalink
Whackjob Althouse is mighty pissed off with your post.
November 3, 2005 9:06 PM | Reply | Permalink
What do you mean? Link?
November 3, 2005 9:25 PM | Reply | Permalink
http://althouse.blogspot.com/2005/11/alito-and-family-medical-lea
ve-act_03.html
November 3, 2005 9:54 PM | Reply | Permalink
Nathan's post and Jerry's comment illustrate why reading partisan blogs can be so frustrating. They both substitute animosity and invective for reasoned analysis. For starters, take a look at a bunch of Althouse's postings. The vast bulk of her writing is careful, moderate commentary --- just the sort of thing we should expect from a law professor. Even when she disagrees vigorously with someone else, as in the case of Nathan's use of Chittister, she documents her position with chapter and verse. On this issue, she wins hands down. For Jerry to term her a "whackjob" says a lot more about him than about her.
As for Nathan's post, Althouse gets it right: he starts with a conclusion (Alito is EVIL) and then selectively cites and creatively interprets the record to justify that conclusion. Anyone wishing to judge the relative merits of Alito and Nathan would be well advised to read Alito's opinion and decide for themselves. Althouse's Nov. 30 post, at althouse.blogspot.com, has a link to her Oct. 31 discussion of the case; that discussion in turn has a link to the FindLaw text of the case where you can read the whole thing.
The essential problem in evaluating Supreme Court nominees is that observers on the left and the right too often assume that any judicial result they dislike (e.g., interpreting a federal law to allow certain remedies but not others) reflects nothing more than a judge's bias and personal preferences. In fact, good Circuit Court judges, both liberal and conservative, strive to apply the statutes as Congress intended them and as the Supreme Court has previously interpreted them. Naturally there's room for debater about whether a particular judge got a particular decision right, but to assume, as Nathan does, that Alito's opinion in Chittister indicates that he hates the FMLA and will arbitrarily strike it down is just sheer partisan nonsense.
Once more: go back and read the opinion and decide for yourself whether the author is a fanatic or a careful judge trying his best to apply the law.
November 4, 2005 5:53 AM | Reply | Permalink
I'm off to get married so little time to respond until I get back, but who said Alito was evil?
All I said is we don't want him on the court and as a legal realist to the core, the reality is that cases can basically come down on either side in almost any case, so of course a smart judge can justify their position. Alito can interpret the FMLA one way constitutionally and Rehnquist can for his own political purposes come out the opposite
But which way a judge chooses to make the case come out matters for real peoples' lives.
So yes-- ultimately, especially at the Supreme Court, it's all about a judge's bias. Otherwise, you can't explain why the same institution can end up with decisions striking down child labor laws and promoting Jim Crow to turning around and validating the New Deal and affirming civil rights laws in the 1960s to today beginning to relaunch attacks on congressional power to protect civil rights.
"Precedent" is quite flexible, so blaming a particular judge's position on that, especially in cutting edge litigation, is nonsensical. It was quite unclear how far the Supreme Court was going to extend its "federalism" doctrine but Alito chose to push it as hard as theoretically possible-- much farther than the Supreme Court itself under Rehnquist chose to go.
So Alito's jump in that direction reflects his personal bias to push precedents in a way that reflects his general anti-worker decisions, which I have also noted. So the consistency of those positions is worth documenting.
November 4, 2005 6:35 AM | Reply | Permalink
I'm sorry that we disagree Dennis, but I have read quite a bit of Outhouse.
If you read her you will acknowledge she is just as partisan as any partisan blog. Like any right wing blogger she feeds her echo chamber in her comments, and refuses to discuss the questions or positions of anyone that disagrees with her, if a) they are not a lawyer, or b) they point to lefty academics or lefty blogs.
When faced with last week's indictments of Libby, she still proudly proclaims the case is too complex for her to understand and that no one in America cares about it, and you would have to pay her to get her to take a deeper look at it. This coming from an academic, a law professor. And in doing so,she rails against lefties and their arguments.
She is a whackjob. Far far from moderate.
November 4, 2005 6:40 AM | Reply | Permalink
Congratulations, best wishes (and I hope it takes!)
November 4, 2005 6:45 AM | Reply | Permalink
Congratulations on the wedding! Take a break from the cares of the world and concentrate on what is truly important.
The trouble with your extreme form of legal realism is that it proves too much. By your theory, Republicans should have all voted against (and probably filibustered against) every liberal nominee, and Democrats should do likewise for any conservative nominee. If that occurs, we'll either get no confirmations or (more likely) confirmations only of those with no track record. I fail to see how that would result in a better system of justice. I pretty sure it wouldn't --- we'd likely end up with unpredictable mediocrities. Besides, if you were correct that it's all about biases, then we should simply elect Supreme Court justices --- with all the consequences we've seen in states that already do so.
The plan the framers of the Constitution came up with is far more sound. Under that plan, the President can nominate individuals who will naturally reflect the current President's beliefs. The Senate can then evaluate them for competence, integrity, and fairness but (barring a few extreme cases like Nazis and Communists, perhaps) should otherwise respect the President's discretion. In Hamilton's phrase, the goal is simply to ensure "fit characters." In short, liberal presidents get to name liberal nominees and conservative presidents conservative nominees. The electorate's remedy for nominations they don't like is to elect a different president.
November 4, 2005 8:10 AM | Reply | Permalink
<span class="Apple-style-span"><i>When faced with last week's indictments of Libby, she still proudly proclaims the case is too complex for her to understand and that no one in America cares about it, and you would have to pay her to get her to take a deeper look at it. This coming from an academic, a law professor.</i></span><span class="Apple-style-span">
</span><span class="Apple-style-span">Yes, that's partly because</span><span class="Apple-style-span"> she is <i>not an expert</i> in the areas of law that are central to the Libby indictment. She has particular authority to talk about Chittister because she's an expert in constitutional law.</span>
November 4, 2005 11:23 AM | Reply | Permalink
Sorry for the gibberish in that post. It didn't look anything like that when I was writing it. The first paragraph is a quote from another commenter, and the second paragraph is my reply.
November 4, 2005 11:25 AM | Reply | Permalink
Look, professionalism is nice and all, but does the Bush administration seem to really be interested in appointing people to major positions of power based on expertise and competence over partisanship and connections?
I mean would they take this golden chance, to put in two judges, and say "well, let's just pick the best ones for the job." Or are they going to put in folks who they expect to make decisions in line with their ideology?
This just seems like the wrong party to expect objectivity from them. I mean they made up a war. They made one up. Let's not be cute about this, because people are dying in this nonsense, and it's destroying any dignity America has in the world. They have shown total willingness to invent a war that gets thousands of people killed and potentially destabilizes one of the tensest regions on earth. This means they are quite literally murderers, which I take kinda seriously, as I expect anyone does with family or friends who are/were in the service during this.
Should we believe for a second that they aren't just going to put in whatever lackey they think can pass the test?
There's a lot of talk about how "common folks" use values and moral framing to make political decisions, and not arguments over the nuances of policy or court decisions.
So here's a value straight from the bible belt. When you find out that people are greed and power driven murderers, you don't trust a damn thing they do. You save the trust and the devil's advocacy for the people who earn it.
And that isn't partisan because I'm leftist, that's partisan because those sonsofbitches are trying to get my family and neighbors killed. We're just peasants for them to ride over for kicks, which gets clearer by the day.
November 8, 2005 1:36 AM | Reply | Permalink