The Heretik

SUDDEN SAMBA

SUDDEN SAM suddenly not "conservative.”  Alito follows Harriet Miers who was not conservative enough. Another lesson for the school kids that either words no longer have meaning . . . or the apocalypse is at hand.  In a world where Republicans regularly peg Democrats as radical, far left “liberals,” the White House does the sudden samba.
The man who never met a law man he didn’t like or a defendant he did, Sam Alito is “mainstream.”

"Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business," reporters Stephen Henderson and Howard Mintz wrote.
The reporters also concluded that Alito "rarely supports individual rights," shows "a strong deference to police authority" and is extremely skeptical about claims of racial discrimination. Henderson covers the Supreme Court for Knight Ridder. Mintz, a reporter for the San Jose Mercury News, a Knight Ridder paper, worked on the Alito project during a stint in Washington.
Administration officials said the story unfairly cast the Supreme Court nominee as a conservative ideologue.
"His 15-year record on the 3rd Circuit shows him to be a mainstream, fair, thorough judge," Assistant Attorney General Rachel Brand said in a C-SPAN interview devoted to her critique of the Knight Ridder analysis.

“CONSERVATIVE” IS NOW BAD NEWS according to conservatives themselves. Witness now the elaborate steps in a dance of the damned. Sam Alito suddenly is not conservative at all. Yeah, right. Or not right.

A BIG BONE FOR SAM ALITO

THE DEVIL DOG HEARTS SAM ALITO Not to bitch too much or pee on anybody in Hollywood’s Christmas Parade, but the star on the Devil Dog’s Xmas tree has Sam Alito’s name all over it.  Alito’s views on religious displays with government support may be a bone of contention, but the Devil Dog would share his juiciest bone on Kwanza morning for the new star of some conservative groups’ new ads

"Liberal groups like People for the American Way and the A.C.L.U. have opposed public Christmas and Hanukkah displays and even fought to keep Christmas carols out of school," declares a radio commercial paid for by the conservative Committee for Justice beginning Monday in Colorado, Wisconsin and West Virginia, states whose senators are considered pivotal votes on Judge Alito.
"Some courts and judges have supported this radical agenda, but not Judge Sam Alito," it continues. "Throughout his career, Judge Alito has consistently upheld the Constitution's protection of free religious expression."
Fidelis, a conservative Roman Catholic group, has begun an Internet advertisement and plans to buy radio commercials with a similar theme as early as next week. "Judge Alito ruled against the A.C.L.U.'s attempt to scrub away our religious heritage," a narrator says, recalling an opinion Judge Alito wrote upholding a Jersey City display including a Nativity scene and a menorah.

BLESSED BE SAMUEL Alito never met a menorah gathering with public support he couldn’t support.  The Devil Dog is looking for the appropriate place off public property where he can spin the dredel with Sam and hopefully not pee on his leg.

OTHER SAM ALITO STORIES FOR THE CHRISTMAS HOLIDAY SEASON
KENNEDY HAS QUESTIONS ABOUT VANGUARD Sen. Edward Kennedy on Monday questioned what he said were Samuel Alito’s multiple explanations for not immediately disqualifying himself from a case involving the Vanguard companies, which handle his mutual fund investments.
Kennedy, D-Mass., said in a letter to the Supreme Court nominee: “You have given at least six different answers to the basic question of why you not only sat on the case, but presided, signed orders and joined an opinion upholding Vanguard’s position in that case.”

BOTH THE DEVIL DOG and his part time master The Heretik think Kennedy is being far too harsh on Alito.  When most people can’t even get one straight answer from the likes of Bush, Rumsfeld and Rice, getting six answers should be looked at as very generous, Teddy Boy.

WELL RECUSE EXCUSE ME for asking In 1987, Samuel A. Alito Jr., then the US attorney for the district of New Jersey, signed a bank fraud indictment of a New Jersey man named Larry Kopp. Later, when Alito became a federal appeals judge, he put the Kopp case on his ''standing recusal" list, seeking to uphold his promise that he would disqualify himself from any case that he had supervised as US attorney.

THE DEVIL DOG HOWLS AGAIN So what if some of Sam's proceedings involved his sister?  A big bow wow wow to Bill O'Reilly and the Foxes for making a mint on the shopping madness!

A BIG NEW HOWL Why does George Bush hate Christmas?

WARM CHRISTMAS HOLIDAY GREETINGS This Xmas remember to buy til you fry in hell, heathens. 

PREVIOUS ENCOUNTERS with the Devil Dog can be found here, here and here.   Look for the Devil Dog's Adult Xmas Special on FXXX.

VENGEANCE IS SAM ALITO'S

JUSTICE CONCEIVED by Samuel Alito in his “shoot to kill, it’s cool“ memo point out some serious, disturbing trends in America today.  We have a hard time facing whether we are for punishment of the crime, the improvement of society through the rehabilitation of the criminal, or the dark satisfaction of vengeance.  Justice is not executed by broad edict for all to see one day.  It comes in the accumulation of legal ideas piled on top of one another.  Whether Samuel Alito’s “shoot to kill” memo sits on a stinking pile or is treated as the top of the heap of helpful, worthy ideas will be debated by legal minds more wise than mine.

BUT IF SUDDEN SAMUEL ALITO IS CONFIRMED  a message will be sent that the law has little time for justice.  The key bullet point that matters will be a bullet to the head.  The execution of a suspect will somehow mean more than the faithful execution of the Constitution and its safeguards against unreasonable acts upon the person. A black boy on a fence with a purse and ten dollars shot down by a cop is only reasonable in a world where the passion for vengeance for the criminal matters more than the process that protects us all.  What sort of mind so disrespects the living yet accords the yet to be born more fealty?

ALL AROUND US is an upwelling from the dark depths of passion suggesting the law and justice take too much time.  We would streamline justice so that habeas corpus would have no merit.  Some have said the law is an ass.  The law is a matter of life and death when Supreme Court nominees are considered. If Alito is confirmed, less justice will be served and more life among the already living will be lost.

OTHER VOICES IN THE SOUND AND THE FURY The short and not so sweet from Lawyers, Guns, and Money One word, filibuster.  The Heretik agrees.  Alito's paper trail is on fire right now and he deserves to flame out.

JUDGE NOT

WORDS MEAN NOTHING Samuel Alito seems to say.  All the opinions that he has in his paper trail regarding the right to choose and quotas are just toilet paper.  Or something. Alito wrote what he wrote.  He should be a man about it. Or something

At issue are two memos that Alito, 55, wrote in 1985. In the first, a bid for a promotion, Alito wrote that he was "particularly proud" of contributing to cases arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." He was pleased, he wrote, "to help to advance legal positions in which I personally believe very strongly."

SPIN CONTINUES as Alito’s head turns round and round to see what he needs to do next. Quite a nominee to succeed Harriet Miers as Judge Not.

UPDATE If posssible Sudden Sam looks even worse today.
DEAD WRONG ALITO Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary.
"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.
Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.
"I do not think the Constitution provides an answer to the officer's dilemma," Alito advised.

ALITO GIVES NEW MEANING to the term run for you life.  T Chris has more on this at Talk Left. The Fourth Amendment requires seizures to be reasonable, and Alito opined that the officer’s decision to seize the unarmed minor by putting a bullet through his head was reasonable. The instant application of the death penalty for a property crime, without the bother of a trial, didn’t appear to concern Alito. 

THE VISCIOUS CIRCLE JERK The Heretik knows we will hear from "law and order" advocates that those not guilty have nothing to fear and why would the innocent flee?  Um, you might flee from people who so casually shoot unarmed people too.  Teenager run from anything and everyone.  What should we do?  Officer Jonathon Swift modestly says shoot them all.

NO MIDDLE GROUND

THE POLTICS OF DIVISION battalion rolls on as Bush Supreme Court nominee is now revealed to be firmly against Roe, at least in everything he has written back in the Eighties. Cook Political [pdf] reports the country 48 percent pro choice and 46 percent pro life. With his push of Alito, Bush clearly wants to run the plurality for choice into the ground.  Rather than “frontal assault,” the Reagan era Alito counseled another direction.  The White House attempt to cast him as open on issues before the court like Roe now seems like misdirection. Here’s the WaPo take

In a memo disclosed yesterday that he wrote in 1985 as an assistant to the solicitor general, Alito recommended that the administration submit a brief to the Supreme Court, asking it to uphold a Pennsylvania law that imposed a variety of abortion restrictions and "make clear that we disagree with Roe v. Wade ."
Alito argued in the 17-page document that stepping into the case, Thornburgh v. American College of Obstetricians and Gynecologists , would be a more effective strategy for President Ronald Reagan than a "frontal assault" on the landmark case and would not "even tacitly concede Roe 's legitimacy." Disagreeing with the administration's position, the court struck down the Pennsylvania law the following year.

COULD IT BE more clear where Alito would stand if he were to sit on the highest bench in the land?  MESSAGE TO DEMS:  Pull your heads out of the um clouds.  It’s time to show up, to enter the middle ground and take a side.  Bush clearly has with Alito.

MITIGATING EFFECTS Alito in many ways counseled an old, some would say wise course of political battle.  Fight on the ground where you might win.  Some skirmishes on abortion rights might have the effect of winning a larger battle.  The AP take reports

Alito wrote in the memo, released by the National Archives on Wednesday, that “no one seriously believes that the court is about to overrule Roe v. Wade.”
But, he said, “By taking these cases, the court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

ON THE COURT Alito would have the power not merely to mitigate Roe, but be a voice to reverse it.  His voice on this will be hard to disguise.

RECOMMENDED ADDITIONAL READING  Parental notification for minors having abortions in New Hampshire is the most current ground of battle. 
DO THE PARENTS KNOW?  The New Hampshire attorney general asked the Supreme Court today to restore her state's abortion law, and in so doing she encountered sharp questions about a facet of the statute's requirement that doctors notify a pregnant teen-ager's parent before performing an abortion.
ROBERTS SEEKS MIDDLE GROUND   "What's supposed to happen?" asked Justice Stephen G. Breyer, who posed the hypothetical situation during oral arguments at the Supreme Court yesterday. The dilemma, probably rare but undeniably dramatic, defines the most significant case on abortion rights to reach the court in half a decade. The basic right to abortion, recognized by the court 32 years ago in Roe v. Wade , is not at stake, but the scope of the right may be.

OTHER VOICES IN THE SOUND AND FURY 
Alito + Roe v. Wade =   Feministe    Betsy’ s Page

MUST READS Lithwick in Slate Kelly Ayotte, the New Hampshire attorney general, defends her state's parental notification statute. In her opening sentence, Ayotte characterizes a minor who might seek an abortion as a "child." Just so you know where her head is at. 
RELATED and to the point: Applied Illogic.

RIGHT IN A CORNER

SAMUEL ALITO MAY HAVE a tougher confirmation than some White House officials might have thought when they rallied the far right of the Republican party and the more rabid religionists with his nomination.  In the dogfight inevitably ahead, his 1985 opinions may come back to dog him with a bite soon [WaPo]

According to the senators, including Republicans Olympia J. Snowe (Maine) and John Cornyn (Tex.) and Democrat Charles E. Schumer (N.Y.), Alito has two options in his ongoing efforts to distance himself from the comments: He can say he has changed his mind, they said, or he can say the accumulation of cases affirming the 1973 Roe v. Wade abortion decision now outweighs his belief that Roe was wrongly decided.

SOME DAY PEOPLE will say judges are confirmed on their merits and their qualifications, but such a reality is an illusion today. And the most desired realignment to the right the White House so apparently seeks may win them the court and with Alito confirmed overturn Roe, but the cost might be far greater than imagined.[Dan Balz/WaPo]

Reversal of the landmark Supreme Court decision that legalized abortion nationwide could produce an upheaval in U.S. politics and would put candidates who oppose abortion rights at risk of defeat in many parts of the country, a leading House Republican said yesterday.
Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, said the desire of GOP conservatives to see a newly constituted Supreme Court eventually overturn Roe v. Wade could produce a political backlash, particularly in the suburbs. "It would be a sea change in suburban voting patterns," Davis said at a breakfast hosted by the Christian Science Monitor.

A SEA CHANGE indeed. And one in which Republicans might drown.  More than Samuel Alito may find himself now painted into the right corner.

 

THE SUFFERING

WE SUFFER and language suffers when the meaning of words are denied.  Samuel Alito has said, “The Constitution does not protect a right to an abortion.”  What seems pretty clear is Alito’s view and more how his defenders say he has not already made up his mind on the subject. Harold Meyerson has a take on Alito’s smoking gun.
[story]

The folks charged with getting Alito confirmed as Sandra Day O'Connor's successor are insisting that the judge's declaration is not a smoking gun. Alito's subsequent record on the federal appellate bench, said Republican Sen. John Cornyn of Texas, "shows he has indeed put his personal views on abortion aside." And in the Washington Times story that revealed the existence of the application, an unnamed Republican official insisted, "the issue is not Judge Alito's political views during the Reagan administration." The issue was the hundreds of opinions Alito had authored in the years since, in "none of which is it evident what his political philosophy is."
Now, maybe I'm cockeyed here, but I don't read Alito's abortion assertion as either personal or political. A personal view would say, "I'm opposed to abortion." A political declaration would say, "Abortion is a bad public policy." But those aren't the sentiments that Alito voiced. What he said, if you'll pardon the strict construction here, is that there is no constitutional right to an abortion. Which is a viewpoint, if agreed to by five Supreme Court justices, that can change the law, and social fabric, of the land.

LANGUAGE HERE suffers and women too would suffer if Alito rose to the Supreme Court bench.  Samuel Alito in the questionnaire he answered in job application to Edwin Meese also express misgivings about other issues on criminal procedure and apportionment from which others now also run.  The smoking gun has let bullet fly and it seems to hit Alito in the ass.  Or perhaps Alito will dodge the smoking gun’s bullet and only we will suffer for it.  The language of law is a most precise thing and we should see Samuel Alito precisely for what he is.

CHIMES from the NY Times Part One:

Seeking to tamp down a political uproar over a 1985 document in which he denounced racial quotas and said the Constitution did not protect the right to abortion, Judge Samuel A. Alito Jr. told senators on Tuesday that the sentiments were simply the views of "an advocate seeking a job."

CHIMES from the NY Times Part Two:

Judge Alito is already trying to distance himself from the memo. He cannot say it was merely a lawyer's representation of an employer's views because it was undeniably a statement of his personal beliefs. He cannot call it an excess of youth because he was 35 when he wrote it. According to Senator Dianne Feinstein, the California Democrat, Judge Alito told her yesterday that when he had written it he had merely been "an advocate seeking a job."
This is not very credible because the statement is entirely consistent with his full career. On the bench, Judge Alito has voted to uphold extreme limits on abortion and on other important rights, like freedom from unreasonable searches and seizures.

THE HERETIK HAS A RINGING in his ears. He gets that condition when his head suffers from too much BULLSHIT sophistry from Alito on what advocacy is.  The Heretik advocates anyone but Alito.

 

JE RECUSE

OUI, JE RECUSE Or not.  Maybe the sinking of the Sam Alito nomination won’t come down to a discussion of judicial philosophy or litmus tests.  Maybe Alito’s nomination will be colored by judicial ethics. Or lack of them. [story]

Supreme Court nominee Samuel A. Alito Jr. said yesterday that he did nothing improper when he ruled in cases involving two financial firms in which he held accounts, although he had told the Senate 15 years ago that he would step aside in matters involving the companies.

YOU SAY YOU’LL DO ONE THING and then you do another.  In most courts, that is called lying.

RECOMMENDED ADDITIONAL READING
TELL IT TO THE JUDGE [Simian Brain]  . . .do you think that the Republicans are having an honest debate about judicial power and the elements of American law that they so despise, things like the right to privacy that is enmeshed so thoroughly in the Constitution that the founders didn't even think to write it in?
This is much like the right to own property. Where is that in the Constitution? The only reference to private property in the Constitution is in the 5th Amendment, and it explicitly applies only a low minimum standard that must be met before the state can take your stuff: "[No person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
So Judge Alito, and more importantly Judge Thomas: since the Constitution doesn't specify what constitutes "due process" or "just compensation", do we assume that any state legislature can make that determination, or should we perhaps go to some foreign law to derive meaning to those terms? English Common Law, for instance, which I believe fully defines them in the way that we have come to understand them. [link]

THE HERETIK KNOWS small points like precedent mean nothing and sadly principle means less than the principals.  For better or worse, for the richer more than the poorer,  the law of the land is what the judge says it is.

THE RIGHT PRESCRIPTION FOR AMERICA

SOME AREN’T SWALLOWING the idea of Second Choice Sam Alito for the Supreme Court as easily as others.  On the right it is all right on, what’s left to do but confirm the guy.  The unfortunately named Charles Krauthammer hat’s the big deal about notifying your husband [story]

Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion. (b) Requiring a married woman to sign a form saying that she notified her husband.
(b) Can any reasonable person have any doubt? A minor is intrinsically far more subject to the whims, anger, punishment, economic control and retribution of a parent. And the minor is required to get both parents involved in the process and to get them to agree to the abortion.

The married woman just has to inform her husband. Even less than that. She just has to sign a form saying that she informed him. No one checks. Moreover, under the Pennsylvania law I draw my example from, she could even forgo notification if she claimed that (1) he was not the father, (2) he could not be found, (3) he raped her or (4) she had reason to believe he might physically harm her. What prosecutor would subsequently dare try to prove to a jury that, say, she actually had no such fear of harm?
Remember: The question is not whether (a) or (b) is the wiser restriction. The only relevant question is which is more likely to discourage the woman from getting an abortion.
The answer is obvious.
Why is this the relevant question?

MANY WOULD WOULD TELL Krauthammer to take his pop quiz and pop off someonewhere else.  Far away.  Coming soon: a law requiring women to notify husbands they are taking a job; a law requring women to notify women on the choice of color for the burkha of the day.  Not coming soon: men required to notify wives of Viagra prescription; men required to notify women of control of remote on Monday Night Football. 

SOME WOMEN MAY also pettily note the comparison between  a grown woman's concerns and a child's in Krauthammer's argument, which goes along way to saying what he thinks of them
NOTE: Alito TM is a licensed brandname of Berube Corp.

RECOMMENDED ADDITIONAL READING
HARD REALITY FOR DEMOCRATS [Michael Kinsley/Slate] So, how conservative is "too conservative"? Democrats like the phrase "outside the mainstream." They also like to emphasize that the next justice will be replacing Sandra Day O'Connor, an icon of swing-vote moderation. The notion is that presidents of all stripes are under some kind of vague, floating obligation to keep the court in ideological balance. This, unfortunately, is a party-out-of-power fantasy. There is no requirement of moderation in the abstract. President Bush needn't nominate a compromise candidate just to show he's a good sport.

MORE TO FOLLOW

DEWINE HEARTS ALITO

MIKE DEWINE WON’T oppose the Supreme Court nomination of Samuel Alito. And the Democrats search for moderate Republican help in opposing Alito grows tougher [story]

Sen. Mike DeWine, who met with President Bush’s latest high court choice earlier Tuesday, warned Democrats he would side with GOP leaders to eliminate the judicial filibuster if the minority party uses it against the New Jersey judge.

“It’s hard for me to envision that anyone would think about filibustering this nominee,” said DeWine, an Ohio Republican who sided with 13 other Republicans and Democrats earlier this year to end a Senate stalemate over judicial filibusters.

Supreme Court nominee Samuel Alito is “clearly within the mainstream” and shouldn’t be filibustered, declared a Republican who helped fashion a plan limiting parliamentary roadblocks for judicial nominees. . . .DeWine made clear Tuesday that a Democratic filibuster would not have his support, saying he didn’t see how “anyone would think that this would constitute what our group of 14 termed ’extraordinary circumstances’ that would justify a filibuster.”

SPECTER DOWN, now DeWine.  MORE TO FOLLOW