November 5, 2005

"Recognize that it's not a choice. It's not a lifestyle. It's an orientation."

Jonathan Rauch’s 2003 article “How to Care for Your Introvert” was the most-read article at The Atlantic’s website this past week (according to the email they just sent me). It’s interesting to see that this older article is still so popular. It should be! It’s memorable – I’ve always remembered it since originally reading it. It starts like this:
Do you know someone who needs hours alone every day? Who loves quiet conversations about feelings or ideas, and can give a dynamite presentation to a big audience, but seems awkward in groups and maladroit at small talk? Who has to be dragged to parties and then needs the rest of the day to recuperate? Who growls or scowls or grunts or winces when accosted with pleasantries by people who are just trying to be nice?

If so, do you tell this person he is "too serious," or ask if he is okay? Regard him as aloof, arrogant, rude? Redouble your efforts to draw him out?

If you answered yes to these questions, chances are that you have an introvert on your hands—and that you aren't caring for him properly.
Are you taking care of your introvert? Are you an introvert that is not getting proper care?
[E]xtroverts have no idea of the torment they put us through. Sometimes, as we gasp for air amid the fog of their 98-percent-content-free talk, we wonder if extroverts even bother to listen to themselves. Still, we endure stoically, because the etiquette books—written, no doubt, by extroverts—regard declining to banter as rude and gaps in conversation as awkward. We can only dream that someday, when our condition is more widely understood, when perhaps an Introverts' Rights movement has blossomed and borne fruit, it will not be impolite to say "I'm an introvert. You are a wonderful person and I like you. But now please shush."


UPDATE: Thanks to Kevin Drum for linking. Althouse readers -- who generally seem to think Kevin's is the best of the "rational, intelligent liberal blogs -- should check out the comments over there.

In retreat.

I’m spending the day at the law school retreat, serving as the reporter for the curriculum discussions. There are four discussion topics going on simultaneously, and four hour-long sessions over the course of the day. That means I’m hearing four different sets of persons -- all law faculty -- discussing the same topic. It’s interesting to observe the different groups, how they take the same subject and move in different directions and take on different group personalities. People do different things to maintain their concentration over the course of the day. I'm taking my notes and editing them as the day progresses. Some people use knitting:

Knitting

Blogger's back.

Blogger was down for a couple hours today. Nice to be back! It was a planned outage for an upgrade, not some sort of collapse, so don't be hating on Blogger.

The first Sundance Cinemas theater -- it will be in Madison!

Ah, joy!
The new theater complex will be operated by the Sundance Group, a development company owned by actor and director Robert Redford. With six screens, the 27,250-square-foot complex will anchor the [Hilldale] mall's south end and will offer food and drinks as well as Sundance merchandise.

The Hilldale Theatre will continue operations until shortly before Sundance Cinemas opens next fall. The current theater is slated for demolition as part of the $70 million renovation project currently under way at the mall.
Good riddance! Madison has been plagued with the problem of the best films being shown in the worst theaters. We have lots of beautiful theaters but they typically only show the standard commercial films. Nearly every time there's a new film I've cared about seeing it's been at Hilldale or, worse, Westgate. It drives me crazy. Usually, I go into wait-for-the-DVD mode.

Thanks for picking us, Bob! Apparently, Madison has a big reputation for loving great films.

Is your luxury cruise ship equipped to fight off pirates?

It might need to be!

"Baseball's the perfect sport for nerds."

That's why Washington types keep talking about it:
First there was John G. Roberts Jr., talking his way to confirmation as chief justice of the United States with the insight that "judges are like umpires."

Then there was Patrick J. Fitzgerald, the special prosecutor in the C.I.A. leak case, explaining last week's indictment of the vice president's chief of staff by asserting that the aide, I. Lewis Libby Jr., had, in baseball terms, thrown sand in the umpire's eyes.

And finally, on Monday, there was the nomination of Judge Samuel A. Alito Jr., a Philadelphia Phillies fan (short for "fanatic") who told the world that his ambition as a young man had been to become baseball commissioner.

Why are so many Washington figures, including a long list of Supreme Court justices, so devoted to the game? Easy, said Carter G. Phillips, a Washington lawyer and an old softball teammate of Judge Alito: "Baseball's the perfect sport for nerds."
Aw, then I guess I shouldn't be so mean about sports metaphors as long as it's a baseball metaphor. Here's my (probably nerdy) idea for an SNL skit about a Supreme Court nomination hearing: the nominee, looking all John Robertsy, offers up his theory of the role of the judge, but instead of a baseball metaphor goes with the wrong sport -- sumo wrestling, perhaps.

Alito is "deeply skeptical of claims against large corporations."

In the NYT, Steven Labaton detects in bias in favor of big business in Judge Alito's cases. (Why just big business?) Most of Labaton's article is not an analysis of cases, but a report on what various players in the nomination game already think: "Major business groups" are for him. "Corporate lawyers" reportedly liked seeing him on their panel while other kinds of lawyers didn't.

How about all those cases from 15 years on the bench? There's this:
[B]y articulating a narrow view of the Commerce Clause of the Constitution, he is viewed as a judge who would be skeptical of the involvement of federal regulators in matters he views to be strictly within the province of state officials.
(Could you use the word "view" a few more times?)

Does this refer to anything other than the one case in which, following the recent Supreme Court precedent in the Gun-Free School Zones case (Lopez), he concluded that a federal law prohibiting the possession of machine guns did not fit the commerce power? In that case, Rybar, Alito wrote:
The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms. Is the possession of a firearm within a school zone somehow less "economic " and "commercial" than possession elsewhere -- say, on one's own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity....
Note the struggle with Lopez's commercial/noncommercial distinction. Now, explain how the limit on the commerce power Alito perceived shows that he would undercut federal law relating to businesses (and specifically large corporations as opposed to smaller operations).

Labaton concedes that there are cases where Alito decided against business interests:
In 1991, a year after he got to the bench, for instance, he issued a dissent in which he ruled that foreign seamen on American-flag ships should be covered by the minimum wage provision of the Fair Labor Standards Act. And in a dissent from a 2000 decision, he interpreted the statute-of-limitations provision of a race discrimination law to the benefit of the plaintiff in an employment case. In a third case, he voted with two other judges to dismiss an industry challenge to tougher environmental law standards in coal mining.

But those three cases, Cruz v. Chesapeake Shipping, Zubi v. AT&T, and Pennsylvania Coal Association v. Bruce Babbitt, are considered by both supporters and critics to be exceptions.
Because why deal with the first hand evidence? We'll report on some outcomes (and ignore the reasoning and the case law that bound him), but let's get to what really matters: what the "supporters and critics" think is true.

This is an article about Alito's bias?

November 4, 2005

"Donald Trump has some kind of neurological event."

Jacob at Television Without Pity gives last night's episode "The Apprentice" an A+. It was rather good. (Spoiler alert.) Is Markus out of his mind? Who talks like that? Who thinks he's got something to say, even thinks he's articulate, and then meaninglessly jumps from one empty phrase to the next? It was so satisfying to see him so severely shredited. And the cab ride where he kept trying to explain himself until, it seemed, he too had gotten tired of hearing himself speak -- hilarious!

Jacob:
You'd think that Markus getting fired would be the best part. It isn't. The best part is in the Boardroom leading up to Markus's firing, where Donald Trump has some kind of neurological event and goes completely apeshit. And I mean to say that you have never seen this kind of behavior in your life. He first abruptly asks Clay if he's gay, acts stunned that Clay is gay, ascertains that Clay is therefore not attracted to women, clarifies that this Venn diagram excludes even women such as Alla, and then explains to us that this is why restaurants have menus: while Trump likes steak, other people like spaghetti.

Later, without even stopping to breathe almost, he: asks Adam straight up if he's a virgin (he is, but won't admit it), counsels him not to be afraid of sex because it is "not a big deal," posits that Adam will ten years from now be more "comfortable with sex," shares that sex has gotten him into "a lot of trouble" and cost him "a lot of money," discusses at length whether Adam is "soft" or "hard," and wraps up by telling Adam that there's "nothing like" sex, and that he should look forward to having it one day, in the creepiest, ickiest, most pervuncular way imaginable.
Ha, ha. I love the way the TWoP recaps bring all the memories of the show flooding back -- and even funnier. Ah, yes, Trump was exceedingly Trumpy last night. He should talk about sex more often!

"Schmidt began by saying the process is off to a great start and again highlighted Judge Alito's impressive resume."

I was too busy writing to get in on the blogger conference call, but Ankle Biting Pundits has a big description. So did I miss anything? I think not.

"Standing alone, Mrs. Bush looked lovely."

"But next to Camilla, whose Robinson Valentino blazer and skirt made her look like a large rectangle, the first lady reminded one of a radiant bride shining brightly next to a dutifully bland bridesmaid." That's the description from WaPo's Robin Givhan, who also takes note of the President: "The president looked handsome in his tuxedo. For once he didn't have the body language of a kid with a bad sunburn forced to wear a wool suit."

What about all that blogging?

What about all that blogging I seemed as though I was about to launch into when I got that writing project done at 2:54 p.m.? Why, I was even threatening to do some 11th Amendment fisking, a threat that actually seemed to alarm Armando. Lucky for Armando, I do have something of a life in the real-word dimension in my outpost in Madison, Wisconsin. Do you picture snow drifts keeping me inside, gazing into the glow of the iBook? No, it was warm and sunny -- in the 60s. Here's what a gingko tree looked like today:

Ginko

Ginko

The new Madonna video.

"Hung Up. " (Quick Time -- or find Windows Media at Madonna.com.) Do you like it? Chez Althouse, we love it! Kind of a little "Saturday Night Fever," and then there's that Valerie Cherish hairstyle, which became so old, it's new again.

Hibbs loses.

With all the talk today of the Family and Medical Leave Act and the relationship between Judge Alito's decision in Chittister and the Supreme Court's decision in Hibbs, it's interesting to see that Mr. Hibbs himself lost his case today:
The 9th U.S. Circuit Court of Appeals has rejected an appeal from a former Nevada state worker fired from his job after taking several months off to help his wife who had been injured in a car accident.

The appeals court ruled Wednesday against William Hibbs, who won a U.S. Supreme Court ruling in 2003 that preserved protections for workers under the federal Family and Medical Leave Act - only to see his own case later dismissed by U.S. District Court Judge Howard McKibben of Reno.

In upholding McKibben, a three-judge panel of the circuit court said Hibbs got more than five months of leave from his job as a state welfare worker, far more than the 12-week FMLA period, and still didn't return to work when told that his leave had expired.

"When Hibbs was eventually fired two months after being informed that his leave had expired, he had long since departed the protections of the FMLA," the court added in its decision favoring the Nevada Department of Human Resources.

The court also agreed that Hibbs failed to provide evidence to support his claim that he was fired in 1997 in retaliation for taking FMLA-authorized leave.

Name the rational, intelligent liberal blogs.

Go ahead. It's a subject that came up in the comments today on another post. I'm not looking for attacks on liberal blogs or facile comments that there is no such thing. Help me compile a list of well-written, insightful liberal blogs, especially to help conservative readers who want exposure to a nice mix of opinion. Maybe we can refine it into a top 10 list.

1200 words in 2 hours and 15 minutes.

That's what I've got to write right now. I want to write blog posts and read comments, but I must go generate some MSM words. Look for an update by 3 saying I've done it. The visualization of that update here helps me somehow!

UPDATE at 2:54 p.m.: Done! Now, for some blogging! And maybe even a little "Eleventh Amendment fisking" -- my personal specialty!

"No matter what, they must talk about it and they must fight for justice."

Muktar Mai speaks "to the women of the world and all the women who have been raped or any of the kind of violation." Who is Muktar Mai?
[S]he was gang-raped on the order of [Pakistani] village tribal council elders. The rape was meant to restore her family's honor after her younger brother was accused of being with a girl from a rival tribe.

In a country where, Human Rights Watch says, the vast majority of rapes and other violent crimes against women goes unpunished, Mai broke her silence. She not only pressed charges, she fought her case all the way to the nation's highest court.

In a case that sent shock waves through Pakistan, her attackers were found guilty. She used her government compensation money to build schools in her village. Since then, Mai has become a kind of Rosa Parks of Pakistan.

"First there was just my home. Now I have to deal with the whole world," she said in an interview.

Kinsley frames the debate we should be having about Alito.

Michael Kinsley frames the Alito debate superbly. There's only one serious argument, he concludes: "Alito is simply too conservative."
The Republican counterargument will be fourfold: A) He is not very conservative; B) no one knows how conservative he is, and no one is going to find out, because discussing his views in any detail would involve "prejudging" future issues before the court; C) it doesn't matter whether he is conservative—even raising the question "politicizes" what ought to be a nonpartisan search for judicial excellence; and D) sure he's conservative. Very conservative. Who won the election?
It's quite admirable of Kinsley to state those arguments clearly and fairly. He even talks about something I was just saying people need to address: the fact that there are different kinds of conservatives. He identifies three kinds:
First, conservatism can mean a deep respect for precedent and a reluctance to reverse established doctrines....

Second, a conservative can mean someone who reads the Constitution narrowly and is reluctant to overrule the elected branches of government....

The third meaning of conservative as applied to judges is a conservative judicial activist: someone who uses the power of the courts to impose conservative policies, with or without the benefit of a guiding philosophy.
He concludes:
Judicial power is like government spending: People hate it in the abstract but love it in the particular. That makes an honest debate hard to have, and harder to win. Nevertheless, it would be nice to have one.
Well said.

Alito and the Family and Medical Leave Act -- Part 4.

Look at how a commenter who tries to explain law is treated over in the DailyKos comments. This is how Armando speaks to a reader who patiently tries to explain how he's misstated the law:
STFU (none / 0)

You were dead wrong. Yiu said ALito did NOT say that Congress acted unconstitutionally. You were WRONG. Whose clients should be in fear. You were dead wrong jerk. And abused the hell outr of mcjoan when you were wrong asshole.

See, mcjoan said exactly that, that Alito said that Congress invaldfily abrogated SI. And you kust flat out lied about what the diary said and were abusive and were wrong.

Stupid ass jerk.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:25:18 AM PDT
[ Parent ]

Correct the piles of shit you laid all over (none / 0)

Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

Go learn some fucking law.

The SCOTUS is Extraordinary.

by Armando on Thu Nov 03, 2005 at 08:21:00 PM PDT
[ Parent ]
Just to be clear: Armando is one of the main writers over on DailyKos, not just some commenter. And DailyKos is the most widely read blog in the world, with traffic nearly as high as the NYT online.

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

[My earlier Alito and the FMLA posts: 1, 2, 3.]

UPDATE: Here's the McJoan post that goes with those comments:
In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.
False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary.
This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.
Don't bother mentioning that the main dissent was written by the moderate Anthony Kennedy, who was distressed at the misapplication of a whole line of cases -- cases Alito, as a lower court judge, had to follow. Just throw out the name of Antonin Scalia! It's so inherently alarming.
In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":
Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.
McJoan is quite wrong to say Alito found the FMLA unconstitutional. The quoted material is the reason why, following a line of recent cases, the FMLA didn't fit the Fourteenth Amendment power, which is needed to abrogate sovereign immunity (and allow an individual employee to sue the state for retrospective relief). The FMLA remains supported by the commerce power and the state is still bound by it in this analysis.
Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.
The question under the Fourteenth Amendment power wasn't whether women are disadvantaged, but whether the states were violating Fourteenth Amendment law: What violation of constitutional rights was the FMLA remedying? That was the question Alito faced and answered as the law required. To characterize him as not caring about women's interests is either a mistake or deliberate distortion. And by the way, the states were giving women maternity leaves. To find an equal protection violation, you need to point to the lack of paternity leaves and attribute it to stereotyping. And I'm not saying the FMLA isn't a good law and a nice benefit. The problem was that it wasn't a correction of the violation of constitutional rights. Rehnquist finessed his way around that problem, as Kennedy detailed in dissent, and so the ability of state employees to sue for back pay was preserved. But Alito just did what the case law required at the time.
Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist.
But it was quite proper according to Kennedy. Could it perhaps be that sometimes, some judges analyze legal issues?
Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce.
But the issue in Hibbs and Chittister only had to do with the way the FMLA applied to the states, so the interests of private business were not at stake in the slightest.

Again, the commerce power supports the FMLA, and neither Hibbs nor Chittister had anything to do with that. And why not include Kennedy in your group of hostile justices? Doesn't fit the attempt to paint the justices as a bunch of ideologues.
The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.
Yes, yes, let's talk about mommies and daddies and babies and families, all the emotional things only good liberals care about. Who wants to stop and talk about a difficult legal issue? But the fact is that nothing about what Alito said in Chittister and Kennedy and Scalia said in Hibbs threatens to take away the leave rights people now have. The commerce power supports the FMLA. When will the people who are demagoging this issue mention that the commerce power supports the FMLA? When they don't, you should know that they are not playing it straight (or they actually don't understand the law).

ANOTHER UPDATE: If you keep reading the comments over at Kos, you'll see this:
Typical Armando (none / 0)

So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

What kind of lawyer engages in name-calling rather than citing cases?

by Realist2004 on Thu Nov 03, 2005 at 10:26:48 PM PDT

[ Parent ]

Excuse me (none / 0)

Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

Typical of you to IGNORE all that.

Typical of you and it is why you are a waste of time.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:23:07 AM PDT

[ Parent ]

Later, Armando has this outburst, in response to commenters who keep trying to explain the law:
How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!

IN THE COMMENTS: Armando himself stops by. (Where's my link from Kos? I link to the people I argue with.) He tries to explain himself, but doesn't understand the law in this area. He does manage to avoid saying "f*ck" over here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

November 3, 2005

Alito and the Family and Medical Leave Act -- Part 3.

Nathan Newman at TPM Café wants to make the case against Alito out of Chittister, the Family and Medical Leave Act case. Newman is a lawyer, in fact he went to Yale Law School, so presumably he knows something about how legal analysis is done and the way Supreme Court cases bind lower court judges. But maybe he doesn't mind using his aura of expertise to sell a specious argument to serve a political goal. I won't assume he actually understands the cases Alito had to deal with in deciding Chittister. They are difficult, and you have to take the trouble to read them. (I have spent a lot of time with them and claim expertise based on this law review article and 20 years teaching in the relevant field of law. I explain Alito's Chittister decision here. ) But why should Newman bother to understand the cases and to treat Alito fairly, when it's so easy and exciting to demagogue and to say that Alito is hostile to this important federal statutory benefit? What more do you need to know than that the statute is good and Alito did something against it?
To build the case against Alito, we do need to document all the ways thsat 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.
False. The FMLA would still apply to state employees. (The decision only prevented suits by individual state employees for retrospective relief -- such as backpay.) But nice to see you admit that you're all about building a case against the man and finding something you can use.
This was a decision that was overturned by the Supreme Court, in a decision written by Chief Justice Rehnquist.
Well, Rehnquist decided a different case, Hibbs, but that's just a careless error. Still, thanks for showing how little you care about accuracy as you mount your attack.
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.
Yes, the law is popular. Nice grasp of the role of courts and the Constitution. The law is popular, so you should strain to find a way to leave it alone. After all, Rehnquist found a way. Of course, Rehnquist did not have to take so much trouble to follow Supreme Court cases. But down with Alito for respecting the case law. Because he's a bad, bad man. He went against a popular law. He wants mommies and daddies fired!
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.
Yes, fire them up. Who really cares about law and the courts? This is all about organizing the opposition. People will get really mad when they hear that Alito wants to fire mommies and daddies!
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.
Yes, regular folks won't get the concept that courts apply law. What matters is what we can make seem like "pure rightwing ideology." Those dopey soccer moms will totally fall for this one.
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.
Randomly! Those rightwingers are just crazy. They might see a law and just shoot it down -- absurdly attempting to interpret legal texts -- even when the law is popular. And, no, don't bother me now about the way liberals care about some parts of the Constitution and might sometimes want a court to strike down a popular statute.
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.
Yes, and shame on Rehnquist then, right? Or if the case law was so terrible, it was up to the Supreme Court to change it. There was nothing Alito as a lower court judge could do to change it. The fact that Rehnquist changed it in the Supreme Court in no way showed that Alito should have or even could have changed it in the court of appeals. There is no basis for criticizing him for what was ordinary faithfulness to established law. (Sound like a concept you might want to rely on some time?)
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.
Sure, go ahead. Great idea. Teach the world that the Court is nothing more than a political game and the judges who attempt to follow the law are just dangerous, arbitrary fanatics. No chance you might care about the rule of law some day. Screw it! We can win a political battle.

It isn't even funny that you really have virtually no chance of defeating the nominee. Your abject disrespect for law is thoroughly disgusting. But thanks for posting your embarrassing strategy on a blog and for not noticing that there are other bloggers out there who know the legal details that you are counting on the soccer moms not understand or care about at all.

UPDATE: Welcome Instapundit readers. For other parts to my ongoing effort to stop the Chittister demagogery: Part 1, 2, and (dealing with Kos) Part 4.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

The beloved donor who abolishes tuition.

That's a nice way to get deep appreciation for your $100 million gift.

"We've been idling many years with the court being noncommittal."

AP's Gina Holland quotes me in this analysis of how Alito's replacing O'Connor might change the Court:
The Supreme Court's middle ground is disappearing. If Samuel Alito is confirmed, he could almost immediately begin to erase the court's balanced rulings on contentious social issues like abortion, religion and capital punishment.

With pragmatic Justice Sandra Day O'Connor as its pendulum, the court has staked out moderate positions, often in line with public opinion but not necessarily clear-cut.

"We've been idling many years with the court being noncommittal," said Ann Althouse, a law professor at the University of Wisconsin.

That is likely to end with Alito, who is expected to bring a more reliably conservative approach to areas that O'Connor has influenced: abortion restrictions, the death penalty, campaign finance, affirmative action and states' rights.

The shift could be abrupt....

O'Connor sometimes votes with Scalia and other court conservatives, and other times provides the fifth vote to the court's more liberal wing....

Another room for change is the area of states' rights. Alito, like Scalia, is expected to side with states more often in power struggles with Congress.

While O'Connor has generally been a strong states' rights advocate, her vote is not guaranteed. Last year she was the swing vote in a 5-4 ruling that said disabled people can sue if states ignore a civil rights law on access to courthouses....

In her 24 years on the bench, O'Connor has been known for pragmatic votes, like her tie-breaking 2003 vote to allow limited affirmative action in college admissions.

"Because of her style of interpretation, you could never tell whether she was gauging the political preferences of society ... reaching outcomes that were good in a policy or political way," said Althouse, at the University of Wisconsin. "People would criticize her as being mushy."

With Alito, there will be less flexibility, which would please lawyers but may disturb some people, said Althouse.
Let me expand a little. I don't know what sorts of outcomes Alito would reach, and I think that it is difficult to extrapolate Supreme Court behavior from lower court decisions, but I think O'Connor has been very much the sort of judge who looks at the totality of the circumstances and weighs all the factors. Though her vote has been decisive on frequent, momentous occasions, it hasn't said that much about what would happen in the next case, in a new context. This has left a lot of doctrine in a "mushy" or "noncommittal" state. If her replacement is willing to resolve cases in a crisper, more rule-based manner, doctrine could firm up quickly. (Which would only please some lawyers, I hasten to say!)

But will there be a majority to nail down doctrine in a lot of the areas that have been left flexible during the O'Connor era? Even assuming he becomes a reliable conservative vote, he will need more than Justices Scalia and Thomas to make a majority. What will Chief Justice Roberts and Justice Kennedy do? Justice Kennedy has already shown a tendency to stay in the middle, and I think Roberts is something of a pragmatist.

"So do you wish you were still married to her now that she's a star?"

Richard answers a question (about me) from "a member of [his] household."

"Ever since 3rd period today, I now know that I have sex appeal. It rox!"

Teens and their blogs.

The BOB nominations -- and Chinese repression.

I've been lighthearted and happy about Audible Althouse getting nominated for a Best of the Blogs award.

The BOBs - BEST OF THE BLOGS - Deutsche Welle International Weblog Awards 2005


But -- despite my fretting in the the previous post -- it's easy to be a free speaker here. Look at this:
Chinese authorities have blocked a pro-democracy Web log after it was nominated for a freedom of expression award by a German radio station, a press freedom group said Thursday.

The blog, titled Wang Yi's Microphone, dealt with ''sensitive subjects'' and was maintained by a teacher from Sichuan province, Paris-based Reporters Without Borders said in a statement.

China's communist government encourages Internet use for education and business, but blocks material deemed subversive or pornographic.

Dissidents have been arrested under vaguely worded national security laws for posting items critical of the government.

Reporters Without Borders said Wang's blog was ordered closed by the authorities in Hainan province, where the site's host company, Tianya, is located.

The site was nominated for a ''Best of the Blogs'' award in the freedom of expression category by the German public radio station Deutsche Welle.

On its Web site, the radio station described Wang as an ''anti-government Chinese intellectual'' who used the blog to fight for justice. It did not give details.

Terrible. Reminds me of Australia.

"I fear that bloggers one day could be fined for improperly linking to a campaign Web site..."

I'm worried about free speech up here too.

Sedition = to "urge disaffection" toward the government or to promote "ill will or hostility" among groups.

According to the proposed anti-terrorism bill in Australia, where free speech doesn't seem to be much of a treasured value:
Public debate has been limited because the government did not publish the bill. The chief executive of the Australian Capitol Territory, Jon Stanhope, published it on his Web site three weeks ago, saying he thought broader public discussion was needed. Mr. Howard, leader of the center-right Liberal Party, reacted by refusing to provide Mr. Stanhope, of the Labor Party, any further drafts.

Based on that draft, the proposed law would permit the police to use preventive detention for up to 14 days, during which time the detained person would be allowed to let only one family member know of the detention. It would be a crime for the family member to tell anyone else - even for a father to tell the detainee's mother, for instance.

The definition of sedition would be expanded to include statements that "urge disaffection" toward the government, or that promote "ill will or hostility" among groups.

Mr. Howard is expected to introduce the bill on Thursday. Approval is expected within days. Mr. Howard's party controls both houses of the Parliament, and the leader of the Labor Party, Kim Beazley, has said he supports such a law.
Well, I would urge disaffection toward the... Or, no, I guess you'd better be careful down there.

"This egg is fine. Gays can get married."

Did you watch the new "South Park"?

A conservatism of judicial restraint.

In today's NYT, Adam Liptak and Jonathan D. Glater take up the question of Alito's dissents. They uncritically cite Cass Sunstein's take on 41 opinions (viewed critically here yesterday) and repeat Sunstein's meme: "his dissenting opinions are almost always more conservative than the majority's." But they also provide some other statistical information that complicates that conclusion. There is this:
Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.
And this:
The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention."
Liptak and Glater don't manage to pull out any inflammatory dissents, and they seem most drawn to the conclusion that his brand of conservatism is not the pursuit of politically conservative outcomes but simply judicial restraint:
One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.
There are, we need to recognize, varieties of judicial conservatism. If you want to characterize a judge as a conservative, please tell me what kind of conservative you mean.

Getting comfortable about Alito.

The Washington Times reports on the increasing "comfort level" Democratic senators have about Alito. Senator Durbin talks about his feelings:
In terms of his own comfort level with the nominee, Mr. Durbin said Judge Alito fell somewhere between Harriet Miers -- whose nomination was withdrawn last week -- and John G. Roberts Jr. -- who is now chief justice of the Supreme Court.

Justice Roberts was the "Elvis of Supreme Court nominees," Mr. Durbin said, and Miss Miers was so uncomfortable that it made him feel uncomfortable.

"I never got the feeling that she wanted to be in that chair," he said. "I think she was following the request of a president she admires very much to pursue this and she was very concerned she would say the wrong thing."
The "comfort" question is supposed to have to do with whether Democrats are feeling alarmed about the nominee's ideological slant, but this makes it seem more like an inquiry into the nominee's social graces.

Interesting, isn't it, how much Durbin seems to think he could read Harriet Miers's mind? He was uncomfortable. She was uncomfortable. Was he uncomfortable because she was uncomfortable? Or was she uncomfortable because he was uncomfortable? Or did he think she was uncomfortable because he was uncomfortable?

And will we ever come back to the question whether some of the opposition to her really was sexism? Well, her qualifications were so poor that she deserved to be opposed, and any sexism in the mix was overkill. That may keep us from ever delving into the gender politics of this nomination. But inside this "comfort" metaphor may be echoes of longing for that oh-so-comfortable old boys' club.

"Disdaining any label and keeping an almost allergic distance from discussions of ideology or politics."

That's how the L.A. Times describes Samuel Alito. What if a judge wasn't just trying or pretending to push politics to the side but was actually not political?
Former colleagues praise Alito's legal acumen and quiet affability, but describe him as essentially apolitical. He is registered as a Republican in West Caldwell, N.J., but Federal Election Commission records dating to 1983-84 show no campaign contributions in his or his wife's name. Even longtime neighbors said he was so reticent that some on the block didn't know he was a judge.

"Summertime, in the backyard, we would have barbecues and would never, ever talk about anything involving his work or politics," said Alex Panzano, who lives across the street from the Alitos in the Newark suburb.

Even in high school:
Alito was a talented debater and enjoyed the intellectual sparring involved. But even then, he recoiled from anything resembling inflexible ideology. His scrawled yearbook message to [fellow debater Victor McDonald] ribbed the classmate about his politics: "Who will replace you next year as [Steinert High School's] biggest reactionary? I doubt anybody can be as FAR RIGHT as you."

In college, there's something quite interesting:
While at Princeton, Alito staked out a rare, provocative position while chairing a student conference on the "boundaries of privacy in American society." He wrote a report that recommended the repeal of laws that made sex between gays a crime and urged new antidiscrimination laws for gays in the workplace.

November 2, 2005

Audible Althouse, #17.

Here it is, a 55 minute podcast, with a lot about the new Supreme Court nominee Samuel Alito and the various swirling political doings surrounding him, including my own media activities, taking metaphors literally and the connection to Mad Magazine, the free exercise of religion (keeping bears, hallucinogenic tea, wearing headscarves), and a peace rally in Madison and the way Althouse commenters talk about it.

UPDATE: One problem with podcasting is that you can't do corrections. Listening to this podcast, I see that I garble a legal point about Alito's Blackhawk case. I should have been clear that it was a matter of the federal Free Exercise clause: when does a state's policy stop being considered "neutral and general applicable," so that strict scrutiny applies?

ANOTHER UPDATE: My host libsyn.com seems to be having troubles Thursday morning. If the link isn't working, try iTunes.

Anti-war rally.

Today, in Madison.

Madison anti-war rally

Madison anti-war rally

Madison anti-war rally

"A remarkable pattern" of "almost uniformly conservative" dissents?

On Monday night, I was on a radio show with lawprof Cass Sunstein, talking about the nomination of Samuel Alito, which Bush had announced just that morning. Sunstein stressed a study of 41 Alito dissents, which he had -- amazingly -- completed that day. I see that he published an opinion piece about his study in the Washington Post yesterday:
As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.
"Almost uniformly" -- what does that mean? There were 41 cases. In how many of the dissenting opinion did he take a position that Sunstein could code as "more conservative" than that taken by the rest of the panel (that is, the other two other judges from what, Sunstein concedes, is the "relatively liberal" Third Circuit)?

The WaPo piece doesn't give the number, but on the radio show -- which you can listen to here -- Sunstein says twice that "two dozen" of the dissents go in the conservative direction. 24 as compared to 17 is a "remarkable pattern"? 58% of the time is "almost uniformly"? I don't get it!

Or is it that there is some subcategory of the 41 cases that Sunstein viewed as containing "issues that split people along political lines"? So how many dissents in fifteen years are we talking about? Perhaps it's 27, because he did also mention that there were 3 cases in which he coded Alito's dissent as more liberal than the rest of the panel.

Can someone replicate the coding and counting of the Alito dissents? Apparently, it's a one-day job.

Also, when a judge dissents is he "rejecting the views of his colleagues"? Judges' conclusions upon analyzing legal issues aren't "views," and a disagreement among a panel of three judges isn't properly characterized as a "rejection" aimed at colleagues. They simply reached different conclusions and are saying as much.

UPDATE: Cass Sunstein emails:
In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right. My best estimate is on the high end of that range. -- Reasonable people can differ, of course, about the precise calculation, but by any objective count, I think, the overwhelming majority (of those with an ideological valence) are to the right -- and more important, in a distinctive and interesting way, that is, they ask for deference to powerful institutions (and hence show little or no discernible libertarian streak). -- I confess that I wasn't looking (or hoping) for this pattern. It really surprised me. I really want to be in favor of Alito and haven't made up my mind -- this is a just a source of concern.

So, spread out over 15 years on the bench, we're talking about maybe one case a year. I'm not so ready to feel concerned about this. I'd like to see the actual cases. It could be that Alito is just turning out workmanlike analysis where the other two judges were stretching for a liberal result. Are the dissents on panels with especially liberal judges or in cases where it was tempting to the majority to overreach in a liberal direction? Are the dissents clustered in his early or later years or evenly spread over the years? Somehow these statistics don't speak to me other than to say: examine this more closely.

"Don't Forget To Riot."

This stencil can be seen around Madison, Wisconsin:





Presumably, it's nothing more than an encouragement to party on Halloween.

"They might say things or look at me in a certain way, and that would undermine my confidence."

Said by a young Muslim woman in France, where acceptance of the ban on headscarves in schools is reportedly widespread.
The clearest sign that the 2004 law is now accepted is that no Muslim group is fighting for its repeal - not even the Organisation of Islamic Organisations of France (UOIF), which is closest to grass-roots opinion in the country's poorer suburbs.

"The law is unfair to Muslims, but we've put it behind us," said Rachid Hamoudi, the UOIF director of a big mosque in Lille, northern France....

But the wide acceptance of the ban does not mean the scarf issue has been settled once and for all....

To get an idea of the lingering tensions, it is worth looking at what happens to these young Muslims beyond secondary school.

At university level, the law on religious signs does not apply.

Nevertheless Teycir ben Naser, a second-year student at Creteil University near Paris, has opted for a discreet bandana.

The 19-year-old feels the headscarf she wears off campus could become a liability during oral exams.

Not that it would influence examiners, she says, but "they might say things or look at me in a certain way, and that would undermine my confidence".

The main challenge, however, will come after university.

"We are studying to be able to work later," Ms ben Naser says. "And we all we know that if you wear a veil all the doors will close."
Meanwhile, there are riots in Paris:
The street fighting less than an hour's subway ride from the heart of Paris has underscored France's failed efforts to stem the growing unrest within a largely Muslim immigrant population that feels disenfranchised and is beset by high unemployment and crime. An estimated 6 million Muslims live in France, many of them in dismal high-rise enclaves like this one.derrahmane, 54, who heads the local Muslim Cultural Association, said Tuesday morning, visibly exhausted after an all-night effort to quell the continuing violence in this town.

Many residents were outraged Sunday night when a police tear gas canister was thrown into a local mosque during prayers for Ramadan, the Muslim holy month. An estimated 700 coughing and panicked worshipers ran for the doors.

Another sip of the hallucinogenic tea.

With an important freedom of relgion case involving hallucinogenic tea pending in the Supreme Court, I'm surprised that my blog comes up second in a Google search for "hallucinogenic tea." But, good lord, look what comes in first!

At oral argument yesterday, the government argued that it had a compelling interest in banning the religious use of the drug out of concern that the drug, if permitted to the religious users, would make its way out to recreational users. But with that story coming up first in Google, the recreational use of the drug may seem none too enticing.

UPDATE: The hallucinogenic tea in the Supreme Court case is made from an Amazonian plant called hoasca. The unfortunate man who lopped off his penis drank tea made from Angel's Trumpet. In any case, hoasca causes intense vomiting, which is (according to the linked article) useful to Amazonian people who suffer from dangerous worms. And, no, I'm not trying to set up a penis joke. Make your own penis/dangerous worm joke.

Alito and the Family and Medical Leave Act -- Part 2.

Sovereign immunity law is difficult, so it is not surprising that people misread what Samuel Alito wrote about the Family and Medical Leave Act.

Here's the blunder on Daily Kos:
Alito's record also seems to put the Family Medical Leave Act in jeopardy. According to Angry Bear, Alito found
that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave.
No, no, no, no.

Last night on "The Daily Show," Senator Barbara Boxer said that Alito would have deprived state employees of the benefits of the FMLA. Not as wrong as Angry Bear got it, but still wrong!

I know what I'm talking about on this subject. Here's my law review article. I am making it my business to correct misstatements about Alito's opinion in Chittister. The law here is horrendously complicated, and I will try to put it as simply as I can.

Chittister
was not about whether Congress had the power to pass the FMLA. The commerce power clearly supports the FMLA, and nothing in Chittister addresses or in any way challenges that very basic point of law.

Chittister is about whether the FMLA is also supported by the power the Fourteenth Amendment gives Congress to enforce the rights guaranteed by that Amendment. The reason why the additional basis for congressional power matters is that Congress can only abrogate state sovereign immunity if there is power under the Fourteenth Amendment. If Congress can't abrogate sovereign immunity, that only affects state employees and it only means that they can't get retrospective relief if the state violates the law. The state is, in fact, still bound by the requirements of the FMLA (contrary to Boxer's statement), but employees will only be able to sue for prospective relief.

For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justifed and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the FMLA isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)

Rehnquist twisted a whole line of cases to get to his result, as Justice Kennedy explains in dissent. Alito wrote his opinion in Chittister before Hibbs was decided, and what he wrote was a solid application of the precedent that reveals nothing more than his commitment to precedent and his legal craftsmanship.

Those who try to paint Alito as hostile to women's interests for this are either distorting his record or misunderstanding the law. It is very easy for Alito's opponents to do this because the law is hellishly complicated, and the Family Medical Leave Act is a very nice and popular benefit. Please be alert to this problem. Alito absolutely does not deserve criticism for this!

Okay, I've put in my Google Alert for "'family medical leave act' alito." Expect me to point out the errors ad nauseum.

UPDATE: Here's lawprof Pam Karlan getting it wrong on the News Hour:
[H]e would have held unconstitutional the provisions democratically enacted by Congress of the Family Medical Leave Act that applied to require states to give unpaid medical leave to their employees.

Now the Supreme Court with both Justice O'Connor and Chief Justice Rehnquist in the majority voted to uphold those provisions. And one of the reasons why I think it's incorrect to talk about people as if there are people who read the text of the Constitution and people who don't is that social conservatives and movement conservatives have read into the 11th Amendment of the Constitution, which gives sovereign immunity to states against democratically-passed laws, words that aren't there, and they read the [word] "equality," which is in the Constitution, the word "equal" differently from liberals.
Again, denying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees.

Karlan is also saying something more about the interpretation of the 11th Amendment: that conservatives read beyond its text when they interpret state sovereign immunity. This is another complicated matter that I won't detail right now, but what is very important to acknowledge is that the interpretation in question is a matter of sticking with a precedent that has been relied on for over 100 years (Hans v. Louisiana). Those who care about preserving Roe v. Wade emphasize the importance of stare decisis, and that is part of what we are talking about here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

What brought down Miers and what that means about Alito.

David Broder writes in the WaPo:
The conservative screamers who shot down Miers can argue that they were fighting only for a "qualified" nominee, though it is plain that many of them wanted more -- a guarantee that Miers would do their bidding and overrule Roe v. Wade . But whatever the rationale, the fact is that they short-circuited the confirmation process by raising hell with Bush. Certainly there can be no greater sin in a sizable bloc of sitting senators using long-standing Senate rules to stymie a nomination than a cabal of outsiders -- a lynching squad of right-wing journalists, self-sanctified religious and moral organizations, and other frustrated power-brokers -- rolling over the president they all ostensibly support.
Let's be clear about what happened with the Miers nomination. It did not collapse because of the criticism from those who wanted a committed conservative and certainly not from people who wanted someone to "do their bidding and overrule Roe v. Wade." If Bush had picked an able, well-credentialed nominee who would not clearly commit to a strongly conservative position, this group might not even have kicked and screamed. Indeed this is what Bush did in nominating John Roberts, and they did not kick and scream. But the Miers nomination did not go down not because the strong conservatives spoke up. It went down because more moderate Republicans could not support her. Her insubstantial record and her failure to present herself creditably in the one-on-one meetings ruined the nomination.

It takes some effort to read the last sentence in that Broder quote. Is Broder a terrible writer, or is he just clotting up the words right there so you won't notice the sleight of hand? In plain English, he's saying that the right-wingers who brought down Miers were so terrible that it justifies using the filibuster against Alito. But the conservatives who began the attack on Miers weren't that terrible. They weren't asking for someone to "do their bidding and overrule Roe v. Wade." Bush, pathetically, tried to defend his nomination of Miers by signaling to conservatives that she would vote against abortion rights, and conservatives let him know they wanted a justice committed to conservative jurisprudence, not just someone who would supposedly vote a certain way on one issue. And, in any event, those conservatives didn't bring down Miers.

Broder's attempt to justify filibustering Alito fails miserably.

November 1, 2005

Fighting Alito "to the bitter end."

On the conlawprof email list today, there was some talk about my NYT op-ed [permanent link to full article here], which led me to write:
I'm mostly just arguing against the mental shortcuts embodied in the Scalito concept. We've got a 15 year record that deserves respect and reading. To pigeonhole a man like this offends me. What I most want is to see strong judicial minds on the Court, not mediocrities. I hate to see the political process work out to put bland, weak persons on the Court. I want strong liberals as well, by the way. I miss the passionate liberals of yore.
That caused another listmember to observe that you have to get a liberal president elected first. I responded, "Do you win elections by fighting down a man like Alito?"

That provoked an interesting response from Texas lawprof Sanford Levinson, which he gave me permission to quote here:
I don't think that Alito has much to do with winning or losing the next election. Rather, the arguments for fighting his nomination to the bitter end (in spite of what seem to be genuinely attreactive qualities in the man) are twofold:

a) This is drawing a line in the sand with the current Republican leadership and its take no prisoners style of governance. If they want this nomination, they're going to have to "go nuclear," which means, ironically, that a Democratic President would in fact be able to make some liberal nominations. As I wrote earlier, I just don't trust the current Republican leadership to play fair with a Democratic President in this regard, which is why I think it's utterly beside the point that Ann would like some strong liberals as well as strong conservatives on the Court. There are a lot of things I'd like, but the question is how do you get that happy result, and it's not by having faith in the good will of people who have been demonstrating for the past decade that they have only contempt for those who disagree with them.

b) The brilliance of the Bush nomination strategy (save for Miers) is that he's trying to tie up the Court for the next 25 years. The conservatives are relative youngsters, given todays lifespans. The most likely next retirees are Stevens and Ginsburg. With Roberts, Alito, and Thomas on the Court, that is a strong conservative presence for the next 25 yeas, when Alito will be only 80. It's a good calculation that Republicans will be able to make two appointments among the successors to the other six justices, when the time comes. This is one reason why life tenure on the Supreme Court is so pernicious. If we were talking about a single 18-year term for Alito (and if everyone else were serving 18-year terms), then I'd be open to Ann's generosity of spirit, which speaks well for her. But, again, that's not the world we live in.
I certainly agree that life tenure makes Supreme Court appointments especially important, and I think there is something to be said for switching to 18-year terms now that people live so very long. I do think there are problems with set terms: We'd know which seats were going to open up as we approached each presidential election, and that might be a bad thing. And since justices could also quit or die instead of serving out their terms, you couldn't keep the terms neatly staggered. I would prefer to try to establish a cultural norm that justices should not stay too long on the Court. We could scrap this notion that it's inappropriate to criticize them for clinging to their spot into extreme old age and ill health. Apply some moral suasion for a while, and see how that goes before trying to amend the Constitution.

But Levinson's main point is that Democrats can't trust Republicans to play fairly. Rather than participate in the creation of a new era of confirmations in which senators respect well-credentialed nominees, Democrats ought to force the nuclear option. Then, assuming the Democrats have a majority in the Senate, their President will have his choice, with no need to expect the Republicans to do the right thing. I think it would be a terrible shame to think that colleagiality in the Senate has fallen into such a state of irreparable mistrust. If the Democrats treat Alito fairly, at some future date they will be able to point to what they did and demand the same for a Democratic President. If they fight "to the bitter end," how will things go in the future? Levinson's view depends on a very pessimistic vision of where we are now. Ironically, the pessimism of the Democrats damages their electorial prospects.

I stand by the implication in my question Do you win elections by fighting down a man like Alito?

That Alito/Scalia contrast again.

Here's a free link to get to Akiba Covitz's TNR piece saying why Alito is not the same as Scalia. The article mostly contrasts the personalities of the two men -- and goes quite far in painting Scalia as an unpleasant person. It picks out a single case to portray Alito as less than "a caustic conservative":
In the 2003 case Williams v. Price, ... Alito wrote the majority opinion overturning a lower court decision in which a convicted first-degree murderer was not permitted to call into question his verdict after a juror was heard making racist comments. This was a grisly murder and just the kind of annoying habeas petition that those of Scalia's ilk think clog the judicial system. To his credit, Alito authored the opinion that provided for a new hearing.
In fairness, we could also pull out a few Scalia opinions that would resonate for liberals. Really, even Scalia is not the caricature that is used in these contrasts. But the challenge should be to understand Alito. Must Scalia distract us? The strongest reason for continuing to talk about Scalia is that the President campaigned on the promise that he would nominate persons like Scalia and Thomas. So why aren't we talking about Thomas too? Because Thomas isn't Italian?

Hallucinogenic tea time.

The Supreme Court heard oral argument today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, the hallucinogenic tea case. A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:
"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.
Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

UPDATE: Here's the report from SCOTUSblog.

I don't mind being bashed on the highest traffic blog...

But Armando, please, throw in a link to my blog! That's just flat out, passive aggressive, link deprivation! No fair!

Well, by Kos standards, I am "the Right Wing," as Armando tries to understand how the Right Wing thinks by reading my NYT op-ed. Good luck with that! Oh, at least I've led his fevered mind down a blind alley. Nice move dismissing my references to actual case law as "fairly arcane discussion" and then calling me "facile."

Anyway, link, dammit.

UPDATE: Steven Taylor reports that Michael Medved called me a "liberal law professor" on his radio show -- and then Ruth Anne, one of our faithful commenters here, corrected him on the air! Ruth Anne shows up in the comments on this post too and tells the tale. Thanks, Ruth Anne. How interesting to have Kos call me a right winger and Medved call me a liberal on the same day, based on the same essay!

ANOTHER UPDATE: Here's Ruth Anne's blog post about the experience: "When (My) Worlds Collide."

YET ANOTHER UPDATE: I just got an email, with the subject line "Scalito Story," that reads:
You are the worst sort of vile crap to be teaching at a public university, and to be on staff at what should be seen as a prestigious institution is disgusting. It is you and your like that are tearing this country apart. Go home to your cave and commiserate with your kind.

Whew, I feel better.
What do you think are the chances that this person learned what he thinks he knows about me from reading DailyKos?

Mellowing out.

I'm trying to mellow out after yesterday's media overload. How quickly everyone responds to a Supreme Court nominee these days! Oh, how can I marvel at such a thing, when I played the media game all day yesterday? Radio at 7 a.m, blogging all morning, banging out a NYT op-ed in the afternoon, blogging all the while, TV in the early evening, radio again in the later evening, final op-ed edit as I crash into the wall post-radio ... and blog about that! Ah, it's a crazy life, this lawprof-blogger life. You have to ride the wave when it comes. How disconcerting it must be for people to take a day or so to try to understand the work of a man with a long, impressive career. In fact, I have a bit of an aversion to talking about things before taking the time to study them in depth. But if I say no when I'm asked, who will say yes? Better to say yes and be careful not to say more than is fair. Today, though, I need a rest. Of course, I'll read and blog, though. Should I read the blog posts written in the heat of the new nomination, or should I read through some of the old cases, written quietly over the nominee's fifteen years on the federal bench? At first, I thought that was an easy question, but on reflection, I'm really not sure.

Halloween aftermath.

The Isthmus has a giant mass of links and quotes about the Halloween revelries of Madison. Here's a cute (pre-revelry) quote from Kevin O'Connor:
I think those stadium lights are going to make a big difference. I really do. This year when they show the footage of the rioting on the news, we'll be able to see it much better! This is what you get when you stick stadium lights up to try to diffuse a riot: You get a really, really well-lit riot.

You know, all around town there are stencils that say "Don't forget to riot"! But the kids didn't really riot, it seems. And the police behaved properly, didn't they? Go to the Isthmus links for plenty of first-hand descriptions of what happened.

Take note of a serious rumor.

I wasn't going to mention it, but Eric Muller writes "I just got a hit to this blog via the google search 'Is Samuel Alito Jewish.'" Muller chuckles over what he's perceiving as one clueless Googler. But look at my Site Meter's ranking of recent search words. I've been getting numerous hits from "samuel alito jewish" and "alito jewish" in the last two days. Here are my current top hits:
36 ann althouse
27 althouse
11 samuel alito jewish
8 rapex
5 kate moss naked
4 therefore symbol
4 pamela anderson roast
4 ann althouse blog
4 althouse blog
3 seamus farrow
3 alito jewish
2 wsj photos halloween
2 tyler durden sunglasses
2 sexy comedy
2 sexplay
2 sam alito jewish
2 pajama media
2 oogle
2 let it be dvd
2 kate... naked
2 judge samuel alito
2 federalism
2 ann althouse wisconsin
2 "ann althouse"

Put my name aside, ignore my usual traffic over "kate moss naked" and the "therefore symbol" (what this blog is all about, right?), and you can see that the question whether Alito is Jewish is a web trend of the last 24 hours. There's a serious rumor churning up out there, I would guess. Where did it originate?

Quit saying Scalito, read the cases, and appreciate the benefits of a nominee with a long judicial record.

Here's my New York Times op-ed about the new Supreme Court nominee Samuel Alito.

IN THE COMMENTS: Mr. Bungle says: "Sadly this is the news media age when phrases like 'Bennifer' and 'Brangelina' are deployed at every given opportunity. Frankly I'm surprised that 'Bulshito' hasn't been run up the flagpole already." Oh, it shouldn't take long...

October 31, 2005

Radio alert!

I'll be on Open Source, a nationally distributed public radio show based in Boston and hosted by Christopher Lydon, at 7 Eastern, 6 Central Time -- in other words, in a few minutes. I'll be talking about Supreme Court nominations along with Cass Sunstein, Eric Muller, and Charles Fried. You can listen live here. And it's Halloween, with kids coming to the door.... Crazy day! And I've got a final edit on an op-ed to turn around before I go on. Gotta run!

UPDATE: That was interesting. Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

Although I'm detecting it now, so....

Oh, lord! I am hitting the wall tonight!

And where are all the trick-or-treaters? I've got sooooo much extra candy! Two tiny kids came to the door just now and I held out a giant bowl o' candy and said "Take as much as you want."

Spiderman and the Princess each took one piece.

"Go ahead, take as much as you want."

No reaction.

"Go ahead, take two."

Answer: "I already have one."

Awwwww.... little kids are so sweet!

UPDATE: Here's the recording of the show.

Alito, the Italian word.

What does it mean? A quick look at an Italian-to-English translation site shows it means "breath," and that there is a common expression "alito cattivo," which means "bad breath." I emailed my Italian informant for more info, and he's been away from Italy long enough that he wasn't sure if Italians say "alito" outside of the expression "alito cattivo" (because there is another Italian word for "breath," "sospiro"). So he called his daughters in Rome. He emails:
To the question: what do you think when I say alito? One said: "alito di vento" (breath of wind, forgot about that expression!) and alito of a person (but not negative), the other said: "bad breath" (alitosi). Small sample.
So there you have it -- in case you want to use imagery in discussing Samuel Alito. A breath of fresh air? Bad breath? It's your metaphor!

Alito and the Family and Medical Leave Act.

Judge Alito made short work of the question whether Congress has the power under the 14th amendment to enact the Family and Medical Leave Act in Chittister v. Department of community and Economic Development:
In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions," 29 U.S.C. § 2601(a)(2), that the "lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989 (3d Cir., 2000) (Title I of ADA).
This is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. I have a law review article on Hibbs, which you can read in PDF here. Alito took the position Justice Kennedy took in dissent in Hibbs. Chief Justice Rehnquist wrote the majority opinion, which purported to apply Boerne and Kimel, but most certainly did not. You can argue that Boerne and Kimel were wrongly decided, but Alito was bound by them and duly and competently applied them. Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong.

Note: The FMLA is still supported by the commerce power. The issue under the 14th amendment only concerns whether the plaintiff can receive retroactive relief when the employer is the state.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.

"I see you're in full pumpkin mode."

Is it okay to say that to a colleague who is quite pregnant and wears a bright orange sweater on Halloween?

Happy Halloween.

Two photos from State Street shops:

State Street

State Street