And Along Comes Mr. Authoritarian Personality....

Although Law.com sees this as "punching holes" in other Justices' hypotheticals, I see something else:

But Justice Samuel Alito punched holes in some of his colleagues' hypotheticals, asking if those situations "occur with any frequency in the real world."

It's a wonderfully leading question, and you would have to be dumb as a sack of hammers to believe that Alito did not know the answer that would be forthcoming. So it is safe to conclude that Alito didn't intend to learn anything from the answer.

So why then a question which suggests a philosophy that, even when a statute is excessively broad, if the circumstances in which its reach would be unconstitutional are purported to be rare, we should let the statute stand and "trust the government" not to misapply it? That appears to be what Alito believes.

I'm more of the school that legislatures should draft good laws, and courts should not be forgiving of their drafting unconstitutionally vague or ambiguous laws merely because it is hypothesized that the vague or ambiguous elements will rarely come into play. In terms of whether we can trust that prosecutors won't charge people in the situations Alito would deem exceptional, my experience suggests otherwise.

"I'm Your Lawyer. Here's Exactly What You Want To Hear."

In what seems to be a soft-sell of the Alito nomination, Michael Kinsley argues that his anti-Roe memos should be taken as his providing the President with a legal basis for views the President already held:

The memos gave the appearance of urging the Reagan administration to take a more conservative line on issues such as school prayer and employment discrimination. But White House press secretary Scott McClellan revealed that these were actually Reagan's views already. "I think what those files show is a young White House staffer helping to provide legal analysis in support of the president's agenda, President Reagan's agenda." In other words, Roberts supplied reasons for views Reagan already held. Roberts was just a repairman, fixing views he didn't necessarily own.

If he truly believes that, his piece should be titled "Why lawyers are useless" instead of "Why lawyers are liars". Now I will grant that there has been some real hackery in the Bush II White House, with lawyers presenting the most attenuated arguments to defend the indefensible, but those opinions were meant to provide the Bush II administration with plausible deniability when it was caught breaking the law. "Our lawyers said it was okay." It's something else entirely to suggest that a lawyer writing a memo in relation to existing case law should advocate the desired outcome rather than educating his bosses as to the actual state of the law. Kinsley continues,

When do lawyers become free to have their own agenda and say what they really think? Not when they leave the government and enter private practice. Roberts told the Senate Judiciary Committee that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer."

But there is a big difference between a lawyer's private thoughts and advice to a client, and what a lawyer might do or say when advocating for the client in court. A good lawyer will privately tell the client the state of the law, how to conform to the law, and the risks of trying to skirt a law - including considerations which weigh against what a client wants to do - but in court will present the strongest possible argument on behalf of his client, interpreting the law in the light most favorable to the client. The role of a lawyer who is advising a client is different from that of advocating for the client.

Kinsley reminds me of this lawyer joke:

A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.

At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"

The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.

The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"

The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.

The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"

The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"

Kinsley is essentially arguing that the third type of lawyer is the norm and not the exception. Maybe Alito really does place himself in that third category, in which case Kinsley has convinced me that Alito does not belong on the Supreme Court.

Evil Racist Liberals are "Losing the Alitos"?

I came across a quote from David "Babbling" Brooks today, in which he suggests that Alito might have been a liberal, but for immigrant-bashing by Democrats....

If he'd been born a little earlier, Sam Alito would probably have been a Democrat. In the 1950's, the middle-class and lower-middle-class whites in places like Trenton, where Alito grew up, were the heart and soul of the Democratic Party.

But by the late 1960's, cultural politics replaced New Deal politics, and liberal Democrats did their best to repel Northern white ethnic voters. Big-city liberals launched crusades against police brutality, portraying working-class cops as thuggish storm troopers for the establishment. In the media, educated liberals portrayed urban ethnics as uncultured, uneducated Archie Bunkers.

The liberals were doves; the ethnics were hawks. The liberals had "Question Authority" bumper stickers; the ethnics had been taught in school to respect authority. The liberals thought an unjust society caused poverty; the ethnics believed in working their way out of poverty.

Brooks has always had a penchant for simply "making stuff up" when he has no facts... and this is no exception. Perhaps he never got past watching "All in the Family" reruns when analyzing depictions of racism on television... but if he had watched a bit closer he might have recognized that while Archie was depicted as a bigot Edith was not, and between them they managed to produce a liberal child. That is, this depiction (which did not come from "big city liberals", but came from a capitalist broadcasting corporation seeking profits) was not one-sided.

Last I checked there were a few racists in the blue collar ranks of northern cities (along with all other societal ranks - racism knows no class or ethnic barrier). Not that he's at all representative, but I think the hard-working, northern "white ethnic" John Demjanjuk was probably a Republican even before he heard of Archie Bunker. And I don't think that the guys who killed Vincent Chin were demonstrating "blowback" agaist liberal television programming. I am reminded of a former co-worker of "northern white ethnic" extraction, who bragged of his family's relocation from Brooklyn to Bensonhurst when the "Moulies" moved in - while discussing the murder of Yusuf Hawkins. I am also not clear on how one would address the thuggery of such programs as the Detroit Police Department's STRESS program without noting that its activities targeted blacks with particularly brutal results, or observing that at the time the Detroit Police Department was 90% white. Also, if Brooks' theory had any validity one would think that you would see the urban north switching from blue to red. Um....

And what does this say of Alito, or at least Brooks' assessment of Alito? That he's such a shallow thinker that a few episodes of "All in the Family", and a (hypothetical) distant cousin's lament about the effects of integration in an urban police department would justify his transformation into a life-long enemy of progressive politics, and an enemy of integration and sexual equality? Isn't that the same type of ugly caricature that Brooks is accusing "liberals" of creating? I am sure that Alito can come up with a much less simple-minded and reactionary explanation for his beliefs, even if Brooks cannot.

And what of Brooks' distinction between "white ethnics" and other ethnics in the northern cities? Gee... if only those northern white liberals and non-white ethnics shared such notions as personal responsibilty and work ethic... why, maybe then New Jersey would again be a "blue state".

Is The Issue Really "Plausible Deniability"

Over at his conspiracy, Professor Eugene Volokh provides an extensive defense of Judge Alito's decision on spousal notification. But what's the goal? If the goal is to convince me that even though every single word, opinion, or other evidence produced to date on Alito's position on abortion rights places him squarely in the "Pro-Life/Anti-Roe" camp, it's a failure. If the effort is to argue that there's enough nuance in Alito's various opinions, statements, and expressions on the issue that you could plausibly argue that he isn't definitively "Pro-Life/Anti-Roe", well... yes, through a sufficiently zealous use of sleight of hand and weasel words, I suppose that case can be made. But personally, I think we should admit the obvious and move forward from there.

And if Professor Volokh really is parsing Alito's positions this finely even though he doesn't actually take a (public) position on the abortion debate... why? If he doesn't believe that Alito's position on abortion should be relevant to his nomination, isn't that the better argument to advance? Because I don't find very compelling the notion that if we interject enough nuance into a history of statements and opinions that isn't very nuanced, we remove the issue from the table.

[Edited to correct error/omission resulting from a clumsy addition of a link.]

He's Smarter Than This....

Isn't he?

Samuel Alito said, when applying for a job with the Reagan Administration, "the Constitution does not protect a right to an abortion." He described that as a strong, personal belief.

He now defends himself by contending that when he made that statement he was "an advocate seeking a job" and according to unnamed Senators now "thinks he's a wiser person" with "a better grasp and understanding about constitutional rights and liberties." Those two claims are not necessarily inconsistent, but there is tension between them.

If Alito's contention that his statement reflects his advocacy as a job seeker but not his actual belief, he is expressing that he would lie to get a job. If his original statement accurately reflects his views, but he is trying to avoid admitting that he still holds that view by suggesting that his past, unequivocal statement on abortion rights was something other than a true statement of his beliefs, he is lying about why he made the original statement. How is this good for him? He's setting himself up for a Perry Mason moment before the Senate - "Were you lying then, or are you lying now?"

As for the Senators' assertions, are they really stating that Alito has approached them in private and expressed that he does think that the Constitution protects the right to abortion, they should be more forthcoming. That would be a highly relevant fact which should be made public. If Alito has not explicitly retreated from his earlier statement, they have no business suggesting that he has.

Further, as I said, there is tension between Alito's claim and the Senators' assertions - if Alito did not believe what he said, but was lying or exaggerating to get a job, his better developed wisdom and sense of Constitutional jurisprudence has no bearing on his position on abortion rights - as he would have had to believe at the time he denounced Roe v Wade that there in fact was some level of constitutional protection of abortion rights.

This isn't (or shouldn't be) part of a litmus test on "choice". We've previously had nominees on both sides of the abortion debate who, although never stating their positions, were expected to advocate for one side or the other, and in fact have done so. The issue, at least to me, is the explanation, which does reflect on the credibility of the witness. (And yes, he is smarter than this, but then even smart people sometimes trip over their own two feet.)