It's gonna get ugly.

Posted by Joshua Holland at 8:18 AM on October 31, 2005.

Bush is going to get exactly what he needs: a big, noisy fight over a judicial nomination to change the subject from high gas prices, a deadly debacle in Iraq and the indictment of a senior aide.

Samuel Alito - the man they call "Scalito" -- is the frightening, throw-some-red-meat to your 16th-Century base progressives have feared.

It's gonna get ugly. PFAW's Ralph Neas threw down the gauntlet this morning by likening Scalito to Robert Bork in an interview on NPR.

The nomination's chances will likely hinge on what both sides can do in the next 72 hours or so. Who will define this guy first in the mind of the public?

Liberal Oasis has an excellent run-down of the man's "hostility to equality."

I for one am not looking forward to it. But as long as we have to tolerate an ugly fight anyway, I'd like to see the left not only oppose Alito's nomination, but also push back on the right's red-herring about 'interpreting the law' instead of 'legislating from the bench.'

It's their big gun, despite the fact that it's essentially nonsensical.

Consider this exchange between Katie Couric - always victimized by the prevailing wisdom - and legal scholar Jonathan Turley (with thanks to ThinkProgress):

JONATHAN TURLEY: He's the top choice for particularly pro-life people. Sam Alito is viewed as someone who is likely to join the hard right in likely narrowing Roe and possibly voting to overturn Roe.

KATIE COURIC: So he is a strict constructionist in every sense of the word? I know President Bush is looking for a conservative jurist, so he fits the bill in terms of someone who will interpret the Constitution literally and may disagree with the right to privacy, which is the foundation of Roe v. Wade?

In an editorial in the New York Times a few months back, Yale legal scholar Paul Gewirtz and Chad Golder wrote that it is the "conservative" justices who are the activists - at least using one standard:

…a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism. […]

We examined the court's decisions … and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

The problem, tactically, is that argument doesn't fit on a bumper sticker.

It's clearer to educate people about what "strict constructionism" really means in practical terms. Former Whitehouse Council John Dean dredged up this definition from a memo by William Rehnquist to Dick Nixon:

A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs--the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution.

Dahlia Lithwick, writing in Slate, cited the quote and added:

"In other words, concludes Dean, to Rehnquist "strict constructionist" has nothing to do with adherence to the intent of the framers when interpreting the constitution. It just means screwing the little guy to benefit law enforcement or discriminators.

More to the point, a strict reading of the Constitution effectively puts the kibosh on some popular expectations of what government should do.

Look at the Bill of rights. The 10th amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So strict constructionism means saying 'bye bye' to Social Security. 'So long,' Equal Opportunity Commission. 'Ciao' to most of the EPA (except that which is directly related to interstate commerce).

And for our friends on the right, 'hasta la vista' to the federal death penalty and 'adios' to things like the Patriot Act. Oh, and every war since WWII - the last time Congress declared - have been illegal.

Let's challenge not only this one right-wing judicial tyrant but also the whole straw man argument that's been fueling these fights since the nomination of Clarence Thomas.

Joshua Holland is a staff writer at Alternet and a regular contributor to The Gadflyer.