Alito: It's Gonna Get Ugly

By Joshua Holland, AlterNet. Posted October 31, 2005.

[Editor's Note: Joshua Holland posted this analysis earlier this morning in The Mix.]

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. People for the American Way'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 %

Joshua Holland is a staff writer at AlterNet.

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