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Norm Ornstein: Sam Alito is No John Roberts
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American Enterprise Institute Resident Scholar Norm Ornstein hits the Alito ball out of the park with a powerful, incisive op-ed today in Roll Call.
Essentially, Ornstein makes the key point that Alito is hostile to Congress and its role in our system of government. Alito, like Harriet Miers, is a spear-carrier for expansive Executive Branch authority and looks at both Congress and the Judiciary as junior players in government.
Ornstein's piece is something every member of the Senate Judiciary Committee should read. It should be made part of the Congressional Record as Alito, like Miers, is being sent by the President not only to tilt the court's stance on any number of causes celebrated by social conservatives -- but also to further emasculate Congressional power.
Here is an excerpt of the piece, which I recommend that people read in its entirety:
To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito's dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We're talking machine guns.
Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."
Whatever it is, it's not judicial restraint.
Roberts is a very conservative guy, and a strict constructionist -- one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.
Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don't like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don't even pay lip service to the principle when voting to overturn legislative acts.)
Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well (he served as U.S. attorney in New Jersey). It is true, of course, of Roberts too, but he has at least demonstrated deference to Congress. This is one of the reasons I have advocated putting more people with legislative experience on the court. It is a shame that we are losing Sandra Day O'Connor, our only justice who was ever elected to office, and have only one remaining, Stephen Breyer, who has worked in Congress.
President Bush had alternatives -- strong conservatives who understand the role of the courts and the role of Congress. Judge Michael McConnell is one. It is a shame that the president didn't choose one of these men or women. Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.
-- Steve Clemons
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Interesting side note. It turns out that the mob prosecution that Alito blew 20 years ago was the longest criminal trial in US history. It was against the Lucchese family, and included 77 separate counts---NONE of which stuck.
Alito is incompetent. And what is it about Bush Republicans and 10 year old girls?
Libby writes novels that feature little girls being forced to have sex with animals, and Alito sees nothing wrong with un-warranted strip searches of 10 year old girls.
What a bunch of perverts.
This is the real Conservative agenda: Judges should not legislate from the bench. Legislators should not legislate from the legislature (Congress or State legislatures).
Well, so much for yesterday's invocation of Rule 21, eh? Gee, that was fruitful.
marky, i'm curious to know what kind of animals Libby forced little girls to have sex with in his book. It would help greatly to understand his psyche.
Yeah, Steve! 'Cuz do all these GOoPer senators, like, *want* to cede much of their power to the Executive and Judicial branches?!?
Libby writes novels that feature little girls being forced to have sex with animals, and Alito sees nothing wrong with un-warranted strip searches of 10 year old girls.
not to mention Roberts foray into little girl abuse --- remember the case where he said it was okay to arrest and detain a little girl for eating a potato chip on a subway platform?
Emma,
bears.. maybe others.
Maxwell - "This is the real Conservative agenda: Judges should not legislate from the bench. Legislators should not legislate from the legislature (Congress or State legislatures)."
I assume you stated the above in jest, but it does sum up the conservative position rather nicely - the government that governs least is the best.
"I assume you stated the above in jest, but it does sum up the conservative position rather nicely - the government that governs least is the best."
Posted by Neocondan
Yeah, well how exactly does sliming their way into both our bedrooms and our wombs constitute "governing less"???
BTW, read the Patriot Act lately, you blathering idiot?
POA - "Yeah, well how exactly does sliming their way into both our bedrooms and our wombs constitute "governing less"???"
I believe that Maxwell referred to "Conservatives" - not Republicans. You are right, Republicans are no better than Democrats when it comes to reducing an ever growing and intrusive government. However, all true Conservatives ought to be dismayed by what Republicans have done with their turn at bat.
POA - "BTW, read the Patriot Act lately, you blathering idiot?"
Oh yeah, only yesterday.
I haven’t read judge Alito’s opinion re the machine gun matter but based upon your brief discussion of the matter I am not convinced that his approach was wrong… don’t get me wrong… I consider myself a moderate leaning to the liberal side. I believe that an activist government can be a positive force in the growth of our society. But that said… we are still a nation of laws and the constitution enumerates to Congress certain powers one of which is to regulate interstate commerce. If our elected representatives must stretch logic by associating interstate commerce to regulate the sale of items that are not specifically or necessarily related to interstate commerce issues then I would hope that the judiciary would do their duty and call them on it. That is one of the jobs of the judiciary… to keep the other government entities from grabbing powers that are not theirs. I will grant you that it is not a good thing for our national government to remain silent on something as important as the regulation of the sale of machine guns. But it is disingenuous to argue that a ‘good result’ is reason to abandon one of the core principals of our constitutional brand of government. It is a logical fallacy to conclude that if the result is good then the argument must be good as well.
In the argument attributed to Mr Rosen (which I have not read) it appears that the point to be made is that Judge Alito’s dissent was wrong because it would result in the ‘bad result’ of machine guns being sold to the public. It is my opinion that the end result of such a course would be subjectively ‘bad’ but not necessarily ‘wrong’. It is my opinion that our judges should not moralize… They should interpret and enforce the law as they see it.
It very well may be that there was existing, persuasive case law that supported the idea that there was something more than a tenuous link between interstate commerce and the sale of machine guns. If that was the case then the argument should be as a matter of law that Judge Alito was wrong to insert his ideology into a legal matter. If we can’t argue that as a matter of law that he made a mistake then this is not a good basis for an attack.
Please don’t get me wrong… it is not a good thing to permit the unregulated sale of firearms. I agree with George Will when he says that the government must have a monopoly on violence. But… to use the interstate commerce clause as a fig leaf to make a ‘good result’ possible is wrong. It makes us that much less a “nation of lawsâ€Â. Rather… this outcome would give support an amendment to insert the word ‘small’ into the second amendment and another giving congress the right to regulate guns.
Perhaps the Senators can ask Alito his opinion on the legal issue of whether his own governmental records should be released to Congress or not. It would be a great test of his idea of the balance between Executive and Legislative branches, and since it involves his own records he would never in the future be ruling on it anyway, so it shouldn't have anything to do with any future rulings he might make...
Woke up to NPR this morning and heard something about Alito which made me remember discussion heard on WNYC, IIRC--think it was NPR special on Alito, but not sure.
One of the guests, from the legal field, described Alito's judicial decisions as showing undue deference to authority, be it corporate, federal, state, police...authority in any of its permutations.
Discussion of his decisions this morning made me think that Alito is the perfect Corporatist nominee to the Supreme Court. The Executive Branch will be deferred to, corporations, the powerful....
Made me depressed. Not a good thought to start the day.
The article you cite reinforces this sad thought.
As I have discuss elsewhere, I think Alito makes a more convincing case that the Supreme Court's decision in Lopez governed than does the majority's endeavor to distinguish Rybar from that case. That doesn't make Lopez a terribly gratifying or compelling case, but for a circuit judge gratifying and compelling are matters to take up over beers after work -- Judge Alito felt bound to Lopez and wrote accordingly. I have trouble finding fault, given the constraints on his discretion.
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