Alito’s Colleagues on Alito: “Radical,” “Unwise,” “Ignores Precedent”
Alito’s Colleagues on Alito: “Radical,” “Unwise,” “Ignores Precedent”
During his tenure on 3rd Circuit many of Samuel Alito’s opinions have been roundly criticized by other judges. This is particularly true in civil rights cases. In such cases Alito has been repeatedly criticized, not for being conservative, but for being unfaithful to the law. Here’s a sample:
“What [Judge Alito] proposes to do in [his] holding is effectively have courts take a back seat to bureaucratic agencies in protecting constitutional liberties. This . . . is a radical and unwise redefinition of the relationship between federal courts and federal agencies . . . .†(Grant v. Shalala, 1993) (Judge Leon Higginbotham)
“We suggest that to read [as Judge Alito does] the ‘no reasonable adjudicator’ standard in a way that does away with the need for ‘substantial evidence’ not only guts the statutory standard, but ignores our precedent.” (Dia v. Ashcroft, 2003) (Judge Marjorie Rendell)
“I disagree with [Judge Alito’s] holding that a union has ‘actual authority’ to waive its members’ Fourth Amendment rights bound only by the fair representation doctrine. . . . This sweeping assertion divests all public sector employees of their Fourth Amendment rights and strains to make legitimate that which clearly is not.” (Bolden v. Southeastern Pennsylvania Transp. Authority, 1991) (Judge Richard Nygaard)
“[Judge Alito’s] position would immunize an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate, was the result of conscious racial bias. . . . Title VII would be eviscerated if our analysis were to halt where [Judge Alito’s] dissent suggests.†(Bray v. Marriott Hotels, 1997) (Judge Theodore McKee)
“[Judge Alito] gives no reason why a plaintiff alleging discrimination is not entitled to the real reason for the personnel decision, no matter how uncomfortable the truth may be to the employer. Surely, the judicial system has little to gain by [Judge Alito’s] approach.†(Sheridan v. E.I. DuPont de Nemours and Co., 1996) (Judge Dolores Sloviter)
“[Judge Alito’s] attempt to analogize the statistical evidence of the use of peremptory challenges to strike black jurors to the percent of left-handed presidents requires some comment. [Judge Alito] has overlooked the obvious fact that there is no provision in the Constitution that protects persons from discrimination based on whether they are right-handed or left-handed. To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants . . . .†(Riley v. Taylor, 2001) (Judge Dolores Sloviter)
“[Judge Alito’s] decision overturning the District Court’s grant of a writ of habeas corpus and rejecting [the defendant’s] claim of ineffective assistance of counsel is inexplicable in light of the Supreme Court’s most recent application of Strickland in Wiggins v. Smith, 539 U.S. 510 (2003), under circumstances remarkably similar to those presented here.” (Rompilla v. Horn, 2004) (Judge Dolores Sloviter)
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Sounds like an activist judge to me. So if appointed, clearly he would surpass Thomas as 'the most activist judge'.
November 3rd, 2005 at 4:49 pmThe eviceration of the courts is his aim.
November 3rd, 2005 at 4:56 pmI am SO SICK of hearing that Alito should be nominated because of how SMART he is. You know there are plenty of smart men and women in history who were also quite evil. It doesn't JUST matter how smart he is, but also how fair he is, and how HONEST he is.
Bush, when nominating Miers claimed we should have someone with little or no judicial experience - apparently THAT was the best thing for the courts and Americans. Now, he flip-flops and makes us believe he thinks someone with TONS of judicial experience is what's necessary.
I'm glad now that we even have an Alito friend telling the truth about Alito - and proving that smarts are not the only thing which is important in a judicial nominee.
November 3rd, 2005 at 4:59 pmNo activist judges, eh? We are all getting tired of the bull - even in red state TN. As they are saying down here, "line 'em up."
November 3rd, 2005 at 4:59 pmJust how smart can you really be if you are on the extreme right?
November 3rd, 2005 at 5:03 pmsounds like a winner... for me to POOP on!
November 3rd, 2005 at 5:04 pmI believe MoveON.org/ (I think that's their address. If not someone please correct me.) is running a petition drive to tell the Judiciary Commitee how America feels.
November 3rd, 2005 at 5:04 pmI think they are looking to post an ad in Roll Call.
Check it out.
Pete, hysterical - Triumph rocks.
November 3rd, 2005 at 5:09 pmI know this will catch some flack but...I would rather have a smart judge with an agenda than a stupid, inexperienced friend of the president with an agenda sitting on the SCOTUS..for example, Nixon was smart/evil and embarrassed his party, but not many americans got hurt (except some high up political movers & shakers), yet with bush we have stupid/evil, and look what it has cost the country...when the gop stole the election in 2000, I remember seeing an old man in florida say "Our country is strong enough to survive 4 years of Bush"...is it strong enough to survive 8? (sorry for the tangent)
November 3rd, 2005 at 5:16 pmDid anyone else see the Delay/Scanlon/Abramoff memo today? Apparently they don't think much of conservative republican voters. These poor sickos who vote republican get what they deserve.
"The wackos get their information through the Christian right, Christian radio, mail, the internet and telephone trees," Scanlon wrote in the memo, which was read into the public record at a hearing of the Senate Indian Affairs Committee. "Simply put, we want to bring out the wackos to vote against something and make sure the rest of the public lets the whole thing slip past them."
November 3rd, 2005 at 5:16 pmWhat the conservatives actually want is REVERSE activism, delivered by a strict DE-constructionist judge who is dedicated to interpreting the Constitution as it was intended at a time when labor was unregulated, slavery was in fashion, women were chattel and a majority of people believed that frogs were spontaneously generated from mud.
November 3rd, 2005 at 5:17 pm#10 Just remember, Abramoff referred to the Choctaws as "idiots," "mofos" and "troglodytes." If I were him, I'd stay away from the rez.
November 3rd, 2005 at 5:22 pmAlito will not be confirmed until next year, Specter says.
November 3rd, 2005 at 5:29 pmThis Alito fellow is an ultra-right-wing-neocon-nut that has no business on the court whatsoever.
But watch the pukes push and shove until, like the runt in a litter, they get their way.
Then sit back and watch as the country goes to hell in a handbasket over the next 25 years.
This is the Bushlandia desigh.
November 3rd, 2005 at 5:32 pm#13 Yes, I felt a distrubance in the Force over at FreeRepublic...as though a million voices had suddenly cried out, and just as suddenly begun eating their own. They are NOT happy folk.
November 3rd, 2005 at 5:34 pmLooks like he ignores established law, any wonder why he was nominated by W? He seems to like his cronies to ignore the law.
November 3rd, 2005 at 5:46 pmRDL,
The term 'activist judge' means one that overturns legislation - it's not related to republican or democratic tendencies in that effort.
Supreme Court 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 %
November 3rd, 2005 at 5:47 pmKennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
In otherwords, republican judges are by nature activist judges, just like republican loyalists tend to be fascist lying propagandist. It's part of the pathology that makes them republicans and conservatives. In otherwords, they're whackos.
November 3rd, 2005 at 5:48 pm#15 - funny you should say that - about a disturbance in the freeper force (funny), and ryan...check out the posts #97-on at http://thinkprogress.org/2005/11/03/cheney-19/#comments
wasn't this happening yesterday? got me curious, but i've no doubt it's bogus...
November 3rd, 2005 at 5:56 pm#20
I have never eaten Dominoes pizza in my life, well except to discover that I prefer Papa John's; so I can't help 'ya on that one.
November 3rd, 2005 at 6:01 pmThis website kills me. It really does. Alito's "collegues"? Please. Why don't they really state what these people are. How about Alito's "left-wing, extremist, secular-progressive-seeking, activist judge collegues?" That would seem to be a more accurate description of these people. I think it is time to for everyone to realize that this man will be approved by the Senate. It is going to happen. He is more than qualified for the postion. Maybe even more so than Judge Roberts, who set the standard for Supreme Court Justice jurisprudence. To the left-wing crazies out there: JUST SUCK IT UP! It is about time the court moved back in the "right" direction. The American people are way overdue.
November 3rd, 2005 at 6:16 pmthe senate has now until after ther 2nd of jan 2006 to read and enjoy the honesty of this super smart jurist . The crap is beyond compare ,how in the hell the morons in the white house and their so call conservatives supporters can relish in this nomination ?Is there sanity in the senate ? Where are te so call moderate republicans ? Let's stop this collegiaate attitude ! The fachists are no longer are at the ramparts ... they are at the heart of citadel democracy....Our individual liberties are at risk with this nomine ... i hope Specter will not repeat the Thomas mistake .
November 3rd, 2005 at 6:22 pmARealTerrorist,
I already showed you above, republicans are the activist judges. Stop substituting your uneducated opinions for the facts - it just makes you look like another biased partisan fool. Which clearly you are.
November 3rd, 2005 at 6:24 pm# 22
Did you actually read the article? These are judges critiquing the rulings and comments of Alito. If you need more reference to the cases in question look themup on Groklaw.com or any other online references to get the information on the cases involved. You should actually RTFA before making comments, it makes you look quite silly otherwise
November 3rd, 2005 at 6:27 pmThe majority of americans are against rightwing policies, only fringe fascist christian terrorists really want rightwing courts. The rest of america does not.
November 3rd, 2005 at 6:28 pmto katy, #19,
Are you referring to the "light being shed"?
It was successful last night, and since you go with what works, you've got the new posts. I personally LOVE absolving them. (I'm reminded of Bernard's bit on Imus)
Anyway, I also want to say to Running dog:
November 3rd, 2005 at 6:31 pmI love your sense of humor. You make me laugh every time you post.
What Roberts, Alito, Scalia and Thomas have in common is a refusal to recognize that thier rigid and self-righteous intrepretation of the relationship between law, power and society actually affects the lives of people who need the protection of the law the most.
They act as thought the institutions of power exist in a vaccuum.
Is social darwinism and plutocracy their overarching aim?
Contrast all this with a justice like Cardozo, who understood that the effect the law had on society was a part- a part, not all- of the thinking that went into deciding a case.
So much for compassionate conservatism. Can anyone make the claim that Alito embodies compassion and deference for individuals as a check on the power of the state?
November 3rd, 2005 at 6:32 pmAs far as Alito goes:
Did anyone watch the announcement speech?
November 3rd, 2005 at 6:41 pmRemember when they put the camera on his family?
Even his young daughter had a scowl on her face!
Body language is very telling, and this family is REEKING of repression, anger, and intolerance.
Fascists? Why is it that liberals always refer to us right-wingers as fascists (and this is the correct spelling of the word, dumb-asses. Some of you are having a problem with it). But who are the real fascists? The real fascists are the left-wing, secular-progressive liberals out there, who always insist they are on the side of freedom and democracy. The last time I checked, this is a representative democracy. The law of the land is decided in our legislative bodies, by officials ELECTED BY THE PEOPLE (unfortunately, liberals are having a problem with the whole "winning of elections" thing lately). The real facists are the left-wing activist judges who think they can overrule the will of the people by judicial fiat. The left-wing crazies in this country would have us governed by a few judical fascists. Judges like Alito, Thomas, and Scalia are simply leaving the power in the hands of the people by narrowly interpreting the Constitition, and therefore not legislating from the bench. As for the judges commenting on Alito's ruling, my point was this: where are all the quotes from judges who AGREE with Alito's rulings? Funny, but the web-site didn't post any of their opinions.
November 3rd, 2005 at 6:46 pmMy mommy loudly scolded me when I accidently did my nasty in my underpants, "BAD Digusting vile boy" and now I am a judge. I'll show you all I smell like a rose dammit.
November 3rd, 2005 at 6:50 pmAlito was promoted by Norquist three or four years ago as one of five most "qualified" in his mind to be nominated to the Supreme Court.
So, was Georgey Boy Bush's own lawyer a rouse? She failed to Rabid ReichWingNut acid test. Was she offered only to align these nut-jobs behind Alito?
November 3rd, 2005 at 6:51 pmmy point was this: where are all the quotes from judges who AGREE with Alito’s rulings? Funny, but the web-site didn’t post any of their opinions.
Comment by A real American
You might as well ask them to put a gun to their own head or drink unflavored coffee.
November 3rd, 2005 at 6:52 pm#31
"The law of the land is decided in our legislative bodies, by officials ELECTED BY THE PEOPLE ..."
Then how come so many of these laws are overturned as unconstitutional?
What if the "law of the land" denies someone their constutional rights, whether purposefully or inadvertently?
Do you really think that ten thousand municipal, county and district governments, fifty state legislatures, made up of two houses each (except Nebraska), dozens of governors issuing executive proclimations, thousands of boards and commissions with regulator power that are appointed, not elected are always aware of the constutional implications of their votes?
November 3rd, 2005 at 6:59 pm"Fascists? Why is it that liberals always refer to us right-wingers as fascists (and this is the correct spelling of the word, dumb-asses. Some of you are having a problem with it). But who are the real fascists?"ARealRepublicanFascist,
Liberals care about facts, conservatives about opinions. This republican fascist has the opinion that fascism is 'liberal', but in fact it's conservative:
http://upload.wikimedia.org/wikipedia/en/thumb/b/bb/Ancap_chart.JPG/400px-Ancap_chart.JPG
Fascism is the intersection of rightwing economic and political movements. Once again retard, you accepted the word of Hannity and the other moron republicans instead of doing you research. No wonder they have so many of you fools and nitwits behind them. Stop being such a lazy moron, and do your homework before you say such stupid things!
November 3rd, 2005 at 7:02 pm# 30 and 33
November 3rd, 2005 at 7:02 pmPlease do post any judges that agreed with his rulings in the cases listed, please include comments, references and links as well, since I would like to read them also, do you have them or are you just talking?
"The real facists are the left-wing activist judges who think they can overrule the will of the people by judicial fiat." ARealRepublicanMoron
Judicial Fiat is a REPUBLICAN trait. You are full of lies, too bad for you the internet makes it so easy to dispute and disprove them.
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 %
November 3rd, 2005 at 7:04 pmKennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
Tell me, Real American, if you purchased an automobile and it was defective in its manufacture, should you be able to sue the manufacturer, or only the person or entity that sold it to you?
November 3rd, 2005 at 7:08 pmTo offer judicial obstruction to small "d" democratic ideals such as diversity and equal access one must be an activist judge. I think from the above Alito seems to fit the bill of activist judge. Shame on you Mr. Bush and friends for speaking out of the two sides of your mouths. If only Eric Blair were here. -Kevo
November 3rd, 2005 at 7:14 pmA Real American's rant came right from the Michael Savage Show. I listen for a good laugh; too long and I get nauseous.
November 3rd, 2005 at 7:15 pm"...fascists (and this is the correct spelling of the word, dumb-asses. Some of you are having a problem with it)."
"The real facists are the left-wing activist judges who..."
Comment by A real American —
_____________
I guess you did the same "DUMB-ASS" spelling error....
DUMB ASS!!!!!!!
November 3rd, 2005 at 7:20 pm#27, true blue - look up the term "hood winked"...
November 3rd, 2005 at 7:20 pmi can "absolve" any true "repenter", but further reading of the posts of aphro, ned, randy, turk, et al prove that those posters were POSERS...
no "light being shed" there...
"(...)The real facists are the left-wing activist judges who think they can overrule the will of the people by judicial fiat.(...)"
Comment by A real American — November 3, 2005 @ 6:46 pm
You mean, sort of like the way the Supreme Court stopped the vote recounting back in 2000, and so practically appointed George Bush to the presidency?
If that is waht you are talking about, then we are in total agreement. Down with those activist judges!
November 3rd, 2005 at 7:25 pmkaty,
THAT'S THE POINT!!!!
If you had read further last night I thanked "You Know Who" and lauded the effect.
Keep up, Katy. It's a tool. And has been working, so far. I think that we should all absolve "them", any time "they" post. It's great!
November 3rd, 2005 at 7:26 pm#44, trueblue - i'm trying to "keep up" here...clue me in...
November 3rd, 2005 at 8:12 pm"If you had read further last night I thanked “You Know Who†and lauded the effect."
provide the link(s) please...can't find this anywhere......
giving you the benefit of the doubt also...
Wow, Alito must be really bad. Judges don't rat each other out like that. I know some real nut case Judges around here, but to hear the other Judges talk you'd never know it. Quite interesting.
November 3rd, 2005 at 8:27 pm#47
In Grandholm v. Held, I think it was, one of the other justices, O'connor I think, diplomnatically wrote that she couldn't figger out what the F**k Scalia and Thomas were talking about.
November 3rd, 2005 at 8:34 pmHi Katy,
November 3rd, 2005 at 8:45 pmwas away for a while.
The post that you referenced... that you thought was "bogus"....
See? They "write in", tell us they're sorry, and I "absolve" them.
It's brilliant!
Get it?
I think we should ALL do it.
I don't know who's doing the "Atoning", but I LOVE THE EFFECT! and I LOVE ABETTING said unknown poster.
We should ALL adopt the manrtra. It'll keep the trolls away, if we ALL do it.
#11 - Running Dog,
You're right about what the cons want but not about the reason for it. To make a statement about "a time when labor was unregulated, slavery was in fashion, women were chattel and a majority of people believed that frogs were spontaneously generated from mud" while at the same time suggesting that the Constitution is similarly wrong-headed is, well, wrong-headed. True, the Constitution did reduce slaves to 3/5 of a man, but, as cruel and as hypocritical as that was, it does not mean that it is an immoral or unethical document, at least not if you consider the Amendments. (Though you are free to believe of course that this fundamental flaw invalidates the entire document.) These far-right judges do not care about "[T]he Constitution as it was intended." They're not Jeffersonians. They just use that phrase to provide a false justification for getting the Federal government out of the way of corporate interests by any means necessary. This is the goal of people like Roberts and Alito, though Alito seems to have the additional goal of baking religious fanaticism, excess zeal if you will, into the law, whereas the Constitution intended there to be no religious element whatsoever in the Federal government. Guaranteeing religious freedom for citizens is as far as it goes, and that is more an exclusion than an inclusion of religion it seems to me. In other words, there is no place for it in the governmental function itself.
By the way, don't forget that most of those men who had a hand in the formation of our government were not Christians and did not profess to be Christians.
November 3rd, 2005 at 9:07 pmRunning Dog and others like you, thanks for having the fortitude to scan those right wing blogs. I can't do it.
November 3rd, 2005 at 9:10 pm[...] On that note, Think Progress has a list of quotes from Alito’s colleagues. They are interesting read, and paint a picture of someone with an agenda. [...]
November 3rd, 2005 at 9:18 pm#30, This is so wrong I don't know where to start. Yes, this is a representative democracy, a "republic", and the right in this country has nothing but contempt for its representatives. People like Delay & Frist just funnel money to corporate interests. People call you fascists because YOU SUPPORT FASCIST POLICIES, like invasion of privacy for any reason deemed sufficient by the state, deciding policy behind closed doors, putting up a wall between the "representative democracy" and its people, militarizing society wherever possible, and suppressing dissent (which is one of our rights AND DUTIES, in case you forgot).
November 3rd, 2005 at 9:31 pmAlito condoned strip-searching a 10 year old girl without a warrant. For that alone he should be disbarred. He is clearly unfit to sit on any court except the Red Queen's.
November 3rd, 2005 at 10:09 pmOdds on filibuster by the Democrats over the Alito Confirmation Process: 4 to 1, against a filibuster. Odds on Alito being confirmed: 3 to 1, in favor of confirmation. Odds on Roe being overturned if Alito is confirmed: 2 to 1, in favor of Roe being overturned. Back to the states at that point.
November 3rd, 2005 at 10:23 pmdisgusted,
How did you know GWs frat nickname?
November 3rd, 2005 at 10:25 pmRyan, awesome posts.
disgusted #54, I agree, he sounds like a pedophile to me.
November 3rd, 2005 at 10:39 pmhardass, (#23)
I don't care if you're spelling ain't too good---- well said.
November 3rd, 2005 at 10:54 pm# 30
you are called Fascist because it is exactly what the right wing is. Ryan has provided a link - but I doubt that you have taken the time to check it. It is summarized below - should ring a bell with you because this is the kinda crap you fascist support. dumb ass indeed.
melding of government and corperations
media under government control
religious intolerance + religious pandering
to mobilize the masses
disdain for academia
uber - fake patriotism
persecution and scapegoating of minorities
(like gays and all "liberals")
disdain for human rights (think guatanomo, abu grehb)
supremacy of the military
suppresion of labor unions and worker rights
fascism is right wing by definition. The connection
between corperation and government is proof positive.
handy foldup guide in pdf form for those inclined
November 3rd, 2005 at 10:59 pmto "wake up and smell the facsism"
http://www.oldamericancentury.org/smell_the_fascism2.pdf
November 3rd, 2005 at 11:01 pm#33
"My point was this: where are all the quotes from judges who AGREE with Alito’s rulings? Funny, but the web-site didn’t post any of their opinions.."
That doesn't make any sense. When he agrees with the other judges, the opinion is a shared opinion and so may not entirely be distinguishable as Alito's writing.
A dissent, by contrast, in a Federal Appeals panel of three judges, is the work of one judge. In this case, Alito.
Second, there is no interest in judges who think like other judges, it is what distinguishes Alito (the dissents) from prevailing judicial reasoning by his colleagues that is of interest.
November 4th, 2005 at 12:01 amThis isn't even an article, just a cherry-picked collection of comments with no reference at all. Conservative sites have mirror lists. What do we know about the judges making the comments? Maybe they are the "out of touch" ones? What are the facts of the cases? Was he in the majority or minority on the case? Is anyone here aware that according to todays New York Times (no friend of conservatives) the Supreme Court has sided with Judge Alito's dissents more often than any other Appeals Court judge? People here keep bringing up Planned Parenthood v. Casey but fail to mention several other cases where his dissent was upheld. So many here are rabid about the woman's right to abortion but seem to care less about the husband's and future father's rights to at least be told their wife is aborting the child. Isn't that discrimination? The law merely required notification yet I have read comparisons to the Taliban. Just willfully dumb comments.
November 4th, 2005 at 12:24 amIn U.S. v. Rybar Alito held that the federal government could not use the commerce clause to ban the sale of machine guns purely within a state since there is no interstate commerce. Justice Roberts said the same thing in Rancho Viejo v. Norton. Alito specifically stated that laws could be passed regulating such ownership and in fact had been in many areas. In fact, he said that the Congress could amend the law so that it would cover such things but they had failed to do that (read para. 80). In other words, he was probably right in his dissent and the law needs fixing by those responsible, legislators, not judges.
A simple google search will turn up comments both pro and con from other judges. No surprise there eh?
#17 - I did several searches on "judicial activism" and "activist judge" and the overwhelming majority state that (summarizing here) it is a philosphy or person who departs from the text of the law or re-interprets it in order to meet what they feel is the needs of the society or situation. It has nothing to do with overturning legislation although that can be the result. A judicial conservative is not a christian zealot but rather someone who takes a law for what it says and doesn't try to make it stretch to cover what they wish it said. Such a person can be either liberal or conservative in other areas such as economic, social, etc. I want judges who follow the law. If it needs fixing then hold your elected officials accountable for fixing it! As for your statistics on striking down laws, the top strikers could be either good or bad depending on what laws and what cases. Conversely, maybe the rare strikers are the incompetent ones. As a list it is worthless and I suspect you know that.
Ryan, you deserve overtime pay for the amount of effort you put into disproving the neocons.
When I strike it rich (after Bushie is impeached) I will have you in my thoughts.
Thinkprogress should put you on their payroll meanwhile.
November 4th, 2005 at 2:13 am#62
"This isn’t even an article, just a cherry-picked collection of comments with no reference at all"
Than what are these?
(Grant v. Shalala, 1993) (Judge Leon Higginbotham)
(Dia v. Ashcroft, 2003) (Judge Marjorie Rendell)
(Bolden v. Southeastern Pennsylvania Transp. Authority, 1991) (Judge Richard Nygaard)
(Bray v. Marriott Hotels, 1997) (Judge Theodore McKee)
(Riley v. Taylor, 2001) (Judge Dolores Sloviter)
(Rompilla v. Horn, 2004) (Judge Dolores Sloviter)
"Conservative sites have mirror lists."
Sorry to hear that you can't look it up yourself, here try this:
http://vls.law.vill.edu/Locator/3/
or,
http://www.ca3.uscourts.gov/indexsearch/archives.asp
"What do we know about the judges making the comments?"
See the following, again you would have had to look it up yourself:
http://en.wikipedia.org/wiki/3d_Cir.
"In U.S. v. Rybar Alito held that the federal government could not use the commerce clause to ban the sale of machine guns purely within a state since there is no interstate commerce. Justice Roberts said the same thing in Rancho Viejo v. Norton."
To Quote the 5th Circuit (one of the most, if not the most conservative circuits) in US vs. Knutson:
"EVERY OTHER CIRCUIT THAT HAS CONSIDERED THIS CASE HAS CONSIDERED THIS ISSUE HAS UPHELD § 922(o) AS A RATIONAL EXCERCIZE OF THAT (the commerce)POWER. Today, we join
those circuits in affirming the constitutionality of § 922(o)."
Your assertion that the activity occourred entirely within the state is laughable, the gun in question was an article of commerce Made in China, not a toad living on a parcel of real property in Colorado as in Norton.
The Rybar court reacted to the assertion that there was no commerce as follows:
"The dissent presses us to find a commercial or economic component of possession of a firearm. The response can be found in the dissenting opinion itself" because "there could be no unlawful possession without first an unlawful transfer, section 922(o)'s regulation of possession "regulates commerce" itself."
Rybar cited examples from all other circuit courts upholding the regulation of commerce in question.
Alito's logic would have ment overturning all those other decisions, not exactly the respect for precedent we are supposed to believe that "judicial restraint" is supposed to entail.
"In other words, he was probably right in his dissent and the law needs fixing by those responsible, legislators, not judges."
This is completely false. The majority did not "fix" the law, they left it completely untouched as passed by the Congress. It was Alito who thought that Congress should "fix" the statute to conform to his brand of federalism. To quote the Rybar Majority:
"We know of no authority to support such a demand on
Congress...making such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government..."
"Alito specifically stated that laws could be passed regulating such ownership and in fact had been in many areas. In fact, he said that the Congress could amend the law so that it would cover such things but they had failed to do that (read para. 80)..."
Yes, Judge Alito attempted to instruct the Congress to pass a new law so that it would cover what he (Alito) thought it should cover, even though the all the other courts had universally held that it was indeed covered.
Sounds like your definition of "judicial activist" to me. His dissent, to me, hints of an attempt to broaden Lopez (a judge-made restriction on the Congress and Executive).
Interestingly, he only admitted that the statute "might" then be sustainable in its current form, rather than stating that correcting this specific alleged infirmity would result in a statute he could uphold.
"The law merely required notification yet I have read comparisons to the Taliban"
Think carefully. The statute requires notification not of the fetus' biological father, but of the woman's husband. It is in fact, as Justice O'connor correctly wrote:
"... a view of marriage consonant with the common law status of married women, but repugnant to this Court's present understanding of marriage and of the nature of the rights secured by the Constitution"
This upheld an existing 1976 decision on the subject. It is Alito who sought to overturn the existing law and undermine the precedents underlying it:
"The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor."
November 4th, 2005 at 2:16 amReposting the useless and discredited list just wastes space. Since you are apparently too lazy to do this yourself here are just a few quick references that took, oh, about 30 seconds to find...
http://en.wikipedia.org/wiki/Judicial_activism
http://www.auburn.edu/~johnspm/gloss/judicial_activism
http://www.answers.com/topic/judicial-activism
http://dict.die.net/judicial%20activism/
http://www.wordreference.com/definition/judicial%20activism
If you bother to check them you will see that in aggregate (that means summarized) they reflect what I posted. Some interpretations do agree with you but they are distinctly a minority. I seriously doubt you know much about nazis or much else judging purely from your postings here. I hope you are more impressive in your other endeavors.
November 4th, 2005 at 2:21 amOh yeah, I accept your apology also assuming you are mature enough to offer one.
#67
Speaking of wasting space, the world reference and dict.die references are verbatum the same definition.
November 4th, 2005 at 2:29 am#62
“I did several searches on “judicial activism†and “activist judge†and the overwhelming majority state that (summarizing here) it is a philosphy or person who departs from the text of the law or re-interprets it in order to meet what they feel is the needs of the society or situation.â€
This is the long-winded version of: “Judicial activism is the philosophy and/or practice of overturning congressional lawsâ€. I can agree with you on that point.
Then you go on to state: “I want judges who follow the law. If it needs fixing then hold your elected officials accountable for fixing it!†Right, we all want the authorities to uphold the law, and the judges to stick to it as well. Another nod.
But then you contradict yourself by saying right after that: “As for your statistics on striking down laws, the top strikers could be either good or bad depending on what laws and what cases. Conversely, maybe the rare strikers are the incompetent ones.†But you just said you wanted judges to stick to the law! It seems you don't really think so. In your own words, judicial activism can be a good thing, depending on the case and the law. If it that is true, your whole post is meaningless –the only judicial activism you don't like, is the one you don't agree with.
If judicial activism is bad, it cannot depend on a particular case and/or law. If it is good, then judges are free to overturn congressional laws. There is no "in between" on this one.
November 4th, 2005 at 2:39 amAndrew - Thank you for the response. It is a refreshing change here. In my opening statement I should have said no frame of reference. The "article" seemed an attempt to inflame rather than inform. Yes the cases are cited and I have started looking at them but am by no means finished yet. I didn't bother posting any conservative sites with favorable quotes from fellow judges. Just stating that they exist in case someone is looking for an opposing viewpoint. Maybe there are a few open minds here. As for "my assertion" about interstate commerce I made no such assertion. I was presenting the view Alito took. If the guns were made and sold prior to the machine gun ban then they were exempt up until the sale at the gun show. The sale in question which caused the suit was intrastate. As for fixing the law, you are absolutely correct. No attempt was made to correct the law's shortcomings since the majority relieved them of that responsibility. I disagree that he instructed them to make a new law. He advised them that they could avoid such problems in the future with a better crafted law. I don't see this as activism at all. And to contradict a number of liberal headlines Alito never favored machine gun sales that I have heard.
November 4th, 2005 at 2:55 amOn PP v. C it does get a bit convoluted doesn't it? Some would argue that the husband has a right to know if his wife is pregnant by someone else. This is troubling but then adultery bothers me also. It might have been better if, as you pointed out, it said biological father. The difficulty comes in the balance of protecting the rights of the woman with the rights of the father and preserving the institution of marriage as most Americans think of it. I think we can agree that not only the judges but the people are undecided on how to do this effectively.
Considering the closeness of the decisions in many of these cases, as well as Lopez (5-4), it seems that reasonable people not only can but do disagree. Love to discuss further but I need some sleep.
#69 - Actually it isn't contradictory although I can see how at a glance you might think so. I say good or bad because without more information the list is useless. If a law conflicts with another law then the judge must decide which takes precedence or resolve the discrepency somehow. This sometimes results in one of the laws being invalidated or struck down. It would be activism if they decided to revise the meaning of a prior law in order to use it to strike down another one. It would also be activism to expand the meaning of a law beyond what was written in order to have it fit what they wish to rule. But legislators do sometimes pass contradictory laws both accidentally and intentionally. It is then the judges duty to resolve this conflict.
#70 - I did read them and even acknowledged that some agreed with you but most did not. Your assumption that I am Republican is yet another of your hasty mistakes. I didn't vote for Bush but that doesn't mean I agree with you on very much either. We certainly disagree on manners for example.
November 4th, 2005 at 3:05 amI haven't had a chance to read all the posts, so this may have been addressed, but: I am still a bit hazy on what the right has meant by "legislating from the bench". My question is, are Alitos decisions (from the samples above and others) within that category of "legislating from the bench". Seems to me to be so, but as I said, I have not been able to get a real clear defenition of that (not even from a republican). And no answers from the right saying "no" without clearly defining that "legislating ..." remark.
November 4th, 2005 at 8:13 amAnd I am not easily swayed by other's opinions. I think it is more important to look at what he decided in cases (and that is clearly a radical right agenda). Everyone has an opinion, and while collegues' opinions can be of interest, they are far from the final word. Bush will swear to the morality and integrity of everyone in his administration, to include Rove (and, up until the idictment, Libby). I'm not saying that his peer evaluations are useless - they do have value - but they are only a small measure.
#20, Dominos Pres is also very big in promoting Inteligent Design see todays NYTimes. He plowed tons of his $ into start up legal firm that shopped to school boards looking to push this battle. I p-o'ed my kids because I will not buy his products.
November 4th, 2005 at 11:09 amGod, I hate republicans.
November 4th, 2005 at 11:45 am"Actually it isn’t contradictory although I can see how at a glance you might think so."TheRedneck,
Sure you and every other redneck republican contradicted yourself with this latest talking point. See, unlike you, we REMEMBER things. When the Schiavo case was overturned by the courts based on precedent, every major republican nitwit called it 'judicial activism'. Republicans considered it judicial activism because the courts overturned laws passed by the legislature. You guys are always hypocrites on what you say, what you do, and this is just another hypocrisy and contradiction. Grow up.
November 4th, 2005 at 12:42 pmThis part of the fever swamp Left's fabricated smear campaign against Judge Alito. No less a liberal news organ than the LA Times reported on Wednesday that Judge Alito is, by all accounts, a truly fair and restrained judicial conservative, even according to the liberals who know him well.
The LA Times article ("Nominee Has Some Unexpected Supporters," November 2, 2005) can be found at http://www.latimes.com/news/nationworld/nation/na-la-legal2nov02,u,4962703.story?coll+la-home-headlines. Among the interesting observations in the article [which also is linked and accurately quoted at http://www.powerlineblog.com ("Judge Alito: A Clerk's Eye View," November 3, 2005)]:
"Samuel A. Alito Jr. was quickly branded a hard-core conservative after President Bush announced his nomination, but a surprising number of liberal-leaning judges and ex-clerks say they support his elevation to the Supreme Court.
"Those who have worked alongside him say he was neither an ideologue nor a judge with an agenda, conservative or otherwise. They caution against attaching a label to Alito.
"Kate Pringle, a New York lawyer who worked last year on Sen. John F. Kerry's presidential campaign, describes herself as a left-leaning Democrat and a big fan of Alito's.
"She worked for him as a law clerk in 1994, and said she was troubled by the initial reaction to his nomination. 'He was not, in my personal experience, an ideologue. He pays attention to the facts of cases and applies the law in a careful way. He is conservative in that sense; his opinions don't demonstrate an ideological slant,' she said.
"Jeff Wasserstein, a Washington lawyer who clerked for Alito in 1998, echoes her view.
" 'I am a Democrat who always voted Democratic, except when I vote for a Green candidate — but Judge Alito was not interested in the ideology of his clerks,' he said. 'He didn't decide cases based on ideology, and his record was not extremely conservative.' . . .
"It is not unusual for former law clerks to have fond recollections of the judge they worked for. And it is common for judges to speak respectfully of their colleagues. But for a judge being portrayed by the right and left as a hard-right conservative, Alito's enthusiastic backing by liberal associates is striking.
"Former federal Judge Timothy K. Lewis said that when he joined the U.S. 3rd Circuit Court of Appeals in 1992, he consulted his mentor, Judge A. Leon Higginbotham Jr. The late Higginbotham, a legendary liberal and a scholar of U.S. racial history, was the only other black judge on the Philadelphia-based court at the time.
" 'As he was going down the roster of colleagues, he got to Sam Alito. I expressed some concern about [him] being so conservative. He said, "No, no. Sam Alito is my favorite judge to sit with on this court. He is a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue," ' Higginbotham said, according to Lewis.
" 'I really was surprised to hear that, but my experience with him on the 3rd Circuit bore that out,' added Lewis, who had a liberal record during his seven years on the bench. 'Alito does not have an agenda, contrary to what the Republican right is saying about him being a "home run." He is not result-oriented. He is an honest conservative judge who believes in judicial restraint and judicial deference.' . . .
"Judge Edward R. Becker, former chief judge of the 3rd Circuit, said he also was surprised to see Alito labeled as a reliable conservative.
" 'I found him to be a guy who approached every case with an open mind. I never found him to have an agenda,' he said. 'I suppose the best example of that is in the area of criminal procedure. He was a former U.S. attorney, but he never came to a case with a bias in favor of the prosecution. If there was an error in the trial, or a flawed search, he would vote to reverse,' Becker said.
"Some of his former clerks say they were drawn to Alito because of his reputation as a careful judge who closely followed the text of the law.
"Clark Lombardi, now a law professor at the University of Washington, became a clerk for Alito in 1999.
" 'I grew up in New York City, and I'm a political independent. But I liked Judge Alito because he was a judicial conservative, someone who believed in judicial restraint and was committed to textualism,' he said. 'His approach leads to conservative results in some cases and progressive results in other cases. In my opinion, he is a fantastic jurist and a good guy.'
"Some of Alito's former Yale Law School classmates who describe themselves as Democrats say they expect they will not always agree with his rulings if he joins the Supreme Court. But they say he is the best they could have hoped for from among Bush's potential nominees.
" 'Sam is very smart, and he is unquestionably conservative,' said Washington lawyer Mark I. Levy, who served in the Justice Department during the Carter and Clinton administrations. 'But he is open-minded and fair. And he thinks about cases as a lawyer and a judge. He is really very different from [Justice Antonin] Scalia. If he is going to be like anyone on the court now, it will be John Roberts,' the new chief justice. . . "
TP and other left wing groups should stop trying to smear this fine judicial nominee, and instead should take an honest look at his record - one that incorporates the views of liberals who know, like and trust Judge Alito for his fairness and impartiality.
November 4th, 2005 at 2:43 pmFor anyone who is truly interested in learning what Alito is all about, I suggest you visit this webpage which contains a comprehensive list of papers, documents, books and an incomplete listing of rulings.
There's no opinions here folks, just the man's work. It's up to you to do your homework and formulate your own opinion, folks.
November 4th, 2005 at 3:03 pmBSR,
Send links. An opinion page article or a partisan hack job does not make your lies into truths, but it does show you are the partisan propagandist fool.
November 4th, 2005 at 3:03 pmBSR,
" Mr. Wasserstein specializes in the areas of healthcare and food and drug law, focusing on healthcare fraud and abuse, health privacy issues, as well as general food and drug law. Mr. Wasserstein primarily counsels pharmaceutical and medical device companies on compliance issues. "
He doesn't sound like a liberal to anyone with a brain. He doesn't work to protect against the pharmaceutical industry, he works FOR the pharmaceutical industry.
Republicans always throw out people that pretend to be liberals as 'sympathy trolls', but it's just a tactic of propaganda.
"“Judge Edward R. Becker, " is a REAGAN APPOINTEE.
You're supposedly list of 'liberals' is nothing more than free republic libertarians and rightwing idiots. You're such a LIAR AND A FOOL!
November 4th, 2005 at 3:12 pmParents of a friend are Holocaust survivors. When asked if they saw the Holocaust coming, they said they had not been wise enough to see the signs. They are wise enough now, and here are the signs they recognize, those practiced by Hitler: (1) stack the court with people who will rule on the ideology rather than the letter of the law; (2) divide the country; (3) use an attack on the country as your excuse to take freedom away from the people; (4) demonize gays; (5) pander to your base, and religious fanatics; (5) rile up your most fanatical supporters based on their prejudices and hate (Evangelicals/Christian "right"); (6) stage an unjust "preemptive" war; (7) put the needs of the corporations and their greed ahead of the people; (8) slaughter the innocent; (9) put the working class at the bottom of your list and cater only to the elite. And on and on and on. Bush has done all these things. The Republican party supports each and every one of his atrocities. The American people must stand up to Bush, the Republican party, and the fanatics who support them. The only way to do this is to vote them out. Each and every one of them. We start in 2006. Vote out every Republican in office. After that, it is time to impeach Bush and Co. and take this country back, out of the hands of the fanatics, before it's too late and we have another Holocaust.
November 4th, 2005 at 3:35 pmhttp://www.aei.org/publications/pubID.23406,filter.all/pub_detail.asp
Not a Liberal Smear: Here is the American Enterprise Institute echoing the comments about Interstate Commerce I made above. Some excerpts:
Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not.
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.
November 4th, 2005 at 3:40 pmBSR and REAL American - Good to find kindred spirits out there!!! Judge Alito will be a wonderful justice - but at a Repub event last night, our state vice chair was mentioning how many conservative, fine Dems are out there - (i.e. the ones who are sick of the unions running the Dem Party) and how they often vote with us. I have wondered from time to time how TP keeps it's tax exempt status "billing itself as non-partisan" (HA! HA! HA!) - that's another tax loop hole I'd go after - for both the right and left.
November 4th, 2005 at 4:23 pmYou might consider informing your readers that four of the five judges whose comments comments you referenced were appointed by liberal Democratic Presidents and that one of those, Margorie Rendell, is the wife of the Democratic Governor of Pennsylvania.
Similarly, you might consider letting your readers know whether the comments to which you cite were part of majority opinions or dissents. If, for example, your scare brackets around [Judge Alito] are an indication that you substituted "the majority" for "Judge Alito," then you are being misleading at best and dishonest at the worst. Not that I would expect any better, of course.
November 4th, 2005 at 5:02 pmMr. Neat,
Actually an activist judge would have a low percentage of overturning legislation. A constructionist would strike down laws he/she believed unconstitutional, and therefore have a high percentage on your scale. I suppose you can define it how you want, as it's immaterial. What conservatives rail against are those who believe that the court should create laws. They consider an "activist judge" as one who allows laws to be created not supported by the constitution or other established law.
Roe vs. Wade actually had the effect of creating a law - legalizing abortion. This is "legislating from the bench." Conservatives believe that Congress should pass laws. (i.e. if the majority believes abortion should be legal -> pass a law.) The courts are not representatives of the people, they are representatives of the law. In Roe v. Wade, the Court should have declined to hear the case. (Even taking the case is a form of Judicial Activism.) If reproductive rights are important to people, as civil rights are, Congress can pass a law (or an amendment in the case of civil rights.)
You may have heard liberals use the term, "living breathing document." The Constitution allows for amendments to to be enacted with approval of 3/4 of the states. This is representative government. But if nine people can hijack the Constitution when they aren't elected and serve for life, that's troubling. I am actually surprised this doesn't bother liberals.
Re: #69 - Judicial Activism is not "the overturning of Congressional laws." To the extent that a law is contrary to the original intent of the Constitution, allowing that law is what conservatives call "activism." The difference may be semantic, (in the strict sense that to allow an unconstitutional law exist requires that a justice do nothing), but the idea is that an "originalist" or a "constructionist" would overturn a law in conflict with the constitution. This is the idea behind the semantics.
Mr. Neat, you seem to be stuck in your thinking. How you define "Judicial Activism" isn't important, it's the reasoning behind it. If striking down conflicting laws is "activism" - well, okay. Doesn't mean it's a bad idea. If you call courts creating laws where none exist, "non-activism" - well, okay. But it's still a bad idea. Even if the results go your way.
Roe v. Wade may be a desirable end, but it's still a bad legal decision.
November 4th, 2005 at 5:39 pmComment by Pablo: "The Constitution allows for amendments to to be enacted with approval of 3/4 of the states." 3/4 of these United States are populated with numbskulls who purportedly put the bumbling idiot Bush into office. Those same numbskulls should not dictate how people with brains live. Intelligent people should not have to lower themselves to the likes of those who populate the red states.
November 4th, 2005 at 6:42 pmWell, there's always France.
November 4th, 2005 at 7:10 pmTouché, mon ami.
November 4th, 2005 at 7:15 pmPablo,
Your conclusion is debatable in every way. You've come to conclusions based on your preconceptions, which are easily disputed. You 'claim' that roeVwade is based on a bad decision, but the 2000 election was more judicial activism based on a bad decision that roeVwade is, so clearly republicans have no problems with producing this sort of activism. You also say it's based on a bad law, but many legal scholars disagree, therefore making it your 'opinion' and not fact. Just as your opinion of what judicial activism is, not only is strongly disagreed with by rational people, but it's undermined by the Gore decision and many others.
So Pablo, you're just being disagreeable, and you've brought nothing new to the argument other than a 'repeat' of the republican opinions that are not borne out by the facts.
November 4th, 2005 at 8:09 pmJust remember ...no matter what happens on this judge thing ...we still got the 2nd amendment. I for one and many others will not live in a witch hunting, facist, Taliban state.
November 5th, 2005 at 5:15 pmRyan, you are probably my favorite reason to visit this site. Its hard to imagine someone doing more to damage the liberal cause than you. The way you immediately take to insulting anyone who presents a contrary view is comical. Your way over the top hyperbole always makes me chuckle. Maybe letting you know that I find your insults and assumptions about me entertaining rather than offensive will cause you to ramp up your rhetoric further. Ah well. I take comfort in knowing that the more strident and aggressive you become the less chance there is of anyone outside your small clique taking you seriously. I also sincerely hope poor Ringo doesn't go to France. People who call 3/4 of the states "numbskulls" are worth their weight in conservative votes! I also take pleasure in reminding Ringo that this is a democracy. The whole point of a democracy is that the majority DO dictate to a large degree how everyone lives. What form of government is he suggesting we replace ours with? Please rant on!
November 5th, 2005 at 5:37 pm#96 Ref- You should see when Ryan gets REALLY angry! His post starts to wet itself and he mixes his euphamisms into a 14 foot stream of incoherence....it's too beautiful to describe, you have to experience it.
November 6th, 2005 at 5:33 pmRyan- What are republican values? Why are they so selfish? Why are we retarded, emotional children with a hatred for everything good? (Marco loves Ryan with a tough love....)
Ryan: Dude, you gotta calm down. You're gonna blow a gasket or something. I can't believe you lefties are still spouting that nonsense about Bush "stealing" the election. The Supreme Court voted unanimously (I know you don't know what that means - It means 9-0) to "vacate" (not overturn, and is particularly embarassing for a lower court) the Florida Supreme Court's decision saying they had overstepped their authority (i.e. that the election had to be certified as the legislature dictated, and was not subject to extention by the courts.) You can even look it up. Then again, that would actually involve discovering the "facts" you claim to cherish so much.
November 7th, 2005 at 12:47 pmRyan,
WTF? you say! Ha Ha!!
http://www.oyez.org/oyez/resource/case/827/ This is the link to the relevant case: Bush v. Palm Beach County Canvassing Board, Docket Number: 00-836 (lest you continue to wiggle) and decided unanimously. Another was a follow up case: Bush v. Gore, Docket Number: 00-949, Link: http://www.oyez.org/oyez/resource/case/766/, which was decided 7-2. That was the case which stopped the recounts. Only Stevens and Ginsburg dissented in that one. This goes beyond what you might dream up as "activism."
Here is a timeline of the 2000 election shenanigans from Stanford Law: http://election2000.stanford.edu/newtimeline.html.
Here is summary of the Florida Election cases from the US Supreme Court's website: http://www.supremecourtus.gov/florida.html
How's that for facts?
Which case were you talking about?
Also, "per curiam" means "by the court." Saying, "Majority by: per curiam" is like saying, "Red is a color." Were you thinking that using latin made you sound smart? Or did you just not bother looking it up?
Re #102: Seems clear all the hate is coming from you. While you seem to think all republicans are evil, I just think you're wrong.
November 8th, 2005 at 3:17 pmPablo- You're referencing facts to Ryan? That's like playing chess with your cat...but I appreciate the intelligent research and post.
November 11th, 2005 at 7:28 amRyan- I'm not sure I get what "values" you're talking about....Are you deciding? Where did you get these absolute values? What is your source for these absolutes? Are you banging your head against a wall to get the voices to stop?
November 27th, 2005 at 12:12 am