More on Scalito

Somehow, there's this notion, pushed by Drudge and his willing co-conspirators on the right, that using the very word "Scalito" is offensive to Italian-Americans.

Please. The judge nominated for the Supreme Court's name is Alito. That's 5/7th of Scalito. The "Sc" is for his resemblance in judicial philosophy to Scalia. On what planet is that offensive?

What is offensive is this nomination itself. But I can't say that it's surprising. This White House is in complete turmoil. A top staffer and member of the inner circle has been indicted, the first indictment that high up the executive ladder in 150 years. Bush's initial choice for the Supreme Court was smacked around like a wet noodle, and eventually withdrawn. This has been the deadliest month in Iraq since January, and we're no closer to stability there. FEMA still can't get its shit together in Florida any more than it did in New Orleans. Approval ratings are at record lows.

The strategy has to be to nominate a radical conservative, and pick a fight. Matthew Yglesias proposed this about a week ago, though he got the judge's name wrong:

I don't know how many readers we have at the White House, but if George W. Bush wants to save his flagging presidency, he needs to do what he should have done in the first place and submit Michael McConnell's name to the Senate as associate justice of the Supreme Court. That will unleash just the dynamic the GOP needs. Liberal interest groups will throw a fit. Some Senate Democrats will issue shrill condemnations. Then they'll be stabbed in the back by prominent liberal law professors who respect the man's work. Republican senators will rally 'round and accuse his opponents of hating baby Jesus. He'll be confirmed by a comfortable margin, but Bush will still get a partisan fight. Jonah Goldberg will write a column mocking quota-loving liberals who think Bush should have picked a woman.

I'm waiting for the Jonah Goldberg column (wait, no I'm not). But essentially, that's what's happened. Bush has shown himself completely beholden to the most far-right portion of his base with this pick. But the idea is to distract and raise the noise level so that everything else, all the incompetence and cronyism and scandal, can be easily forgotten. The GOP base can't wait to raise the noise level and display their full-throated ascendancy. Of course, the White House is issuing blanket denials that Alito even believes what he believes. But we all know what we'll find in Samuel Alito's America:

ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980’s. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito’s view, voting to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz[ing] 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.” [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.” [Nathanson v. Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) “guarantees most workers up to 12 weeks of unpaid leave to care for a loved one.” The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito’s disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.” [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]

The White House responds to this with "You're misrepresenting the record!" The conservative base responds to this with "Damn right, and what are you going to do about it?" That's a dichotomy that will have to be understood in the coming weeks.

Those that are leaping to Alito's aid are making one big mistake. The conventional wisdom now is that conservatives nominate judges who are "restrained," whereas liberals favor "judicial activists." Which would be fine if it weren't completely false:

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." [...]

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.

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 [...]

Chart:
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%

There's a lot of record-scanning and document-reading left to go in this nomination, but it appears to me that Judge Alito is TOO activist to occupy a position on the nation's highest court. This is the nuclear fight that the Republicans have wanted since November 3, 2004. It's especially perfect right now to change the subject from the White House's other troubles. But Democrats are able to oppose Alito while continuing to highlight the scandals and ethical failings of this Administration, along with their plans for the future. This should be a busy rest of the year.