I don't know how many of you have actually read my very first blog entry... It was basically about my concerns for the kind of Justice Alito would be. And whoooooahhhh boy have they been confirmed!
Justice Alito just appointed a man who was a major architect in the PATRIOT act to be his influencial clerk. I assure you I am NOT exagerating Adam Ciangoli's influence over Attorney General Ashcroft.
As legal counsel to the attorney general, Ciongoli holds a place in Ashcroft's inner circle, helping develop the Justice Department's most critical and controversial initiatives.
"There are very few decisions made by the attorney general that do not involve Adam," says Assistant Attorney General Viet Dinh, who heads the DOJ policy shop.
Perhaps more important than his contribution to any specific legislation or policy proposal, Ciongoli serves as Ashcroft's sounding board and sparring partner on nearly all legal matters. Though it is always clear who the boss is, Ciongoli has made himself indispensable by giving frank opinions.
"Adam is a very insightful legal analyst," Ashcroft says. "He has participated in a wide variety of matters, from helping formulate, construct and shape the Patriot Act to counseling me on items related to border security and the new FBI guidelines.
It doesn't sound like he'll encourage Alito to keep his eyes out of the little guys life... And neither one of them sounds up to handling the NSA spying controversy in any way favorable to the US Constitution...
I miss Justice O'Conner already.
It's true that clerks to the Supreme Court are more influential than ordinary clerks, but how influential they are really depends on the justice they're working for. Some give their clerks enormous responsibility, while others don't. However, I will wait until they start issuing opinions before I pass judgement. The fact that he was in on the Patriot act seems troubling, but it should be noted that working for a Justice, or even being a Justice, is very different from working in the executive branch. One thing I do like about Alito is that he is a "bottom-up" kind of guy, in that he is methodical and doesn't go about deciding cases in order to get a desired outcome. As long as they do that, guys you would never want making policy or legislating for our country can still do a good job as a federal judge.
Alex,
Got a 10 year old sister? (I assume you're too young to have a 10 year old daughter...)
You like that Samual Alito allowed a little 10 year old girl to be stripped searched (without prior court order!)!
Read the forth amendment. For a dude who is 'bottoms up' it sounds like he needs to start at number 1 and read upwards...read the constitution that is. (The girl's strip search was a violation of the 4th amendment.)
Well, because I have little to no life, I watched all of the confirmation hearings for Alito on c-span, and Alito defended every single one of his troubling opinions very well. This one in particular was interesting. In this case, the whole "bottom-up" idea comes into play. The question isn't about whether it is right or wrong that a girl was strip-searched... and no judge should ever decide a case like that. Deciding whether something is right or wrong is a decision someone in the legislative branch should make. It is the duty of the lower courts to take the laws (right or wrong) given to them by congress and apply them faithfully to the cases before them.
In this case, the question was really about the interpretation of the warrant given to the officers conducting the search. Under a strict interpretation of the warrant, (the kind of interpretation you'd give a law written by congress for instance) the warrant did not call for the searching of all occupants in the house. However, the Supreme Court had ruled in the past that warrants were to be more loosely interpreted because they were often written under pressure and that the general intent of the warrant should be used as the standard for interpretation. In this case, when police came to raid a known drug-dealers house, they felt that they had the authority to search all occupants of the house. Feeling that they had been given such authority, a female officer took the mother and 10-year old girl to a seperate room and had them take off their outer-garments. They were not stripped naked.
Because additional documents had been supplied and attached to the warrant signed by the judge indicating that others on the premises could be holding the drugs, Alito felt that the general intent of the warrant was to give authority to the officers to search all occupants of the residence for drugs along with the drug-dealer named in the warrant. That is why Alito dissented in the case that allowed the mother to sue the police department for searching her while she was at the drug-dealer's house.
You seem like an intelligent person, although I may not agree with all you say... Did Sam Alito really seem totally open to you? I heard a lot of dodges and non-answers... and let's not forget the Republican Senators were doing all they could to give him a free pass, even participating in the mock panel to prepare him for questions.
I did not find him to be particularely open on ANY of the controversial points.
No, he didn't seem totally open to me, either. When I said he answered questions on all of his troubling opinions, I was just referring to his written court opinions, not opinions in a general sense. Thge sticking points in the confirmation hearings were his failure to respond to questions about abortion and executive power. His failure to respond to the questions asking him about abortion is something I can understand, as that is something that will almost certainly come up in future cases. His prior decisions on abortion-related matters were fair game, however, and were discussed at length.
The part that had me worried was his failure to give answers with any substance about the unitary executive theory. There are really two parts to the question of executive power... how much power he has within the executive branch at the expense of the heads of other agencies, and how much power he has at the expense of the other two branches of government. Although Alito didn't come out opposed to the unitary executive theory, that doesn't mean he advocates presidential power at the expense of the other two branches of government. Theres an interesting paper on the unitary executive theory here. It is, however, 40 pages long. But I recommend it if you want to know some interesting facts about the history and development of the problems we're seeing today.
"His prior decisions on abortion-related matters were fair game, however, and were discussed at length."
This is nonsense. He did not, would not comment about his previous statements regarding his agreement with others that Roe should be overturned, and his consistent far right perspective in general. Republican senators ' questions were basically a statement followed by, "Do you agree?" or "Isn't that right" with a lengthy speech about how ethical he is. YOu can couch your comments in a lot of words, but you are not representing the hearings accurately here, and are ignoring the fact that there was significant evidence from previous cases and documentation that he favors Unitary Executive in all its permutations, future cases essentially included. He clearly said this when he was trying to convince the Reagan Admin to hire him; he gave no evidence to the contrary.
It is, actually, not nonsense. By "decisions" I am once again referring to his prior court decisions; and they did discuss at length one abortion-related decision (decision on the bench, official court opinion) that he made... the one involving the Pennsylvania law that was intended to regulate further the process of getting an abortion. He may have made other decisions relating to abortion while on the bench, but I honestly can't remember. The hearings were very long and boring and took place over a month ago... I didn't take notes. If you would like I can give his reasoning for why he ruled the way he ruled with respect to the Pennsylvania law.
I am, to my knowledge, not misrepresenting anything. I am not using anyone elses opinions or knowledge of how the hearings went, because I don't have to. That is why I watched them in the first place. You are right... he didn't elaborate on whether he had changed his mind about the comments he made during his stint with the Reagan Administration, and I never said that he did. I only said that he was very open about his prior court decisions, and he was.
I am not anyone's propagandist, nor am I a Republican, nor am I saying that I would have picked Alito if I could have hand-picked whomever I wanted. I'm not trying to advance any agenda here on this blog. I am only giving my opinion.
You are right in that many Republican senators made a joke of their time to ask questions. In many cases I felt like they were students in one of the law classes I'm taking, asking their professor a question. Sometimes they would actually ask Alito something like "Tell us more about what you think of the idea of checks and balances." And Alito would procede to give a lecture-like answer on the Constitution that basically provided information that every American should know. The senators who did this were trying to give Alito a break or something like that... it was very clear in the way they were speaking and asking questions. But the fact that many Republicans like Alito and want him to be a Justice shouldn't condemn the man. My comments were about Alito himself, not the incompetent questions of Republican senators.
We agree. Republicans made a joke of this hearing! And Republicans made a circus out of Alito's wife crying! Like, Alex, DON"T take your wife to your job interview!
These people have HARMED the American citizen and I'm tired of their lack of spine in dealing with corruption. We need both democrats and republicans who have integrity--who don't kowtow to corrupt administrations and who tell the lobbyist to get lost.
And Alito is not a 'mainstream' judge no matter how you slice and dice his decisions. And his hearing was an absolute JOKE! A pathetic joke.
"You can couch your comments in a lot of words, but you are not representing the heartings accurately here, and are ignoring the fact that there was significant evidence from previous cases and documentation that he favors the unitary executive in all its permutations, future cases essentially included. He cleary said this when he was trying to convince the Reagan Admin to hire himl he gave no evidence to the contrary"
I know of no previous court cases where he ruled on executive authority over administrative functions, which is what the unitary executive theory primarily deals with. While he was with the Reagan administration he did advocate more executive power over the administrative agencies, as did everyone else working for Reagan. Why? Because Reagan himself advocated that increase in power.
Many of the senators at the hearing tried to tie the Unitary Executive theory to the illegal wiretapping case, and Alito responded that he did not interpret the unitary executive theory in that way. The unitary executive theory doesn't state that the president can flaunt the law... just that he has the ultimate power over the executive branch, and especially over the regulatory agencies. It is related to the wire-tapping case, but only as it relates to the culpability of the president, not whether the wire-tapping was right or wrong.
Just because he was applying in an administration that encouraged that power doesn't mean he only supported it to get the job. And if that IS the case, did he do the same now? We want a man who will either stand by their views clearly, or explain specifically WHY THEY NO LONGER FOLLOW THEM.
I believe that most people think the unitary executive theory is something that its not. The theory doesn't deal directly with what the executive branch does, but whether the president, congress, or agency heads have the most power in making the decisions.
I would say that overall, Alito does generally lean towards greater executive powers for the president. Obviously you don't join that type of administration if you are vehemently opposed to greater presidential power. But at the same time, he can't be held responsible for doing his job for helping to create specific policies that the president advocated. I would say that you can be sure he wasn't ever opposed to them, but whether he would have done the same if he were president is something we can't know from looking at the job he did for Reagan.
I really do think you're putting too much on the Judicial branch though. In a lot of the cases where Bush has appeared to exceed his authority, Congress has had the authority to stop him, or atleast try, but hasn't. How are the courts supposed to grant Congress the power to hold back Bush, when Congress apparently doesn't want it? I'm sorry if I'm not making making sense right now, i need some sleep.
Alexander,
Alito does not beleive in the equal branches of gov't. He endorses executive power. That in itself is against the intentions of the founders of our democracy.
During that trial and waiting time for Alito, sure didn't make me feel comfortable. I knew there was something about him that the people are not going to like at all. Once in awhile when he was asked a question, he either ignored it, didn't give a complete answer, or changed the subject. Some of his past cases didn't thrill me at all. But, I guess since he got the vote to be on the supreme court for the rest of his life, we will find out what the problem is or if there is one that we should be worried about.
First I would like to say that I'm a Dutch lawstudent. Not an American. Therefore my knowledge of American law isn't as complete as I would like it to be. I've got some thoughts about Alito though. When he first was nominated I didn't really know what to think. I did some research and I think I'm now more able to understand his reasoning.
Alex is making his case very clear imho. He explained that he's not a fierce opponent of Alito, simply because Alito seems to be a systematic judge: he's got certain systems to decide what the outcome of a legal question should be and his 'personal opinion' doesn't seem to count very much.
With Because quite a lot of things aren't specifically mentioned I meant because certain rights aren't specifically mentioned. In other words: I believe the US constitution implies certain rights.
Once I get started, I can't stop ;)
I would like to mention something. In the US it seems to be very normal to ask judges what they personally think about certain matters. To me, being European, that's redicilous. The only think I find important is how they interprete, for instance the Constitution, but also Statutes. Are they in favor of a strict interpretation, or a more liberal one. Do they believe the Constitution implies certain rights, without actually wording them, or not?
What they think of abortion, gay marriage, euthenesia, andsoforth is completely irrelevant.
The hearings were suppose to get to those questions. That's why I felt an extreme disappointment at the pontificating and the evasions that went on. It should be about interpretation: however the Supreme court interpreted the 14th amendment in 2000 to give the election to Bush whereas I felt that EVERY district has different machines and equipment and were automatically unequal then...therefore if they 'bought" that argument then the whole country should have voted over again--all on the same equipment!
So that's an example of interpretations of the same law giving different results.
It actually is quite weird when you think about it. A 'normal' conservative would reason like this
If the Constitution doesn't specifically mention certain powers to the President, he hasn't got them .
Alito's reasoning seems to be, like I explained:
If the Constitution doesn't specifically mention certain RIGHTS for the people, these rights do not exist
I'll go off now. Hopefully I was somewhat useful to the debate.
Yeah you were useful. It is hearing about it from a European perspective...
Unfortunately, some judges allow personal feeling to dictate policy. Alito very much came across as one of these judges. And that makes personal opinions relevant.
I agree with the comment in this particular post. Alito is the opposite of the norm. It's sort of Orwellian in a way.
Welcome to an American (student) blog. We're glad to have your comments.
First of all let me say that I'm only in my first year of my current major (was physics last year), and in no way am I qualified to be having this discussion. With that being said, technically the Constitution wasn't really intended to be about the rights of the people, which is why the bill of rights was later added. The idea of the 'rights of the people' wasn't a huge concern of the Philidelphia Convention, as that issue had already been taken up in their respective states. The constitution was aboue a bunch of sovereign states taking certain powers (and only those certain powers) away from themselves to be given to a federal government.
The tenth ammendment clearly states:
"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."
In other words, the States retain all other rights that any sovereign nation would have, except for the rights that have been taken away by the Constitution.
This is the context that a federal judge must be observed in. And in doing so, I believe that the apparent contradiction you talked about is understood. Conservative federal judges are indeed more restrictive of the power of the federal government than liberal judges are. They reserve the rest of the power for the "States respectively, or ... the people." The issues that you brought up, abortion and gay-rights, were actually issues dealing with state laws, not federal laws. Roe v. Wade was actually concerning a ban on abortions in the state of Texas, I believe. For a federal judge to overturn a state law, a high barrier must be overcome; one that was purposefully put there by the makers of our constitution, to protect the rights of the people.
If the US congress had enacted a ban on abortions, it almost certainly would have been overturned by a conservative federal judge, as congress is simply not granted the authority to do such things under the constitution. Similarly, if congress had enacted a law banning gay marriage, it too would have been struck down by any real conservative judge, as that is also an arena the federal government has limited authority in.
And I'll add something else here, as I think it's relevant. Lots of people, including Americans, misunderstand the role of the States in our government. Often they are seen the same way counties within a state are seen; that is, just legal boundaries made to make governing the country easier or more efficient. However, that is clearly not the case. It is much more complicated than to say local is controlled by state is controlled by federal. The federal government's control over the states is tenuous at best in many cases, and nonexistant in others.
For example, following the 2000 elections, a lot of people wanted to federalize the presidential elections, to avoid the kind of mess that occurred in Florida. People who didn't understand the relationship between the states and the federal government didn't realize that this would have taken a change in the constitution before it could happen. Unless the courts find that the states violate the constitution in how they administer the voting process, it is up to the states to decide the specifics of how the vote for their votes in the electoral college goes.
Thats not to say that a federal court shouldn't ever overturn a state law. Clearly it happens fairly often, but only when that state law violates clear principles set out in the constitution. The federal government, by way of its courts, offers protection against discrimination and all sorts of other offenses that the constitution has been interpreted to defend against. Alito hasn't shown any tendency not to enforce those precedents in his cases (in my humble opinion, and from what I've seen). Really, I'd like to discuss any of the finer points with someone who has a beef with one of Alito's cases. There may have been all sorts of things I never thought about before with regard to his civil rights record.
First of all, to make it simpler here, I'll pretend you said "powers of the federal government," instead of "powers to the President," because presidential powers is actually a much more complicated subject.
"It actually is quite weird when you think about it. A 'normal' conservative would reason like this
If the Constitution doesn't specifically mention certain powers of the federal government, it doesn't have them
Alito's reasoning seems to be, like I explained:
If the Constitution doesn't specifically mention certain RIGHTS for the people, these rights do not exist"
"For instance: The Constitution doesn't 'specifically' talk about the rights of gays to marry. Therefore, he won't find it 'illegal' for the Federal Government to make a law forbidding such marriage."
From what I've seen, that is not how Alito would rule at all. I have no doubt that he would rule against a federal law making gay marriage illegal. There is simply no basis in the constitution for Congress to be legislating on gay-marriage. That is why a lot of Republicans were talking about creating an ammendment to the constitution prohibiting gay-marriage... theres just no way a law prohibiting it would stand up in court no matter who the judge is.
Alex,
I see now that you are trying to be nonpartison. And I think this is a fair and reasonble discussion going on.
BUT in all honesty, I have a HUGE concern--no matter how we look at his responses and the legal intent and try to guess how he'll rule.
Concern 1. WHY does the fundie right (the anti-abortionists and the big business so avidly support this man whereas they had INTIMATE discussions with Rove and the White House when Meiers was nominated AND they went OUT of their way to reassure what they term "their base" that Bush was electing someone 'like them." That in itself makes this many HIGHlY questionable!
Concern 2. WHY was every civil rights organization opposed to his nomination as well?
IMO... O"Conner should have been replaced with a moderate--a clear cut moderate along the same Philosophy of O'Conner.
(very good discussion with everyone and welcome to all the newcomers!)
I think a lot of people have supported and attacked the Alito nomination for one reason and one reason only: abortion. I do agree that Alito isn't the most civil-rights friendly judge out there, and if I could have picked someone myself, I would never have picked Alito, because I think there are better choices. But to say he is anti-civil rights is going too far, I think.
Let me also insert here, that I do not agree with Alito on many points. I do believe that overall he seems to side with the government too often, though not as much as a radical would. Also, if he is truly a proponent of the unitary executive theory (it is unclear if he is or not), then I am truly dissapointed. Most people probably don't understand the basics of the theory... its not quite as big a deal as some have made it out to be. I think it mainly threatens the environment, as it takes away the power of the regulatory agencies to make decisions for themselves. However, Clinton probably abused his presidential power in this way just as much as Reagan and Bush senior did, only it isn't as widely criticized because he did it in a way that benefitted the environment.
Alex,
Thanks for responding.
You've made a few great points. It's true that a 'true' conservative judge would find any law making by the Federal government about abortion and gay-rights unlawful. Solely due to the fact the Federal government doesn't have anything to do with it.
I'm also well aware of the function of States vs Federal government - because it's so... let's use the word 'weird'. Maybe unnusual is a better word. But you said it perfectly, a true conservative judge (Scalia for instance) would say "if the Constitution doesn't grant certain powers to the Federal Government (indeed that's what I meant, sorry for not being specific enough; a deadly error in law as you will know), the Federal Government is not allowed to make any laws about the subject". Therefore: Roe v. Wade wasn't really about whether or not people've got the 'right' of abortion, it was about whether or not states had the authority to make a law regarding to abortion: whether to make it illegal or legal. Same goes for gay-rights/marriage.
But... if that's how Alito reasons, why did so many extremist Christians (or Chrisitian right like you all say in the USA) favor Alito because they hope he'll turn back Roe v. Wade and disallow gay marriage and euthenesia? This seems to imply that Alito doesn't think at all that it's a State issue, but instead of that a Federal issue. Of course I'm not able to look into Alito's head, but if you take a look at the Alito supporters, that's the feeling I get.
And that's why I try to explain the way these people think. It's actually quite awkward (spelling?) to me. True Conservative judges like Scalia (this might amaze a lot of people, but I've actually got a lot of respect for Scalia, I've got something like 15 opinions written by him and even translate a couple of them) would, I think and hope, interprete the Constitution in the traditional conservative way:
"if the Constitution doesn't grant certain powers to the Federal Government, it's up to the states. Therefore a Federal Government trying to make laws about it would be acting illegally, or at least, not in line with the Constitution"
However, I'm trying to explain this Christian Right way of thinking (who were among the fiercest supporters of Alito). The only way I can so far is by reasoning they hope Alito thinks like this:
"if the Constitution doesn't grant certain Federal rights to the people, the rights do not exist. Because the Constitution doesn't mention the right of abortion, nor about gay marriage, it's:
a- illegal
b- légal for the Federal Government to make a law forbidding abortion, gay marriage and euthenesia"
Of course I could be wrong about it, but to this day, that's the only way I can explain their thinking. If you've got another explanation, please share, I'm, of course, open to it.
PS: I'm only a 2nd year college law student, so we're not that far apart
PPS: nolies32fouettes: I'll send the stuff I've got about Alito to you right a way.
Lastly I'd like to finish with a Scalia quote:
Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document
"However, I'm trying to explain this Christian Right way of thinking (who were among the fiercest supporters of Alito). The only way I can so far is by reasoning they hope Alito thinks like this:
'if the Constitution doesn't grant certain Federal rights to the people, the rights do not exist. Because the Constitution doesn't mention the right of abortion, nor about gay marriage, it's:
a- illegal
b- légal for the Federal Government to make a law forbidding abortion, gay marriage and euthenesia' "
You made the mistake of assuming that they were thinking. Or, atleast thinking above a kindergarten level. I'll give my own impression of the Christian Right's "reasoning" behind their adamant support for Alito:
"Hmmmm... abortion bad. Abortion very bad. Alito mean no abortion. Hmmm. Alito good. Hmmm. Yes, Alito very good."
I probably gave them too much credit by puncuating their sentences correctly. :)
Unfortunatly, many people in America simply have no respect for or understanding of our government. They are in favor of whatever furthers their agenda. These people are not concerned with whether or not Roe v. Wade is valid legally, just that Abortion is made illegal.
They are so confident of Alito and Roberts states have jumped into setting up their own anti-abortion laws.
And frankly, I'm not a huge proponnent of abortion; however, I see Alito as using the argument of what is specifically layed out in the Consitution as a direct means of implementing anti-individual/pro-big business decisions and same with the civil rights agenda.
Both evolved as our country changed.
Also, Alex I know for a fact that Bush's "base" sat in on a phone conversation with Rove when they were arguing over Meiers. Did that happen with Alito? Personally, I know he's been directly compared to Scalito.
Haha very very true. The thing is: they've got quite some power nowadays.
Unchecked power! And lots of coverups!
Yes... That's a very sophisticated opinion...
Anyway: Nollies32fouettes: I hope the stuff I send you is / was somewhat useful to you.
If I were I would especially read that Law School Report very carefully - it's of great value / insight.
Thanks for the welcome: The blog looks great. I'll be sure to come and talk here more often!