Patterico's Pontifications

10/29/2005

Alito Out?

Filed under: Judiciary — Patterico @ 11:19 pm

If you believe this commenter at Confirm Them, Alito is out because Arlen Specter doesn’t like him. [Please see all updates to this post.]

Good Lord. Does Bush want Specter’s blessing or that of his base? Because they’re not the same thing.

Has he learned nothing from the Miers debacle?

[UPDATE: Yes, he has!]

I’m trying to remain optimistic. This is, after all, a random comment by a random commenter. But it somehow rings true. And this kind of nonsense reminds me why I wrote off Bush after the Miers nomination. If he’s not going to pick somebody strong, then he should be doing a better job of controlling the leaks from his aides, who are leading us to expect someone strong.

UPDATE: I think I may know what this is all about. I have discovered that Judge Alito once dissented from a ruling in favor of Senator Specter, in a lawsuit that Specter cared about so much that he personally argued the case in the U.S. Supreme Court. The Supreme Court ruled against Specter, adopting Judge Alito’s arguments.

That’s the kind of thing you don’t easily forget.

In 1991, Arlen Specter and other political and union leaders filed a lawsuit challenging the closure of the Philadelphia Naval Shipyard. The shipyard had been targeted by a closure list created pursuant to the Defense Base Closure and Realignment Act. Specter was the lead plaintiff in the lawsuit. He and the other plaintiffs argued that the process was stacked against the shipyard, but a federal judge threw out the suit, ruling that the federal courts had no authority to review the decision.

A divided panel of the Third Circuit Court of Appeals reversed. (Specter v. Garrett, 971 F.2d 936 (3d Cir.1992).) Two of the three judges held that base closure decisions under the Act were indeed subject to judicial review. A third judge dissented, arguing that Congress, in passing the Act, had insulated base closure decisions from judicial review.

That judge was Sam Alito. And his dissent was a rejection of the arguments made by Sen. Specter.

The U.S. Supreme Court vacated the decision and instructed the Third Circuit to reevaluate the case in light of a recently issued Supreme Court decision. But the Third Circuit didn’t take the hint, and reaffirmed its earlier decision. Judge Alito again dissented, for the same reasons as before: Congress had expressly provided that there be no judicial review of base closure decisions. (Specter v. Garrett, 995 F.2d 404 (3d Cir. 1993).)

The case was once again appealed to the Supreme Court. (Dick Cheney, as defense secretary, was the lead named defendant.)

The lawsuit was a big deal to Sen. Specter. He personally argued the case in the Supreme Court, telling the Justices that “failure to allow judicial review here would virtually repudiate Marbury v. Madison … and nearly two centuries of constitutional adjudication.”

The Court was not impressed. On the issue of judicial review, the Court unanimously reversed the Court of Appeals, citing principles articulated in Judge Alito’s second dissent. (Dalton v. Specter, 511 U.S. 462 (1994).)

This is speculation, but my guess is that Arlen Specter has had it in for Sam Alito ever since.

UPDATE x2: On the other hand, this Confirm Them commenter points to this Philadephia Inquirer story, which says that Specter has praised Alito:

At a news conference in Philadelphia, [Specter] sharply criticized Bork as “having the most extreme ideology of any nominee ever,” while offering praise for federal appeals court Judge Samuel A. Alito, also a conservative, who has been mentioned as a possible replacement for O’Connor.

So who knows? This seems to debunk the theory . . . but then, of course, what people say in public is not always what they say behind closed doors. And Brutus is a honorable man.

Still, the article relieves me somewhat.

On the relevant thread, the commenters who purport to know something about Specter’s feelings concerning Alito are in sharp disagreement, with many saying Specter likes Alito, and just as many saying that it’s well-known that Specter can’t stand him. At this point, I’m throwing up my hands. But I still think that lawsuit is an interesting bit of backstory.

UPDATE x3: Thanks to Feddie at Confirm Them for the link. (Thanks also to Polipundit, who apparently hasn’t written me off for bagging on him the other day.) I hope that, if the rumors are true, the White House realizes the petty nature of Specter’s opposition. But primarily, I hope the rumors aren’t true, and that Sen. Specter supports Alito despite this past issue.

UPDATE x4: Thanks to Jonathan Adler at Bench Memos for the link.

UPDATE x5: Judge Alito has been nominated, so either Specter is okay with him, or his opposition wasn’t enough. As we move forward, keep this old case in mind. I assume Sen. Specter will treat the nominee fairly — but if he doesn’t, this post may help explain why.

14 Responses to “Alito Out?”

  1. Perhaps Specter needs to be replaced?

    First he got an election pass from the President, who held off hard core support for Toomey and second he was allowed to assume the chair of the Judicial committee after a humiliating climb down by Specter and after he ate 4-5 pounds of crow.

    I’m sure, with some focus, we could force a floor vote of no-confidence (ultra-humiliating for this puffin) which would at least garner vast bloviations on his fairness. then he could just recuse himself in the Alito case and save his legacy.

    Lonetown (3c583b)

  2. It is unfortunate, but if there is a strong personal issue between Speter and Alito, Alito probably has to be crossed off the list.

    The president, and the conservative judicial movement for that matter, can ill afford to have a second consecutive nominee go down. And just as a personal reward for a friend was not right, a personal vendetta is not really the kind of nomination fight we should be fighting.

    Stephen Macklin (103410)

  3. [...] Senator Specter will most likely be the reason. [...]

    Confirm Them » If Alito doesn’t get the nod from President Bush, (5c7b11)

  4. Senator Sphincter is a pain in the a**!

    savet (c268ba)

  5. I think it would be very tough for Specter to fight Alito publicly, given his public praise for Alito. And indeed, that public praise goes a long way towards reassuring me that there is no issue there. But behind-the-scenes manipulation is often quite different from what happens publicly, so I am not entirely reassured — just mostly.

    Patterico (4e4b70)

  6. The best pick is Jones. Comments?

    Paul Deignan (b2e499)

  7. I don’t think it would be that hard for Specter to publicly oppose Alito over the usual stupid Specter stuff (Roe v. Wade, acknowledgement that there is another amendment tucked in there between the Ninth and Eleventh, super duper pooper scooper precedents, etc.) while privately doing so only because he’s pissed at the guy. He can’t publicly oppose “Scalito” on the case itself since we all know Scalito was right. But he can oppose him for the same reason some of us like to call him Scalito – which is roughly the same reason that he did oppose Robert Bork.

    Xrlq (428dfd)

  8. I don’t like Specter any more than the next conservative, but that doesn’t mean I can’t write him off. I honestly believe that Specter is the most important Senator in terms of court appointments. If he opposes a nominee, it gives other RINOs (Collins, Snowe, Chaffee, Warner) political cover. It also gives the Dems cover to possibly filibuster. And Specter is the type of guy you want inside of the tent pissing out than outside of the tent pissing in — he will go to the wall either way. If I was in the Bush Admin, I would definitely go to Specter and find out what he thinks of Alito rather than react to the conflicting reports.

    Bob (e486b5)

  9. A Halloween Treat, Or Another Trick?

    … I’ll update this post with new information as the day goes on.

    Small Town Veteran (af7df9)

  10. AP Sez Alito!

    AP says that President Bush has selected Judge Samuel Alito to replace retiring Justice Sandra Day O’Connor on the Supreme Court. Here is Alito’s c.v. from the Federal Judicial Center: Born 1950 in Trenton, NJ Federal Judicial Service: U. S….

    Big Lizards (fe7c9d)

  11. Specter and Alito both have Yale in their bloood since they both went to Yale Law. Blood is thicker than water under the bridge. Specter will support Alito.

    Dan Nadas (e2400d)

  12. [...] To make matters worse, it appears that Specter has some particular history with Alito that could make him act in an even more pig-brained way than usual. From Patterico: In 1991, Arlen Specter and other political and union leaders filed a lawsuit challenging the closure of the Philadelphia Naval Shipyard. The shipyard had been targeted by a closure list created pursuant to the Defense Base Closure and Realignment Act. Specter was the lead plaintiff in the lawsuit. He and the other plaintiffs argued that the process was stacked against the shipyard, but a federal judge threw out the suit, ruling that the federal courts had no authority to review the decision. [...]

    RightWingBob.com - A different kind of Bob Dylan fan site (ec259c)

  13. Why would Specter want to risk leading a high profile campaing against Specter that could, as another commenter noted, lead to his ouster as Judiciary chairman? He knows his tenuous place among his more conservative colleagues, and will do the administration’s bidding.

    Amy Allen (0004ca)


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