Patterico's Pontifications


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.

Kupfer Ring (Barcelona Production) on DVD

Filed under: Music — Patterico @ 8:31 pm

I just ordered the Barcelona version of the Kupfer Ring production on DVD from Amazon. The Barenboim version, previously available on video, is in the process of being released on DVD as well, but Die Walküre appears to be the only opera yet available, and I ordered that as well.

Hooray for Amazon gift certificates!

If anyone has seen these, I’d appreciate a review. But I’m getting them anyway.

Bush Considering Only Strong Nominees

Filed under: Judiciary — Patterico @ 11:31 am

It’s getting harder and harder to argue that the campaign to boot Harriet Miers was a bad thing. Just look at a Washington Post story today titled Appellate Judges Cited as Focus of New Search:

The administration has backed away from any insistence that the nominee be a woman or a minority. Rather, it is focused on potential nominees who have previously won Senate confirmation, whose intellectual qualifications would be unquestioned and who have paper trails that make clear their conservative credentials, said one source who is close to the nomination process.

Those candidates, according to the sources, include several federal appellate judges, among them: Samuel A. Alito Jr., J. Michael Luttig, Michael W. McConnell, Emilio M. Garza, Priscilla R. Owen and Edith H. Jones.

Every last one of them would be a good pick, and I’d term almost all of them “fantastic.” How different this short list sounds from the last time! This time, it’s all people who should be considered. And why is that, pray tell? Because of the current environment:

By focusing on such candidates, the Bush administration is shifting to what one source described as President Ronald Reagan’s doctrine of picking justices. “The nominee can’t be a stealth candidate for a number of reasons,” the source said. “There are very, very few people who have the kind of credentials that the administration can put up in this environment that would not have a record.”

See? We opponents of Miers have created an “environment” where the Administration feels that it can consider only candidates with strong credentials.

I don’t know about you, but I’m bustin’ my buttons. It’s too bad that that “environment” is apparently seen as temporary — but no matter. It’s the environment now, and that’s all that matters.

By the way, the story only adds to the Alito buzz:

“The reason his name is popping up is he’s probably the closest thing out there to John Roberts,” said former Bush White House associate counsel Bradford A. Berenson. “And he’s got even more of a full record that people on both sides of the aisle can evaluate.”

Adding to the speculation were reports by those close to the process that Alito arrived in Washington Thursday night. Asked why the judge came to town and whether he was in chambers yesterday, Alito’s clerk laughed and said he would have to take a message.

In this Administration, saying that Alito is the closest thing out there to John Roberts is a clear signal that they are picking him. Nothing’s guaranteed, but it’s looking more and more like Alito.

So these are good days. Even some former skeptics, who warned of doom should Miers be defeated or have her nomination withdrawn, are starting to see the bright side. People such as our good friend Dafydd ab Hugh:

Christmas came early for the Bush family. And now W. has the chance to start off fresh with a reasonably clear scandal slate — and a unified base, assuming he takes advantage and names a “consensus” candidate… where the consensus is between the various wings of the Republican Party, and to hell with what Ted Kennedy and Charles Schumer want!

Whoever is named, it’s likely to be a tough fight. But the candidate will have one thing going for him or her that Robert Bork never had: us. We in the blogosphere can hold the media’s feet to the fire. And we must.

The Roberts nomination was only a warm-up. He didn’t need us. Chances are, this candidate will.

To the barricades!

Our 27 Months of Hell Brought to Us By Lyin’ Joe Wilson

Filed under: Scum,War — Patterico @ 10:07 am

Lyin’ Joe Wilson lies again in this morning’s Los Angeles Times, in a piece titled Our 27 months of hell:

I knew that the statement in Bush’s speech — that Iraq had attempted to purchase significant quantities of uranium in Africa — was not true. I knew it was false from my own investigative trip to Africa (at the request of the CIA) and from two other similar intelligence reports. And I knew that the White House knew it.

No, lyin’ Joe, you did not know any such thing. What you knew, my dishonest friend, was that you had uncovered evidence that Iraq had indeed sought uranium from Niger. That is what the CIA initially concluded from what you brought them.

Lyin’ Joe, it is highly ironic that a liar like you would accuse the White House of lying. You lied about whether you had debunked the “sixteen words” claim. You lied about whether the White House was told about your findings. You lied about whether your wife recommended you for the trip. And you lied to various journalists about having determined that the relevant documents were forged — seeing as how you had never seen these documents at the time you talked to those journalists.

Full details here and here and in the links cited therein; I’m getting tired of repeating myself.

Of course, the news media almost never tells us any of this.

Lyin’ Joe, I’ve said that I’m not going to let the news media get away with this — and I’m certainly not going to let you get away with it. You are an opportunist and a serial liar. This is only one in a series of lies you have told people, starting with Nick Kristof (at least) and moving forward from there. And every time I see this lie repeated, I’m going to refute it.

Every time.

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