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.