[Posted by The Angry Clam]

…before they expound upon the law. There’s a reason that Yale used to (and perhaps still does) offer a master’s degree in jurisprudence for non-attorneys- the degree is specifically targeted to journalists who write about the law, because, let’s face it, they don’t really have much of a clue.

This unsigned editorial is a case in point. In their last, vain attempt to destroy the Alito nomination, the editors betray a fundamental misunderstand of many relatively basic points of law, not to mention their typically weak grasp of facts.

Early on it declares the editors’ intentions: ” In three days of testimony, [Judge Alito] has given the American people reasons to be worried – and senators reasons to oppose his nomination.” Let’s take a look at those issues, shall we?

EVIDENCE OF EXTREMISM Judge Alito’s extraordinary praise of Judge Bork is unsettling, given that Judge Bork’s radical legal views included rejecting the Supreme Court’s entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives. Judge Alito’s membership in Concerned Alumni of Princeton – a group whose offensive views about women, minorities and AIDS victims were discussed in greater detail at yesterday’s hearing – is also deeply troubling, as is his unconvincing claim not to remember joining it.

What the NYT doesn’t tell you (and which I think is highly likely that they simply do not know) is that Judge Bork really was, from a qualifications standpoint, one of the most qualified, and therefore “best,” nominees of the 20th century.

Certainly they fail to mention his distinguished service on the D.C. Circuit. Service on appellate courts has become, in recent years, almost a sine qua non of a “qualified” Supreme Court nominee.

However, the NYT editors also fail to mention Judge Bork’s earlier full professorship at Yale Law School, which is not only the most elite law school in the nation, but also a haven of future legal academics (Harvard and Stanford, which also produce many academics, pump far more attorneys into practice than Yale does), and home to many of the leading scholars in their legal fields.

It also ignores Judge Bork’s publication of The Antitrust Paradox, easily the most influential book ever written on antitrust law in the United States. This book, an attack on the then-current antitrust jurisprudence, laid out a revised and reinterpreted framework for antitrust law. This framework is, essentially, exactly that employed in modern law after the great shift in antitrust law beginning in the 1970s. Judge Bork did not push that change through while on the court; rather, his writing was so influential and persuasive that it engendered the shift on its own.

How about Bork’s time as Solicitor General of the United States? This is the highest government position for Supreme Court advocacy, and, in many eyes, the greatest appointment a practicing attorney can hold. It should also be pointed out that, contrary to the Bork-as-monster image, he ran the OSG quite fairly, and was responsible for helping start the careers of Hispanic judge and Supreme Court short-lister Danny Boggs as well as Robert Reich, the Secretary of Labor in the Clinton Administration.

Finally, I want to note that Judge Bork was not always a mere academic, but served in the United States Marine Corps. In short, he has had a long career dedicated to public service, both as an attorney and as a soldier.

Approaching this resume with a fair mind, one must conclude that it is shockingly impressive, and exceeds, by a decent margin, that of John Roberts, whom even many Democrats praised as one of the most qualified nominees they had ever seen.

So, look again at why the NYT declares the praise of Judge Bork as “one of the most outstanding nominees” of the last century shockingly beyond the pale. They do not like his outcome in substantive due process cases. Such a position betrays not only a stunning ignorance of Judge Bork’s academic and intellectual distinction, but also the conflation of outcomes with qualifications that has become so prevalent in the nominations debates. Just to shut up the commentators, I’ll defuse this immediately: some Republicans do this too. Witness the defense of Miers’ failure of a nomination that she was an evangelical Christian who could be counted on.

OPPOSITION TO ROE V. WADE In 1985, Judge Alito made it clear that he believed the Constitution does not protect abortion rights. He had many chances this week to say he had changed his mind, but he refused. When offered the chance to say that Roe is a “super-precedent,” entitled to special deference because it has been upheld so often, he refused that, too. As Charles Schumer, Democrat of New York, noted in particularly pointed questioning, since Judge Alito was willing to say that other doctrines, like one person one vote, are settled law, his unwillingness to say the same about Roe strongly suggests that he still believes what he believed in 1985.

Let’s summarize the complaints:

1) Judge Alito refuses to state that the Constitution protects a right to an abortion. The NYT is explicitly demanding he recant an earlier statement that such a “right” was not protected. This withdrawal is not the same as saying “I may have changed my mind,” because it would force Judge Alito to affirmatively state a position on the claim that the constitution demands abortions be legal. This he cannot do, given that abortion appeals are certain to come before the court- consider the current partial birth abortion ban litigation.

2) The NYT is angry that Judge Alito will not sign on to Senator Specter’s concept of “super duper precedent,” which, as has been aptly pointed out, exists nowhere in common law precedent doctrines, either in this country or any other nation that employs the common law tradition.

3) The NYT attempts to imply that lawsuits over such now anachronistic complaints as segregated lunch counters and voting districts intentionally drawn to harm minorities are identical to the very active and ongoing litigation in abortion rights, and that, therefore, Judge Alito’s answers in one and dodges in another betray his thoughts. However, the very absurdity, to a modern observer, of the controversy over a lawsuit from before the Civil Rights Era should illustrate how that can be declared “settled law” and abortion not.

SUPPORT FOR AN IMPERIAL PRESIDENCY Judge Alito has backed a controversial theory known as the “unitary executive,” and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps. Judge Alito backed away from one of his most extreme statements in this area – his assertion, in a 1985 job application, that he believed “very strongly” in “the supremacy of the elected branches of government.” But he left a disturbing impression that as a justice, he would undermine the Supreme Court’s critical role in putting a check on presidential excesses.

The “unitary executive” does not mean an unlimited executive, as anyone who’s taken a basic course in constitutional separation of powers can tell you. The unitary executive understanding of the government (which is not a given, however… I am simply correcting the definitions and implications) is the fairly noncontroversial position that, because the Constitution states that the Executive is responsible for “faithfully executing the laws,” the Executive is in charge of the administrative state. Thus, according to the unitary executive view, while Congress has the power to determine what the law is, as well as to create various regulatory agencies with greater or lesser delegated authority, all such agencies must, constitutionally, report to the President.

This, incidentally, is where the “executive order” power comes from. As the head of the Executive Branch, the President has significant authority to, say, direct the Environmental Protection Agency to examine a particular region for potential regulation of that area. What the unitary executive theory does not do is declare the Executive free from any and all restriction of law. If you want a decent summary of the unitary executive thought, check out “States in a Federal System: The Unitary Executive and State Administration of Federal Law” by Evan Caminker, 45 Kan. L. Rev. 1075 (1997), which discusses congressional attempts to hijack state criminal enforcement apparati to enforce federal gun registration laws (a move that was struck down by the Supreme Court, incidentally).

Apart from this, there’s a blatant misrepresentation of his position on the legal liability of the Attorney General- Judge Alito was arguing against personal liability. Official liability was a different matter. Think of it like this. In a habeas corpus petition, the prisoner files a lawsuit against the warden, even if the allegations are entirely about events at trial, and, in fact, the prison is perfectly fine. If, during the suit, the warden is replaced, the new warden’s name is substituted into the suit, because the beef isn’t with the warden himself, but the actions of government. Judge Alito argued that the same should be true in the case against the AG- the real harm was committed by the government, not the individual, and so the government, and not the individual, bears the liability.

Finally, there’s the unfounded “support for the elected branches means support for the President at the expense of congress!” claim, without any support. This is wildly at odds with essentially all conservative legal thought, which possesses a strong majoritarian bias, as reflected in desires for judicial non-intervention. As I’ve argued before (in a comment replying to Psyberian, I believe… I will try to find it later), what this really is is a call for the courts, which are unelected, to take the political fallout from fighting the president so that congress, which must answer to the people, can escape electoral responsibility for the fight.

INSENSITIVITY TO ORDINARY AMERICANS’ RIGHTS Time and again, as a lawyer and a judge, the nominee has taken the side of big corporations against the “little guy,” supported employers against employees, and routinely rejected the claims of women, racial minorities and the disabled. The hearing shed new light on his especially troubling dissent from a ruling by two Reagan-appointed judges, who said that workers at a coal-processing site were covered by Mine Safety and Health Act protections.

Nothing in this analysis looks at whether those decisions should have come out on the side of the “big corporations,” but, once again, conflates results (the so-called “little guy” winning) with reasoning.

Another point: as of 2001, a majority (51-53%, depending on who’s counting) of Americans own stock in corporations, primarily through retirement investments like 401(k) and 403(b) plans. In a very real sense, there isn’t a “big corporation” vs. “little guy” anymore, as Americans, including the so-called “little guys,” are rapidly becoming the owners of these corporations, rather than some caricature of a fat, vulgar, evil, racist (or, depending on your personal prejudices, Jewish) capitalist.

DOUBTS ABOUT THE NOMINEE’S HONESTY Judge Alito’s explanation of his involvement with Concerned Alumni of Princeton is hard to believe. In a 1985 job application, he proudly pointed to his membership in the organization. Now he says he remembers nothing of it – except why he joined, which he insists had nothing to do with the group’s core concerns. His explanation for why he broke his promise to Congress to recuse himself in any case involving Vanguard companies is also unpersuasive.

And now we come to the two most idiotic charges.

1) CAP – First, contrary to the claims of NYT editors and, especially, the buzzing among lefties who almost certainly have never read Judge Alito’s 1985 job application, it is a huge stretch to say that he “proudly pointed” or “touted” his membership in CAP. The question asked him to list all the organizations he was a member of, to which he responded with a list that included CAP. The entirety of the entry regarding CAP read “member of the Concerned Alumni of Princeton Univ., a conservative alumni group.” Some touting, or proudly trumpeting.

You want to see proudly listing? Let’s look at the entry regarding the Federalist Society in response to that same question: “member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings.”

Claiming that he lied about his involvement in the Vanguard case is equally lame. The suit at issue involved a bankrupt holder of a retirement account that was held in trust by Vanguard. The creditors were fighting over whether they would have access to the funds in that account, or if such funds were shielded from confiscation by the bankruptcy laws. Vanguard was added as a party solely because it was in possession of the funds. It would, and did, make absolutely zero difference to Vanguard as a company whether those funds were released to the creditors or to the debtor because, either way, Vanguard did not pay.

That, incidentally, is why every specialist in legal ethics that has examined the case determined that, despite being a Vanguard account holder (and thus part-owner; Vanguard is owned by its customers), Judge Alito had no financial or personal stake in the outcome of the case. Despite this, when one of the parties complained, he not only recused himself, but requested that the decision he was a part of be vacated and the case reargued. Hardly the acts of someone out to enrich himself through rulings.

That leaves only the charge that he somehow broke his promise to recuse. However, the whole reason a judge recuses himself is because of the existence, or appearance of, a conflict of interest. When promising to recuse, surely that’s what Judge Alito was thinking of- after all, many mutual fund companies do get sued by their investors or by SEC regulators, and such suits do have a direct financial impact on account holders. In such circumstances, recusal is absolutely appropriate, and worth promising. This is what anyone familiar with Judicial recusal and ethics would understand. The NYT board of editors, however, has no such knowledge.

As for his repeated claims that his past statements on subjects like abortion and Judge Bork never represented his personal views or were intended to impress prospective employers – all that did was make us wonder why we should give any credence to what he says now.

One case I worked on while in law school resulted in the restoration of a number of welfare recipients’ benefits, long after they were supposed to be cut off from the public trough. I wouldn’t have given them money in the first place, had I had my policy way. However, they had a valid claim that the procedures undertaken to cut them off were defective. I was able to restore their benefits.

I’m quite proud of this work, despite my deep antipathy toward the program that these recipients were drawing funds from. Why? Because I won a case for people who were, really, my first clients. I did so despite the presence of actual attorneys for the welfare department. And I did so despite my clients being substantively deserving of the cessation of benefits.

Thus, it is fair to say both that (1) I am proud of my advocacy for the continued receipt of government welfare assistance for a number of extremely needy clients and (2) this in no way should be taken to represent my personal views on the matter of welfare assistance.

Judge Alito said the same thing as (1) with regards to abortion in 1985, and claims (2) today. This need not be a lie, as the NYT declares it is.

Likewise, go back and look at the resume of Judge Bork from the beginning of this post, but leave the name “Bork” out of it. Even if you disagree with Bork’s stance on substantive due process, on the 9th Amendment, or whatever else, it is very fair to say that he was a distinguished nominee on his qualifications. Admitting that does not mean that you therefore endorse the entirety of Bork’s jurisprudence, as Judge Alito attempted to make clear.

Here, watch this: I think that Justice Ruth Bader Ginsberg was eminently qualified to serve on the Supreme Court when she received the nomination. She remains the only person ever to be selected for both the Harvard and Columbia law reviews (she transferred because her husband moved to New York), was not only first in her law school class at Columbia, but continues to hold the school record for highest GPA. She clerked for a judge of the Southern District of New York, a district court with prestige comparable to many circuit courts, at a time when women were a rarity in the legal profession. She went on to serve as a professor at Columbia. Eventually, she had a long tenure on the District of Columbia Circuit, where she became close friends with then-Judge Antonin Scalia.

Furthermore, as chief litigator for the ACLU, she had a close and involved hand in a wide range of lawsuits that, in my opinion for the worse, helped reshape the American legal landscape. You cannot deny the influence simply because you don’t like the direction it went in.

So, are any of you really going to accuse me of lying when I tell you that statement should not be taken as my personal view of her beliefs? That’s the bill of goods the NYT editors are trying to sell you on Judge Alito.

And people wonder why his wife started crying.

– The Angry Clam