Although he did leave out the “Please God” part of the quip.

I can’t say that I am surprised at this glaring omission.

In Holmes v. South Carolina, the Supreme Court struck down a South Carolina rule of evidence that barred defense lawyers from presenting evidence that points to another suspect if the prosecustion has “strong evidence” of the defendant’s guilt.

This rule essentially takes from the jury the ability to weigh this “strong evidence” against evidence that another person committed the crime.  It is a silly rule and should not have been applied in this case. 

For more on the facts of the case an the opinion of the Court, see the following links:

LA Times

Concurring Opinions

Orin Kerr (Note that Kerr also makes reference to that the Justices don’t buy into Feddie’s “Stare decisis is fo’ suckas” position)

SCAL Blog

An interesting article on the Journal’s site (free access) titled “Sam’s the Man” notes the order for reargument in Garcetti v. Ceballos, “suggesting the remaining eight justices had split evenly on the outcome.” According to the report, “[t]he case comes from Los Angeles, where a deputy district attorney sued his superiors, contending they punished him for telling a defense lawyer that the sheriff may have misrepresented facts on a search warrant. Former District Attorney Gil Garcetti and other county officials contend they’re immune from legal action, but the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that Richard Ceballos can proceed with his First Amendment claim.” Check out the link for more info.

Nothing would please me more.

Very interesting.

And while the end result is unquestionably newsworthy, the law geek in me is curious to see the majority’s basis for allowing the stay to remain in effect (and thus the cause of the 6-3 divide).

You can read the Court’s order denying the application to vacate the stay imposed by the Eight Circuit–which, btw, has been assigned to Alito–here. Š

I believe it was October of 2004 when, on this site, I first wrote that the best two choices for the Supreme Court were Sam Alito and Emilio Garza. I have since soured just a bit on Graza — publicly so — although I still would be delighted to have him named. But I never wavered from saying that the best choice of all would be Alito. So, after 15 months, this confirmation feels especially sweet. I hereby tip my cap, though, to all the bloggers here at SA, and especially to feddie, because without SA providing such a crucial early forum for conservative law scholars and enthusiasts, I don’t think the groundswell would have beens trong enough to result, in the long run, in a Justice ALito. Now it has, and victory is sweet. ALITO, ALITO, ALITO!!! Oh, happy day!!!

So the interesting thing about the attempted filibuster yesterday isn’t so much that the Democrats wanted to filibuster Alito.  Given the view that he was unacceptable for whatever reason, they wanted to stop him.  It’s probably a bad precedent - someone like Ruth Bader Ginsburg would almost certainly face a similar effort if she were nominated in the current climate - but not surprising.

What is surprising is that they attempted the filibuster when they knew it would fail.  Why?  Well, one answer is that they were just being Kossite lackeys.  That is, anyone who wants to warm up to the hard left of the Democratic Party, especially if you’re thinking about running for President in 2008, needed to come out in favor of the filibuster.  That probably explains a lot, but it’s not entirely convincing to me.  Explain what electoral successes Kos and his folks have had - why think they’re the force they claim to be?  Maybe you need Kos to win the Democratic primary, but that seems like a big, big maybe, given the lack of any empirical evidence to back it up.  Dean flamed out in the Iowa primary, after all.  (Of course, it might be the case that any number of potential nominees perceive that they need to win over the Kossites to win the primaries).

Another answer would be that the two parties are now so divided with regard to their underlying political philosophies that there really is no common ground.  I don’t think that most conservatives think that Alito is in any way radical or pushing the boundaries of good judicial judgment.  Most think of him as squarely in the mainstream.  The fact that a good number of Democrats (and, perhaps most importantly, their leadership especially) think he is suggests that part of the reason for the attempted filibuster is to demonstrate how firmly they feel about Alito’s views.  They mean to signal here that they think Alito is way out of the mainstream and an attempted filibuster does just that.  (As an aside, the fact that they could only manage a bare majority of their own caucus shows, perhaps, that it’s the Ted Kennedys of the world that are outside the mainstream.)

Finally, though, it might just be a case of what political scientists call ‘path dependence.’ There was probably a point at which, in the last couple of weeks, when some of the Democratic Senators who voted against the filibuster were wavering, unwilling to commit. Perhaps Sens. Kerry and Kennedy thought (not unreasonably) that if they got close to getting the 40 votes they needed, the pressure against those waverers would intensify, even to the point of moving them into the pro-filibuster column.  Imagine you were one of just a couple of Senators who were standing in the way of the filibuster - can you imagine the pressure you’d be under?  And once Kerry and Kennedy committed to the filibuster, they couldn’t back down (at risk of looking more ridiculous than they already did) and once Kerry committed to the filibuster, so too did the rest of the presumed Presidential contenders (Clinton, Evan Bayh, etc.).

All very interesting.

Well, Publius, I’ve got two words for you: Justice Alito.

Oh yeah, and here’s three more: Chief Justice Roberts.

Here’s the roll call on “Motion to Invoke Cloture On The Nomination of Samuel A. Alito, Jr. of New Jersey, To Be An Associate Justice Of The Supreme Court.”

From this morning’s Washington Times:

“I suppose we can all agree that it is an international filibuster because it was apparently hatched in Davos, Switzerland, where Senator Kerry now is with those masters of the universe that are out there trying to figure our world economy out,” said Sen. Jeff Sessions, Alabama Republican.

It’s no surprise to learn that Sessions is a Tom Wolfe fan, and also is skeptical of the prospects for international economic policy “coordination”.

I caught the end of Cat on a Hot Tin Roof on TCM Thursday. You may remember that Big Daddy, played by Burl Ives (cool photos here), repeatedly rails against “mendacity!” Near the end of the movie, he turns to his son, played by Paul Newman, and says

What’s that smell in this room? Didn’t you notice it Brick? Didn’t you notice the powerful and obnoxious odor of mendacity in this room?…There ain’t nothin’ more powerful than the odor of mendacity.

I keep thinking about this scene as I hear Senate Democrats saying that their opposition to Judge Alito is based on something other than Roe – worries about the unitary presidency [sic] or his voting record in employment cases, etc.

Mendacity!

For what it’s worth, here is what we at the Mobile Register had to say about the Dems’ treatment of the fine Judge Alito.

Note: I tried posting this earlier this morning, but to no avail.
The New York Times editorial today demanding filibuster of Sam Alito is yet another in a line of glaring examples of the newspaper’s eroding grip on political realities in this country. Because this one has oh-so-many jewels within the space of a few paragraphs, I figure we might as well hit the fine points. We’ll skip the lead ‘graph, as I think it’s mere partisan hackery at its worst.

At the Judiciary Committee hearings, the judge followed the well-worn path to confirmation, which has the nominee offer up only the most boring statements and unarguable truisms: the president is not above the law; diversity in college student bodies is a good thing.

Someone needs to explain to the NYT that a Confirmation Hearing is not intended to be made-for-television material. A confirmation hearing isn’t intended to distill a punch list of how a particular judge will rule on cases, let alone the sexy ones the NYT evidently wants Alito to own up to having pre-judged. It is well-settled, and understood by those who pay closer attention than the vitriolic sound bites of bullying Senators, that a judge up for confirmation should not speculate to the Senate how he or she would rule on a case. To do so is to set the table for recusal in entire spheres of law, which serves no one in the end.

The Alito nomination has been discussed largely in the context of his opposition to abortion rights, and if the hearings provided any serious insight at all into the nominee’s intentions, it was that he has never changed his early convictions on that point. The judge — who long maintained that Roe v. Wade should be overturned — ignored all the efforts by the Judiciary Committee’s chairman, Arlen Specter, to get him to provide some cover for pro-choice senators who wanted to support the nomination. As it stands, it is indefensible for Mr. Specter or any other senator who has promised constituents to protect a woman’s right to an abortion to turn around and hand Judge Alito a potent vote to undermine or even end it.

So let me get this straight. The NYT wants Judge Alito to state his position on every matter under the sun, but in a way that provides cover for Senators so the nominee can secure their votes for confirmation? This is so ridiculous I can hardly conceive of the thought process that brought pen to paper to write it. Confirmation Hearings are, in the NYT’s view, tantamount to the nominee running for the office of Justice, and, where possible, the nominee should sugar-coat or doctor whatever views he does share for the benefit of his voters. Rest assured that had Judge Alito engaged in such a pattern of response he would have been crucified in kind by the very same paper.

Judge Alito’s refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.

It’s OK to lie, so long as there are no consequences. And look at Roberts - he was a big fat liar (in the NYT’s views), and it’s OK because he got a lifetime appointment because of it. And as a little FYI to the NYT: Roberts didn’t “appear” mainstream; he pretty much is mainstream. The depths to which this editorial had sunk at this point disturbed me.

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito’s supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

This is called bowing to political pressure. It’s what politicians (unlike Judges) are supposed to do as elected representatives of the people. If a Senator believes her voters would support an Alito filibuster and would reelect her for her efforts, she will do it. If a Senator fears she would not get reelected because of her role in a filibuster, she will sit it out. This is how representative government works. For a paper who claims to know our system of government so well, the NYT knows almost nothing. That whole majority rules thing sure is a pain in the rear when it works against you…

A filibuster is a radical tool. It’s easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

Since when are Dems frightened of using the filibuster? If any shred of credibility was left from the initial onslaught of ill-conceived partisan rabble, this last statement killed it.

I know I shouldn’t give this much attention to an editorial as stilted and disingenuous as this one. The gist seems to be that if Alito had only lied for the NYT’s benefit they would be so much happier today, if only because they would be blissfully ignorant of who Judge Alito is. If the kind of Justice the NYT wants would stoop to double-talk and lies to put them at ease, I don’t think I want their input on the selection anyway.

From today’s editorial:

It is hard to imagine a moment when it would be more appropriate for senators to fight for a principle. Even a losing battle would draw the public’s attention to the import of this nomination.

…A filibuster is a radical tool. It’s easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

Me: This is a stupid idea. Plain and simple. Dems aren’t afraid of filibustering for noble purposes, they are afraid of being taken to the woodshed politically. I hope to God that they filibuster. In the wake of all the so-called “scandals” surrounding the Republican party right now, I can’t think of a better way to shift momentum.

In case you were wondering, there are some dems who actually believe in telling the truth about Judge Alito–his former clerks:

“He is meticulous in the way he goes about deciding cases. He’s meticulous in the way he goes about finding what the law is. I can’t think of better qualities for anyone to serve as a judge on the Supreme Court.”

“I am a Democrat who always voted Democrat, except when I vote for a Green candidate . . . but Judge Alito was not interested in the ideology of his clerks. He didn’t decide cases based on ideology.”

“After a year of working closely with the Judge on cases concerning a wide variety of legal issues, I left New Jersey not knowing Judge Alito’s personal beliefs on any of them.”

“He’s a man of great decency, integrity and character. I believe very strongly he deserves to be confirmed as the next associate justice.”

“I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice.”

As someone who actually served as a federal appellate law clerk, I can tell y’all that if Judge Alito’s judicial philosophy was premised on his political ideology, his former clerks would have noticed. Indeed, if that was the case, why would he hire liberal clerks? I am not suggesting that a conservative judge should hire judicially liberal clerks, mind you. Those slots are precious few, and we desperately need them to go to members of the Federalist Society, so that our grand conspiracy to completely take over the federal judiciary will prove successful. Nevertheless, when a conservative judge has a practice of hiring liberal law clerks, I think this strongly suggests that he is not approaching the cases before him with a political agenda in mind.

Update: Here’s a great comment to my crosspost over at Confirm Them from one of Judge (soon to be “Justice”) Alito’s former clerks (and yes, I’ve confirmed this):

Judge Alito does not always have a liberal clerk. He often did, but not always. Sometimes he had more than one. (In the early ’90s, he had three clerks, all of whom were liberal.)

He picks his clerks with total indifference to ideology. He looks for personal qualities, including academic qualifications, integrity, and someone he would find interesting to work with. I can tell you, ideology doesn’t matter at all to him.

And the year I clerked for him, two of the four of us were liberal. And I’m one of the ones quoted in the article. Unlike Scalia, who deliberately hires one “counter-clerk� Judge Alito doesn’t really care what the makeup of his chambers is, as long as it’s cordial.

This, to me, is the mark of why liberals like me support him. He is fair and openminded in all respects.

Here’s the first paragraph of the Miami Herald’s story:

U.S. Sen. Bill Nelson said Tuesday he’ll vote against Judge Samuel Alito Jr.’s nomination to the U.S. Supreme Court, saying he believes the jurist would “tilt the scales of justice in favor of big government over the average person.”

Is this just some kind of code phrase for overruling Roe that I’m not familiar with? If it’s not, does anyone believe Nelson’s explanation for his vote? How convincing do you suppose Nelson thinks his explanation will be to Florida voters?

Reuters has this report.

And when Judge Alito is confirmed, you know what that will mean, right?

Every American will be speaking Latin and eating fish on Friday before too long. :) 

The man has absolutely no shame whatsoever.

I meant to post on a couple of must-reads re the Alito hearings last week, but didn’t get around to it. For completeness’ sake, here they are:

* Hugh Hewitt’s diagnosis of the Democrats’ “Alito-Induced Panic Disorder”

* James Lileks’ draft opening statements for SCOTUS nominees of different judicial philosophies. Warning: You should not be drinking a hot beverage when you read this.

Following up on my earlier post on Senator Kennedy’s explanation of just how nuanced and hyper-technical the Dems’ grilling of Judge Alito was, I give you Senator Reid, D-Nev, yesterday on PBS’ “News Hour with Jim Lehrer”:

JIM LEHRER: You know, speaking of the hearings, the senators themselves caught a lot of heat, many of them, for the suggestion was they talked a lot more than Samuel Alito did. What do you think about that? And the senators — well, what do you think about that? I’ll leave it at that.

SEN. HARRY REID: Well, those eight members of the Judiciary Committee that are Democrat — they know those issues so well. They talked about unitary government and all these things. I was a practicing attorney for many years, went to court a long time. I told all my Senate Democratic colleagues that are on the Judiciary Committee, I said, “I don’t know what the hell you were talking about.” So anyway, I think they did a good job. [emphasis mine]

BTW, Sen. Reid did allow as to how he is, ah, unlikely to vote to confirm Judge Alito, in part because “There are still a couple of hundred questions that are outstanding that he hasn’t answered.” (HT to Best of the Web.)

The Volokh Conspiracy has the details here and here.

Oh, and be sure to read the comments to each post. 

H/T: Jay Anderson at Pro Ecclesia

Oh that Senator Leahy.  He tried his best yesterday to get Judge Alito to agree that Congress could not strip the Supreme Court of its jurisdiction over First Amendment cases.  Alito would not give him the desired answer.  Here is a taste of the exchange.  

LEAHY: But, Judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the court’s jurisdiction over First Amendment cases.

Are you telling me that — and I just want to make sure I fully understand your answer — you’re not willing to go to the extent then- Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you’d have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

Leahy really has no leg to stand on here.  Article Three clearly provides that

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

In other words, so long as it is a First Amendment case involving an ambassador, minister, or state, Congress cannot modify that jurisdiction because it is original.  For all other grants of jurisdiction, the text of the Constitution permits regulations. 

Of course, one could make the argument (as does Akhil Amar) that because the Constitution provides that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution� then that power must rest somewhere.  And if Congress strips the Supreme Court of jurisdiction over these First Amenment constitutional cases, then it must place that jurisdiction in the circuit courts or district courts.

I’m certainly not advocating that Congress strip Supreme Court jurisdiction over First Amendment matters (the policies and reasons advanced by Alito make sense), but the matter is much more complicated than Senator Leahy let on.

Daniel Henninger has today’s must read with regard to the Alito confirmation process. A taste:

The grand hulk of Ted Kennedy ranted that he wanted to subpoena the papers of former National Review publisher William Rusher to get to the bottom of Samuel Alito’s membership in the Concerned Alumni of Princeton. At this moment, one sensed that perhaps at last the ghost of Robert Bork had finally been laid to rest. Borking was once a Democratic smear tactic. This week–amid intellectually exhausted and politically befuddled Democrats–it became a laugh track.

…

Though forced to stare upward at his questioners for four days, Judge Alito, like John Roberts before him, has been the largest presence in the room. This hearing makes clear that those of us who opposed Harriet Miers’s nomination were right. She or anyone of her inexperience would have transformed the committee Democrats into the legal heavyweights, handing down lectures on “rights” and moral punctiliousness. They would have turned Ms. Miers inside out. Instead they got a member of the Federalist Society with more than enough mental firepower.

Since 1982, the Federalist Society’s main purpose has been to create robust conservative legal theories and smart judges. President Bush nominated a class of them to the appellate bench. In response the minority Democrats largely abandoned Borking in favor of hostage-taking, thus delivering yet another innovation to our politics, the judicial filibuster. This in turn led to the threat of using the “nuclear option” in an institution known to our forbearers as “the world’s greatest deliberative body.”

The Economist looks at the confirmation hearing of Judge Samuel Alito and offers the following thoughts and perspective:

TED KENNEDY is deeply troubled by the ethics of the Supreme Court nominee. Between 2001 and 2006, Samuel Alito, who is currently an appeals court judge, accepted $7,684,423 in “donations� from special interests who perhaps wanted the law tweaked in their favour. That included $28,000 from defence contractors, $42,200 from drug firms and a whopping $745,373 from lawyers and law firms.

No, wait. Those are Senator Kennedy’s conflicts of interest—or, rather, a brief excerpt from a long list compiled by the Centre for Responsive Politics. The lapse for which the senator berated Mr Alito was considerably less clear-cut.

…

[O]ne would expect senators to ask him tough questions. Instead, most chose to make speeches. On the second day of hearings, ten out of the first 12 senators spoke for longer than the nominee. Patrick Leahy of Vermont waxed thespian on the subject of strip-searching young girls, a practice of which he said Mr Alito was too tolerant. In one burst, he rolled the words “strip-search� around his mouth four times and “ten-year-old girl� five times.

Well said.

Unbelievable.

I would highly recommend everyone head over to “Bench Memos” for a recap of what went on today at the Alito hearings, e.g., the AWOL Democratic Senators during the witness testimony this afternoon. Start about halfway down, with pictures of Alito leaving Dirksen this afternoon, and then work your way up.

Barring some last-minute smear job a la Anita Hill (remember that she materialized with her, uh, improbable story right about at this point in the hearings), Alito will get in without even having Feinstein vote against cloture on the floor (not that she will vote to confirm them, but only that she may well vote against a filibuster). As one of his earliest boosters (Oct., 2004!!) for the high court, I feel thrilled and vindicated. But I must keep reminding myself, indeed we all must keep reminding ourselves, that one victory does not win a whole war. VERY few judges were confirmed last year; some key ones still hang in limbo, and the terrific Brett Kavanaugh wasn’t even allowed to have his nomination held over, so he must be officially resubmitted. Meanwhile, Stevens or Ginsburg or Scalia may retire this summer, so none of us can rest on our laurels. The leftist Dems will finally have learned that this playbook of theirs doesn’t work, and they will come up with new, sneaky, underhanded tactics to surprise us with. So committed constitutionalists must remain girded for battle, must push Kavanaugh for all we are worth, must push good jrurists like Batchelder or Sykes or Cantero (or PRYOR — I wish!!!) for the next high court opening and be ready to work just as hard for her/his confirmation. I think it was the poet Housman who wrote: “Up, lad,there will be time enough for sleeping when the journey’s done.” (That’s from memory; corrections on that quote are welcome.)