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November 02, 2005


Don;t read too much into it. Remember Clarence Thomas thought the sodomy law in Lawrence was I believe the phrase was "an uncommonly silly law." But he wasn't going to overturn it, because he didn't think there was a fundamental right to privacy in personal matters that would allow him to do so. So it is not just a question of his views (assuming his views haven't hardened, which I think more likely) of a legislative problem, but what he sees as the proper role of the courts, and the role of the federal vs state governments.

Alito is an interesting case, because of his current hostility toward Congress, as seen in the machine gun case. He apparently believes in judicial activism, that is, no deference to Congress when it oversteps what he sees as the line between the states and federal gov't. In his literal reading, Congress can ban possession only of machine guns that cross state lines. Would he uphold a state ban as against a 2nd Amendment challenge? Unclear.

He may in his youth have believed that federal snooping (then at its height, under Nixon) was problematic. But he is very likely to support a maximal interpretation of federal executive power in the national security area today.

Maybe the fact that these folks were tolerant in their youth (and into middle age in some respects) is attributable to a libertarian bent. But that is hard to square in Alito's case with his apparent reverence for executive power. So I would attribute it all to these folks having imbibed something of the more libertarian culture of their youth, but then, like Bush, "sobering up" in middle age. His mamma says he is against abortion, and I bet she'd also tell you he doesn't support gay rights if you asked.

Barry Goldwater, the father of modern conservatism, was against any government involvement in abortion. It should be none of the government's business. So, in that, he probably wasn't too out of step with conservatives of the time.

Further, his modern judicial philosophy may be that abortion is none of the FEDERAL government's business, but leave states to regulate it, so goodbye Roe.

This is a nice proof of principle: "See how far back we have to go and how we have to stretch to make a slim-as-hair case for Alito supporting Griswold?"

Well, Anthony Kennedy's longtime priest told the GOP that Kennedy was anti-abortion. Anti-abortion justices have ruled in favor of Roe. As for Thomas, he said that the sodomy laws should be repealed at the state level, not the federal level. I disagreed, but that was a far cry from the bile that Scalia spewed in his dissent. Or the remarks that Warren Burger and Byron White made on Bowers.

Some people do sort of become liberal when they go to college, then get pulled back in, but some of his rulings seem very mixed, particularly the ruling involving the teenage boy who was constantly tormented because people thought he was gay. Once he's on the Court for a lifetime, then I do wonder which way he might drift.

I still think he will be a pretty bad appointment, but anyone who would have supported, even slightly, some of those things in 1971 is not someone I expected Bush to nominate. I don't even want to think about what Bush was doing in 1971.

Don't forget that about a week before the election Bush said he supported civil unions. It didn't get much attention, but in that instance, I suspect he probably was telling the truth. In politics, the gap between the % of people willing to exploit gay issues vs the % who really care is much greater than on abortion. I'm maybe a little surprised that he was relatively enlightened on gay issues as an undergrad, but I'm not sure that extends to a right to privacy that trumps his conception of when life begins. So it's possible that if approved he'll be OK on some gay issues (although maybe not workplace protections), but still be horrible on a whole range of other social issues, to say nothing of issues related to the commerce clause.

I think that was partially election year pandering from Bush, but you could be right.

There are many Republicans and some Democrats who may personally like gays but trash them for political gain. That's deporable, on so many levels. I have more respect for a person who may not "support" homosexuals but who still sees them as equal citizens. I'm hoping that maybe, on some cases, Alito will at least see gays as being equal. Scalia never has.

I've known some people who support gay rights and who oppose abortion, and vice/versa. These types are not prevalent in the leadership of conservative circles, although that might change someday.

This controversy is an example of how the fundamentalist approach colors conservatism. Barry Goldwater indeed supported abortion rights, as does Alan Simpson, both mountain state libertarians. The crux is whether one believes that the "moral" issue trumps any notion of "limited government." During the early days of the civil rights movement, "you can't legislate morality" was the rallying cry of the Right. It meant that the gov't couldn't make people be nice to each other, as with fair housing laws.

That was abandoned by the time Roe was decided. All of a sudden it WAS the gov't's obligation to make people moral. Those whose conservatism was philosophical and libertarian didn't change, but the religion-based conservatives became ever more activist in their notions of what courts and governments could do. Alito, from his record, is a judicial activist, but in service of what ideals will become clear, hopefully, in the hearings.

I think Alito's judicial philosophy is best seen in the Casey case. He's trying to follow Supreme Court guidance, but given an unclear "undue burden" test, he tries to broaden the definition of "undue burden" so that abortion becomes more difficult.

Alito may not outright overturn a case like Roe, but he'll chip broaden standards for positions that he favors, restrict definitions in other cases, and after 5 years of that, you'll essentially have new case law.

While I think Alito wants to overturn Roe, justices sometimes get cold feet when it comes to taking away people's rights. Remember, Rehnquist spewed bile about the Miranda decision, but later voted to uphold Miranda because of its effect on "popular culture."

Translation: I don't want to be lynched as the guy who took away your Miranda rights.

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