points out this post
by John Cole:
An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.
So let me get this straight. He would prefer policy decisions to be made by unelected, life-tenured judges who have no accountability to voters?
And who is this "the Government" he seems to fear? I thought it was we, the people. If we don't make our wishes known and sell our votes for earmarked pork, we get what we deserve. We tried a pure states' rights approach already. It didn't work.
Jonathan Turley has come out strong against Alito, which tells me more about him than about Alito. His column
sounds like it was written by a disgruntled litigant, warning us that our Constitutional system will be in grave danger if he gets confirmed. I note however that several of his arguments are based on memos Alito wrote in the 1980s as an employee of the Reagan Justice Department. He also criticizes his dissent in Doe v. Groody
For example, in Doe v. Groody, Alito wrote a dissenting opinion arguing that police officers could strip-search a mother and her 10-year-old daughter, despite the fact that neither was named in the search warrant nor suspected of crimes. The majority opinion was authored by fellow Republican and conservative Judge Michael Chertoff (now serving as secretary of Homeland Security). Chertoff criticized Alito's views as threatening to "transform the judicial officer into little more than the cliché 'rubber stamp.'"
What he doesn't say is that this was a civil suit against four officers and Alito would have granted them qualified immunity from liability. The majority held:
The officers argue that they did not violate clearly established federal constitutional rights when they searched a mother and her ten year old daughter in the course of executing a search warrant for narcotics at their home.
The appeal turns on the scope of search authorized by the warrant. To resolve this issue, we must consider under what circumstances the scope of a warrant may be expanded by looking to the accompanying affidavit. We hold it to be clearly established that unless a search warrant specifically incorporates an affidavit, the scope of the warrant may not be broadened by language in that affidavit.
Yeah, not agreeing with that would put the Constitution in peril, all right.
The issue was whether the officers involved were entitled to Qualified Immunity.
Qualified immunity protects law enforcement officers from being tried for actions taken in the course of their duties. If the immunity applies, it entitles the officer to be free of the “burdens of litigation.” Mitchell, 472 U.S. at 526. But the immunity is forfeited if an officer’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have nown.”
The shocking fact that the wife and daughter of the suspect were strip searched by a female officer inflames Turley, apparently, but that isn't the point of the case. What Alito would have ruled was that the officers were entitled to qualified immunity from civil suit, because they reasonably believed the search was authorized by the warrant. It's not an assault on civil rights or our constitutional system.
Most appellate cases are like that. They come down to narrow issues of fact or interpretation of laws. To make sweeping statements based on several cases is not very helpful in evaluating a judge's 15-year service.
Furthermore, it's futile to try to pin down a justice to a particular policy view, because ruling otherwise isn't an impeachable offense. The Democrats' tactics have guaranteed that no judicial candidate will be truly candid with them. They demonstrated the folly of doing so in the Bork and Clarence Thomas confirmation hearings. The problem they have now was created by them. The Republicans, when Breyer and Ginsburg were nominated, make a much more sensible calculation, and voted on their legal qualifications and abilities without trying to block them for being liberals. Perhaps they were hoping the Democrats would follow suit, but asking Biden, Schumer, Leahy, Kennedy and the rest to use common sense is a bridge too far.
It appears, however, that they've already concluded that they don't have the votes to sustain a filibuster, which generally becomes more of a political problem for those backing it than those who represent the majority view.
Update: Senator Durbin
characterized Alito's opinion in Groody
thus: "You were the only judge on your court who ruled to authorize a strip search of a ten-year-old girl." Follow the link for a good explanation of how shallow that analysis is.