damnum absque injuria

October 31, 2005

Reunited And it Feels so Good

Filed under:   by Xrlq @ 6:32 am

This time, I don’t think David Frum, ConfirmThemAndThisTimeWeReallyMeanIt.COM, Michelle Malkin, Patterico, Hugh Hewitt, Professor Bainbridge, Captain Ed, John Hawkins and I (and, I suspect, George Will, Ann Coulter, Laura Ingraham, and too many others to count) have anything to squabble over. Well, that’s not quite true; we probably are in for a fight, but this time it will be against the guys we’re supposed to be fighting against, and not against each other. Ain’t love grand?

The best part of Alito’s nomination is that he’s such a strong candidate even Chuck Schumer supports him. Oh, of course he doesn’t praise him directly; he saw what that did when Harry Reid did the same for Harriet Miers. Nope, Schumer praises Alito the good old fashion Democrat way, by attacking him on an issue too transparently silly to be taken seriously:

Sen. Chuck Schumer, D-N.Y., also blasted Bush for not picking someone in the “mold of Sandra Day O’Connor, who would unify us.”

Schumer referred, of course, to President Bush’s campaign promise to nominate Supreme Court Justices “in the mold of … oh, I don’t know, whoever.”

“This controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate and from the American people,” Schumer said.

Sorry, Charlie, we didn’t nominate the black or Hispanic one this time. Not to worry, though; there’s a decent chance that a third seat on the Court will open up before 2009, so maybe we can appoint Janice Rogers Brown then. Meanwhile, I guess we’ll have to settle for this compromise candidate. Oh well.

Last and least, Alito’s nomination was a far better choice than Harriet Miers’s. While I remained anti-anti-Miers to the end, part of the reason I did was because I didn’t think we knew enough about how kind of Justice she would make, or who Bush would nominate in her place if her nomination fell through. I still think there’s a chance (albeit a diminished one) that Miers would make a decent Supreme Court Justice. I think it’s extremely unlikely, however, that she would have been nearly as good of a Justice as Samuel Alito, and no chance at all that she would have been better. Accordingly, now that we know the end result of Miers’s withdrawal, at least in terms of who is nominated, I have finally come down off that fence I was stuck on for almost a month: I oppose the Miers nomination.

UPDATE: Tammy Bruce dissents in part, acknowledging Alito’s qualifications but expressing lament that Bush did not name a woman instead. Me, I’m glad he picked a solid nominee without respect to sex, i.e., I’m confident he did not pick Alito because he was a man, and would not have been entirely happy if he had chosen any woman because she was a woman (though I can think of a few women I’d have been just as happy with). There’s no right or wrong (nor even any death thereof) to that point, but I do think that later in her post, Tammy’s ex-liberal roots may have caused her to miss a crucial point about judicial conservatism, which is much more different from its political counterpart than judicial and political liberalism are. Tammy writes:

And when it comes to being conservative, there is nothing conservative about ruling in a manner that says government has a right to control communications between spouses. I think all of you would certainly agree with that. And yet consider this when it came to his dissent in Planned Parenthood Vs. Casey…. :

“In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.”

While many of you probably would, of course, personally prefer that a woman tell her husband what she’s doing, especially if she’s getting an abortion, legislating what a wife or husband should tell each other is the opposite of a conservative view of government. Obviously, he’s pro-life, and that’s fine. But that’s a religious position, not an authentically conservative ‘political’ position. The two are very different.

Indeed they are, but just as importantly, both are very different from what Justice Alito did, which was to rule in a judicially conservative manner, not to uphold a law on that basis that it does or does not produce a politically conservative result. To a judicial liberal, all “bad” laws are unconstitutional, and all good laws are constitutional. To a judicial conservative, however, laws that conform with the Constitution are constitutional, and laws that do not are unconstitutional, and the political desirability of such laws is mostly irrelevant (or, where the intended scope of the law in question is clear, completely so). In ruling the way that he did, Scalito did not step into the shoes of the Pennsylvania Legislature and say, in effect, “I think wives who want abortions should be required to inform their husbands first.” What he did say, in effect, was “My opinion about the wisdom of this law is irrelevant, but what is relevant is that I can’t find anything in the Constitution, or even the ‘constitutional’ precedent of Roe v. Wade, that forbids it.” That is the only question a judicially conservative judge should ask, and it’s the only question Alito did ask, or answer.

UPDATE x2: Jon Henke has more on this case, and on a Fourth Amendment case that has a lot of moonbat panties in a twist.

13 Responses to “Reunited And it Feels so Good”

  1. Michelle Malkin Says:


    ***scroll for updates*** Via Breitbart/AP, we have a nominee: Samuel A. Alito, Jr. White House will make official announcement at 8am EDT. Details from USNews: Nicknamed “Scalito” for views resembling those of conservative Supreme Court Justice Anton…

  2. Patterico Says:


  3. California Conservative Says:

    It’s a tune we can all sing to…

  4. A. Rickey Says:

    Actually, I’m going to come out and say it’s a a good appointment, but I see no reason to unite behind it. At least insofar as I’m part of the base (albeit an idiosyncratic one), I’m still disappointed at the anti-Miers crowd. I liked the idea of a practitioner being appointed, and the vitriol thrown at her by the blue-bloods of the blawgosphere still strikes me as shameful. The Republicans aren’t getting my money in at least the 2006 election cycle.

    Maybe we should be unified, but I see no reason to be. Judge Alito may be a wonderful jurist, but I don’t really want to be associated with much of the anti-Miers crowd, and the lack of civility they showed turned my stomach much more than the nomination itself. For the first time in my life, I’m tempted to sit out the next election.

  5. SayUncle Says:

    I prefer ‘lack of civility’ to ‘lack of any qualifications whatsoever.’

  6. RandyThomas.info » Blog Archive » New SCOTUS Nominee - Alito Says:

    […] 12:30 pm EST: Hugh Hewitt just posted an online poll about the Alito nomination and the potential of the Republican use of the “nuclear option.” Wizbang has the nomination in quotes. XRLQ is reunited and it feels so good. Author:Randy Posted in People, Blogosphere, Current Affairs October 31st, 2005   […]

  7. Doc Rampage Says:

    A. Rickey, there was no “lack of civility” on the part of the anti-Miers crowd. Almost without exception they kept away from inflamatory language and ad homenim attacks except for their questioning of Miers’s qualifications, which was relevant to the question at hand.

    The only consistent use of irrelevant ad homenim came from Miers supporters who frequently accused her opponents of sexism, elitism, and hypocracy –all without grounds to do so.

    The Miers supporters are now engaged in another leftist-pioneered rhetorical trick: change history.

  8. A. Rickey Says:

    Now that we’ve determined that she’s a terrible writer, a sloppy thinker, a sycophant and a bad manager … Am I the only one that’s troubled that she’s still White House Counsel? (Is she? I assume so.)

    That was Prof. Fleischer over at The Conglomerate (which isn’t exactly a small operation. It was hardly out of the norm. Perhaps you consider that civil, I don’t.

  9. A. Rickey Says:

    Incidentally, if Miers had ever accused someone of “hypocracy,” I’m sure it would have been well-castigated and given as proof of her incompetence, regardless of the setting in which the mistake was made.

  10. Doc Rampage Says:

    off the fence

    I think this is a bit precipitous since Xrlq doesn’t yet know the outcome of the nomination process. What if the Democrats and press mount such a formidable opposition that Bush is devastated and ends up nominating Bill Clinton instead, in an effort …

  11. clark smith Says:

    I oppose the Miers nomination.

    Better late than never. ;-)

  12. Patterico’s Pontifications » He Also Endorses Bush for President Says:

    […] The Alito nomination has had an amazing effect on Republicans. For one thing, Xrlq has now decided to oppose the Miers nomination. Better late than never! […]

  13. Michelle Malkin » IT’S SAMUEL ALITO Says:

    […] Xrlq on conservative reax: Reunited and it feels so good. […]


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