My post this morning about the nomination of Samuel Alito prompted plenty of visits and a few comments. At least one comment said that after having professed to keeping an open mind, I proceeded to attack Alito. Perhaps I wasn’t clear and I think developments today have shown why I want to learn more.
First, the bulk of the post was actually drafted over the weekend before the Alito nomination was announced. The main thrust was originally Thune’s comments about basically putting a Scalia-Thomas imprimatur on the Supreme Court. It was mere coincidence that Bush chose today to nominate a man who’s nickname happened to be “Scalito” and, therefore, tied directly into the post. I await more information before reaching a personal conclusion on whether that is an accurate characterization of Alito. I stand fully by my concerns about a Court dominated by the approach Scalia and Thomas take toward constitutional interpretation.
The reason I still have an open mind is reflected by some of the information I read today. For example, SaveTheCourt.org, a website sponsored by the People for the American Way, has a brief outline on Alito, which contains a link to a longer analysis of some of his decisions. Among other things, the longer analysis says, “Alito’s decisions in the free speech area raise some important and troubling questions about how he would approach First Amendment law as a Supreme Court justice.” Interestingly, the First Amendment Center today also posted a brief analysis of Alito’s positions on First Amendment issues. It concluded that “preliminary examinations suggests [sic] that he could well bring a First Amendment sensitive perspective to the Supreme Court[.]” Okay, which is it?
That is why I was somewhat taken by the approach used by Cass Sunstein in his book, Radicals in Robes, reviewed below. Looking at particular rulings in isolation may or may not produce a fair assessment. I am more interested in what those opinions reflect, if anything, as far as Alito’s approach toward constitutional interpretation. If he is with Scalia and Thomas in what Sunstein called the fundamentalist camp, I think the nomination should be opposed. If analysis indicates he is more of a minimalist, like Justice O’Connor, that may be another story.
[I]f “strict construction” requires judicial interpretations to fit the political preferences of particular politicians, then we should wonder what strict construction is really all about.
Cass R. Sunstein, Radicals in Robes