Internet Rules: The Miers denouement shows the power of the new media

13 thoughts on “Internet Rules: The Miers denouement shows the power of the new media”

1. Father Hans,

   Remember my comment some weeks back about supporting Bush? At the time, I made the statement that Bush needed a good swift kick from his supporters. The 2004 election being over, I argued that we needed to hold Bush to the fire to get somewhere. Uncritical support for the President has never been positively rewarded – but look at what happened when his base finally turned on him!

   I’ll trade Miers for Alito any day of the week, and twice on Sunday. Imagine what could be accomplished if the Bush White House lived in perpetual fear of its own base? What if, every second of the day, the Bushies lived in absolute fear that the base would bolt the farm? How much fat could be cut from the budget? How much tax reform could we get? The list is endless, in my mind. Bush does not have conservative instincts, not if one uses Kirkian principles as the guide to conservatism. But, he can be brought to heel if the base goes ape enough.

   I hope this is the start of a trend. A trend that leads us to bully the White House on a regular basis, rather than letting them simply take us for granted.

2. Yes, I do remember and I decided you were right too once I thought about it. BTW, Ben Johnson at Frontpage has an interesting article on Alito today: Samuel Alito: Minority Rights Champion.

3. Nice to read a Frontpage article I can agree with.

4. For those who, like myself, have not heard the term Constitutional “originalism” (which is supposedly Alito’s guiding philosophy), there’s a nice summary here. I’m assuming it’s similar to a Constitutional “constructionism”.

   Quote: “Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called “originalists.” Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called “non-originalists.” In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain “fundamental rights” that are not explicitly protected in the text of the Constitution”

   This is my concern with “originalism” and “constructionism”: they seem to imply that our rights are derived from the Constitution, that they do not exist until some governmental authority bestows them upon us, when in fact the framers of our Constitution believed that there were certain “inalienable” rights that existed (or should exist) whether the government acknowledged them or not. Unless I’m misreading the meaning of these philosophies …

   In any rate, it appears that Alito is a thoughtful, middle-of-the-road conservative, at least from the little I’ve read.

5. Alito Breaks with Precedent; Creates His Own Blog

   The legal world was shocked the other day when Supreme Court nominee created his own blog to share his experiences after his nomination to the Supreme Court.

   http://samuelalito.blogspot.com/

6. It’s a good article, but the author is obviously stretching to present Alito’s rulings in the most moderate manner possible, and downplaying his harsh ideological edges.

   For example, of course the sale of one machine gun within the same state is not interstate commerce as the author asserts; but that doesn’t mean the machine gun doesn’t have an impact on interstate commerce. The gun could be used in a crime that disrupts interstate trade, to hijack a truck for example, or steal products meant for sale in other states.

   I’m not convinced that Alito is as moderate as his supporters would want us to believe. Some of his rulings show an excessive hostility towards workers, women, civil rights and the legislative branch, and have been struck down by the Supreme Court for exactly those reasons.

   Well this is why we have congressional hearings. Either the Republicans will suceed in demonstrating that Alito’s views are within the judicial mainstream or the Democrats will succeed in demonstrating that they are not. It should be an interesting time in the political history of our nation.

7. Note 5 Dean, misleading and unfounded comments

   Your comment Note 5 in response to JamesI in note 4 is seriously misleading. I don’t see any mention of Judge Alito on the site. Yet you say:

   START DEAN QUOTE:
   It’s a good article, but the author is obviously stretching to present Alito’s rulings in the most moderate manner possible, and downplaying his harsh ideological edges.
   END DEAN QUOTE:

   What article are you talking about and how would you KNOW whether the author was “obviously stretching” to present Alilto in one light or another. Footnote. Prof. Lindner provides a nice site with an overview of constitutional theories, some basic definitions and lots of good suggestions for further reading.

8. Note 6 Dean, Explain Willaims vs. Price

   In September of 2003, Judge Alito, sitting on the Third Circuit, ruled in favor of a black man who wanted an opportunity to prove racial bias on his criminal jury. Here is the case citation:

   http://www.ca3.uscourts.gov/opinarch/002305p.pdf

   Apparently, Judge Alito is NOT so hostile to civil rights or black people that he couldn’t rule in favor this man. He must have has taken off his “white hood” that day. Alito is a decent and honorable man, accusing him of “hostility towards civil rights and women” is a despicable ad hominen attack.

9. Missourian – As I said, if Alito is the moderate that you claim he is, then he will be able to defend his prior rulings in the upcoming confirmation hearings. Maybe I will be proven wrong. I do think we will see some of the most riveting hearings of a SCOTUS nominee in recent times, since not just the man, but his judicial philosophy will be debated.

   Here are some other rulings that Alito might have to explain:

   “Bias: In 1997, in Bray v. Marriott Hotels, Alito found that a plaintiff had not shown enough evidence to be entitled to a trial on her claim that her employer had denied her a promotion because of racial bias. But the majority disagreed, saying that if Alito’s approach were followed, Title VII of the Civil Rights Act “would be eviscerated.”

   Alito said proving discrimination and that the employer was responsible weren’t always enough to ensure that the claim wouldn’t be dismissed by a court. He based his interpretation on the rulings of another, more-conservative appellate court decision, urging his colleagues on the 3rd Circuit to adopt that standard. They didn’t.

   Family leave: In Chittister v. Department of Community and Economic Development, Alito questioned Congress’ power to require state governments to grant family and medical leave to men and women equally.

   Alito’s opinion would have denied protection to millions of workers Congress clearly intended to cover with the Family and Medical Leave Act of 1993.

   The Supreme Court contradicted Alito’s thinking in a 2003 ruling in Hibbs v. Nevada Department of Human Resources. The late Chief Justice William Rehnquist wrote the opinion.”

   Searches: In 2003, Alito dissented in a case stemming from a drug raid in Pennsylvania in which a 10-year-old girl and her mother were strip-searched. They filed a lawsuit against police officers, contending that their rights were violated. The officers said that they were entitled to qualified immunity and a federal district court judge agreed.

   The plaintiffs appealed, and the 3rd Circuit reversed in a decision written by then-Judge Michael Chertoff, who now heads the Department of Homeland Security. Chertoff said that if Alito’s view had prevailed, it would have seriously damaged rights guaranteed by the Fourth Amendment.”

   “Nominee’s decisions leave little doubt”, The Seattle Times
   http://seattletimes.nwsource.com/html/nationworld/2002596699_alitolegal01.html

   Anti-Labor bias: Alito on the Supreme Court will be a consistent vote against workers rights. That is a clear message if you look over his history on the Third Circuit Court of Appeals. What is striking about Alito is that he is so hostile even to the basic right of workers to have a day in court, much less interpreting the law in their favor.

   The following cases are ones where Alito dissented from a majority decision of the Third Circuit, cases where his views were more conservative than the overall panel. They cover minimum wage, discrimination, retirement, public employee rights, and interpretations of union labor law.

   There are other cases as well, where Alito wrote anti-worker majority decisions, as in his opinion to exempt public employers from the Family and Medical Leave Act (a principle that the Supreme Court subsequently overruled, putting him to the right of William Rehnquist)

   I will add to the list as I find more cases.

   Minimum Wage and Safety Protections for Workers

   In RNS Services. v. Secretary of Labor, the court found that a mining services company was violating safety laws under the Federal Mine Safety and Health Act. The court rejected the company claim that it was not covered by mining safety laws, seeking to narrow application of the law to mines, not coal processing plants associated with such mines. Alito in dissent voted to exempt the facility from those mining safety regulations.

   In Reich v. Gateway Press, the court majority found that a newspaper chain had violated federal minimum wage and overtime laws, but Alito sought to interpret the law in the way that would have excluded the newspaper workers from protections under the law

   http://www.nathannewman.org/log/archives/003519.shtml

10. Note 9, Dean, Note 5

    Note 5 is still up for all to read. You said

    It’s a good article, but the author is obviously stretching to present Alito’s rulings in the most moderate manner possible, and downplaying his harsh ideological edges.

    Again, Alito was not mentioned in the article and you are not in a position to determine whether an author was “stretching” to present Alito as “moderate.”

11. Note 9 Data Dumps and What you Don’t Understand

    How about some LEGAL COURTESY? Provide the citation so that I don’t have to search for these opinions. It is rude to just dump some derogatory summary listing on the blog.

    Data dumps: During his years on the bench Judge Alito authored at least 300 opinions (I have seen estimates reaching as high as 500.) Those opinions covered just about every subject under the sun, and involved a immense variety of legal issues. I will discuss some of the cases you just dumped on me BUT there is something that needs to be pointed out first.

    You have demonstrated that you really don’t understand what a “principled” decision is. You look at the parties involved in a case and decide who you are going to favor, or you look at the gross subject of the case and decide who you are going to favor. You don’t really seem to understand that Alito’s decision are based on principles that he sets out. His decisions are principled (most judges decisions are principled.) Principled based on “rules of law.” We have been around the block with the idea of “rule of law” and frankly in practice you don’t have much allegiance to it at all. A judge can’t look at a litigant and say to himself, “Hmm, a black man, his case MUST be just.” Maybe is it, maybe it isn’t. Principles control not ethnic politics.

    Let’s take one of the cases that you dumped on me. RNS Services vs. Secretary of Labor. You stated that Alito “voted” to exempt the facility from those mining regulations. He didn’t VOTE to exempt them. He wasn’t acting as a legislator. He was acting as a judge, it was his opinion that the regulation didn’t apply. This demonstrates that you DON’T REALLY UNDERSTAND THE CONCEPT OF APPLYING A PRINCIPLE.

    The next favor I will do you is explain the wildly distorted “child-strip case.” Perhaps if you read a few of my comments you will come to appreciate how distorted the attacks against this good man are.

12. Straight Story on Alito Strip Search

    Straight Story on the Alito “Child Strip Case.”

    DEAN’S QUOTE:Searches: In 2003, Alito dissented in a case stemming from a drug raid in Pennsylvania in which a 10-year-old girl and her mother were strip-searched. They filed a lawsuit against police officers, contending that their rights were violated. The officers said that they were entitled to qualified immunity and a federal district court judge agreed. The plaintiffs appealed, and the 3rd Circuit reversed in a decision written by then-Judge Michael Chertoff, who now heads the Department of Homeland Security. Chertoff said that if Alito’s view had prevailed, it would have seriously damaged rights guaranteed by the Fourth Amendment.”

    Here is a citation to the case
    http://vls.law.villanova.edu/locator/3d/March2004/024532p.pdf

    STRAIGHT STORY:

    Underlying facts of the case: The officers of the Schuykill County Drug Task Force (Task Force) sought a search warrant for Doe and his residence. In support for their request for search warrant the officers prepared a two-part document: a warrant application with an attached sworn affidavit from the officers. The affidavit requested permission to search John Doe’s residence and his Volkswagen for drugs, paraphernalia, money, drug records and other evidence. Additionally the affidavit stated:

    BEGIN AFFIDAVIT QUOTE
    The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and may attempt to conceal controlled substances on their persons
    PARAGRAPH BREAK INSIDE AFFIDAVIT QUOTE
    This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment,or destruction of any evidence requested in this warrant. It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.
    END AFFIDAVIT QUOTE

    Note that the officers requested permission to search “all occupents of the residence” not just Doe. The request for search warrant was granted. The resulting “Search Warrant and Affidavit” was comprised of two pieces of paper. The first piece of paper was a cover sheet consisting of a standard form allowing items to be checked off and filled in. The second sheet of paper was stapled to the first. It was the affidavit submitted with the request for search warrant. The cover sheet contained a printed block for “date of violation” and “probable cause.” The typed answers in these printed blocks referred to the affidavit. The cover sheet also had a specific blank for “specific description of premises and/or persons to be searched.” The typewritten entry contained only the name John Doe and did not refer to the affidavit. The officers testified that this was only because the box on the form where they described the premises to be searched wasn’t big enough to contain more information, but that they believed that the information in their supporting affidavit was incorporated by reference. The raid occurred and the officers performed a search of all the person founding the house. Here is a description of the search contained in the majority opinion. Note that a female officer did the search in a private room away from all the others in the house.

    START MAJORITY OPINION CASE QUOTE: The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived, the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.
    END MAJORITY OPINION CASE QUOTE

    Judge Alito in his dissent stated:
    START ALITO CASE QUOTE
    I share the majorityâ??s visceral dislike of the intrusive search of John Doeâ??s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged â?? and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority â?? I would reverse.
    END ALITO CASE QUOTE

    So, in the end, what was the core difference between the majority opinion and the dissent? The majority concluded that only the pre-printed cover sheet of the search warrant should have been given authority. The dissent argued that BOTH the pre-printed cover sheet and the ATTACHED SIGNED affidavit should be given weight. The author of the majority opinion was Michael Chertoff Here is what Judge Chertoff found to be important:

    START CHERTOFF CASE QUOTE
    What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to expand a search warrant. Although there are decisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at considerable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police authorize warrants.
    END CHERTOFF CASE QUOTE

    Given these facts and the citation, which allows you to read the case. Do you still really think that Alito is a monster who relishes the thought of strip-searching little children? I hope not.

    \

    .

13. Note 12 Dean, Still think the Case is shocking?

    So, Dean, now that I provided a copy of the “strip search case” and I have offered my comments. How do you respond?

    The issue was whether to give a piece of paper stapled to the search warrant legal power or not. Not so alarming was it? Alito acknowledged that it was unfortunate that the little girl had to be searched. The police provided a female office to perform the search in a private room with her mother present. The case was a fairly routine appellate case about the technical form that a search warrant should take, boring really.

    Do you still think this is some kind of “shocking” case?

    This is why the case was picked out. Somebody thought they could make an emotional appeal about “strip-searching” a little girl and how cruel, mean and ugly Alito is. Total sensationalism, a total appeal to emotions and passions.

    Now, of course, the police officers were sued and had to appear in court to answer a lawsuit from a meth dealer. The city or county had to pay for lawyers to defend and the citizens had to pick up the tab for this. It is dangerous to go into a meth house and arrest people. Police officers sometimes get injured or even killed doing so. Amateur criminal chemists sometimes cause explosions and fires. But, somehow I don’t think you have much interest or compassion for police officers, they aren’t victims, are they?

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