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Nov 16, 2005

All Trees, No Forest: The Strange Logic of Sam Alito

Alito-Kennedy

A BAGnewsNotes Character Snapshot:
When it comes to Sam Alito, is the problem just a political issue, or is it also a psychological one?

If this photo is "obtuse," could it capture the rather odd judicial disposition of our Supreme Court nominee?

For some reason, Sam Alito and his judicial style seems to defy understanding.  In many ways, he seems classically conservative.  Other times, he seems libertarian or just contrarian.   If he has a tendency to take an opposing view, however, the position he takes often resists any clear theoretical or ideological pattern -- or logic

When you look more closely, the main theme in Alito's decisions is the tendency to be overly "technical."  In fact, if there is anything clear and consistent about him, it's how torturously difficult his dissenting arguments are to explain.

To get a sense of this, you need look no further than his controversial 1991 opinion in Planned Parenthood v. Casey (in which Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having abortions.) In that case, it's not so much his position as his reasoning that strikes a strange chord. Alito argued that many of the potential reasons for an abortion, such as "economic constraints, future plans, or the husbands' previously expressed opposition . . . may be obviated" if a women simply sat down and had a discussion with her husband about it first.

Even the conservative Red State blog (link) suggests that Alito's dissent lacks a discernible ideological, moral or philosophical basis. Instead, as the blog concludes, the opinion was "esoteric." Lawyers, Guns and Money (link) states it a little more bluntly, concluding that Alito's reasoning in the case was odd,  illogical -- even bizarre.

Once you take notice of Alito's failure of logic (without automatically trying to overlay a reasonable explanation on top of it), examples start to pop up all over. A recent overview in the LAT elaborates the tendency.  As the article states:

"Observers note that Alito's opinions are often narrow, turning on points that might not address the larger question in a case."

The Times cited a 1996 workplace sexual harrassment case in which Alito ended up on the opposing end of a 10-1 Third Circuit Court ruling. (Another suggestion that Alito's behavior is not just ideological is that eight of the ten members in the majority were Republican appointees.) The majority opinion was based on a Supreme Court opinion based on the nature and quality of eyewitness testimony. As the lone holdout, Alito fashioned an argument around the opinion that the majority had made it too hard for the employer to win the case.

In looking for an ideological explanation for the judge's position, The Times assumed that Alito's dissent was based on a conservative bias against plaintiff's rights. Interviewing "a senior official of the Justice Department" however, The Times was told that no overarching legal philosophy was involved. Instead, according to the official, "the clash between Alito and the court majority ... was over a technical legal point on the burden of proof."

The examples just keep coming.  Perhaps the most damning one, though, involved a case outlined by CNN.com in an article titled "Bush's new nominee: Not always on the same page as Scalia" (link) involving a minor Social Security case in 2002.

Again, because CNN was looking at the ruling for what it did or didn't say about Alito's politics, it failed to pick up on what it had to  say about Alito himself.  Here's the key section of the article:

In that [Social Security] case, Alito argued passionately with other members of the 3rd Circuit Appeals Court that a disabled woman, Pauline Thomas, should be granted benefits because she had been laid off from her job as an elevator operator and could not find a new job since the position of "elevator operator" had virtually disappeared from the economy. A lower court had ruled that a narrow and technical reading of the Social Security statute did not entitle Thomas to benefits. Alito called this result "absurd" and overrode the objections of several of his colleagues and convinced the full 3rd Circuit to overturn the lower court decision.

Alito's passion didn't move the Supreme Court, however, which overturned his decision in 2003. In a pointed rejection of Alito's opinion -- accusing him of "disregarding" basic grammatical rules for interpreting the law -- the Supreme Court fell back on the narrow and technical reading and denied Thomas her Social Security benefits. The author of this stinging rebuke to Alito? Justice Antonin Scalia.

For the sake of argument, let's say the conservative Alito isn't the kind of doctrinaire ideologue the left fears or the right presumes him to be. But maybe that's beside the point. If even Scalia thinks Scalito lacks a firm handle on the basic grammar of legal interpretation, how qualified is the nominee based strictly on his capacity for logical reasoning?

(image: Doug Mills/The New York Times.  November 16, 2005.  Washington.  The New York Times. p.A14)

Comments

Damn, the Bagman does it again. I was having a hard time nailing Alito for what he was, but this hit it right on the head. And as long as the Repubs still like the guy (for reasons I can't quite understand) this is all just an academic question, but you just have to ask: Are we willing to take someone like this, or risk getting the true ultra-con justice that's out there? This guy's probably better than Miers, but that's really not saying much, is it.

But a better question is, if this guy doesn't seriously oppose Roe (which apparently he says he doesn't), will the social conservatives finally leave the Republican Party? I know why the Repub leadership doesn't want a Roe-opposing justice, but I can't really see how they're going to avoid it for much longer.

One other thought on this, is it possible that he does have some overarching theme (perhaps even that he someday hoped to be on the Supreme Court, and didn't want any truly lousy decisions to defend), but that he hides behind crapass excuses to justify his opinions? In either case, this guy doesn't seem to be nearly as bad as he could be, or as good as he should be. And I don't know if I have any right to complain in either case.

I haven't really been following news about this guy (has there been much?), but what's with his facial expression in this picture?

Given his propensity for lying and making false promises as a job applicant, and then justifying it, I don't think this guy should be allowed on any court. He is a nightmare as far as integrity and other desirable character traits. This court has already been sullied by the trivial likes of Clarence Thomas.

It looks like Kennedy is making a point about something and Alito is saying, "Eh. Whatever. I know what I think about that. You're wrong. Next!"

First, I don't know why the photo is in sepia tone, unless to indicate an old photo, but I'm sure it's a new one. Maybe it's a product of transfer to the blogosphere.

The discussion seems to be more about the man than the photograph. So my guess is that he will be confirmed, absent some startling revelation.

The problem with subtle distinctions, such as logic, or even grammar, is it usually goes over the heads of politicians and in turn, most of their constituents. Just from what the BAG posted, I get the impression that Mr. Alito rather goes out of his way to be contrary. He is frequently the lone dissenting opinion. Is that because he is the only one in the room with a clue? Or perhaps because he has to oppose all the others to feel special? Only time will tell, I suppose.

As to the photo, I assume it was the result of a photo-op. In which case it was rather naive of Alito to make such a scrunchy third-grade face. On an adult, such a face might indicate a certain 'looking down the nose' at another. The scrunching might indicate a certain distaste for.......what? The photographers? The process he has to bare himself for? Disdain for the Democrat Kennedy? Also notice that his posture is closed in: tight face, arms clasped across the front; whereas Kennedy is open faced (even open mouth) and slack arms at sides. I wonder what Mr. Alito is keeping inside......

irritation, annoyance, disgust and disdain, "here we go again". I had a school master who would tilt his head slightly upward and to the left, with an identical facial expression, he would also clasp his hands protecting that delicate area (maybe he was a mind reader)a lengthy pontification followed...it was always bad news.

The comment about Alito that I heard someone mention on NPR sounds about right, they said he seems to have a "tin ear". That is that he can so readily dismiss, or not even consider the women who would be beaten if they informed their husband, or in the case where the kid wanted to read a bible at show and tell the people from other religions that would be offended, or at the very least uninterested in recieving the sermon.

I had a great time and learned a lot at Sunday school, but thank god I learned computers at my junior high, and math and reading in grammer school, and not lessons on god and scripture. I think I might have blown my top if someone had come in with an evangelical tilt, particulary if they chose a more dicey passage (creation/ID, man domination over women, sodom, or that passage people point to for slavery come to mind).

Oh, and this picture pretty much says "tin ear" by his expression in 1001 words.

I also think that while Alito may be saying "whatever" as a dis, that Ted is also making his feeling known, he is looking off into the distance and neither is getting anywhere near eachother for this picture.

I mean Alito is looking at the camera, Teddy aint looking at Alito or the camera.

Ok, I think three posts in a row is enough, sorry.

His head bobbles as he walks, slight movment from side to side. Very strange.

Noticed it in video of his first walk-about in the Senate.

Strange tic.

What a great reading.

In the picture Ed Kennedy looks like he's trying to tell Alito something. Alito is standing next to the wall, he's withdrawn into himself and he's doing a shrug thing where it like, "Meh. It doesn't matter either way."

I know a people that way who are super smart but a lot of time they just don't "get it." Often they don't even see why "getting it" is important and that's the most frustrating part of all.

Teddy Kennedy looks pretty good, by the way. I mean, the pure white hair makes him look old, but he doesn't have that bloated look that he used to have.

Could H.L Mencken have experienced a fellow like Judge Sam Alito when he remarked that:

"A judge is a law student who marks his own examination papers".

I don't read that picture that way at all. Kennedy has just said something unexpected, Alito is surprised, thinking, "What? Weird! Hmm, well..."

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