gun rights & Alito nomination, interesting article

[ARCHIVED THREAD] - gun rights & Alito nomination, interesting article

Posted: 1/8/2006 7:53:36 PM EDT

Alito ‘good guy, bad guy’ talk fails to rouse public
by Patti Waldmeir in Washington
Published: January 8 2006 20:29 | Last updated: January 8 2006 20:29

The future of the US Supreme Court – and the nomination of two new justices – was supposed to unleash an ideological battle that would strain the fabric of American society. But Judge John Roberts was confirmed last year as chief justice with hardly a whimper from the public or the politicians. And so far at least there are few signs that the Senate confirmation hearings of the next nominee, Judge Samuel Alito, which begin on Monday, will prompt the ideological conflagration long predicted by the pundits.

For the past two months interest groups from both the right and left have spent millions of dollars trying to stoke the fires of battle over Mr Alito. They have mounted a campaign worthy of an electoral candidate, complete with duelling television spots and negative advertising. But the American public appears to have largely ignored the competing caricatures put forward by interest groups: latest polls show that Americans are equally divided between those who support Mr Alito, those who oppose him and those who have not yet started to pay attention.

Pro-abortion groups, civil rights activists and other liberal lobbyists have portrayed the nominee as an ultra-right ideologue who hates women and minorities, is a lapdog of big business and government and wants the job solely to criminalise abortion in America. Social conservative groups, for their part, have insisted he is Everyman: the voice of the silent majority of the American public on abortion and other social issues.

But the truth about him seems to lie somewhere in the middle. Scores of Mr Alito’s current and former colleagues – former clerks and fellow judges from both political parties – have mounted a bipartisan show of support that appears to have done much to counteract the lobbying campaign against him. They portray Mr Alito as a committed conservative but one without a political agenda on the bench. They say he is a legal scholar who grounds his rulings firmly in a narrow reading of statute and precedent. And they insist he rules fairly on every case that comes before him.

Consider the case that liberals say is the most egregious proof of Mr Alito’s rightwing agenda: a 1996 dissent in which he argued that a federal ban on the possession of machine-guns was unconstitutional.

Mr Alito, who has sat on the third circuit US court of appeals for 15 years, was the lone dissenter. He found that the federal ban on machine- gun possession exceeded the power of Congress to regulate interstate commerce. The scope of Congress’s power to regulate commerce has been highly controversial in recent years, with most liberals arguing that Congress should have broad powers to enact laws on issues that only touch tangentially on commerce – such as violence against women – while conservatives generally support a more limited power.

Mark Tushnet, a liberal professor at Georgetown University law centre, says the machine-gun case proves Mr Alito’s commitment to a rightwing agenda. And Simon Lazarus, a Democratic lawyer, says the ruling was so radical that it threatens “60 or 70 years of legislation”, which is based on a broad reading of the commerce power; Mr Alito must repudiate the ruling, he says, or he should not be confirmed.

But Mark Levy, a former member of the Clinton administration and a law school classmate of the nominee, says Mr Alito was taking seriously a Supreme Court precedent from the previous year, in which the court overturned as unconstitutional a federal law banning gun possession near schools.

Six federal appeals courts refused to apply that precedent.

But Roger Pilon, of the libertarian Cato Institute, says the problem is not that Mr Alito tried to apply Supreme Court precedent – which appeals court judges are meant to do – but that the other judges did not. Mr Alito’s ruling in the case – whether right or wrong – was “well within the bounds of accepted judicial decision-making”, says Mr Levy, who is a Supreme Court expert at the law firm Kilpatrick Stockton.

Liberal groups have also tried to depict Mr Alito as an opponent of individual rights.

The Alliance for Justice, a pro-abortion group, studied third circuit rulings in which there was at least one dissent and found that, in cases that pitted an individual against the government, Mr Alito sided against the individual 82 per cent of the time.

Leftwing groups say these kind of statistics prove that Mr Alito is more rightwing than anyone on the Supreme Court – and “more dangerous”, says Elliot Mincberg, legal director of the liberal lobby group, People for the American Way, than Judge Antonin Scalia, the firebrand conservative with whom he is most often compared.

But many legal scholars question the value of such statistical analyses, since they focus on results rather than reasoning. Judging a case purely by which side won can yield absurd conclusions, says Mr Pilon.

Look at the Supreme Court case overturning the law banning guns near schools, he asks: does that prove that the Supreme Court approves of school shootings? It is similarly wrong to conclude that Mr Alito opposes individual rights, based on such statistical analyses, he says.

But the most serious questions about Mr Alito have been raised not by his court rulings but by a 1985 job application to the Reagan Justice Department in which Mr Alito made clear his strong opposition to abortion, and a 2000 speech in which he espoused a view of the constitution that would give the White House almost unlimited power in the “war on terror”.

Rightwing activists dismiss such concerns as absurd, arguing that the vast majority of Americans share Mr Alito’s visceral antipathy to abortion and support for the White House in the war on terrorism – a view that is not supported by opinion polls.

Both issues will be hotly disputed in this week’s hearings – and either one could trip up the nominee.

But in the end, Mr Alito seems likely to be confirmed because two months of diligent digging have revealed little more than what many Americans have suspected from the beginning: that Mr Alito is a conservative.

http://news.ft.com/cms/s/6c22805c-8083-11da-8f9d-0000779e2340.html