Natalie Solent

Politics, news, libertarianism, Science Fiction, religion, sewing. You got a problem, bud? I like sewing.

E-mail: nataliesolent-at-aol-dot-com (I assume it's OK to quote senders by name.)

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I also sometimes write for Samizdata and Biased BBC.)

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Monday, November 07, 2005
A legal penumbra. The New York Times has every right to its opinion that Samuel A. Alito is not its choice for the US Supreme Court. However the reasons NYT writers Adam Liptak and Jonathan Glater give for this view come close to saying that Judge Alito is bad because he does not find for the right sort of people often enough:
Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries.

This passage was among those highlighted by Bilious Young Fogey in a fisking of the NYT article called Law-Lite. As usual, one reason that I liked the post was that it said exactly what I had been thinking vaguely.

You will note that I said the reasons Liptak and Glater give "come close" to what I called a legally indefensible view, namely that judges should be swayed for or against a particular plaintiff or defendant because he, she or they belong to some category liked or disliked on political grounds. Some readers may think my vague "come close" is a smear. Anyone's defensible opinions, these readers may say, might "come close" to other indefensible opinions.

But I don't think it is a smear. I think I am unavoidably vague because the thing I am criticising is deliberately vague. I really don't like the way they say, "He frequently voted in favor of the government and corporations" or the mention of immigrants in the paragraph above. What's that all for, if not to trigger certain political neurons in the minds of NYT readers? If the New York Times thinks that Alito has violated his oath of office by letting prejudice against immigrants or a wish to curry favour with the government or corporations affect his decisions, then come out and say it. The NYT just hints it. Incidentally, one can tell that the Times itself thought this was an important factor by the tag line it uses to encourage online readers to go ahead and access the article.

Continuing the theme of legal exactitude, elsewhere in his post the Fogey commented:

"Deciding properly does not mean reversing the decision, and it certainly does not mean imposing the court's own decision. Once again, pretty basic and mainstream stuff, unless you happen to believe that unelected judges should usurp the functions of all other arms of government.

There were aspects that I did like to Liptak and Glater's article. For instance,
Judge Alito was appointed by the first President Bush. Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.
This factoid does contain real information that helps the reader to place Alito ideologically.