The Senate can confirm or deny Alito for any reason or no reason, but in the end it’s just a political decision.

The Senate gets to decide whether to confirm nominees, and the Senate gets to decide WHY it chooses to confirm or deny the appointment. The Constitution does not impose any standards on the Senate in making the confirmation decision. The Senate is free to make its decision for any reason it chooses.

In the end, the Senate chooses to confirm or deny for politial reasons. In explaining their votes, the Senators often justify their votes by making reference to such things as the Qualifications and Integrity of the nominee (or lack thereof). But the calculation is purely political, and the justifications serve to support the political decision that the Senator made.

Senators want to support their Party. They also want to do what is best for the nation. If a nominee is good for the nation and the party, in the Senator’s view, then the Senator has a clear conscience. Most Republicans are in this position with Alito.

Democrats have no compelling incentive to vote for Alito. Instead, the Democratic Party opposes Alito due to its view that Alito is bad for the nation. To appease the Party, Democratic Senators are being pressured to vote NO. Senators have an internal crisis if they believe Alito is not bad for the nation, yet the Senators want to please the Party faithful.

Alito is Qualified

Alito is very clearly qualified for the Supreme Court. His colleagues speak respectfully of his judicial temperament (I listened to the panel of Appellate Court judges praising him), and he has no serious blemishes to his reputation as an ethical jurist (the recusal issue at the hearings was not very significant).

But Senators could vote against him despite his qualifications, for any reason they want.

Alito was a Republican Political Activist. He’s likely to still be one in his heart, so Democrats fear.

Politically, Alito’s history suggests he was once a committed activist Republican, on the right wing side. Senators wonder if he is still an activist Republican of the right wing type, inside his mind, just waiting for the opportunity to be on the Supreme Court where he is no longer beholden to making judicial decisions based on the prior decisions of others. Republican Senators apparently think he is more likely to STILL be, inside himself, that good old activist friend of theirs. Democrats agree.

Alito matured into a very political and very conservative Republican adult, with an activist mindset. For example, He joined a controversial activist group at Princeton that opposed the University’s diversity program. The raving nutjob Ann Coulter was a member of the same group.

Alito worked for Reagan and, in applying for a job with Reagan, bragged about his activist conservative credentials, including bragging about membership in the Princeton activist group. While employed by Reagan as a lawyer, he authored memos in which he declared his personal belief in one of the right-wing’s favorite subjects: overturning Roe v. Wade.

At some point, Alito joined the “Federalist Society”, which is a nationwide activist group whose purpose is essentially to promote a deeply conservative judicial philosophy. [It is my belief that Roe v. Wade provides the main fuel for such movements] Several other Supreme Court members are also affiliated with the Federalist Society. Scalia is an active supporter, Roberts denied recalling he had ever joined the Society but his name has appeared on the group’s leadership roster.

Despite his history of being an activist at heart, I do not believe Alito will make judicial decisions based on his political philosphy. From the evidence, Alito takes his role as a judge far too seriously for me to be skeptical about his judicial temperament. Instead, I believe his activist political heart will merely tend to color the direction in which his judicial mind is inclined to go. In other words, in the gray areas where reasonable minds can disagree, his activist heart will push Alito toward rulings that contract our civil liberties and increase the totalitarian power of the President and government in general.

But in the end, Alito will not be much different than Justices Thomas and Scalia, I predict.
While these justices are very conservative, the justices are all honorable Patriotic Americans doing their best to make the right decisions for the nation. I just disagree with them on a lot of things.

Alito is expected to approve of Bush’s move toward authoritariansim, because Alito supports the Unitary Executive Theory

Unitary Executive Theory

Alito was on the forefront of the development of the theory of the “Unitary Executive”. The following might be a decent summary of the main controvery: Congress has behaved unconstitutionally in many ways by writing laws that over-supervise and over-regulate the activities of thousands of agencies and offices that it has created by statute, and Congress therefore has unconstitutionally limited the President’s authority to run the Executive Branch by limiting his discretion.

The Unitary Executive theory, if influential on the Supreme Court, will increase Bush’s authority. Is this the best time to be talking about INCREASING Bush’s authority? Thoughtful patriotic Americans of all political stripes fear that George Bush is becoming an authoritarian ruler, with the consent of his Republican supporters (who possess the power in society today). Democrats in the Senate fear that if Alito is on the Supreme Court, Alito will be a certain vote to validate George Bush’s view of a more authoritarian president.

Alito is viewed as being hostile to a constitutional right to privacy

Democrats are not convinced Alito believes in privacy rights very strongly. Roe v. Wade was grounded in privacy rights, and in order to oppose Roe you have to doubt the validity of the “privacy right” that has been identified by the courts. That’s a terrible byproduct of Roe. If it weren’t for Roe, I think Republicans and Democrats would be much more in tune with each other on the issue of privacy rights. Roe has created too much skepticism about a constitutional right to privacy.

In this era of increasing government surveillance and invasions of our privacy, is it best to put someone on the Supreme Court who is probably going to be judicially hostile to pur privacy rights?

Although Alito is qualified, I hope for political reasons he is not confirmed

Here’s my bottom line: Alito is qualified. But that does not mean he must be confirmed. I hope he is not confirmed, because I disagree with what I believe to be his judicial philosophy. But if he is confirmed, he will be a thoughtful judge, albeit with an inclination toward a more authoritarian view of Presidential power, and a skepticism toward an expansive constitutional view of privacy and civil liberties.

If Alito is confirmed, we may need Constitutional Amendments protecting the right of privacy and limiting the alleged powers of the Unitary President.

There are many who would say that it is proper and best to use the Amendment process more often, especially to settle major controversies, and best to keep the Supreme Court out of things. I would agree with that sentiment in principle. But lets keep our Supreme Court on the moderate side, and then have a debate about some Constitutional Amendments.