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January 12, 2006

Prof. Bainbridge reflects on the Alito peril, as seen by Democratic senators:

After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it's the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin's opening remarks.)

Everything is proceeding as I have foreseen. Schumer and Leahy's feeble skills are no match for t...

January 10, 2006

Some reporters have been treating Alito’s adherence to the unitary executive theory as a hint he will support President Bush’s most expansive claims to executive power. But is it? No.

The basic concept of the unitary executive goes like this: When the framers gave power to Congress, they specified Congress could exercise only the powers specifically enumerated (“herein granted). By contrast, when the framers gave the executive branch power, they didn’t use the same magic words. The natural implication, the theory goes, is that the powers given to the President are broader and “fuzzier” than the crisp, strictly limited powers exercised by Congress. When Congress and the President clash, the different nature of their powers means that hard c...

January 9, 2006

From the White House, corrections to inaccurate statements made yesterday on the Sunday shows. Expect to hear them repeated this week.

Senator Schumer:
On Meet the Press, Senator Schumer attacked Judge Samuel Alito at length, identifying a number of elements he saw in Judge Alito’s record he finds troubling. Senator Schumer made the following inaccurate statements:

“[Alito] was one of the very few justices [sic] to say that the federal government can't regulate machine guns [The] Federal Government has regulated machine guns since the days of John Dillinger.”

The fact is that Judge Alito has never said that Congress cannot regulate machine guns. In fact, in his dissent in the Rybar case, Judge Alito actually said explicitly t...

January 9, 2006

RNC's response to Sen. Kennedy's (D-MA) opening statement.

Sen. Ted Kennedy (D-MA):

“And In His Writings And Speeches, He Has Supported Level Of Overreaching Presidential Power That Frankly Most Americans Find Disturbing And Even Frightening. In Fact, Is Extraordinary That Each Of The Three Individuals This President Has Nominated For The Supreme Court -- Chief Justice Roberts, Harriet Miers, And Now Judge Alito, Has Served Not Only As A Lawyer For The Executive Branch But Has Defended The Most Expansive View Of Presidential Authority.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:

As A Federal Judge, Judge Alito Has Consistently Approached Cases Based On...

December 21, 2005

Following up on Mark's post: the new report from YAP (whose acronym I gather is unrelated to any Chihuahua-like tendency to bark without surcease at anyone not a member of its own ideological household) is also the subject of posts at Point of Lawby my Manhattan Institute colleague Jim Copland and by Michael Krauss, both of them Elm City law alums. Jim concentrates on Alito's much-discussed FMLA opinion in Chittister (for more, follow links here and here). Michael mentions that a group of Yale law alums has banded together to buy ads in support of the nominee. In all fairness to YLS, it should be pointed out that despite the involvement of some prominent liberal faculty, notably Bruce Ackerman and Owen Fiss, the Project does not in...

December 21, 2005

Liberal groups are picking through Judge Alito's decisions with a fine-toothed comb and issuing reports on how "troubled" they are by his decisions in various cases. They argue that, because of those decisions, the Senate should scrap Alito's nomination to the Supreme Court. On the other hand, these same liberal groups decry conservative criticism of court decisions. (See, e.g., PFAW's April 2005 "Right Wing Watch".) Can you imagine the liberal uproar about "judicial independence" if a conservative group were to oppose the appointment to a federal district court judgeship (say, by a President Hillary Clinton) of Judge George Greer (the Florida state judge who oversaw Terri Schiavo's starvation/d...

December 15, 2005

Since Judge Samuel Alito was nominated to the Supreme Court on October 31, his supporters and detractors have been doing battle across the nation's television screens and newspapers. Prominent in the battle have been a handful of groups on both sides of the debate, such as Progress for America and the Committee For Justice on the right, and People for the American Way and the Alliance For Justice on the left.

December 14, 2005

You'll need to click the link fairly quickly, since National Journal will be rotating it off soon, but centrist columnist Stuart Taylor, Jr. has another hard-hitting column on the unfairness of some sections of the media toward nominee Sam Alito. Taylor's catalogue of reporters' "factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics" not surprisingly begins with the already notorious Knight-Ridder piece in which, according to reporter Stephen Henderson, "we didn't find a single case in which Judge Alito sided with African-Americans ... [who were] alleging racial bias." (In fact there have been at least seven such cases, Taylor says.) Taylor isn't k...

December 13, 2005

In my post yesterday on Alito and antitrust I neglected to introduce myself, so let me fix that now. I'm a senior fellow at the Manhattan Institute who writes books and articles about the U.S. legal system, focusing especially on the high cost of our litigation system and how easy we make it to sue in this country. Among my other online activities, I edit the well-known websites Overlawyered and Point of Law, the latter of which has a subpage on Supreme Court nominations. Sean Rushton and Curt Levey have been particularly generous in inviting me to join the discussion here since I haven't always seen eye to eye with the Committee on the best way of framing the debate over this fall's judicial nominations. (Nor do I always see e...

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