I love how liberals bemoan it when conservative presidents nominate conservative judges - like there is something wrong with appointing someone that shares your political views to an office. Were these same Democrats complaining when Clinton nominated his choices for SCOTUS? Will they complain about partisanship when the next liberal president appoints a judicial activist to the highest court? Does that mean that the Senate should be a rubber-stamp for the President’s choices? Of course not - but the Senate must accept the fact that the President will select officers that agree with their ideology. The question should be one of competence.
Of course conservatives are guilty of the same thing, but there is one major difference - Robert Bork. The abuse he suffered went far beyond “Advice and Consent of the Senate”. Since then, I feel that the Democratic senators feel that it is their solemn obligation to play political games with every Republican judicial nominee.
Chittister v. Department of Community & Economic Development (wrongful termination lawsuit): Alito overturned the plaintiff’s victory against the state of Pennsylvania, declaring that Congress exceeded its power in passing the Family and Medical Leave Act, rendering it largely unenforceable. The Supreme Court later upheld FMLA in Nevada v. Hibbs, leaving Alito in the losing side of the issue.
Bray v. Marriott Hotels (racial discrimination case): Alito wrote for the minority view that “it is not enough for the evidence to be such that a reasonable factfinder could disagree with the employer as to which candidate was better qualified. Instead, the evidence must be such that a reasonable factfinder can infer that the employer was not truly looking for the best qualified candidate.” The majority responded that employment discrimination laws “would be eviscerated” by his proposed standards.
Riley v. Taylor: Alito (again writing for the minority view) upheld rejection of a jury discrimination claim, citing “Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. Our ‘amateur with a calculator’ would conclude that there is little chance of randomly selecting left-handers in five out of six presidential elections.” The Third Circuit majority spanked him by saying it “minimize(d) the history of discrimination against black jurors.”
Nathanson v. Medical College of Pennsylvania: Alito (in the minority view yet again) disallowed a medical student injured in an accident to sue her school for failing to provide reasonable accommodation for her injury, writing that the student failed to show that it was not “other personal factors” that caused her to stop attending classes. The majority said that Alito’s standards were so high that “few if any… cases would survive summary judgment.”
And there’s the infamous Doe vs. Groody, where Alito (dissenting yet again from the majority) would have allowed a ten-year-old girl and her mother to be strip-searched by police, even though neither of them was named in the warrant. Alito wrote that he knew “no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face.”
To summarize from the nonpartisan Yale Law School’s “Alito Project” (PDF) review of his federal opinions,
It is surprising to me that legal writers — a demographic that I had presumed would employ scrupulous logic — would imply the affirmation of a consequent. It is a fact, of course, that Alito has consistently used those same standards to rule against every clamant that he has ruled against. They might as well have reported that he consistently used periods for ending his sentences.
Sure. But given the level of awareness the information age allows*, and the revolving-door nature of elective politics, is it more important to use the filibuster to actually halt the process than to use it to get your group’s dissent “on record” with a filibuster-sized exclamation point?
*Granted, one has to sort through a lot of dross to get to the gems, and not everyone is up to the effort.
This is an almost shockingly incomplete description of the facts in Groody (warning, PDF).
The search warrant in Groody contained an affidavit sworn to by the requesting officer and signed by the issuing magistrate judge reading, in relevant part:
(Empahsis added)
The face of the warrant, however, only listed John Doe as a target for search (rathe than all occupants), and failed to specifically incorporate the text of the attached affidavit.
The issue before the court was not whether the search warrant was sufficient for the purposes of an accused’s arrest and trial, but rather whether the officers executing the warrant had acted reasonably in searching Jane and Mary Doe (the mother and daughter in question). That is, the question was whether the officers could reasonably have believed that the warrant allowed them to search other persons on the premesis.
The majority basically said that for the attached affidavit to reasonably inform the officer’s belief in the propriety of their actions, it must be specifically incorporated by reference. Alito’s dissent basically says that this is an overly technical way of determining the reasonableness of the officer’s belief – that, essentially, the fact that the affidavit was attached to the warrant should be enough to say the officers had a reasonable belief in their authority to perform the search.
Both positions are eminently reasonable. The case turns on a narrow point of draftsmanship. It’s silly to say this case demonstrates Alito to be some kind of threat to the American people.
Let’s be clear: this case turns on the failure to include a phrase like “and persons described in the attached affidavit” on the face of the warrant. If those seven words had been there, the majority would also have said the officers acted reasonably in their search of Jane and Mary Doe.
I also note, FWIW, that the searches were performed by a female officer who took the searchees into a bathroom out of view of the other officers. While no search is pleasant, the officers in question took steps to minimize the awkwardness of the situation. I further note that there is no general exception to searches held by mothers or their children – necessarily so, because if that was the case, an investigation’s target would simply hide their contraband on the nearest mother or child.
Now, rjung, given that you and your ilk have so completely mischaracterized this case, why should we take you seriously when you raise other objections?
Umm, I have read them, and while I may disagree with most of the cherry picked ones you listed, I don’t see anything there “batshit crazy”. As a matter of fact, I recall many of these rulings being brought up in the hearings. And considering that the calls for filibuster have actually lessened since, it would seem you are out of the mainstream.
As Dewey intimated, how do you expect anyone to take you seriously when you have nothing but hyperbole and mischaracterizations to spew?
I have to say that I agree with Dewey in this instance. Not from a legal standpoint, certainly, since I lack even the least credential to make a legal comment. But from the standpoint of simple deduction and general philosophical ethics, the comments from Yale are nothing more than premises extrapolated from conclusions for the purpose of attempting to validate a preconception. It’s all bassackwards.
For what it’s worth, the ACLU has taken an official stance against Samuel Alito. They’ve only done that twice before in their entire 86 year history (William Rehnquist, Robert Bork).
Oh, sure. But if I say that the moon is made of green cheese, then the implication is that the moon has grown mold. Interesting, but useless. Keep in mind that every implication with a false antecedent is a true implication.
Do you really want to get on the slippery slope that allows authority figures to gloss over people’s rights because of “narrow point[s] of draftsmanship”?
And all this time I thought the point of having laws was to establish a social contract that is held to everyone from the highest to the lowest. I didn’t know it was just a glorified game of semantics, where the rules can be skirted depending on one’s skill in interpreting draftsmanship. </sarcasm>
Did you read anything I wrote? Or the case itself? It’s only 17 pages, inclusive of majority, dissent, and headnote materials. Christ almighty. Facts are like kryptonite to you.
What “rules were skirted” in this case, exactly? Please, no hand-waving: I want to know precisely what your objection to the execution of this warrant is, and why you so object.
The warrant would unquestionably have allowed for the search had it simply mentioned the affidavit on its face – the affidavit that was signed by the judge and that was attached to the search warrant in question. The case turned on the reasonableness of the officer’s belief that the attachment of the affidavit was sufficient to permit them to search the mother and daughter. Surely even if one agrees with the majority that it was not, one cannot rationally transform the opposing view into one of utter disregard for individual rights.
Again, given that you are now willfully avoiding the actual facts of the case, why should we treat anything you say with the slightest amount of seriousness?
(noting that I’m on no one’s side, and still trying to have an open mind)
Dewey. As a lawyer, do you have an opinion as to why would the ACLU oppose Alito, having only previously done this in the case of Bork and Rehnquist? I assume it’s strictly a case of his perceived? rulings against individual rights.
Newspapers from 1971 said about the ACLU opposition
This was from the head of the ACLU at the time in it’s announced opposition to the nomination.
The daughter was ten years old, Dewey. To my mind, that adds greatly to the heinousness of the act. I say “heinousness” very deliberately. A strip search isn’t like taking a deposition or getting a set of fingerprints – it’s a process that violate’s the individual’s privacy in a MAJOR way. I would like there to be some SERIOUS protections for people to ensure that such searches are necessary. Especially for searches of MINORS, dammit. And that would be ONE WHOLE HELL OF A LOT MORE than some random officer’s “reasonable belief.” A warrant … yeah, a warrant signed by a judge indicating that there was some specific reason why a specific minor should be strip-searched … that would work.
But for some reason, I don’t see a lot of judges signing such warrants, especially in places where they’re elected. Regular folks who aren’t legal solons tend to look down on such conduct, Dewey.
I dunno…outrage is good for fundraising, I suppose. At the very least, if there’s a reason to be outraged over the Alito nomination, Alito’s dissent in Groody isn’t it.
(Upon reason the ACLU press release, I see their opposition is premised more on Alito’s views on executive branch power than on his views with regard to the fourth amendment.)
For starters – and I really cannot say this enough – THIS WAS NOT THE ISSUE BEFORE THE COURT.
The court was not asked to decide if minors should be entitled to heightened fourth amendment analysis, nor for that matter were they asked to decide whether a searchee must be specifically named in the warrant in order for a search to be legally conducted.
What they were asked to decide was whether a statement as to the parties to be searched included in an attached affidavit (but not incorporated on the face of the warrant) was sufficient for an officer to hold a reasonable belief that his search was legal.
I also note that the “reasonable belief” standard is not applied in determining the validity of the warrant (e.g., when a defense attorney seeks to exclude evidence uncovered by the search at trial). It is only applied, as in the Groody case, when parties to a search bring a lawsuit against the searching officer. In that situation, the law is that if the officer reasonably believed his actions to be legal, he should not be subjected to civil liability (and again, both majority and dissent agreed that this was the black-letter legal standard to be applied).
Incidentally, calling this a “strip search” is somewhat hyperbolic. It isn’t like the officers were breaking out the rubber gloves. The majority described the conduct of the search as follows:
Embarassing? Sure. But hardly the actions of a goose-stepping gestapo.
Well, again, THIS WAS NOT THE ISSUE BEFORE THE COURT.
Had the warrant incorporated the affidavit by reference, then even the majority would have concluded the search was proper. And the affidavit, as noted, did not single people out by name. It authorized a search of the house and “any occupants of the residence.”
“Any occupants” means just that, any occupants, regardless of age or gender. The law does not provide heightened warrant requirements for minors or for women. And even if providing such requirements would be a good policy, that was not the issue before the court.
Incidentally, it’s a good policy. As both majority and dissent note, crafting such a rule would simply allow the search target to hide his contraband on a minor or on a female on the premesis, playing the odds that they were not specifically named in the warrant. Do you like the idea of children being forced to act as drug mules?
The judge in this case signed such a warrant – he signed the affidavit attached to the warrant. Surely he was aware that “any occupants” could potentially include minors.