# Now serving #3... Samuel Alito **URL:** \ **Category:** Great Debates\ **Created:** [October 31, 2005, 12:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702 "2005-10-31T12:46:56Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Mahaloth](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mahaloth/32/1079_2.png) [@Mahaloth](https://boards.straightdope.com/u/Mahaloth)\ **Post date:** [October 31, 2005, 4:51pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/61 "2005-10-31T16:51:19Z")
I think he’ll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [October 31, 2005, 4:56pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/62 "2005-10-31T16:56:04Z")
> [@Captain Amazing](#): > > Except, Alito didn’t say that, and the law didn’t say that. In fact, the law made specific exceptions to spousal notification if the pregnancy was a result of spousal sexual abuse or if the woman felt herself in danger of physical harm from her husband. But what good does that do? Some women are too afraid to admit their husbands rape and/or beat them, they just know they can’t tell him. Or you’d have women claiming they’re abused if they were desparate enough to get an abortion. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [October 31, 2005, 5:00pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/63 "2005-10-31T17:00:27Z")
> [@scule](#): > > Can I ask a question as an outsider? If this guy was confirmed, how would he be able to assist in over-turning Roe vs. Wade? Would someone have to bring a case before the Surpreme Court dealing with abortion? Or could a ruling be made in absence of any court case needing to be decided? Could it just be mandated from the bench or does someone have to bring something forward that makes it through all the other levels of courts first? Just curious. I am almost sure that a relevant case has to be brought before the Court. Of course, the Court has leeway in choosing what cases it agrees to hear so it probably would not take long for a relevant case to come before it if it so wanted. (And, I guess legislators in a conservative state wanting to challenge Roe could purposely write a law that they know the lower courts say is in violation of Roe and subsequent cases [like Casey] so that it would work its way up to the Supreme Court.) > [@Mahaloth](#): > > I think he’ll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been. What are you talking about? I think some Democrats did say approving things about her to the extent that they commented at all. It is the Rabid Right who torpedoed her nomination. I don’t see how the Dems being more outspoken in her favor would have done her any good…It would have just made the rabid Right more rabid. They would take this as proof that she was unacceptable. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [October 31, 2005, 5:03pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/64 "2005-10-31T17:03:11Z")
> [@Captain Amazing](#): > > In brief, he argues it doesn’t meet that standard, because, first, 70% women who get abortions are unmarried, and second, 95% of married women who get abortions notify their husbands. So, requiring spousal notification would only affect a small group of women. Saying that the law only affects those that the law affects is really odd. Of the 5% who are affected, 100% are affected. How’s that for statistics! If all of the 5% fall into one of the exceptions, then the law is worthless. If some don’t, the law is cruel. Yay? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 31, 2005, 5:11pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/65 "2005-10-31T17:11:57Z")
> [@jsgoddess](#): > > Saying that the law only affects those that the law affects is really odd. Of the 5% who are affected, 100% are affected. How’s that for statistics! > > If all of the 5% fall into one of the exceptions, then the law is worthless. If some don’t, the law is cruel. Yay? The percentages come into play because of the Webster standard, which says that abortion laws only create an undue restriction if they limit abortions generally. It’s not an undue restriction if it only affects a small group of women. This is O’Connor and the Supremes saying this, not Alito. What Alito is saying is that a law that would affect, at most, 5% of 30% of women who get abortions, doesn’t limit abortions to the extent that it would be “undue” under Webster. And “cruel” isn’t the standard under Webster. The law could both be cruel and constitutionally permissible. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 31, 2005, 5:17pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/66 "2005-10-31T17:17:38Z")
> [@Guinastasia](#): > > But what good does that do? Some women are too afraid to admit their husbands rape and/or beat them, they just know they can’t tell him. Or you’d have women claiming they’re abused if they were desparate enough to get an abortion. Under the law, the woman just has to state that she fits under one of the exceptions. You probably would have people lying, but neither an abused woman’s reluctance to admit she’s abused or the difficulties in enforcing that provision of the law make it unconstitutional. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [October 31, 2005, 5:18pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/67 "2005-10-31T17:18:02Z")
> [@Captain Amazing](#): > > The percentages come into play because of the Webster standard, which says that abortion laws only create an undue restriction if they limit abortions generally. It’s not an undue restriction if it only affects a small group of women. This is O’Connor and the Supremes saying this, not Alito. Could you show us where they said this? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 31, 2005, 5:20pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/68 "2005-10-31T17:20:02Z")
Ask anyone in the last year who the most conservative possible USSC nominees would be and Alito and Luttig were always at the top of the lists. Alito is the conservatives putting a judge on the Supreme Court. Will they get away with it? Probably. Unless there’s some major surprise waiting, most Republicans will go along with the Conservatives and the Democrats don’t have enough votes to block the confirmation. But a price will be paid. The Meirs and Alito nominations have nakedly revealed how much Conservatives feel entitled to own the courts. This is the equivalent of if Clinton had tried to nominate Coumo to the Supreme Court. The Democrats may lose the confirmation battle but you’ll hear Alito’s name a million times in the 2006 and 2008 election campaigns. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [October 31, 2005, 5:21pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/69 "2005-10-31T17:21:24Z")
> [@Captain Amazing](#): > > The percentages come into play because of the Webster standard, which says that abortion laws only create an undue restriction if they limit abortions generally. It’s not an undue restriction if it only affects a small group of women. This is O’Connor and the Supremes saying this, not Alito. What Alito is saying is that a law that would affect, at most, 5% of 30% of women who get abortions, doesn’t limit abortions to the extent that it would be “undue” under Webster. Well The Supremes and O’Connor said in this case that this type of analysis is wrong. One must consider the group for whom the law is concerning not all people. > [@Planned Parenthood vs. Casey](#): > > 1. Section 3209’s husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry [505 U.S. 833, 838] is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband. Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court’s present understanding of marriage and of the nature of the rights secured by the Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69 . Pp. 887-898. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 31, 2005, 5:24pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/70 "2005-10-31T17:24:01Z")
It’s unconstitutional because it deprives a woman of her right to privacy. No state interest is served by depriving a woman of that right in order to inform on her to her husband. The husband has no right to know unless and until the wife wants to tell him. The governmenet has no right to make that decsion for her. Alita was wrong. His argument was bullshit. A woman does not have to be a victim of spousal abuse in order for her to have a right to privacy. Women are not the property of their husband. No one would ever say that a wife should have to be informed if her husband was getting a vasectomy. This is no different. ---
**Author:** ![SpartanDC](https://avatars.discourse-cdn.com/v4/letter/s/b2d939/32.png) [@SpartanDC](https://boards.straightdope.com/u/SpartanDC)\ **Post date:** [October 31, 2005, 5:25pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/71 "2005-10-31T17:25:45Z")
> [@treis](#): > > His dissent in Casey (I haven’t been able to read it yet) seems to show that he is staunchly against the right to privacy and would overturn Roe. If Roberts sided against Roe Alito would tip the balance towards overturning it. Not so. Roe enjoyed the support of a 6-3 majority before Rhenquist died. Let’s assume Roberts would vote to overturn Roe (something I’m not very sure he’d do in the first place). He’d simply be replacing Rhenquist’s vote. If Alito also voted to overturn Roe, you’d be at 5-4 in favor of keeping it. Alito’s confirmation _might_ put the court within one vote of overturning Roe v. Wade, which, if you’re pro-choice, is a risky position. But it wouldn’t actually tip the balance in the other direction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 31, 2005, 5:59pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/72 "2005-10-31T17:59:37Z")
> [@Diogenes the Cynic](#): > > It’s unconstitutional because it deprives a woman of her right to privacy. No state interest is served by depriving a woman of that right in order to inform on her to her husband. The husband has no right to know unless and until the wife wants to tell him. The governmenet has no right to make that decsion for her. Alita was wrong. His argument was bullshit. A woman does not have to be a victim of spousal abuse in order for her to have a right to privacy. Women are not the property of their husband. > > No one would ever say that a wife should have to be informed if her husband was getting a vasectomy. This is no different. What if the rule were that the father of the unborn child had to be informed? Not have a veto power over the abortion - just be informed. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 31, 2005, 6:02pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/73 "2005-10-31T18:02:06Z")
> [@Mahaloth](#): > > I think he’ll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been. It is too bad we will never know. Miers withdrew her nomination not because of lack of support from Democrats, but because of howls of protest from social conservatives. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 6:02pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/74 "2005-10-31T18:02:38Z")
First, thanks, **Bricker** , for the clarification. It does seem to my uneducated legal mind that SDP introduces the element of “the social evils of battered wives” into the judge’s responsibility: that is, the judge now has to decide whether the battering would constitute an unnecessary burden on the woman, or where it is in relation to “the boundaries between the individual’s liberty and the demands of organized society.” Second, a question. The way I heard the Pennsylvania (?) law described on the radio, it had exceptions for cases of abuse or “disfunctional marriages.” This last one seems bizarre to me: if a woman is considering having an abortion without telling her husband, how can that possibly NOT be a disfunctional marriage? Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles–e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me. They also mentioned something about Alito’s opposition to the Family Medical Leave Act. Can anyone elaborate on this? (I don’t listen a lot to Air America, but Franken’s the best they have, and I just finished my David Sedaris CD). Daniel ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 31, 2005, 6:07pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/75 "2005-10-31T18:07:55Z")
> [@treis](#): > > Well The Supremes and O’Connor said in this case that this type of analysis is wrong. One must consider the group for whom the law is concerning not all people. Yes, they did. But Alito obviously didn’t have the benefit of that decision when writing his dissent. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [October 31, 2005, 6:10pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/76 "2005-10-31T18:10:10Z")
Digital Stimulus (et al): > [@](#): > > This doesn’t make sense to me. What would have been the point? To have the press expend their energy railing against cronyism and inexperience and incompetence and maybe digging up dirt…then, when he nominates someone with a great resume but conservative leanings, Bush makes it clear that he’s just giving the public what they want, since everyone thinks it’s more important for a candidate to have demonstrated legal/judicial expertise than that they be acceptible to folks on both sides of the Senatorial aisle (e.g., Harry Reid), so the press either eases up…or he plays to the public to present the objections to his conservative nominee as hypocrisy. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 31, 2005, 6:13pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/77 "2005-10-31T18:13:29Z")
> [@Left Hand of Dorkness](#): > > …that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles… Can’t be right. Too stupid. _Sincere_ racism is ok? This point will be raised, and clarified/squirmed away from. No way in Hell will it stand scrutiny as described, because it is indefensible in the eyes of the vast majority of Americans. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [October 31, 2005, 6:14pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/78 "2005-10-31T18:14:56Z")
> [@Captain Amazing](#): > > Yes, they did. But Alito obviously didn’t have the benefit of that decision when writing his dissent. No he didn’t but it seems pretty obvious to me that piecemeal restriction of abortion would clearly violate previous rulings. It shouldn’t be necessary for a potential Supreme Court Justice to be knocked upside the head with a clue by four to deduce this point. His dissent, to me at least, smacks more of a person that disagreed with the fundamental basis of the whole privacy shebang than a Justice carefully applying precident. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 31, 2005, 6:18pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/79 "2005-10-31T18:18:21Z")
> [@John Mace](#): > > Is it “political thought” that we need to look at or “judicial philosophy”? At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 31, 2005, 6:23pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/80 "2005-10-31T18:23:25Z")
> [@treis](#): > > No he didn’t but it seems pretty obvious to me that piecemeal restriction of abortion would clearly violate previous rulings. Except, the court had already allowed “piecemeal restriction of abortion” in saying parental notification laws could be constitutional. [Previous page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=3) [Next page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=5)