Paraphrased or edited from same Dahlia Lithwick post:

Why Alito's opinions demonstrate that he is a fire-brand judicial activist and should be opposed by rational Democrats:

• He voted to limit Congress' power to ban even machine-gun possession.
• He opined that police search powers include the right to strip-search a drug dealer's wife and 10-year-old daughter—although they were not mentioned in the search warrant.
  
• He upheld a Christmas display against an Establishment Clause challenge.
  
• He would raise the barriers for victims of sex discrimination to seek redress in the courts by raising the standard for analyzing race discrimination claims to such an extent that his colleagues on the court of appeals fretted that Title VII of the Civil Rights Act would be "eviscerated" under his view of the law.
  
• He sought to narrow the Family and Medical Leave Act such that states would be immune from suit—a position the Supreme Court later rejected.
  
• In an antitrust case involving the Scotch tape giant 3M, he took a position described by a colleague as likely to weaken a provision of the Sherman Antitrust Act to "the point of impotence."
• Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him.
• Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession;
• Or to broadly enforce the Family and Medical Leave Act;
• Or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination;
• Or to tackle monopolists.
  

Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary.

From Dahlia Lithwick, on Slate.com, "Trick or Treat"

Almost as if the whole Harriet Miers debacle never happened, President Bush has rapidly retreated from his judicial preferences of last month. The urgency of filling Sandra Day O'Connor's seat with another woman has been erased; the importance of balancing the too-scholarly court with a practicing attorney has evaporated; and the need to put an outsider onto the court is long forgotten. Suddenly George Bush's vision for what the high court most needs maps perfectly with that of the movement conservatives who sank the Miers nomination.

So far, this is the only commentator I've seen who has at least pointed out my personal preference: putting a practicing attorney on the court. Alito has, according to the bios I've read, never practiced where a client was paying his fee. Abortion, First Amendment, Criminal Justice, Second Amendment -- these are are all extraordinarily important issues that make America what it is. Government service, as a prosecutor, defender, or judge, are great careers. But employment law, civil procedure, property rights, federal court jurisdiction -- there are many issues that SCOTUS rules on that are private, civil matters. Why can't a "real" lawyer get consideration?

Dubya has, by pandering to his furious and radical right, completely abandoned all such considerations. Instead, we get another right-wing, male, white, Catholic, Ivy League, federal judge. Great. Just what we needed. Now we'll get some clarity and balance, for sure.

Bummer.

So Miers withdrew. For decades now all presidents will be afraid to appoint real lawyers to SCOTUS. We're going to get federal judges, law professors, state court appellate judges, and superstar lawyers.

Previous federal experience is not a problem, since obviously the experience is relevant to the higher post. I like the fact that they will have already gone through the confirmation process. I also like the idea that law professors won't be so keen on thinking they can jump straight to SCOTUS -- let them toil in the trenches for a bit, and possibly for a lifetime, before SCOTUS.

Same basic principles apply to state appellate judges. In addition, since state constitutions are more dynamic, with no federalism concerns involved, I think the experience creates judges like O'Connor and Souter, as opposed to Bork or Scalia.

I really hope we can avoid the law professors. SCOTUS is not an Ivy League think-tank. The "intellectual feast" comment made by Bork is etched into my memory as reason number two why he was properly rejected.

I doubt we'll ever get a "real" lawyer now on the bench. Even for the superstars of the real world -- David Boies comes to mind -- it's likely the experiences that got them into the public eye will be too galvanizing for today's diametrically opposed political parties for a successful confirmation.

Our pack leader, Scott Tappan

He does a really great job. I'm very impressed by his enthusiasm and talents.
 

Tree Climbing

 

Three-Legged Race

 

Tug of War

 

The bottle launcher, in action.

 

The golf contest

 

One of the contests

 

Hiking on camping trip

 

Cub Scout Camping; 10-15-05

 

Makes sense to me.

Contemporary conservatism always threatens to fly apart, as it seems to be doing now. Conservatism's goals are a combustible mix: an expansive and expensive foreign policy, low taxes, support for government intervention in the personal sphere (to promote a conservative vision of virtue) but not in the economic sphere. For some of us, the mix makes little sense.

Dionne, "Buckley: The Right's Practical Intellectual," Washington Post, 10-11-5.

Pre-Hearing Evaluation of Miers

So I've wasted a lot of time reading and thinking about Dubya's nomination of his Harriet to SCOTUS. My pre-hearing evaluation now stands as being in favor of her confirmation, for three reasons.

For background, it is my humble opinion that a huge problem with SCOTUS is the fact that so few of the members have any contemporary experience actually practicing law. The Country doesn't need 9 separate opinions in its decisions -- a majority opinion and a dissent are fine. We also don't need page after page of dicta or self-important ramblings and squabbling. The problem stems from the fact that their decisions make actually practicing law and advising clients too hard. Multi-step tests, ambigous and undefinable pronouncements, flip-flops -- some of us out here aren't just academically interested in their theoretical pronouncements.

So, first of all, Miers appears to have actually practiced law in private practice. By acceding to the top spot in a large firm in Dallas, she must be perceived as intelligent, hard-working, and as possessing a large amount of business sense from those who have watched her in action for years and years. I hope that will translate into the same types of qualities in her jurisprudence. If so, she'll be a great judge. If so, we need more like her.

Second, what about the cronyism? What if she turns out be intellectually inferior to the other members of SCOTUS? What if she can't hold up to the criticism? What if she is, in other words, just another hack nominated by Dubya to a position that she is not qualified for? Okay, fine. If the lack of the intellectual pedigree means she can't hold her own, then that means her influence will be incredibly minimal. The right will have lost a chance to turn back the clock on SCOTUS. What a great victory for progressives, to have Dubya so weak that he nominated a marginal crony instead of a legal heavyweight.

Third, the only danger to Miers' confirmation lies in the fact that she will always rule in favor of Dubya, on all the contested issues coming before the court. (She'll never recuse herself, since Scalia has written the definitive announcement that SCOTUS members never have conflicts. Thanks, real sound thinking there. Gee, you don't think he ever comes up with the answer he wants and then finds some reasoning to support his politically-desired conclusion, do you?) Well, I don't have any theoretical objection presidential prerogative. Seems to me it works for both parties, just not at the same time. And if her justifications for either ignoring her conflicts or siding in favor of her former boss are transparent and ill-informed? Then that means we all get to point out what a hack Dubya nominated, for the rest of her career.

So, barring some bombshell from her confirmation hearings, confirm her. The choice could have been so much worse for the country. And it might even turn out pretty damn good.

Miers and The Federalist #76

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration."

I picked this off of dailykos. I don't have time right now to check to see if it's a true and accurate quote.

I think the cronyism is the worst part of her nomination. I like the fact that she was in a law firm in Dallas for decades, before moving to Washington. I don't mind that she has not been a constitutional scholar. I do wish she had better credentials, other than the fact that her office was in the same building as Dubya when he nominated her. But this is a president who owes his office to the Supreme Court and has many of its more dubious issues before the Supreme Court. I was highly offended when Scalia and Cheney went duck-hunting together -- this nomination is much, much worse.

Harriet Miers?!?

Generally, as mentioned below concerning John Roberts, I am in favor of judicial nominees who are something other than lifetime academics or judges. Real world experience is important and often sorely lacking on the appellate bench.

But Harriet Miers? So far, I don't see anything that qualifies her for a lifetime appointment to the highest court in our country. Dallas City Council? Are you kidding me?

This appears to be an excellent example of Dubya appointing an unqualified crony, whose only qualification is her loyalty to the Bush regime, to an incredibly important position.

She's another Brownie. I'm sure she'll do a heck of a job, just like him, if her appointment is ever confirmed.

September Golf trip

A few of the photos I took from last weekend's golf trip to the Lake of the Ozarks in Missouri.


b.