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Justice Alito and the Constitutional Option

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Judge Alito is a great nominee, and as a result a great political battle lies ahead. For a brief overview of Judge Alito’s qualifications, see Ed Whelan’s post at BenchMemos. Comprehensive background available at’s right margin. I am hoping that or can put together an archive of every opinion, article and speech by Judge Alito to make referencing easier.

Here are some quick links to key opinions from the judge.

Law prof Jonathan Turley just told Katie Couric that the Senate Democrats will “come out of the dugout on this one,” and predicted a filibuster.

As I wrote below, the best way to preempt a filibuster is for the nine Republicans thought lukewarm or hostile to the constitutional option to announce, early and often, that they will vote for the constitutional option if Democrats attempt a filibuster based upon ideology. If the Senate Democrats know they are going to lose the vote, they will have to approach this debate much, much differently. And if the MSM loses their filibuster storyline early, it will be difficult to campaign on air to legitimize the practice.

Senator Graham led the way for the nine yesterday, and the other 8 ought to follow:

Senator McCain
(202) 224-2235

Senator Warner
(202) 224-2023

Senator DeWine
(202) 224-2315

Senator Chafee
(202) 224-2921

Senator Snowe
(202) 224-5344

Senator Collins
(202) 224-2523

Senator Hagel
(202) 224-4224

Senator Specter (202) 224-4254

Be sure to visit to get activism tools for this battle. If you have any doubt about what’s ahead, visit the DailyKos thread, though it is the typical NC-17 stuff.

And Andy McCarthy is exactly right.

UPDATE: For an example of how a circuit judge ought to apply confusing SCOTUS precedents, read Judge Alito’s opinion in ACLU v. Schundler, which upheld a Christmas/Seasonal display on city property, and which Barry Lynn will no doubt view as the coming of the apocalypse:

Because of the splintered majority in Allegheny County with
respect to the constitutionality of the display in front of the
City-County Building, we must employ the standard set out
in Marks v. United States, 430 U.S. 188 (1977), in order to
identify the Court’s holding. Specifically, we must examine
the positions taken by the Justices needed to form a majority
and follow the opinion that supports the majority position on
the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co.,
972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94
(3d Cir. 1991), aff’d in part and rev’d in part, 505 U.S. 833

In the case of Allegheny County, Justice O’Connor’s opinion
sets out the position that we must follow. In order to be
sustained, a display would have to satisfy, at a minimum, the
standards set out in Justice Kennedy’s opinion, which was
approved by three other Justices, as well as the standards set
out in Justice O’Connor’s opinion. Although Justice
Blackmun also voted to sustain the display at the City-
County Building, his position seemingly imposes more
formidable standards, and a display would not have to meet
those standards in order to survive. Accordingly, in
considering how the modified Jersey City display now before
us fares under Allegheny County, we will focus on Justice
O’Connor’s opinion. Before doing that, however, we will first
test the modified Jersey City display against the teachings of

The display that the Supreme Court sustained in Lynch
resembles the modified Jersey City display in several
important respects. Both included one or more religious
symbols owned by the city (in Lynch, a creche; in Jersey City,
a creche and a menorah), as well as a variety of secular ones.
Both included one or more secular signs or banners (in
Lynch, a banner proclaiming “SEASONS GREETINGS”; in
Jersey City, two signs that read: “Through this display and
others throughout the year, the City of Jersey City is pleased
to celebrate the diverse cultural and ethnic heritages of its
peoples.”). Accordingly, Lynch appears to support the
constitutionality of the modified Jersey City display unless
some constitutionally significant distinction can be shown.

One potentially important difference is that the display in
Pawtucket was located on private property in the center of
the city’s business district, whereas the Jersey City display
was situated in front of City Hall on public land. In Lynch,
neither the opinion of the Court nor Justice O’Connor’s
concurrence seemed to attribute constitutional significance
to this fact. (The opinion of the Court noted the fact in
passing at the beginning of the opinion, 465 U.S. at 671, and
Justice O’Connor did not mention this fact at all.) However,
Justice O’Connor’s opinion in Allegheny seemed to place
greater emphasis on this aspect of the Pawtucket display,
492 U.S. at 623, 626 (O’Connor, J., concurring), and
therefore we will discuss this potentially significant
distinction in connection with our discussion of Allegheny

With the possible exception of this factor, however, we see
no reasonable basis for distinguishing the modified Jersey
City display from the display upheld in Lynch. The plaintiffs
and our dissenting colleague suggest that the cases can be
distinguished on the ground that in the modified Jersey City
display “Santa Claus and Frosty the Snowman clearly do not
constitute separate focal points or centers of attention
coequal with the Menorah and the Nativity Scene,” Appellees’
Br. at 14, but we see no basis for this distinction.
Appendices A and B to this opinion, which depict the
modified displays on both sides of City Hall in Jersey City,
speak for themselves. In the modified display on the right,
the sleigh is just as much a focal point as the figures in the
nativity scene. And in the modified display on the left, the
tree is just as much a focal point as the menorah.10

UPDATE: Andrew Sullivan disputes my characterization of the tactics of the left from my New York Times column of last week as indicating that I am “empirically” nuts. Another fine bit of nuance from Andrew. He gets there by taking my comments from the context of SCOTUS nominations and applying them to every political situation ever encountered. If he is in fact so dense to read it that way –when neither I nor the editors at the New York Times did– that says more about his analytical abilities than it does my sanity. But any serious student of the SCOTUS nomination tactics of Dems and GOP from Bork forward –especially the GOP tactics surrounding the nomination of Justices Ginsberg and Breyer– will not argue with my characterization. If Andrew has empirical evidence about GOP misdeeds vis-a-vis Justices Ginsberg and Breyer, perhaps he’ll share it with us.


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