Libs: Alito's Secret Weapon

Forget Fox News or newspapers. Bugger the bloggers, on earth or in the MSM. Never mind The National Review. Useless is US News (and World Report). Screw The Standard (Weekly) and the Spectator (American only for now).

They're all reasonable, right and rational, of course. But the best argument for confirming Samuel Alito to replace "Harriet O'Connor" comes from the mixing-results-and-reasoning, misguided, but no doubt typical, liberals who penned the lead editorial in Tuesday's New York Times:

• "The Alito nomination has thrilled social conservatives, who regard the judge to be a surefire vote against abortion rights." Uh, no, guys: Judge Alito has never (so far as I know) advocated repealing the abortion right. Indeed, he voted to strike NJ's ban on partial birth abortion. Yes, he dissented from overbroad Federalization of a state-law parental-notifications provision, but did NOT question or overturn Roe v. Wade. Compare the claims of People for the American Way which -- relying on a "legal expert" who wasn't even a lawyer, the late Michael deCourcy Hinds, a longtime New York Times correspondent and bureau chief -- pretends the Third Circuit could reverse the Supreme Court. Some expert.



• "Judge Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse." Actually, Alito would have upheld a notification requirement that was waivable:

  if a woman certifies that she has not notified her husband because she believes that 1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

  That law was neither nuts nor would have significantly decreased abortions. True, the Supreme Court disagreed (Planned Parenthood v. Casey) -- but in a fractured opinion [split 3 (O'Connor, Kennedy, Souter), 1 (Stevens), 1 (Blackmun)/4 (Rehnquist, White, Scalia, Thomas)] on the notification question. Whatever ones view on spousal notification, Alito was "well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent." Contrary to the Times (in this instance, the LA Times), adhering to the text isn't "an insult to married women"--nor did the Supreme Court say any such thing.



• "In an employment case, he said that just for a plaintiff to have the right to a trial, she needed to prove that her employers did not really think they had chosen the best candidate for a job." If the statute was designed to outlaw race-based discrimination in promotions, shouldn't the plaintiff provide a prima facie showing that the employer discriminated? Alito argued the passed over employee hadn't produced any evidence the employer was lying, citing the standard from applicable case law:

  To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's reason was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

  Prove?--no. Rebut the claim that employers chose the most qualified candidate--what's wrong with that?



• "When lawyers for a black death-row inmate sought to demonstrate bias in jury selection by using statistics, Judge Alito dismissed that as akin to arguing that Americans were biased toward left-handers because left-handed men had won five out of six of the preceding presidential elections." Statistics 101: correlation isn't causation. Logic 201: Cum Hoc, Ergo Propter Hoc. Newspaper Editor: no education necessary, no experience required.



• "In 2000, Judge Alito said Washington could not compel state governments to abide by the Family and Medical Leave Act, a position repudiated by the Supreme Court in a decision written by Justice William Rehnquist. When a judge is more radical on states' power than Justice Rehnquist, the spiritual leader of the modern states' rights movement, we should pay attention." Just because Rehnquist and the rest of the Supremes can't read the 11th Amendment doesn't mean Judge Alito shouldn't. Following the plain language of the Constitution isn't "radical"--except in the Times.



• "Mr. Bush could have signaled that he was prepared to move on to a more expansive presidency by nominating a qualified moderate who could have garnered a nearly unanimous Senate vote rather than another party-line standoff." Republicans didn't whine when Clinton chose Ruth Bader Ginsburg (an abortion-rights liberal) to replace Byron White (a Roe dissenter). As Best of the Web's James Taranto says, "In other words, Bush should have betrayed those who voted for him by appointing a justice who would have pleased those who voted against him."

If the Times Editorial page and Senator Chuck Schumer (heh!) are the best of the politics-not-process left, Alito's a lay-down. I'll take the "under" on January 21st.

(via NIF, Hugh Hewitt)

Edited 2am