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Monday, November 07, 2005

This is why you have to go to law school to get a JD

Mark Shea splutters in angst over Alito's voting record, and more specifically over the analysis of that record by people who don't know an injunction from a discovery motion. I think he is over reacting. I am just as eager to see the judicial abomination that is Roe thrown out as he and other Catholics are. However, I am not deeply troubled by Alito's .250 batting average on the matter for two important reasons. #1 (less importantly): I don't pay attention to what talking heads at east coast papers say, because they aren't paid to think or know the law, they're paid to sell newspapers, which requires attracting people who think even less and know even less about the law than they do. #2 (the important one): look at the cases that Alito heard, and you'll see that he is probably the sort of jurist we DO want, and neither an Anthony Kennedy (blood traitor) nor a Harriet Miers (clueless leader).

The Court of Appeals for the 3rd Circuit is not the Supreme Court. The lower courts are bound, in a very definitive way, by Supreme Court precedent, as stupid as that often is. The cases in which Alito upheld abortion or struck down restrictions were those in which there were very clear cut controlling precedents that had been handed down previously by the higher court. He was obligated by the nature of his position to decide the way he did -- it was what the law required. In Casey, though, the case in which there was no SCOTUS precedent, he voted the way we would "want" or "expect" him to -- he upheld the Pennsylvania restrictions because there was no precedent that addressed them.

So now consider this in light of his proposed appointment to the Supreme Court. If you're looking at his previous decisions and saying "I see a lot of restraint here, a lot of deference to precedent, a gentle hand towards overturning things," that's to be expected, because Alito understood the purpose of his position on the Court of Appeals. Those courts are meant to have a softer and more deferential touch than the Supreme Court, and are bound by precedents in a way in which the Supreme Court emphatically is not. The Supreme Court is "right" because it is final, it is not final because it is right. It can throw its own garbage precedents (cf Plessy, Scott) out the window whenever it wants. The Circuit court is of course not "right" in and of itself, nor is it even final. It therefore lacks the authority and scope in its decisions that the Supreme Court possesses, and one should expect a careful and judicious member of that bench to reflect this fact in his decisions.

To paraphrase Montgomery, "Confirm. I say confirm."

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