Monday, October 31, 2005

Ah... That's Better

Today, of course, Bush announced the nomination of Samuel Alito, Jr. From what I know so far, I'm a fan. Most notably, he was the lone dissenter when Planned Parenthood v. Casey (947 F.2d 682 (3rd Circuit, 1991) was before the Third Circuit, and authored the opinion (later reversed by SCOTUS) that upheld Pennsylvania's spousal notification act. For me personally, it's not the policy implications of abortion that make me root for such an opinion writer, but the jurisprudential approach behind them. The Casey opinion is particularly instructive, as he concurs in part and dissents in part, and you get a very good feel for the methodical way he breaks down a statute and applies the rule of law.

Even better than that was his opinion in Saxe v. State College Area School District, where he said that a school doesn't have the right to punish vulgar language from students when it doesn't disrupt the school day. He also authored the opinion in ACLU v. Schundler, allowing a city holiday display to remain standing that included a Christmans tree and a menorah. I like the broad 1st Amendment take, with the additional bonus that, unlike the ACLU, he doesn't forget that the Free Exercise Clause is part of it, too.

Best of all, I've known about this guy for about 2 hours, and I've already been able to get a pretty good read on his approach. Contrast that to Harriet Miers, where people were trying to dissect city council speeches, and divine her philosophy from a few paragraphs in a questionnaire. I'm sure I'll refine my opinion as we learn more, but first impressions tell me that it's a good day in the Land of Judicial Restraint.

One side note - I'm curious if he's a Federalist Society member. I hope he is. At the very least, I hope he doesn't run away from FedSoc like Miers and even Chief Justice Roberts did. I hate feeling like those of us who are trying to keep the debate on limited government and judicial restraint alive should keep our heads down and shut our cake holes if we ever hope to be a judge. The Federalist Society is the only legal group I know of anywhere that's even trying to have the discussion, and everyone loses when that discussion is discouraged.


Cato said...

Is this the guy who called Roe v. Wade "super-stare decisis", or was that the other guy?

I don't think Roe v. Wade should be overturned (maybe rewritten using actual constitutional principles), but I'm not sure exactly how super-stare decisis is supposed to work. If he's just saying it to get appointed, I'm not sure I'm comfortable with that. If he's serious, I'd like a good description of what super-stare decisis is, and why Roe v. Wade gets that treatment, as opposed to other seminal decisions?

Orrin Johnson said...

I think it's important to note that there's a HUGE, ENORMOUS, and sadly unrecognized difference between overturning Roe and "outlawing abortion". And I don't think you CAN "rewrite it" based on any existing actual Constitutional principle, short of stare decisis itself.

Let me know if you can find a link to the "super stare decisis" thing. The only thing I heard about it was when Sen. Specter mentioned it this morning.

Cato said...

I read the "Super-stare decisis" thing in the Seattle Times on Sunday...but it could have been the other potential nominee.