Wednesday, January 04, 2006

Still not studying for conlaw, but...

Adam Cohen has a piece on Alito today in the NYTimes. In it he reports that Alito is an "elitist" and "antidemocratic" because in his 1985 fedgov job application he opposed the Warren court's reapportionment cases. This seemed interesting, since I remember Amar saying that Baker v Carr and Reynolds v Sims have been accepted even by the right (in contradistinction to Roe). How could Alito want to "thwart the will of the majority" and allow a small group to "get a stranglehold on government"?

The job application reads in relevant part:
In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.
So, he does oppose one-man one-vote! He hates democracy! He wants a small clique to take over!

Well, unless you read the next sentence, "I discovered the writings of Alexander Bickel advocating judicial restraint..." and check out the strong emphasis in other paragraphs on the elected branches of government. So you might actually say that he suffers from a superfluity of democracy, wanting to keep a small clique from getting too much power--judges.

Yes, I know that's a stupid tiresome joke with a punchline as old as dining hall spicy-chicken. I guess it fits the quality of the Times story, though. There are strong arguments that judges should step in to keep democracy running smoothly, and I probably agree with them, overall, when they're taken with a grain of salt. Of course, on Alito's side there are big grains of salt: he is in no mean company, with Frankfurter having expressed grave reservations about entering "the political thicket" before Baker, and Archibald Cox and Nicholas Katzenbach (of all our Katzenbach cases, and attorney general to noted conservative LBJ) having come out against one-man one-vote.

You could argue: judges would do a poor job of managing reapportionment; it will open up the judiciary to political pressure; "little federalism" allowing state voting-power inequalities might be just as acceptable as big federalism giving Wyoming 60 times more clout per person than California; "one-man one-vote" is a complete doctrinal innovation and huge overkill when what you want to solve are racial disparities that are solidly unconstitutional under the 14th; this will make gerrymandering worse; and ten other arguments easily made. (Although perhaps ultimately unconvincing.) And finally, we don't even know what he meant by that precise statement. He might love one-man one-vote, but think it should have been forced on state legislatures in a different way, or whatever.

This one sentence is pretty skimpy evidence to disqualify someone from the Supreme Court: Biden apparently has said this is more likely to disqualify Alito from the Supreme Court than his opposition to Roe. I mean, come on. Alito also says in his application he liked Barry Goldwater. That surely is a better ground for disqualifying him, since it makes him as crazy as me.

Hearings are scheduled to begin on Jan 9.


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