Rightank

Today, the Senate voted 58-42 to confirm Judge Samuel Alito to the United States Supreme Court. Shortly thereafter, Judge Alito was sworn in as Justice Alito by CJ Roberts. I heartily congratulate Justice Alito and wish him many years of originalist interpretation on the Court.

Alito’s ascension to the Court means that Justice Sandra Day O’Connor has written her last opinion. Thankfully so. With one more Bush nomination to the Supreme Court (assuming he nominates a true, verifiable conservative jurist), the Court will be able to forestall any judicial foray into the activist realms of foreign policy, legislative policy, and the rights of State governments to determine what social mores govern their peculiar populaces.

Alito’s confirmation illustrates the importance of having a Republican Senate. Alito was able to sway only three Democrats to his side–he lost the liberal Republican Lincoln Chafee’s vote. Without the Senate, President Bush’s insistence on nominating a judge in the likeness of Scalia or Thomas might not have been possible. Also, the Alito confirmation process illustrates the profundity of the Democrats lackluster and highly irascible objections to Alito. The Democrats, in order to thwart Alito’s nomination, needed to persuade a modest amount of Republicans to jump ship. To do this, they either would have needed to fester a concern among true conservative Republicans that Alito is a liberal on social issues and would vote based upon his personal policy preferences or convinced some of the “moderate” Republicans (particularly Specter) that Alito was the second coming of Robert Bork. The Democrats accomplished neither, being more concerned about boosting their campaign contribution amounts for ‘06 and placating their Hard Left base, resulting in a disorganized, smattering of objection whose effect was a mere whisper on those Senators whom the Dems needed in their anti-Alito voting bloc.

Justice Alito–another victory for President Bush and another indicator of the detectable Democratic Party malaise.  Hurrah!

Thirty-three years ago, Justice Harry Blackmun (a recent appointee of President Richard Nixon) wrote the most farcical and constitutionally inaccurate opinion of the 20th Century–Roe v. Wade.

Roe was premised upon the so-called right to privacy which Blackmun “found” in the Constitution. Blackmun, after conducting a judicial séance of the Constitution, found in the murky shadows of due process, liberty, and the prohibition of unlawful searches and seizures penumbras of privacy that guaranteed a woman’s right to abort her child on a whim. The Democratic Party (and Specter) hold Roe up as a holy relic of constitutional history, despite its weak constitutional footing.

I still find in hard to understand how Blackmun could believe that a fetus, the child creation of a mother and father, which he called “unborn” could not be a “person” worthy of protection under the Constitution. I find it harder to believe, constitutional questions aside, that he felt that in his heart and mind, which was the basis of his decision.

My wife and I are expecting are first child. There is absolutely no way you can tell me that our baby is not a person, a living and sentitent being. Blackmun used the label “unborn” to imply that the fetus had no independent life, that it was not a child. However, we are all dependent beings, not independent. Those not “unborn” need oxygen to breath, water to drink, etc. It is impossible to create these vital necessities on our own.

Every child born is precious and deserves protection. Speaking to those who participated in the “March for Life”, President Bush stated:

You believe, as I do, that every human life has value, that the strong have a duty to protect the weak, and that the self-evident truths of the Declaration of Independence apply to everyone, not just to those considered healthy or wanted or convenient. These principles call us to defend . . . all who are weak and vulnerable, especially unborn children.

Despite my misgivings about Roe, I do believe in cases of rape, incest, or when the mother’s health is in danger, that abortion should be permitted. However, abortion is not the answer for unwanted pregnancy–which is want Roe and its progeny have sanctioned.

The past two days, Judge Samuel Alito has been forced to listen to pompous Democrats blister about race, homosexuals, and Senator Feinstein’s favorite word: abortion. Their unabashed aim has been to give mini-stump speeches about the liberal issues important and dear to their hearts–in order to placate the radical liberals at MoveOn.org and Daily Kos–then attempt to brandish Alito as racist, homophobic, and anti-abortion. During the Roberts hearings, Republicans and Democrats, behaved in a professional manner. The Alito hearings, however, as evinced by Alito’s wife tears, have been full of hate-filled hyperbole, mean-spirited, and bigoted yelling by the Democrats baldly (and in Biden’s case very baldly) accusing Alito after he repeatedly denies their absurd and demonstrably insane charges.

To his credit, Judge Alito has shown poise and professionalism during the hearings. It must be tiresome for him to have to repeatedly deny that he is a racist, sexist, etc. Alito comes across very credible and seems to possess a very independent mind when examining each case the comes before him. Coupled with his independence, his methods of statutory interpretation “I usually begin at the text of the statute and end up at the text” and constitutional interpretation “Foreign law is not helpful” should give conservatives confidence that he is the type of judge who takes his job very seriously and who decides cases based upon the law and not upon his own personal policy preferences. As a sidenote, I particularly admire him for his willingness to defend his views at Princeton regarding the ROTC and how he was upset that the Princeton administration had the nerve to kick them off campus.

The hearings should have been shortened to two rounds of questioning, particularly when the Democratic Senators take up all their time bloviating about themselves–or their how Bush is wiretapping innocent supporters of Al Qaeda–and not questioning the nominee. Furthermore, Senator Specter should have denied Senator Kennedy’s leprechaun hunt to find the Alito’s magic pot within the papers of the Concerned Alumni of Princeton (CAP), which evidently does not exist.

Alito has shown great class under fire.  He will be confirmed and the Democratic tirades, while filling their campaign coffers, won’t prevent Judge Alito from becoming Justice Alito who, along with Chief Justice Roberts, will help the Court return to its proper constitutional role.

I had a chance to listen to some of the hearing today. Geez, apparently the lefty Democrats just love Sandra Day O’Connor. According to them, she is a primordial example of what a Surpreme Court Justice (”SCJ”) is and should be, excluding of course that 2000 case between two presidential nominees (Bush v. Gore). As long as you vote to uphold Roe v. Wade, other nebulous privacy rights, and uphold racist admission guidelines for law schools (just for another 25 years though according to Justice O’Connor), you are a SCJ worthly of high praise and distinction. Molding the departing Justice O’Connor as a protector of the Left is one thing, but, it appears that the Dems are going to emphasize Sandra a little more than I thought they would.

Senator Leahy made a comment during his opening remarks that a SCJ should render decisions on behalf of “all the people.” Leahy implies that a SCJ who, for example, would rule in favor of the President spying on Americans who communicate with Al Qaeda or against upholding a law banning partial-birth abortion would not be ruling for “all the people.” Yet, it is not a judge’s nor a legislator’s obligation to make a decision based upon the will of all the people. Putting aside the virtual impossibility of every American agreeing, their constitutional obligation does not require it. Moreover, while a legislator should listen to the voice of his or her constituency, a judge’s consituency is the Constitution. That document is what binds citizens of 50 States together as one and is the foundational law of our democratic republic. Leahy’s grandiose utterance suggests that minorities not majorities are the “all” and that their voice–not the people’s voice–that should be heard. However, Leahy forgets himself. “We the People” was not all the people, it was a majority of people. Some Americans who fought for liberty in the Revolutionary War voted against ratifying the Constitution. In his haste to secure the rights of radical minorities, Leahy forgets himself.

Senator Durbin remarked that he intended to question Alito and scrutinize the judge’s comments from a women’s rights perspective because Alito is replacing O’Connor–a woman. Would Durbin exercise the same type of senatorial scrutiny for a Republican woman nominee who was replacing a man on the Court? I think not.

Senator Coburn, in his remarks, pointed out the selective hypocrisy of the Democrats. Pointedly, he remarked how the Democratic Senators emphasized the “weak” or “underprivileged”, yet, when the person that is weak is a 3 month old fetus, their desire to protect someone who is indefensible is replaced by a desire to protect a women’s “right” to choose.

Alito’s remarks started slowly, but, as his testimony progressed I feel he presented himself in a calm, effective manner. Alito might be more capable of a Robertsesque performance than his critics think.

Samuel Alito begins his adventure into Ego-Ego Land when he walks into the Senate Room where his confirmation hearings for the U.S. Supreme Court will take place.

The Democrats are already threatening to filibuster Alito. I can already hear Schumer, Biden, Kennedy, and Leahy speaking for maybe 2 minutes on Alito then morphing into separate diatribes against Bush, wiretaps, and executive power. Feinstein will talk endlessly about Roe v. Wade (along with her cohort Specter), and how it is a vital, important, and super-duper precedent. How you dare Judge Alito (I can hear Feinstein blather), disturb a woman’s right to choose?

The Republican senators will effectively counter the attacks of the Democrats, although Senator Lindsey Graham will attempt to showcase his talent for praising the nominee by praising himself. I hope the Republicans ask probing questions of Alito, which would reinforce any doubt as to his conservatism but would also allow the American people to understand whether his views the Constitution from an originalist or make-it-up-as-you-go perspective.

When Chief Justice Roberts was confirmed, conservatives really did not know where he stood on social issues, particularly gay marriage. Questions from the Republicans like “Do you believe that state legislators can set moral boundaries, codified in the criminal and civil codes, on behalf of the citizens?” and if so, “What is the appropriate level of deference that you as a Supreme Court Justice would give the state legislative decision?” By asking these types of questions, conservatives could peel away a little bit more of the mystery of Alito’s conservatism.

Alito’s decision-making on the Court will be crucial to returning the an orginalist, not activist focus. Of late, the Supreme Court has usurped the legislative function far too often (e.g., Lawrence v. Texas). The morality of nine lawyers should not be able to dictate the moral boundaries of state or federal government–that is the job of the People’s representatives.

May the madness begin.

Recently, the Americans United for the Separation of Church and State (”AU”) released their official position regarding the nomination of Judge Alito to the Supreme Court. Not suprisingly, AU has decided to oppose Alito:

Americans United opposes the nomination of Judge Alito . . . because of the substantial risk that he would abandon the sensitive approach to church-state issues that has been the defining feature of Justice O’Connor’s Establishment Clause jurisprudence, and that he would . . . revamp[] Establishment Clause law in ways that would weaken or dismantle the constitutional wall separating church and state.

AU is worried about the downfall of the anti-originalist and court-doctored meaning of the Establishment Clause that Justice Hugo Black inserted almost sixty years ago in Everson. The “sensitive approach” that Justice O’Connor applied is code for “separationist approach”–which is AU’s overarching objection to Alito’s jurisprudence.

According to AU, Alito’s decisional history regarding the Free Exercise and Establishment Clauses is troubling because he would allow students to pray at a graduation ceremony if a majority of the students approved (ACLU of New Jersey v. Black Horse Pike Regional Board of Education) or during a class presentation (Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township School District). AU fear Alito not because he would allow for a Christianization of America (isn’t America already Christian?), but, because of his willingness to protect the rights of religious majorities in the public square. Moreover, he treats religious speech as protected by the Constititution instead of forbidden, rejecting the constitutional ostracism that pervades the liberal elite and is prominent in Justice O’Connor’s religious jurisprudence.

An originalist understanding of the Religion Clauses espoused by Alito, particularly of the Establishment Clause, would remove the muddiness of Justice O’Connor’s endorsement test and restore the religious freedom that the Founding Fathers intended to bestow upon the American people. Contrary to O’Connor and AU, the First Amendment guarantees freedom of religion not equality of religious expression. The Framers didn’t intend to elevate the hurt feelings of Atheists or those whose religious doctrine fails to attract more than 200 adherents to a constitutional plateau that precludes majoritarian religious practice in the public arena.

It is time for the constitutional myth of separation of church and state to end. Confirming Justice Alito would be a good starting point.

Tomorrow, the United States Supreme Court will hear oral arguments in a case testing the constitutionality of the Solomon Amendment. The Solomon Amendment, among other things, requires universities to open their doors to military recruiters in order to receive federal funding. Many law professors have banned together, led by the many liberal Yale Law University professors, challenging the Solomon Amendment because they feel oppressed by the military’s presence. Why? Because of the miltary policy “Don’t Ask, Don’t Tell.” Rather than stand on their principle (and refuse federal money), the law professors would rather eat their cake and have it too. Professor Peter Berkowitz comments:

[N]obody is holding a gun to anybody’s head, requiring universities to accept federal funds for academic work. If the law professors could persuade their deans and university presidents — to say nothing of themselves — to do without federal funding, then, notwithstanding the war and the needs of the nation’s military, the law professors could, under the Solomon Amendment, keep military recruiters off campus. Trouble is, the law professors want their principle and to pay no price for standing by it.

During law school at Ohio State (where I attended), a letter was circulated each year (signed by almost every law professor) crying foul about military recruitment and how they despised the military recruiters because they discriminated against gays and lesbians. Then, when a military recruiter came to school, a huge disclaimer was placed beneath the recruitment notice stating in unequivocating terms that the military violated the law school’s non-discrimination policy. I’m sure it felt good for the law professors to bash the military and soothe their delicate egos. The Solomon Amendment case (Rumsfield v. FAIR) is an extension of the law professoriat’s unfettered disgust.

I hope law professors smarmy action against the military fails and Justice Scalia blasts them in a heavy-handed majority opinion for their disrespect of the law and our military.

I know I’m a little late in joining the Confirm Alito Coalition, but better late than never.

As previously stated, I strongly support Alito’s confirmation to the United States Supreme Court.

Robert Bork makes his case why conservatives should support Judge Alito for the Supreme Court:

We may be confident, I think, that a Justice Alito, like Chief Justice John Roberts, will not vote to create new and hitherto unsuspected constitutional rights. He will not share the extreme liberationist philosophy, one of the hangovers from the 1960s, that characterizes the current Court majority. But, also like Roberts, we do not know whether he will vote to overturn the worst constitutional travesties of the past.

. . .

[Having Alito and Roberts] would in itself be a vast improvement over the imperialistic Court majority’s drive to remake American culture and morality.

I agree.

RedState contributor Erick highlights yet another distressing decision by the 9th Circuit Court of Appeals. In Fields v. Palmdale School Dist., a three judge panel unanimously held that parents do not have a fundamental constitutional right to serve as

the exclusive provider of information regarding the sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. (court’s emphasis)

What prompted such a ruling? Well, a graduate student convinced an elementary school to give out a questionaire to kids regarding their mental health. A disclosure and permission letter was sent to parents, but that letter omitted any reference to questions of a sexual nature. For example Question #22 asked students ages 7 to 10 to rate how often they are “Thinking about touching other people’s parts” and Question #47 “Can’t stop thinking about sex.” Disgusting.

The school’s decision to blindside the parents bothers me more than the 9th Circuit decision. I would agree that parents do not have a constitutional fundamental right to direct what their children learn inside the school. Prudentially, that would clog the courts with lawsuits and frankly, the local level is where parents need to attack the rampant liberalism that pervades the public schools. Moreover, such a right would only be found using in the made-up jurisprudence called substantive due process, which is not in the Constitution.

However, I am bothered by this statement by Judge Reinhardt regarding education’s purpose:

[E]ducation is not merely about teaching the basics of reading, writing, and arithmetic. Education serves higher civic and social functions, including the rearing of children into healthy, productive, and responsible adults and the cultivation of talented and qualified leaders of diverse backgrounds.

What? Isn’t education about teachers teaching and students learning about english, American history, and mathematics? Note how Judge Reinhardt kidnaps children from their parents and grants schools the parental responsibility of child rearing. Reinhardt’s revisionist definition permits a school to teach whatever they want because they are raising the children, not the parents. A little quiz on mental health lumped with sexual references is no exception.

Fields illustrates what liberals think schools are designed to accomplish and why the public education system seems more and more an indoctrinating day-time prison instead of an place where “reading, writing, and arithmetic” are taught.

UPDATE: More 9th Circuit reaction at Raging Right Wing Republican and Independent Conservative.