So, Alito Alito Alito. Here's my non-take: I spent the morning reading through a PFAW brief about his drooling love for puppy drowning and baby dropping, which quoted approvingly this majority rebuke of his dissent in Riley v. Taylor, 277 F.3d 261 (3rd Cir. 2001), a case about race in jury selections:
[T]he Dissent's attempt to analogize the statistical evidence of the use of peremptory challenges to strike black jurors to the percent of left-handed presidents requires some comment. The dissent has overlooked the obvious fact that there is no provision in the Constitution that protects persons from discrimination based on whether they are right-handed or left handed.Which, with all due respect to Judge Sloviter, is wrong. The Constitution's guarantee of equal protection applies to discrimination based on handedness as much as it does to any other discrimination. Granted, we lefties aren't a suspect class*, so we aren't as protected a class as a racial minority. But given that handedness is as innate a characteristic as gender or sexual orientation, if the government started overtly discriminating against left-handed people, you can bet your right hand that would raise equal protection issues. I might be down at the courthouse with a Section 1983 suit my damn self.
277 F.3d at 292.
So I'm gonna put together my own brief about how Judge Sloviter and PFAW want to enslave left-handed people. Maybe.
*Or are we? I could probably scrounge up a pretty good showing on the history of purposeful unequal treatment if I had to. But has it put us in such a position of political powerlessness as to command extraordinary protection from the majoritarian political process? There's the rub.
Posted by FLOG at October 31, 2005 8:15 PMI'm missing your point, I think. Partly confused because no link of yours goes to the Sloviter case (I had to look her up to figure out she was a real person).
But do you really call yourself a "lefty" still? I know you're an avowed moderate (so why the insistence on being a lefty?) but you sound like a judicial conservative at pretty much every turn I've observed. You and Olly both. As far as I can tell, you back Alito.
I'd be surprised if you didn't back Roberts as well. You'd have to be pretty far left to oppose him, and I don't think you did.
You'll have to update/fill me in.
Posted by: WWB at November 1, 2005 2:37 PMMan, you are way off my point if that's what you think I mean by "lefty." I'm talking left-handers here. This post is entirely snark, but with truth at its core. Judge Sloviter said nothing in the constitution protects left-handers from discrimination, which is flat wrong -- equal protection provides some level of protection to virtually any conceivable class of people, whether determined by age, religion, race, sex, sexual orientation, handicap, what have you. So my only point in this post is that Sloviter had it wrong.
I do back Alito. I did back Roberts. I didn't back Miers. Even though I don't always agree with the results of a judicial conservative's approach from a policy standpoint, I consider them to be the most intellectual honest people on the bench.
Liberals get all upset with judicial conservatives for having the gall to suggest that the Constitution provides for a strictly limited federal government, for instance. But, you know, that is what the Constitution provides for. It may well be that in the modern age, the nation needs more of a uniform national regulatory framework, but if setting that up goes well beyond the scope of the Commerce Clause, don't blame an honest judge for saying so. Amend the Constitution to allow for the growth in federal power. Or do what has been done in the case of the Uniform Commercial Code: let states get together and set up a uniform framework, which each state then enacts and enforces as state law. There are ways to get around having to violate the spirit of the Constitution.
So there you have it.
Posted by: FLOG at November 1, 2005 4:43 PMThe knee-jerk liberal in me is tagging on the sleeve of my brain and demanding I ask this question: you support Roberts and Alito despite their stance(s) on abortion, Flog?
Posted by: Brandon at November 1, 2005 5:06 PMWhat stances on abortion? They may oppose it personally but I doubt they'll ever OVERTURN ROE V. WADE (shuh tuh tuh!!!!!).
Roe has been the law of the land for more than 30 years, revisited in Casey, where it was substantially altered but not overturned. It can't be full-tilt overturned without essentially overturning the entire right to privacy, a right that, however it may have been conjured out of thin constitutional air, has developed and been relied on by citizens since the 1960's. Knee-jerk liberals can cry about wolves falling out of the sky until they're hoarse, but I don't think Roe is going anywhere.
And even if it was overturned, the sun would still shine tomorrow, the birds would still sing, and most likely nearly every woman in America would still have access to a legal abortion. Deconstitutionalizing the issue would not make it vanish. Meanwhile, it might actually restore some fucking sanity to the appointment of judges to the federal bench.
Posted by: FLOG at November 1, 2005 7:12 PMBest one-liner I've seen: NR's K.J. Lopez: "I just got the White House talking points on Alito. Nowhere in them does it say that he is one of the best male lawyers in New Jersey."
Posted by: Olly at November 1, 2005 7:19 PMThat was pretty awesome, yes.
Posted by: FLOG at November 1, 2005 8:33 PMOK, I confess to being drunk when I wrote that. Somewhere between "Alito," "PFAW" and "puppy drowning," I got lost. And I just sort of ignored the "left-handed" part of the post.
At least in the end, my disillusionment was short-lived and Brandon's continues.
Good news! I successfully ridded my apartment of alcohol. Now I can get back to work.
Posted by: WWB at November 2, 2005 4:19 AMMerci, Flog. That's a pretty gosh 'dern rational take on the issue.
WWB, you should set out traps. Alcohol is like roaches. You never know when you'll wander into the bathroom and find a bunch of those airplane bottles scurrying around.
A scene like this might have made a great Kids in the Hall sketch or a nightmarish sequence in the Shinning. I guess it's all about the context.
From SCOTUS to this in just two paragraphs. I'm proud of myself.
Posted by: Brandon at November 2, 2005 7:04 PM"Alcohol is like roaches. You never know when you'll wander into the bathroom and find a bunch of those airplane bottles scurrying around."
Now that is bringing the funny.
Posted by: FLOG at November 3, 2005 3:20 PMYou win this round...
Posted by: WWB at November 4, 2005 12:21 PMI'm telling you, man, put out those traps. Otherwise you might wake up with one of those bottles pouring itself down your throat!
Posted by: Brandon at November 4, 2005 1:24 PM