Wow, a Nominee With a Paper Trail to Debate!
Julian Sanchez | October 31, 2005, 12:15pm
I haven't got a verdict one way or another on Alito yet, but ThinkProgress' roundup of "facts" about the nominee's views is less than impressive. (Addendum: I see the Center for American Progress is pushing the same list.) Let's consider some of their claims.
ALITO WOULD OVERTURN ROE V. WADE In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade.
As
blogger Patterico explains in some detail, it's awfully hard to justify that initial claim on the basis of Alito's
dissent in the case they're talking about. His opinion seemed to be that there were enough exceptions (e.g. the spouse isn't the child's father; the woman worries the spouse will become violent) that a spousal-notification requirement for abortion—whether or not it's a good idea—didn't constitute an unconstitutional undue burden on the right. Now, I have no idea whether Alito wants to overturn
Roe, but it seems an awful stretch to conclude that he would on the basis of that opinion. Next...
ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias."
That's what the majority "explained," but it's sure not the impression you get reading
the opinion. Basically, it looks like a court had to decide,
inter alia, whether a hotel had failed to promote the plaintiff becaue of racial prejudice. And Alito's argument is that you might think the hotel's stated reasons for promoting someone else are weak, but that this isn't enough to show they were
pretextual. I don't know enough about the fact pattern in the particular case to take sides in the instance, but again, the claim that Alito wants to "allow race based discrimination" seems a far cry from what I'm seeing in that dissent. (Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion. All I'm arguing in this post is what it's reasonable to infer from Alito's opinions, not what's good policy.)
ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment."
I can't even find the opinion online in this case, but again, all we get here is a short excerpt of how the majority chose to characterize Alito's dissent. From what I can see, the case involved a question of whether a disabled medical student had provided her school with adequate advance notification of the kinds of accomodation her disability would require in the classroom. Again, it's hard to say more without seeing the opinions, but I can imagine quite a range of disagreements over what counts as adequate notification that fall short of constituting a disagreement over whether the law should "allow disability-based discrimination."
ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.
I was faintly hoping the
case to which they refer might be a Commerce Clause decision in the
Lopez vein—but sadly, no. It's an Eleventh Amendment sovereign immunity case, and has very little to do with the propriety of FMLA per se. So again, this is something of a red herring: Alito's views of Congressional power under the Fourteenth Amendment to abrogate state immunity under the Eleventh are apparently such that he would have held FMLA inapplicable to the states. I don't think I'd hold it against him if it
were true that Alito "would strike down the Family and Medical Leave Act," but the opinion doesn't seem to support the claim.
ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.
Getting warmer, but looking over
the opinion, it's not quite as bad as they're making it sound here either. The disagreement here
isn't over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought
that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I'm inclined to prefer the majority's take, but Alito's dissent isn't as awful or crazy as the precis above would suggest. Finally:
ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction."
Having found the
Dia decision, I'm not all that surprised, in light of the pattern we've seen above, that the "hostile toward immigrants" claim seems, again, like a huge reach. Alito authored a partial-dissent there taking issue with the standard for evaluating a lower-level immigration judge's determination of an asylum petitioner's credibility. I can guarantee I'm out of my depth in evaluating this one on the substantive merits, but again, the bolded claim seems, at the very least, like an extraordinarily loose inference.
Addendum: Kos is recycling the same talking points, with some equally misleading commentary. Apparently, the FMLA decision tells us that "For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones." And the Doe v. Groody opinion reveals Alito's view that "Not only is [sic] strip searches of 10-year-old girls okay, but of wives as well since they are all merely that man's chattel." In a lot of ways, the first complaint is parallel to the silly "why do you hate America?" rhetoric folks at Daily Kos rightly chafe at. You think the Fourth Amendment proscribes certain anti-terror measures? You must be pro-terrorist! You think the Eleventh Amendment bars applying FMLA to states? You must be anti-people-taking-care-of-sick-relatives! The thing about wives as chattel is too ludicrously disconnected from anything in the decision—which, again, I'm inclined to disagree with—to take seriously.
toxic | October 31, 2005, 3:06pm | #
Guys, you have to keep in mind that a good judge doesn't just vote his opinion. It's not like going on Oprah and asking Dr. Phil what he thinks.
Judges often make decisions that are distasteful and/or morally questionable (even to themselves) because they have to in order to maintain the stability of the legal system. In short, maintaining a solid rule of law is more important than any one incident (like the strip search, possibly). Laws that are swiss-cheesed with exceptions do not provide much guidance or protection. And judges have to protect citizens and the state's powers as well in a perpetual balancing act.
Judges will also sometimes make decisions based on extremely arcane technical matters that are both extremely important and yet very, very tedious. To journalists-- well, let's just say that they lack the intellectual tools to grasp what is going on, legally. The population at large gets most of their legal knowledge from TV shows.
So basically what I'm saying is this--- a one paragraph description of the case and how he ruled proves virtually nothing about the quality of the opinion or the underlying rationale. It simply can't, particularly if it is designed for mass consumption. It's incredibly easy to misrepresent opinions, because they often hinge on ideas that the public hasn't even heard of, and the media is too lazy/stupid/biased to explain it.
In any case, the ideal judge is not someone who inserts his personal prejudices into the case. He takes the law as it is and uses that as the logical framework for his decisions. If that decision is stupid or immoral, it is the responsibility of the people or the legislature to get off their ass and fix it. Scalia, for one, is a judge who takes the supposed judicial standards for constitutional review seriously. This often leads to unpleasant results. Those standards, if taken seriously, result in damage to civil liberties. Which is hardly surprising, given the state of civil liberties until the last century. The Constitution was not designed to provide the extent of civil liberties we enjoy today. But with a living constitution take on things, you get a commerce clause that has been interpreted to mean, in effect, the exact opposite of the plain language of the clause. So both schools of thought lead to unpleasant results. I think it would be a good time now to rein in SCOTUS, because they are going a little too wild. Raich and Kelo, anyone? Thanks, yeah, thought so.
Which is not to say that I would like a court full of Scalia's--- but it would be a good idea to get a few more people who interpret the constitution narrowly. It should lead to less overreaching. I swear the court majority of the last decade has gotten to the point where it isn't even really trying to hide the fact it is essentially voting its preferences instead of the law. They pretty blatantly ignore the axioms of constitutional construction when it suits their purpose.
James Feldman | October 31, 2005, 5:46pm | #
I think that the area which deserves actual focus is in what aspects will certain doctrine be applied.
I would favor a libertarian society; I think most people who read Reason would. The great grey area for me, at least, is what is the result if we have laws that are libertarian in nature regarding, say, employment practices, while at the same time having laws that are progressive, or socially conservative, regarding say, church/state issues? That is a question that needs answering, I feel.
To my mind, the flaw in arguments such as Julian's regarding the rights of Mariott or other corporations to discriminate if they so choose, is that the Federal, State, and Local governments cannot discriminate, and then we have a significant legal quagmire. Can public funds be spent on services from companies that discriminate, when the Government itself is forbidden to do so? What serves the public interest better if the choice is between goods or services from a company that discriminates but would charge less, or a company with equal opportunity that charges more?
Finally, while I agree that ideally, a company that discriminates would be punished in the market, the truth is that today, such information is easy to conceal from the public. Many companies own media companies as well; News Corp or GE can easily affect the coverage their companies get. But beyond that, 25% of television is advertising, and more than that in print media. Wal Mart can do a much more effective job of getting their message out than their critics. For example, few people that I know are aware that Wal Mart is the defendent in the largest gender-discrimination class action suit in history. While I am not desirous of government regulation, I fail to see how any other model of restraint on practices such as discrimination can be effective in the modern environment.
J. Goard | October 31, 2005, 6:13pm | #
Hey, deontologists, armchair libertarians, answer this thought experiment:
Suppose 99.9% of the population hates Max. Don't ask me why. It's a consumer preference, like how most people love pizza and hate living next to slaughterhouses. There are exceptions, but not many; Max is just the anti-pizza to almost everybody.
People believe lots of things about Max, too, including lots and lots of false things. Books are published with poorly reasoned arguments to the effect that Max is a different species from the rest of us, perhaps (wink, wink) even closer to a baboon than to a man. Hey, people have a right to buy these books, and they don't come close to meeting the legal definition of libel. Also, people put on plays where they dress up like Max, and act like buffoons or villains. Lots of other people come to these plays and are highly entertained, such being their subjective consumer preferences.
Such is the hatred of Max, that the 99.9% who hate him also hate hanging around with anyone who doesn't hate him. If, at a party, you fail to laugh heartily at a crude anti-Max joke, word spreads, and you lose 99.9% of your business contacts, and 99.9% of your social circle.
Okay, so what about the economics? What are the 99.9% losing by hating Max? The business of Max himself? Obviously a drop in the bucket. The business of the 0.1%? Maybe -- but recall, I havent stipulated that that sliver of the population *loves* Max, or has any particular desire to see him better off than not. They wouldn't have much reason to give up their share of the 99.9% just for the business of Max, so, for all intents and purposes, they may as well be with the majority. And the majority gains much from hating Max -- entertainment, and a nice warm feeling of natural superiority. On net, aggregate preferences are simply such that Max is screwed.
Now, please explain to me how, a priori, you can tell me that Blax could never have been partly Max -- or, more precisely, that the Max dynamic could have been an important part of the Blax dynamic, even apart from state-enforced segregation and Klan-style terrorism.
1skeptic | October 31, 2005, 7:45pm | #
Thanks to all those who responded to my earlier posts. Also, J. Goard seems to have said what I wanted to add, in a better way than myself.
I don't think that the free market caused any apartheid, slavery or segregation, but I don't think the free market by itself would have resolved any of them either, which is where I seem to depart from many of the posters here.
I'll take J. Goard's example and stretch it a bit further. Now, it looks like there is a gap in the market, to serve Max. So maybe there is scope for Max-accepting churches, bars and restaurants. And other businesses may set aside space in the back for Max, out of sight of the majority of the Max-hating populace. (Don't ask me where the hatred comes from, it seems to be a social/cultural construct that sometimes gets codified into law under certain kinds of regimes.) Max, due to his restricted circle, has fewer economic opportunities, and is never going to be the one to get five star service, or even be in a position for favorable economic exchange terms for his own services.
What seems to be wrong with this picture, is the premise of equality of opportunity that is denied to Max. This seems to be a political right to me, and I would be interested to know where the free market has solved this problem independent of government legislation.
Actually, come to think of it, I would also like to know what the libertarian argument is against slavery. It just seems like a good old economic transaction to me. Assume that the slaves entered into the transaction of their own will, or were sold by their guardians. I've heard that the slaves were better fed and looked after by their masters than when freed, proving once again that property rights are the most fundamental.
I'll also state my own point of view, that we should legislate against slavery, apartheid, segregation and unfair discrimination because they are immoral, just as theft, assault, murder and rape are.
Stevo Darkly | October 31, 2005, 8:02pm | #
fyodor,
In the 'Fifties? Or did you mean 'Sixties? Because the article said the laws persisted until the 1960s. Until the Civil Rights Act of 1964, I presume.
Also, I won't pretend that every act of discrimination was mandated by law. Change was needed, but not necessarily by government means. I just wanted to attack the idea that government action was needed to bring about the social change, when in fact, giving the government the power to decide how people of different races should interact actually obsctructed the potential for change driven by market forces.
In the link I provided, there is another link to an article about the protests over the segregated lunch counter at Woolworth's in Jackson, TN. I don't know if M1EK is refering to that Woolworth's incident, or one in Charlotte, NC, or another one. But in the case of Jackson, TN, the article makes it clear that the local Woolworth's decision to segregate the counter was "a private business decision."
The article also makes it clear that the company ultimately changed its policy, not because it was forced to by law, but in response to demonstrations -- public actions, but by private citizens (potential customers), not government.
History totally gives the lie to the idea that market forces would have been ineffective in achieving change, or that the steps taken by governments were a necessary and trustworthy force for good.
But I'm sure many people still saw a need for the Civil Rights laws because many people tend to mistrust the market, overly trust the government, and are confused about the distinction between public and private.
1skeptic | November 1, 2005, 4:49am | #
Hi MikeP
"How do you feel about discrimination on the basis of national residence?" Mixed feelings. "Kein Mann ist illegal" read some graffiti reported in an article on immigration by the Economist some time back. It's hard to argue with that. On the other hand, its also hard not to see the nation state as a mutually implied contract between all citizens. As is probably well known to people on this blog, free immigration used to be the norm, but that was before the advent of the welfare state, immigrants having rights, and concerns about 'overcrowding' in the west. One possible way to neutralise some objections could be to have an auction mechanism for a limited number of residence permits, above a reserve price, where both the number and price are democratically set.
One could hope that once people saw the benefits over time, the balance would tilt towards no restrictions. But I couldn't wish a Russia-style sharp & nasty shock on the citizens of any country. I suppose its might be compared to the difference between caring for people who are in the family, and who aren't. This is as far as I've got at the moment, and I would welcome your comments or others.
Stevo Darkly
Going through your posts here and on the previous thread, it would seem that you would refer to the actions of say Rosa Parks and other civil rights activities as 'market forces'. I would rather call them 'political forces'. Probably we would both agree that it is individuals self-organised that will most likely bring about these kinds of changes. But I don't understand why you shy away from government intervention, which to me is also individuals self-organised, on a larger scale. The civil rights activists were hoping not just to influence individual businesses but also the larger community to pass laws to ensure these things didn't happen. Do you believe that the pendulum has swung from negative to positive discrimination, where it should have stopped at neutral?
ANM,
The market may punish unjustified discrimination, only when there are enough actors to go the other way. In the short run, markets may be stuck at a suboptimal equilibrium, as it may be in no individual business's interest to be the first to break the consensus, because of expected retribution from the majority. Also, as I said before, people do give up absolute economic gain for relative status.
Nothing starts from a clean slate. Is setting a slave free enough, or should there be reparations? Till recently, all the employers and management were men. This had some consequences when women went into the workplace. Do you think the gender discrimination and sexual harrassment laws are unnecessary? Should women then just have found another job? And then another and so on, till they found their ideal meritocratic employer? For how long?
ANM | November 2, 2005, 2:37am | #
No one here recognizes the impossibly vague language of anti-discrimination laws.
"The market may punish unjustified discrimination, only when there are enough actors to go the other way. In the short run, markets may be stuck at a suboptimal equilibrium, as it may be in no individual business's interest to be the first to break the consensus, because of expected retribution from the majority. Also, as I said before, people do give up absolute economic gain for relative status.
Nothing starts from a clean slate. Is setting a slave free enough, or should there be reparations? Till recently, all the employers and management were men. This had some consequences when women went into the workplace. Do you think the gender discrimination and sexual harrassment laws are unnecessary? Should women then just have found another job? And then another and so on, till they found their ideal meritocratic employer? For how long?
" You are certainly correct though (I think) about your assertion of breaking the consensus. Thomas Sowell, in a tract about anti-discrimination laws, wrote that as soon as one baseball team hired a black guy (I forgot who), the rest did so too just to compete. The more competitive the market, the more impetus to break the consensus. Similarly, when the trucking industry was deregulated, the number of black truckers increased dramatically (both examples are from Sowell's book, basic economics or the sequel to that one, I forget which).
The intentions of the law were admirable, but the law itself is very liable to manipulation. It has transformed into a protection of the favored parties, creating such doctrines as affirmative action, speech codes and the Bill Bennett Brouhaha. It has thrown the pendulum to the other side, instead of the probable gradual shift to the middle that would have occurred had a more libertarian course been taken (abolishing all Jim Crow type laws, but not instituting anti-discrimination laws).
I'd imagine that the paucity of women in the workplace was largely the result of society's casting of women as homemakers. I'm not convinced that there was widespread discrimination. I also think that the vast majority of sexual harassment claims is not anything worth punishing. Sexual harassment should be punished only if it falls under the purview of other crimes, like assault.
My first response when hearing a problem, particularly an economic one, is, "what has the government done to cause, or amplify, this problem?" And it seems that in every case, the government has done something. Sometimes minor, sometimes major, but true all the same. Oil: Taxes at local, state, federal levels, strict environmental regulations. And if the government is not at fault, I ask, what can PEOPLE do to remedy this problem, not the government. There probably are things that only the government can fix, but their proportion is vastly overestimated by both the left and the right.
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