Defending the virtues of liberty, free markets, and civilization... plus some commentary on the passing scene.

Freedom's Fidelity

Wednesday, November 02, 2005

Justice Alito

Since a commenter below asked (and I do take requests!) here are my thoughts on the nomination of Judge Samuel Alito. He beats the hell out of Meiers. He's got a solid resume, understands federalism and has an appreciation for the value and efficiency of free markets. Beyond that I don't know much about him, then again I don't really know much about any particular judge before they get nominated to the High Court. And if even if I did know a lot, I'm not sure how much predictive power it would have. Consider, of the 9 current justices (I'm including the late Rehnquist) 6 were appointed by Republican presidents. Yet only 3 of them are thought to be 'reliably conservative.' O'Connor, Kennedy and Souter have been behind some disappointing decisions. Does that mean I want a 'conservative' justice? That depends on what is meant by conservative. If it means a strict consitutional constructionist who respects property rights and doesn't believe the commerce clause is so wide that it gives Congress the power to legislate on anything it can theoretically dream about, then yes I want one of those, and Alito seems like it. The question really is, how did Bush initially choose John Roberts and Harriet Meiers over Alito? Was Meiers simply a sacrificial lamb caught in a Rove's political machinations?

As an aside, trying to extract how a judge would rule on Roe v Wade seems to be the listhmus test these days for many on the fringes of the left and right. That's nonsense. Whatever you think about abortion (and I don't know what I think) Roe v Wade was not a sound judicial decision. It was pure judicial activism. If the right to privacy is only "in the shadows" of the 4th and 5th amendment then that puts the right to an abortion in the tenuous "shadows of the shadows." This is something that the states should have decided, and the judiciary usurping that role and legislating from the bench is the reason why this is still a highly polarizing issue today. If Roe v Wade were overturned it would have hardly any practical effect. It wouldn't mean abortion is outlawed, it would only mean that states are allowed to determine for themselves whether or not abortion would be legal there. With the possible exception of Utah would any state really be able to pass an abortion ban? And even if one did, there are plenty of other states that would not. That is the beauty of federalism, there are so many different kinds of individual in this country with differing values systems, it's healthy to have 50 states that can fine tune their own laws according to the values of the subjects who reside there. But lets stop allowing a false importance to be placed on Roe v Wade, especially when there are decisions like Kelo that have much more far-reaching implications on our individual rights.



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