Activist Alito

Well, well, well...it seems Alito has a bit of a reputation.

Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.

And on Wednesday, Steve Clemons called our attention to this Alito piece from Roll Call. I like his punchy summary: "Alito is hostile to Congress and its role in our system of government. Alito, like Harriet Miers, is a spear-carrier for expansive Executive Branch authority." He also says this article is something every Senator, especially those on the judiciary committee, should read. I agree:

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito's dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We're talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."

Whatever it is, it's not judicial restraint.

...Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don't like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don't even pay lip service to the principle when voting to overturn legislative acts.)

Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well...

...Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.

[Update]I guess the third time's the charm.

RUSSERT: So Judge Alito was wrong?

COBURN: Sure.

RUSSERT: And he was legislating?

COBURN: Sure.

wing tip to americablog