Conservalito: "The Rhetoric Defies Reality"

Alito is a real piece of work, lemme tell ya. Better yet, let his own words and legal opinions tell ya. In Alito's world, apparently, only a retarded person would find threat of rape with a broom handle "hostile or abusive." (PDF warning)

The case involves a discrimination suit brought by a mentally disabled employee who faced a hostile work environment—including the threat of rape with a broom handle. Alito wrote an unpublished dissent that would not have allowed the case to move forward to trial because he took issue with the way the brief was written and noted that "Pirolli's brief never asserts that his work environment was one that a reasonable, non-retarded person would find hostile or abusive." This is yet another example showing that Alito rarely supports individual rights claims and attempts to "narrow the scope of individual rights."

Reading that makes the title of Seth Rosenthal's latest piece in The Nation seem like a gross understatement: "Pro-Alito Buzz Cloaks a Draconian Agenda."

The right's exuberance over the Miers-Alito switcheroo has made it crystal clear (if it weren't already) that the innocuous-sounding buzzwords carry a substantial subtext. For movement conservatives they are code for a legal regime, endorsed by role models like Justices Antonin Scalia and Clarence Thomas, that University of Chicago professor Cass Sunstein calls "a political program in legal dress" because of its eerie resemblance to the agenda of the right wing of the Republican Party. If a judge embraces the regime, he or she is called "restrained"; if not, "activist."

Thankfully, the world is full of people far more succinct and eloquent than I who have nailed the essence of this "judicial activism" canard. The first is from John Dean, who wrote a wonderful essay trying to unearth exactly what was behind the rhetoric. Even more pithy, however is this lovely cartoon from the inimitable Tom Toles:



That one is worth at least a few thousand words. But the devil is always in the details, as Rosenthal reminds us:

the right would like to raze what it sees as the law's accumulated liberal superstructure and rebuild it from the ground up based on their interpretation of the 215-year-old views of those who ratified the Constitution. Overturning Roe v. Wade is just the tip of the iceberg.

..Movement conservatives admire Justice Thomas even more than Justice Scalia because Thomas does not hesitate to reconsider precedent in pursuit of this throwback regime. They hope Alito follows suit. He's dropped hints he might, if more gradually. His current colleagues have occasionally noted his efforts to hollow out their court's own precedents.

In the past decade, the Supreme Court has struck down parts of more than thirty-five acts of Congress, including laws protecting workers, seniors, people with disabilities, abused women and religious minorities. This amounts to the highest annual invalidation rate ever: No other era comes close. Are "activist liberals" like Ruth Bader Ginsburg and Stephen Breyer leading the way? Not by a long shot. According to a recent study by professor Paul Gerwitz and Chad Golder of Yale Law School, conservative heroes Thomas and Scalia are numbers one and three on the list; Ginsburg and Breyer are at the bottom, trailing far behind.

Indeed, the fact that the religious right is tripping over themselves in praise of Alito's nomination tells you everything you need to know about his judicial temperament, namely that you should be afraid. Very afraid.

Paradoxically, the self-proclaimed apostles of judicial restraint have jumped on the Court's Congress-dissing bandwagon. Seriously dismayed that three recent decisions slowed the bandwagon considerably by upholding the constitutionality of applications of the Family and Medical Leave Act, the Americans With Disabilities Act and the Controlled Substances Act, they are confident that Alito, unlike Miers, will get it rolling again.

Many legal scholars believe they are right.

...Despite the judicial engineering they advocate, movement conservatives arrogantly continue to invoke the rhetoric of judicial restraint to insist that they--and only they--speak neutrally for the law while the rest of us prefer lawless, antidemocratic courts. It is a false conceit. Just listen to former Republican Senator John Danforth, who served briefly as the Bush Administration's ambassador to the United Nations. On October 27 Danforth told CNN that the conservatives who sank the Miers nomination "want a political judge. They want a judicial activist. This business about judicial conservatism and somebody who decides the law, that's baloney."

I think this country owes a debt of gratitude to Harriet Miers. It can't have been easy for her to watch her nomination be withdrawn, but that experience laid bare the true motivations and rank hypocrisies of the right. No longer can the Senate whinge about "the right to a fair, up or down vote." Nobody believes the fundagelicals' mewlings about "it was just her lack of qualifications." The death of her nomination was possibly the greatest demonstration of their true agenda writ large. Thanks, Perkie! You really took one for the team.

Speaking of teams, you have to check out this crew! They are driving a bus around the country to engage Americans in rhetoric-free discussion about the importance of the Supreme Court and what Alito on the bench would mean to the country. I love it! Please show them whatever support you can, in between writing and faxing your Senators as part of the Anti-Alito Brigade For Justice.

Today's item is a true piece of wordsmithing and addresses ScAlito's ethical lapse regarding Vanguard. Even if you don't send the information out, you want to read it. But here a few links that make it very easy to contact your representatives:

Click here for Senate Judiciary Members and click here for for a list of all Senators.

Like they say, third time's a charm - let's quash this nomination in the hopes shrubya might do something reasonable on his third try!