A Stitch in Haste

If someone can give me a reason to oppose the nomination of Third Circuit Court of Appeals Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O'Connor, then I'd like to hear it. Because, so far, I got nothing.

While I may disagree with his dissent in Planned Parenthood v. Casey, I can't get too indignant about believing that it might not be a bad idea for a wife to tell her husband that she is planning to get an abortion. Again, not my view, but not an unreasonable view.

I see nothing from him on gay rights. Since his Circuit includes New Jersey, and the Third Circuit must therefore often decide questions based on New Jersey state law, I might be interested, were I a senator on the Judiciary Committee, whether he had any thoughts regarding Boy Scouts v. Dale, 530 U.S. 640 (2000), in which the New Jersey Supreme Court and the United States Supreme Court disagreed about whether the Boy Scouts could discriminate against gays while enjoying the use of public facilities. Dale, remember, is a key precedent in the upcoming Solomon Amendment / "Don't Ask - Don't Tell" case, Rumsfeld v. FAIR.

He seemed to like "rational basis with bite" Commerce Clause jurisprudence, voting to extend U.S. v. Lopez, 514 U. S. 549 (1995), back in 1996 — see his dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996):

Was United States v. Lopez ... a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

I love it, but whether that's at all relevant after the recent medical marijuana case, Gonzales v. Raich, No. 03-1454 (2005), is unclear.

In any event, unlike Harriet Miers, Judge Alito is indisputably qualified for the Supreme Court, whether one agrees with his jurisprudence or not. Barring any smoking guns, he deserves to be confirmed. For once the president got it right.

Some bloggers are expressing concern over two decisions written by Supreme Court nominee Samuel Alito, each of which concerns litigation involving the status of gay or gay-perceived schoolchildren.

I've read both of the decisions, and neither really involves "gay rights" directly. More importantly, neither is troubling from a libertarian perspective.

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Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) is not so much a gay rights case as a First Amendment case. In short, a Pennsylvania school district passed a combination "no harassment" and "hate speech" policy that essentially forbade any and all conduct, including mere verbal expression of disapproval (e.g., "homosexuality is wrong"), by any student that offended any other student. Hardly an uncontroversial proposition.

Christian parents in the school district sued, claiming (correctly) that the anti-harassment code would prevent their children from expressing their view that homosexuality is immoral. The trial court judge sided with the school, on the notion that there is a well-settled "harassment exception" to the First Amendment. There is, in fact, no such thing.

The unanimous Third Circuit panel, in a decision written by Judge Alito, merely reiterated the patent inaccuracy of the lower court's First Amendment analysis and reinstated the distinction between physical harassment, which of course can be prohibited and punished in a school setting (or anywhere else, for that matter), and verbal conduct — which, like it or not, is generally protected speech, even in a school setting.

The decision did not decree that there is a "right to tease, taunt or bully" and did not disturb the "fighting words" exception to the First Amendment. It merely reiterated the now well-settled doctrine that school speech codes are constitutionally suspect, that there is a difference between mere verbal expression and physical violence (or between mere verbal expression and threats), and that schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (see Tinker v. Des Moines, 393 U.S. 503 (1969)).

A judge taking an expansive, pro-liberty view of the First Amendment — why exactly am I supposed to be upset?

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Shore Regional High School Board v. P.S., 381 F.3d 194 (3d Cir. 2004), is even more of a yawner. A male middle-school student in Oceanport, New Jersey, was relentlessly and viciously teased for, to put it mildly, "perceived effeminacy." The bullying was so intense that it seriously interfered with the boy's education and psychological development.

When it came time for the boy to enter high school, his parents applied to a nearby private high school, which admitted the boy. The parents then sued the public school district to pay his tuition under the Individuals with Disabilities Education Improvement Act, 20 U.S.C. §§1400-1487.

The case went to an Administrative Law Judge ("ALJ"), who heard various expert witnesses from each side and ruled in favor of the parents. The school district then appealed the decision to a regular federal district court judge, who overturned the ALJ based solely on a different weighing of the expert witnesses' testimonies.

This is (apparently) a rather flagrant violation of administrative law rules, and Justice Alito's Circuit Court opinion does nothing more than reinstate the ALJ's decision based solely on those rules. The underlying substantive law regarding the right to an education free of anti-gay harrassment was in no way part of Alito's decision.

In other words, this was a boring old administrative law case that happened to involve an unfortunate young victim of extreme anti-gay bigotry. That is not the same as a "gay rights case."

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Summaries of Judge Alito's other noteworthy cases, with links, are at Nomination Blog.

I didn't blog much about the Alito nomination and confirmation, mainly because I had little to say. Despite any reservations or disagreements I might have with the man's past opinions or judicial-political philosophy, he was indisputably qualified for the seat and deserved to be confirmed.

Stated differently, Samuel Alito is no Harriet Miers, and is also no Robert Bork.

The scary part is that, when a conservative-Republican Justice retires, and a conservative-Republican President nominates a conservative-Republican to replace her and submits the nomination to a conservative-Republican Senate, it's still a difficult, lengthy, controversial process.

Which invites the question: what in heaven's name will it be like if Justice John Paul Stevens dies while Bush is still President? (I once heard that he has stated publicly that he will never retire.) During the Alito confirmation process, we heard gobbledygook about Democrats asserting some fictitious "right" to a "balanced court."

Oh really? I see no quota provisions in Article III of the Constitution, and I thought a seemingly endless string of 5-4 decisions (or, worse, 4-4-1 plurality rulings) was a bad thing.

The idea that Justice O'Connor's seat had become a "female" seat is now dead and buried; the tradition of a "Jewish seat" is long gone, and so is the idea that that there is a ceiling on the number of Catholics that can sit on the Court. So apart from the Thurgood Marshall cum Clarance Thomas "black seat," there simply appears to be little or no constraint anymore on who can replace whom.

Which won't stop the John Kerry's and Ted Kennedy's of the Democratic Party from asserting that Justice Stevens' seat is somehow reserved for liberals only.

Bottom line: If Roberts and Alito were confirmation purgatory, then I don't want to see confirmation hell.

More thoughts at Moderate Voice, Hammer of Truth.

FUN FACT: Justice Stevens, generally regarded as the most liberal member of the Supreme Court, was appointed by Republican Gerald Ford.