Confirmation Report

The media here are blessed with three truly amazing Supreme Court reporters (whose reporting, obviously, interests but a tiny fraction of the nation's population.) There's Nina Totenberg on NPR, and Daliah Lithwick and Emily Bazelon on Slate. (Total aside: Lithwick's article on whether you should move to Canada is one of my favourite articles ever).

Lithwick (a Canadian) has been providing a day to day commentary on the Alito hearings.

Emily Bazelon has a great article today, dissecting the rulings in which Republicans claim that Alito sometimes rules for the little guy. She thinks this is nonsense and concludes with a chilling comment:

In almost none of these cases, though, does Alito seem like a little-guy champion. He seems like a judge who dutifully follows the law. When the law instructs him to find for the criminal defendant or the plaintiff, he does so. When you get to the Supreme Court, though, you get to rip up the instruction manual and rewrite it. There's very little in Alito's record that suggests hisrevisions will favor the little guy. And a lot that suggests they won't.

This much is true. Every single time that Alito has given a break, it's been through a dry application of procedural rules. The concerns of the individual are really an afterthought.

But this is the general conservative approach - all those strict constructionists. They argue for things in an almost academic vacuum: "The Constitution does not grant a right to privacy" - forgetting that this ruling has consequences to peoples lives. "The Constitution does not expressly permit X and thus it is not permitted," disregarding that not being able to do X has life-changing consequences for people.

A fun example is recent Republican attempts to limit habeas procedings even more - on procedural grounds. So, sorry semi-literate inmate who may not be given access to library and writing materials, you're one day late in filing your habeas petition, you can't challenge your incarceration even if your conviction is illegal, off to the gallows. (I've read and handled countless habeas petitions. I'm an attorney. I know a lot about criminal law and criminal procedure, and I struggle to understand the rules. Asking a prisoner to do so - and penalizing him so severely - is cruel.) So, no - it's not that we want to see you hang, we just want to make sure that you follow deadlines.

But then, it's easy to hide small-mindedness behind some dry constitutional argument rather than make the argument from belief.