The New York Times Bashes Judge Alito

In an editorial today titled "Judge Alito's Radical Views," The New York Times issued its altogether unsurprising conclusion that the so-called Newspaper of Record now officially opposes the confirmation of Judge Samuel Alito to be the next associate justice of the Supreme Court.

For the sake of perspective, it should be noted at the outset that, not too long ago, "gay marriage" was widely considered to be a radical, outlandish idea. Today, it is the preferred social policy position of the New York Times. Radical does not mean wrong. But Judge Alito is no radical.

According to the Times, Alito "has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law." Alito did advocate a policy of Presidents issuing signing statements during the Reagan administration, and it is far from "outlandish."

All three co-equal branches of the federal government have a duty to interpret the Constitution. Indeed, the power of judicial review does not explicitly appear in the document. When interpreting an ambiguous provision of a statute, the courts have long looked to congressional reports written to illustrate the intentions behind various provisions of a proposed bill. A bill cannot become law without the signature of the President. He may only sign it if he believes that certain provisions should be interpreted a certain way.

It seems quite reasonable for a President to provide his own interpretation of the bill and for the courts to weigh his statement accordingly. If Congress disagrees with the signing statement, it may pass another law stating unequivocally how the law should be interpreted. The President would then be presented with another veto decision. Apparently, this sensible constitutional tweak is too "pro-Executive Branch" for the Times.

The Times also argues: "Judge Alito would also work to reduce Congress's power in other ways. . . . [A]s a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers." This assertion is a bold-faced mischaracterization of the record.

During an exchange at the hearings that took place between Alito and Senator Diane Feinstein, the Senator pointed to a statement that Alito wrote while at the Office of Legal Counsel, when he recommended that President Reagan veto an odometer fraud bill because he believed it violated the principles of federalism. Alito explained that the memo was "primarily expressing . . . [not] an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan administration." Alito never said that Congress did not possess the power to regulate odometers, but rather that it should defer to the states on that issue. The Times's assertion is a gray lie.

Then, the Times observes: "There is every reason to believe . . . that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights." It may be that these senators do not believe that mere ideological disagreement on a single issue with an otherwise stellar nominee of impeccable reputation is a sufficient basis for rejecting his nomination. This would square with the understanding of the past 200-plus years of judicial confirmation hearings.

The Times editorial rejects Alito purely due to its disagreement with Alito's supposed ideology and tries to cast his views as "radical" or "extreme" in attempt to muster the exceedingly rare case where a nominee's views are so repugnant as to mandate his rejection. The only thing repugnant here is the Times's flimsy attack on Alito.

Martin Luther King Jr. On Freedom

Martin Luther King Jr. did not believe in unrestrained capitalism. He did, however, speak out against Communism and its evils. He observed that under a Communist system, the state is the end, and humans are merely a means to that end. In his book Stride Toward Freedom, he wrote:

Man is an end because he is a child of God. Man is not made for the state; the state is made for man. To deprive man of freedom is to relegate him to the status of a thing, rather than elevate him to the status of a person. Man must never be treated as a means to the end of the state, but always as an end within himself.

It is worth keeping in mind what King said, rather than what people would like to believe he said. In a time when Senate Judiciary Committee Democrats such as Sen. Ted Kennedy are brow-beating Judge Samuel Alito for supposedly being involved with an allegedly racist organization that he doesn't even recall joining, it's worth recalling King's words on nonviolent resistance:

First, it must be emphasized that nonviolent resistance is not a method for cowards; it does resist. . . . . it is active nonviolent resistance to evil. A second basic fact that characterizes nonviolence is that it does not seek to defeat or humiliate the opponent, but to win his friendship and understanding. . . . The end is redemption and reconciliation.

These are words worth keeping in mind as we look forward to Monday's commemoration of a great man in the history of civil rights and America.

A Call for the Resignation of Councilman Marion Barry

This morning, the Washington Post broke the story that D.C. Councilman Marion Barry tested positive for drugs, most likely cocaine, this past fall. The time for patience or sympathy has long since passed. Mr. Barry must resign-- or be recalled.

Barry's latest moral bump was discovered only because the drug testing was a condition of his being released pending his sentencing for pleading guilty to tax fraud. In October, Barry pleaded guilty to misdemeanor charges stemming from his failure to pay federal and D.C. income taxes for six years following his fourth term as mayor in 1999. Barry failed to report income of $530,000 during this time.

For those who may not be familiar with a bit of infamous D.C. history: In 1990, Barry, then mayor of D.C., was arrested at a hotel after being videotaped smoking crack. He served six months for cocaine possession, but won a D.C. Council seat in 1992 and a fourth mayoral term in 1994. Barry definitively disproved the rule "there are no second acts in politics."

Now we know Barry is a tax cheat and a repeat drug offender. Either offense would be sufficient to request a resignation. Added together, demanding that he step down becomes a moral imperative. Councilman Barry represents perhaps the most economically-depressed and crime-ridden ward in the city with serious social issues. His inexcusable behavior represents a horrible example for the youth of Ward 8. How can young men and women make the right decisions when their representative is a criminal?

A competent individual with a morally clear vision is what Ward 8 needs. The question becomes whether Barry's colleagues on the City Council will call for his resignation and shun him at every turn. Any hesitancy to do so given Barry's guilty plea and three Post sources would reflect a lack of principles. Let's make sure there are no third acts in politics.

Some Lucid Commentary from Senator Graham

Senator Lindsay Graham continually proves himself to be an eloquent and insightful member of the Senate. At today's judicial confirmation hearing, he said:

To my colleagues, I know abortion is important. It's . . . [a] central concept in our jurisprudence. But we can't build a judiciary around that one issue.

We can't make judges pledge allegiance to one case. We can't expect them to do things that would destroy their independence. You can vote yes; you can vote no; you can use any reason you would like. I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate. People set aside [Ruth Bader Ginsburg's] writings, set aside her candid statement and gave her the benefit of the doubt that she would apply the law when her time came. She replaced Justice White.

We knew that that vote was going to change. I don't think any Republican had any doubt that, if there was a Roe v. Wade issue, she would vote differently than Justice White. But you never know.
The one thing I can tell the public about you and John Roberts is that you're first round NFL draft picks . . . I think you are men of great integrity. And I may be very well disappointed in some of your legal reasoning, but I'll never be disappointed in you if you do your job as you see fit.

Extremely Predictable

Today kicked off the confirmation hearings for Samuel Alito. As with Roberts, Day One consists of Senators angling for the cameras and attempting to frame the nominee before he has even had a chance to speak.

Senator Chuck Schumer's comments were a big surprise... not.

d "[W]hile every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high."

d "[Y]ou seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, . . . your record of opinions and statements on a number of critical constitutional questions seems quite extreme."

d ". . . critics couldn't be sure that her judicial philosophy squared with their extreme political agenda."

d "[O]n the issue of federalism, you seem to have taken an extreme view, substituting your own judgment for that of the legislature."

Yawn.

Senator Kennedy: Alito Has an Ethics Problem

In an editorial column appearing in yesterday's Washington Post, Senator Edward Kennedy laid out five areas where Supreme Court nominee Samuel Alito allegedly has a "credibility problem."

He begins with a myth commonly propagated by the liberal Democratic Intelligentsia: "Every Supreme Court nominee bears a heavy burden to demonstrate that he or she is committed to the constitutional principles that have been vital in advancing fairness, decency and equal opportunity in our society." If there is to be comity between the three co-equal branches of government, the burden is not on the nominee, but rather on the individual Senators to build a case for rejecting the nominee. In any event, this "burden" is an unworkable standard. The constitutional principles that would be considered fair, decent, and advancing "equal opportunity" would naturally depend on every Senator's ideological perspective.

According to Kennedy, the Alito Problem Areas are
1) His 1985 job application for a position with then-Attorney General Ed Meese;
2) His 1985 membership in "Concerned Alumni of Princeton" (CAP);
3) Failure to recuse himself in the Vanguard case;
4) His pledge to be absolutely impartial where the government is concerned; and
5) His promise to leave his personal beliefs behind when he became a judge.

Only the Concerned Alumni of Princeton situation really presents a problem for Alito. The noise over the 1985 job application represents liberal Democratic ideology rather than an ethics issue. The White House and Alito botched the handling of the Vanguard situation, making Alito appear disingenuous. However, it does not appear that Alito stood to gain from failing to recuse himself. As for Alito's impartiality and leaving his personal beliefs behind, his fellow jurists have already come forward to settle that score.

However, Alito will need to explain his relationship, if any, with the CAP organization. As Kennedy points out, those critical of CAP back in the mid-1970s included future Senate Majority Leader Bill Frist, who joined a written declaration contending that CAP presented a "distorted and hostile" view of the university. The Frist position provides a benchmark for labeling Alito "outside the mainstream."

An item not widely reported in the mainstream press (which could cause it to be splashed on the front pages during the hearings) , is that (according to Drudge Report) an article written by the editor of the CAP publication Prospect, Frederick Foote, stated: “The facts show that, for whatever reasons, whites today are more intelligent than blacks.” Obviously that statement must be examined in context, but by itself it looks like a nasty racist observation. Was this a typical viewpoint of CAP members? Three years after the article, Alito touted his CAP membership right alongside the Federalist Society in his job application letter.

To the extent that Democrats try to smear Alito using guilt-by-association tactics, they should be admonished. It may be that CAP is being unfairly characterized. But to the extent that some of the organization's members used rhetoric that nonideological Senators would see as troublesome, Alito will need to explain whether he shared the views of those individuals. Surely Senator Frist will be interested in Alito's answers. The Republicans' job will be to keep a tight rein on desperate Democrats.

The United States Postal Out-Of-Service

As the United States Postal Service implements a First Class mail postage rate increase on January 8, it's worth considering whether Americans are getting the best service possible from one of the largest monoplies around.

My typical experience with USPS personnel has improved since the time I visited a downtown post office in the District of Columbia ten years ago. I walked up to the service window, ordered less than $3 worth of stamps and handed a $20 bill to the clerk. "This is not a bank!" she practically yelled at me, pointing to a hand-written notification sign and demanding smaller denominations of United States currency. It was not the last time that Postal Service employees in the District were impeccably rude to moi.

Today, the issues extend to cyberspace. About a week ago, I was trying to locate a package that had not arrived in time for Christmas. I performed a search on the USPS.com website for local post offices in the 20002 area code (the search is "powered" by switchboard.com). But several calls to these locations, such as the large facility at 2 Massachusetts Ave NW, resulted in the message that the numbers were "out of service."

So I called the customer service phone number (800) ASK-USPS, navigated the automated phone system bureaucracy, and spoke with a human being who gave me another out-of-service number. Only when I visited the post office in person did I receive the correct number.

On Saturday, when I tried to determine how late the post offices were open that day, I discovered that there are two duplicative entries for the 900 Brentwood Road NE location. One entry indicates that the location closes at 5 p.m. on Saturdays, while the other states that it closes at 4 p.m. There are two different phone numbers given for this location as well. One number is constantly busy, while the other is out of service. So I had to drive to the post office to determine whether it was still open. It closed at 4 p.m., and I was out of luck.

Because my complains in person and via the customer service phone number resulted in no corrections, today I e-mailed USPS from its website and will be monitoring its progress.