Ornstein on Alito: Doesn't Show Congress Enough Deference (Clemons)

[Wordie]

I know Ornstein is affiliated with AEI (American Enterprise Institute, a neocon thinktank), but he sure makes some good points here, which are worth considering. He says the reasons for opposing Alito go far beyond the issue of abortion.

From Steve Clemons, Washington Note
http://www.thewashingtonnote.com/
<snip>
Norm Ornstein: Sam Alito is No John Roberts

American Enterprise Institute Resident Scholar Norm Ornstein hits the Alito ball out of the park with a powerful, incisive op-ed today in Roll Call.

Essentially, Ornstein makes the key point that 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 and looks at both Congress and the Judiciary as junior players in government.

Ornstein's piece is something every member of the Senate Judiciary Committee should read. It should be made part of the Congressional Record as Alito, like Miers, is being sent by the President not only to tilt the court's stance on any number of causes celebrated by social conservatives -- but also to further emasculate Congressional power.

Here is an excerpt of the piece, which I recommend that people read in its entirety:

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.

To read the Ornstein article in its entirety, here is the link (requires registration):http://www.rollcall.com/issues/51_45/ornstein/11060-1.html

[Eric J in MN]

1. could you post 4 paragraphs, since most of us aren't registered

at Roll Call?

[xxqqqzme]

4. bugmenot -

[e-mail]
compiled6skates

read away!

[Wordie]

8. Here's your four... What will be interesting to see is Sen. Specter's take

This may be a quite interesting revelation about Alito, because proper recognition of the role of Congress is a particular concern of Sen. Specter (R), head of the Judiciary Committee.

Judge Alito Doesn’t Show Congress Enough Deference

By Norman Ornstein
<snip>
...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.

Roberts is a very conservative guy, and a strict constructionist — one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

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.)

[LittleClarkie]

2. You see, it's not that they don't want an activist

who will interpret but not legislate from the bench. They want an activist ON THEIR SIDE.

[Wordie]

6. Yep, long-time friend calls him "a conservatist activist." (RW hypocrisy)

[feminazi]

7. exactly!

which is what makes them so damn hypocritical.

[remfan]

3. Constitution In Exile

-snip-

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."

[Cassandra]

5. Even AEI needs somebody sane on staff.

I'm just wondering how Alito can see the Judiciary as junior but still take on so much power himself.