President Bush has nominated 3rd Circuit judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court. I think it's a great choice. Alito is everything Harriet Miers was not: An experienced jurist. Prosecutorial and government experience. Relatively young (55). Stellar educational credentials (Princeton and Yale). A committed conservative whose track record earned him the nickname Scalito. (Wikipedia has details on some of his decisions.)
Anticipating Alito's nomination, Larry Ribstein wrote:
... it’s important we get a judge who will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation.
Based on a quick check Alito is such a judge. Although he may not be the nominee, I think it’s worth briefly discussing some of Alito’s opinions, at least to indicate what a business-friendly justice might look like. ...
[Analysis of cases omitted]
... Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.
Alito isn’t my first choice. In a perfect world I would have Frank Easterbrook or Edith Jones. But, unlike Miers, he actually has a long record on these issues and not just tea leaves, and the record is a good one. ...
Altio wasn't my first choice either (Mike McConnell was). But this is a solid pick that should unite the base behind it.
Update: One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:
... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.
This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting. (Link)
It looks like the Democrats will accomodate us. Charles Schumer, for example, proved once again that the most dangerous thing one can do in Washington is to stand between Schumer and a microphone. Indeed, Alito prompted the very worst in Schumer:
Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.
In other words, Schumer wants you to believe that Alito will send Rosa Parks back to the back of the bus (presumably after exhuming her). And then Schumer has the gall to call Alito extreme and divisive! Of course, Schumer does have expertise in spotting an extreme and divisive individual, since he sees one in the mirror every morning.
So: Let's get ready to rumble!
How do we fight this battle (asks Patterico)? I've speculated before that one might appropriate model the nomination process as a chicken game:
Think James Dean. Here's one description:
Two hooligans with something to prove drive at each other on a narrow road. The first to swerve loses faces among his peers. If neither swerves, however, a terminal fate plagues both.
How do you win a chicken game? If I am one of the drivers, I need to convince the other driver that I am not going to swerve. In his book The Strategy of Conflict, Thomas Schelling suggests a precommitment strategy: i.e., "power through binding oneself." In order to convince the other driver that I will not swerve, I need to use a precommitment device. What then do I do? The classic answer is that I make a big deal out of visibly throwing my steering wheel out the window. It sends the following signal to the other driver: "I'm going to win at all costs. I can no longer swerve. So if you want to live, you have to be the one to swerve. What's it going to be? You have the last clear chance."
If I'm right that the chicken game is a useful model for the nomination impasse, the task ... is to figure out the equivalent of throwing the steering wheel out the window.
I support the right of Senators to filibuster judicial nominations, albeit while believing it should be limited to rare and exceptional cases. I supported the filibuster deal largely because it limited the filibuster to such cases.
The so-called Gang of 14 should conclude that Judge Alito's nomination is not the exceptional case that would justify a filibuster. He is staunchly conservative, but is clearly in the Scalia and Thomas mold, and as such is well within the mainstream of modern legal thought. To filibuster Alito is to say you would have filibustered Scalia and Thomas.
What if the Democrats in the Gang of 14 go wobbly on the deal? At that point, they've started a chicken game. In response, the GOP members of the Gang of 14 should throw the steering wheel out the window by committing in writing to voting to support the elimination of the filibuster. My guess is that the Dem Gang of 14ers will then cave, thereby preserving the filibuster while also confirming Alito, which is my personal win-win scenario.
In sum, the nuclear option of repealing the filibuster is kind of like nuclear weapons. It's a deterrent that should never be used. Indeed, one could say the same thing about the filibuster itself.
