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Tuesday, November 01, 2005

Scalito - A Process Jurist

I haven't been through all the cases I want to read, but I surely do like the way he judges a case. (I don't agree with all the outcomes, but since I'm not hysterical, I don't think my beliefs should run the country.)

I don't think the idea that Alito is an activist judge has any basis. For example, see this excellent summary of a few Alito cases up at RedState.org. Take the Caterpillar case, for example:
In Caterpillar, Inc. v. International Union, the question presented was whether an employer granting paid leaves of absence to employees who then become the union's full-time grievance chairmen violated the Labor Management Relations Act. After consideration by a three-judge panel and then reargument en banc, the full court held that the arrangement did not violate federal law. To get there the court had to reverse previous Third Circuit precedent "tend[ing] to subject innocuous, bargained-for and fully disclosed payments to the criminal sanctions of the LMRA." "[W]e simply do not view the payments at issue here as posing the kind of harm to the collective bargaining process that Congress contemplated when it enacted the LMRA."

Judge Mansmann dissented, joined by Judge Greenberg, arguing that "[i]n suggesting that 'innocuous, bargained for and fully disclosed payments' from an employer to an employee representative should be lawful, the majority has placed its own policy objectives above plain language."

Alito also dissented separately:
If I were a legislator, I would not vote to criminalize the payments to grievance chairmen that are at issue here. I agree with the majority that these payments differ from the corrupt practices that usually figure in prosecutions under Section 302 of the Labor Management Relations Act, 29 U.S.C. ยง 186. Moreover, I am not certain that the Congress that enacted Section 302 would have chosen to outlaw such payments if it had focused specifically on that question.

Our job, however, is to interpret Section 302 as it is written.
This is what would be considered a "labor-rights" dissent if it came from an activist (results-oriented) judge.

The difference between process-oriented judges and results-oriented judges is that results-oriented judges decide what they think the law should be, and then hunt around for a legal justification to accomplish that result. Process-oriented judges try to decide what those who write the laws thought they were doing. To do so they take the wording of the texts very seriously and they also rely upon precedent. They will strike a law if it conflicts with the Constitution or another superceding law, but they do not create dizzy castles of quivering penumbras and enamations to justify overruling legislatures.

Alito is not just a process-oriented judge - he's an extreme example of the breed. He will be no revolutionary. What I want in federal judges are process-oriented judges; I care less about a person's political philosophy than how seriously he or she takes the laws as written. So I'm really liking this particular nomination.

Carl at No Oil For Pacifists is purring. With facts and quotes of course.
RedState.org has terrific coverage, including examples of his judicial philosophy and the left's wild attempt to derail this one.
The Anchoress raises an eyebrow over the Alito-Anguish. Good links. She is also retailing the newsie Roberts' apology for the "sloppy seconds" question.
Betsy Newmark agrees with George Will, saying that the fight over Alito's nomination is a fight worth having.
Howard of Oraculations notes that Hollywood is not celebrating.

Right now the left really doesn't like process oriented judges because the right controls the legislature. If the judges don't get involved the laws passed will inherently have a rightist bent to them.

In one of my favorite little TV bits Amy Goodman (Democracy Now) was saying we shouldn't let Senators vote on Judges because even though we elected them, they don't represent the views of the people. I'd try to parody it, but she went and said everything I'd use as the joke. Except she was serious.

I don't know where to go once you've decided democratically elected representatives don't represent those that elected them.
Hence, Tommy, my 'modest proposal.'
Tommy, I guess that's funny in a sad way. At times we all sit and read or watch with out mouths hanging open.

Who does she want to vote on the judges?
I have to completely disagree with your assessment on Alito. Maybe it is just because I have read hundreds and hundreds of decisions, but Alito is very result oriented, not process oriented. The difference that you see from a results oriented judge that you may consider to be a classical "activist judge" is that they tend to phrase the argument in "what is right," and "what is best for society," blah, blah, blah. Alito is a result oriented judge that starts off with his decision and then wraps the law around his argument to reach that result by using the minutia of law to come to his conclusion. He uses a clever wrap around to write his decisions.

You can see that in his discrimination cases. It is clear that he is not considering the intent of the legislation.

I await with baited breath for your Groody defense :)
Dingo, I guess if you don't like my take it would be Dingo-baiting. However I think you meant "bated breath". That is a sincere, dyslexic decision based on research and precedent. LOL!

I need to take a few hours to read his decision. I already know I don't like it, but that's less the issue than how he got there.
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