Borking Alito in the NYT

A piece in today's NYT by Adam Liptak has numerous holes and discrepencies (just some documented here) that can be expected from a newspaper who officially endorsed the Democrats in the last two elections.

Apart from bringing up the name Ray Bork twice (even quoting him in an attempt to make it sound like Alito's words) and neglecting to mention any left-wing judges by name or deed, the piece is a confusing attempt to frame the confirmation hearing and subsequent issues that may arise during the proccedings.

Biggest among the potholes was the third graph, written thusly:

"Judge Roberts replaced Chief Justice William H. Rehnquist, meaning that his nomination was a one-for-one, conservative-for-conservative swap. If Judge Alito is confirmed, he will replace Justice Sandra Day O'Connor, whose vote was often the fulcrum on which the Rehnquist court's decisions turned."

Liptak could have easily added "to the left" at the end of that last sentence, because this is the reason that the left-wing groups and Congressmen that are aligned against Alito are getting so hyper.

In the end, Liptak wants you to come away with the impression that Alito is a Bork clone who is pro-machine gun, pro-Big Brother, anti-privacy, anti-abortion and anti-voting rights.

Liptak continues his "primer" on the hearings by refusing to actually cite any text that Alito himself has written, making only passing references to "cases" in which Alito was in a majority or minority.

"Judge Roberts was asked only a few questions about what has since become a burning issue: the scope of executive power. Several senators say they will question Judge Alito closely on the legal implications of the recently disclosed domestic surveillance program."

Liptak is referring to the foreign surveillance program that allows the government to monitor international calls to and from the USA. Apparently, it is controversial to the NYT (who knew about this program for more than a year and sat on that info before they actually ran with Risen's book...er...their story) to monitor calls to terrorists and subversives in other countries. The same kinds of surveillance have been used in the past during peacetime, but the NYT neglects to mention this. Typical.

Instead of citing or reading dense and complex legal opinions that may reveal the actual judicial temprament of Judge Alito, the NYT instead chooses to cite a 1985 job application in which the paper claims that Alito was proud to have helped advance " 'legal opinions in which I believe strongly. One of those positions...was that 'the Constitution does not protect a right to an abortion.' " Alito is correct in saying this (read the Constitution), but the paper is trying to prevent Alito from "distancing" himself from his personal correspondence in 1985.

Of course, since the article asserted in the first graph that the "old templates were of little use," I don't see what that will have to do with anything at all. This is similar to the relevance of Ruth Ginsburg's personal convictions when she was at the helm of the ACLU (before she sailed through with a Republican congress). Psych.

Perhaps the most muddled of the "issues" Laptik tries to clarify are the limits on presidential power and congressional authority. We know from the text of the article that Alito had "disagreements" with the left-wing Warren Court concerning congressional district reapportionment (that tried to make districts of equal populations). Here, Liptak again invokes Bork as a projection onto Alito (intentionally trying to get you to think Alito is Bork, or that they are ideological dopplegangers):

"Judge Bork, too, was critical of the decisions at his confirmation hearings. "There is nothing in our history that suggests 'one man one vote' is the only proper way of apportioning," he said.

It is fascinating that not one of Alito's legal opinions is cited, quoted from or referenced in a piece about what Alito is supposed to think on legal issues. The NYT relies on speeches, a 21-year old job application that they claimed is irrelevant (since "the legal landscape, political climate and very state of the world had changed so radically that the old templates were of little use"), and Ray Bork's defeated nomination to paint a picture of the current nominee. Why Liptak chose to cite Bork's words and not Alito's is unknown. The result is a piece that reads like an underhanded threat to Alito not to echo Bork in any way during the hearings (basically, don't be conservative or originalist). Will the Grey Lady fill in those potholes?

Don't wait up.