Generation Alito

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Isn’t she supposed to be blind? [Mikey Brick / Flickr]

This morning the Senate Judiciary Committee approved the nomination of Samuel Alito by a 10-8 vote. Now the nomination will move to the full Senate, with a vote expected as early as tomorrow. So as early as tomorrow we may have a new SCOTUS Justice. And with him, a very different looking court. As we say around here, how are you counting to five?

We’re following up our November SCOTUS show. But rather than talking to the usual grey-hairs, we’d like to have on a sample bunch of law students about to begin their careers. What does the conversation sound like amongst the next generation of lawyers, judges, and legal scholars, whose careers are about to be reshaped by the decisions the new court will ultimately hand down? They’re going to be the ones to uphold and/or test the law, maybe even before this very court. What are they talking about? And how are they counting to five?

Ann Althouse


Robert W. & Irma M. Arthur-Bascom Professor of Law, The University of Wisconsin Law School

Open Source guest on the SCOTUS Fight Decoder Ring show

Blaine Evanson

Third-year law student, Columbia University

Symposium Director, Columbia Federalist Society

Senior Editor, Columbia Law Review

Samantha Harper

Second-year law student, Columbia University

Legal intern, Planned Parenthood

President and Co-founder, Columbia chapter of Law Students for Choice

Vice President of Student Fellowships, Public Interest Law Foundation at Columbia

Peter Romer-Friedman

Third-year law student, Columbia University

Former Legislative Representative, United Steel Workers of America

Co-founder, The Worker Rights Consortium

Managing Editor, Columbia Journal of Law and Social Problems

Spencer Marsden

Third-year law student, Columbia University

President, Federalist Society at Columbia

Former member, Judicial Confirmation Network

Jason Peilmeier

Second-year law student, Yale University

Co-Author, The Alito Project

Soon to be Student Director, Yale Criminal Defense Clinic

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  • Potter

    Oh,I thought that was wonderful when I heard it. It really gave me solace and hope. They should have mooned as well but this was such a dignified was to show dissent…. Yes get at least one of them if you can!

  • Potter

    sorry, that should read “dignified way to show dissent”

    and thanks Plaintext.

  • scottbenbow

    Great idea to get some of the courageous law students from Georgetown on the show. I suggest you try to get one or two legislative staff members to Senators on the Judiciary Committee (one D and one R, if possible) to weigh in on Alito’s background and qualifications, as presented to the Committee.

    You might also try to get some perspective David Schizer, the dean of Columbia Law School. He’s under 40, I think, and is very dynamic.

  • scottbenbow

    Just thought of another group to check out for the Alito program. Four staff members of the Alliance for Justice have been creating podcasts over the past several months dealing with Bush’s nominations (successful and unsuccessful) to the Supreme Court. In keeping with the theme Generation Alito, I suspect that all (or at least some) of the podcast panelists are rather young.

  • cheesechowmain

    Any speculation how long John Paul Stevens will be on the court?

  • cheesechowmain

    Any conjecture about the timing of Sandra Day O’Connor’s timing for her retirement? That is, was it timed to coincide with a Republican administration in the executive?

  • Brendan

    Hey guys, not so much speculation going on tonight. Or, rather, not the standard what’s-next-for-the-court speculation. The question for the hour is, all of these people are just starting their law careers; what battles will they be fighting with the possibility of a new Alito majority? Any boomer lawyers out there able to reflect on your own careers, what you’d thought you’d be fighting vs. what you actually did?

  • kel

    Alito will vote to override Roe v Wade and this will finally get the monkey off the Democrats back. All those dopes in Kansas will be allowed to outlaw abortion, and maybe then a liberal revival will be able to grow in the middle of the country. Unfortunately, this will come too late to save the enviroment, save the economy, and save the country from the damage done to it by Reagan, Bush 1 and Bush2

  • mulp

    Listening to Ann Althouse, my question is “what liberals?”

    I see no liberals on the court, only a few moderates and the rest conservatives.

    Only two justices on the court have been appointed by Democrats, and both were appointed by Clinton who was definitely a moderate, and the candidates he advanced were moderate enough to recieve the endorsement up front of Republican leaders.

    Reading Breyer’s book, “Active Liberty”, I see nothing that suggests anything other than a moderate, cautious approach to the law. His approach is certainly in start contrast to Scalia’s writings and speeches.

  • Potter

    If the Democrats will not filibuster for this then what WILL they filibuster?

  • mulp

    Darn, I should finish my thought….

    Is Breyer, for example, seen a liberal in the law schools?

    Has the standard for being “liberal” moved to such a degree that one can not be a moderate and cautious voice in legal debate?

  • Wow what a lineup! I hope the fellow from the Federalist Society gets a fair hearing.

    I hear a lot of pablum about “defendent’s rights” and I’m sure I’ll get an earful on “choice” both worthy of discussion but not dominating the whole of it. What about real individuals rights? What about the right be judged on your character not your skin color, your right to own a gun and self defense, your right to hold onto your property and keep it away from greedy city planners with crazy notions of eminent domain. What wouild Alito do about Kelo that atrocity that was wrougth by a treasonous Souter? I’m all ears.

  • A little yellow bird

    The battles these young ‘uns’ll be fighting will be ground wars all over the world for the Bush Dynasty after the economy finishes tanking and we finish becoming the Fourth Reich.

  • Potter

    Hopefully the country will eventually will puke this whole bunch of scoundrels out.

  • A little yellow bird

    If my dire previous entry which Chrisopher, Wizard of OS happened to find entertaining, happens not to prove prescient, then hopefully Generation Alito will recognize how some arguments they are supposed to make are pre-framed, and therefore invalid; to wit: the gay marriage “issue”. To me, the issue is, why does the government interfere in any sort of marriage? The constitution has nothing to say whatever about such micromanagement. The constitution does, however, allow Alabama, let’s say, to basically not allow openly declared homosexual relationships, and allows, say, New York to be a haven for such people. To the young woman who spoke about her focus on women’s legal issues, there is absolutely no right to privacy in the constitution; but there is supposed to be safety from illegal search and seizure, absolute property rights (ahem, Kelo…), and freedom of association. BTW, here’s an super cartoon on gay marriage from the New Yorker Magazine:

  • A little yellow bird

    Oh, and my dear satanic little shysters, if you could find it in your Grinchy, money-grubbing hearts, please hype the concept of jury nullification as an agency for change. People must stop being fed into the gaping maw of the prison construction/legislative/police and prison guard union-industrial complex for non-crimes: the sins of the flesh, such as doping, whoring, gambling, and pandering to sin. Can I please be a grownup someday? Argue that.

  • Nikos

    cheesechowmain: Nina Totenberg reported near the end of Clinton’s second term that O’Connor had long considered retirement, but wanted a Republican to appoint her successor. She also wanted her successor to be another woman. So, she got half her wish.

    Isn’t it astonishing that out of a population-base that’s slightly more than 50% female, we’re about to have a SCOTUS that’s 89% male?

    But no, we don’t need anything like an Equal Rights Amendment, because we’re not a sexist society!


  • A little yellow bird

    “Nikos”: Dividing the court in half by sex won’t ever make a difference because those who seek power aren’t interested in the welfare of the people. Also, there is no everywoman. There is no ERA largely because women don’t want it. Lefty types seem to be all green, all natural, except when it comes to gender issues: their extreme ideal is the idea of no gender at all, and they seem to think that any differences between the sexes are 100% nurture and 0% nature. The idea of 50-50 splits in any aspect of our existence is an illusion–it’s merely another variation of either-or thinking. Far from being “consigned” to the kitchen, it is now a luxury for the rich suburbanite to be economically able to choose to be a soccer/cookie-baking/home for the kids mom. The more things change, the more they stay the same. There will never be equality between the sexes because it is by definition impossible, not because “men just don’t get it”, etc. If you’d like to indulge in some speculation and/or fantasizing about manipulation of gender, may I suggest reading the brilliant (and not shrilly preachy!, deep sigh…) musings of Ursula K. Leguin; especially “The left Hand of Darkness”, and another volume of short stories called something like “The Birthday of the World”, published a few years ago. She must be great in bed, even at, or especially in, her seventies!

  • A little yellow bird

    Dosh garn it! I mean LeGuin!

  • Potter

    ALYB- it’s not only what is in the constitution, but how it has been interpreted over time. Thus we get excited about “settled law” and respecting precedents. A conservative court over time can re-interpret unsettle, and evicerate and set new precedents or as Althouse said make changes gradually by erosion. I am not as peaceful as Althouse is about this all.

    I am thoroughly disgusted that so many of our legislators on both sides apparently feel that THIS president has the right to have the SCOTUS he wants especially considering the questionable and very close elections.

  • A little yellow bird

    A conservative court hasn’t existed for generations. A conservative court would never be activist; would unerringly rule against expansion of all powers, especially in the executive branch. And don’t you see how pervasive the idea of “both sides” is? You say you’re digusted by “both sides”, but there is no both–there’s only the state, which keeps intruding on more and more of life. See? The argument is pre-framed for you, as Pynchon described: they keep you from ever asking the questions that would change anything–

  • Potter

    ALYB you have your own “both sides” which breaks down as the rest of us against “the state”. I am not there yet. I have people who represent how I feel in government that are supposed to work for me. And I am not willing to let them off the hook and declare war on the whole business as you apparently are or have. I feel we need to hold these folks accountable.

    I am not giving up by being disgusted. I am disgusted principally at the idea that the Democrats who have the power to resist by using are not. And SOME of them, some on BOTH sides who in their heart of hearts feel differently are caving in out of weakness and pressure and using the rationalization that the president should have the court that he wants. He is entitled in other words. Given the elections of 00 and 04 this disgusts me.

    I did not say that there WAS a conservative court. There will be. And the definition of the word “conservative” is changing or has changed from the past. This is the split within the conservatives which you point out.

    There may be more democracy (representing the will of the people) in the Middle East right now than we have.

    Do we agree but are we talking past each other? Or are you in a deeper state of disgust than I am?

    Perhaps we can agree that the bums need to be thrown out. I still vote. Do you?

  • A little yellow bird

    “Potter”: I am neither willing to let them off the hook nor let them continue in their activities. Yes, I am much more disgusted than you are–and with no malice intended, anyone who supports the state, which always organizes for war and other forms of subjugation, is perpetuating the problem. Working within the system is like beating a dead horse. It is dead. The ancient Chinese (aren’t Chinese things always ancient?) definition of insanity is doing the same thing in the same way and expecting different results.

  • peggysue

    Oh please dear little yellow bird. Such sweeping generalizations!

    “Lefty types seem to be all green, all natural, except when it comes to gender issues: their extreme ideal is the idea of no gender at all, and they seem to think that any differences between the sexes are 100% nurture and 0% nature”.

    I’m a Green Lefty Ecofeminist and many of us do see a basic gender difference as an obvious natural phenomina. The problem with gender difference when it comes to the law is that “separate” so rarely satisfies the demand for “equal”. Of course we want equality under the law.

  • A little yellow bird

    “peggysue”: Feminism–the unsupportable notion that ideology can trump biology. Or should. Or needs to…

  • Nikos

    ALYB: a more accurate definition of feminism is: “the idea that the lives of women are of equal value to the lives of men”.

    Clearly this isn’t applicable in cultures that practice barbarities like honor killings (and female genital mutilation) or where pastors historically (and histrionically) exhorted the men of their congregations to (literally) ‘beat the Devil’ out of their wives — as happened here, in this very country only about four generations ago.

    Please ponder this (before offering another questionable/objectionable/offensive opinion of feminism). You’ve criticized my support of socialism as is your right, and implied that you won’t take seriously my offerings on the topic, as also is your right. Yet I wonder how you’d feel if you realized that this — “Feminism–the unsupportable notion that ideology can trump biology” — has likely just made your ROS tag into a ‘skip-over’ for many readers.

    You’re better than that, pal.

  • A little yellow bird

    “Nikos”: Let ’em skip, duuude!

  • Potter

    ALYB- We are not doing the same thing in the same way and expecting different results, catchy as that phrase is, if only we were….. We are evolving or devolving or morphing and expecting varous results. We are extremely divided.

    The system is not dead yet but it will possibly suffer permanent damage or die if it gets too dangerously out of whack for too long without swinging back to equilibrium. We inherited a good one though, built on accumulated wisdom. “Of the people, by the people” was a revolutionary leap made in good faith. Maybe the experiment is doomed to fail because of the nature of human nature. We’ve been so successful that we’ve grown fat, greedy, and sleepy.

    Crooks, liars and parasites (of the people) who connived to run the system now are not dealing with reality and so the system is not growing to deal with reality, but has become self-serving. This is very worrisome.

    But if you opt out out of extreme disgust ( as opposed to moderate disgust) and think that we are already in “the Fourth Reich” and the whole thing needs to be trashed ( and replaced by what? nothing?) then aren’t you contributing to that result?

    I’d like to hear something constructive from you before you fly away, little yellow bird.

    If the polls are correct, most people are unhappy with what is going on. This is a good sign. No?

    Tell me about the ancient Chinese—-they made great pots wrote beautiful poetry and painted gorgeous scrolls. What will we leave? ( a show suggestion)

  • A little yellow bird

    “Potter”: But I said something positive already! I said, in effect, that the system must go–that’s positive! And we’ve NOT accumulated wisdom–we’ve accumulated inertia. Conventional “wisdom” is no wisdom at all. BTW, I like ancient Chinese porn more than any of their writings. We will leave depleted uranium–the greatest of all contributions to human posterity, from a standpoint of durability…

  • Chris,

    You’re just such an alarmist. About politics, jurisprudence, the environment. Your show aired before Alito was officially approved and you’re already throwing up your arms about how the face of jurisprudence has changed. Some law students are too busy with their studies to even have digested how Alito may change their own legal future. The most naive economist will not attribute to Greenspan (so long, and thanks for all the fish) such influence over the market as you ascribe to Alito over American jurisprudence.

    As an independent — though overly optmistic — libertarian, the whole notion that the conservative movement has been secretly conniving to overturn Roe v. Wade strikes me as conspiratorial and baseless.

  • A little yellow bird

    “Nikos”: BTW, I won’t be offering any other opinions of feminism, because I don’t have any; but I will add this: if absolute property rights were restored to the people (obviating any “need” for, or possibility of, socialism), then people, all people, including womyn, would be as protected as laws can protect us. The body, or person, is the first, and most important, property. If possession of one’s self were absolute, there would be next to no state, and every other sort of personal liberty would flow from that point. One could not be conscripted, nor oficially stolen from (taxed) to murder foreigners or railroaded death row inmates, or be forced to pay for public works they may find offensive, such as state-owned communications media.

  • peggysue

    gingi said…

    “the whole notion that the conservative movement has been secretly conniving to overturn Roe v. Wade strikes me as conspiratorial and baseless�.

    How true, they have not been secretive about it all.

    as for you little yellow bird…

    Granting you the benefit of doubt by assuming that your commentary on feminism is based on ignorance rather than malice I will point out what should be obvious. When an entire segment of society is treated with prejudice and precluded from positions of power based on biology the result is that biology and ideology become inextricably linked.

  • A little yellow bird

    “peggysue”: No malice intended, but I don’t know which society you speak of. You’re not going to change my mind, you know–it took me years of consideration to reach the decisions I’ve made. I’m sorry we don’t agree. I believe the ignorance–selective knowing–is yours.

  • peggysue

    yellow bird

    My apologies, I assumed, perhaps mistakenly, that you were an American because you used the salutation “dude”. Perhaps I was mistaken, the Internet being global, and you actually live in a matriarchal society somewhere and therefore would quite naturally see no need for feminism

  • A little yellow bird

    “peggysue”: Is there a matriarchal society somewhere? If there is, I’m sure the women there must be pleased as punch, and everything must be just dandy–nothing to complain about. Come on, honey–you’re spending too much time blogging…shouldn’t you be giving more quality time to the marriage or other relationship you wanted so much? I mean, until the man started “not getting it?”

  • Nikos

    peggysue: Ignore him. He’s my pal, but he’s as clueless about feminism as I am about Judaism. I’ll take him to the virtual bar and buy him a drink. Or a few. Meanwhile, please rest assured that not all men think like that. (I’m testifying.) An evening spent with a good book by, say, Lynne Segal, would do all of us loads of good. (But I’ll try to get him slap-happy first!)

  • Nikos

    ALYB: please consider perusing Lynne Segal’s ‘Why Feminism?’ (Columbia University Press, 1999).

    Meanwhile, what’ll ya have? This bartender makes a fine margarita. And they’re better on the rocks than blended.

  • jazzman

    ALYB says:>> the system must go–that’s positive! And we’ve NOT accumulated wisdom–we’ve accumulated inertia.>>

    He’s right – the masses in this country (most likely the world) are indeed inertial, i.e., resistant to change in the status quo. If the liberals (and I’m pretty darned liberal) are worried about Alito’s projected effect on their applecart, (theirs and the media’s projections) shaking up the status quo in what they consider negative ways, it could be the “exterior force� necessary to rouse the populace from their workaday woes and change direction. As much as I would like to see dramatic change, (the kind a Bork might engender) I am also a passenger on the inertial express and wouldn’t want a catastrophic derailment (punctuation in the equilibrium) to occur. My revolutionary (evolutionary?) energy was expended during the 60’s and my current life ain’t so bad, so I leave it to the new generation of idealists to actively right their perceived wrongs. Until a critical mass of people get riled enough to act, nothing significant will change – the web may be just the needed catalyst. See what happens when they start (already started) to restrict that!!! See ALBY’s link, The Google Conundrum�: Given the cyclical nature of social unrest, (a sociobiological prediction for Potter’s amusement) I’m expecting a mid 60’s golden anniversary in the next decade or so. Iraq should be at just about the same breaking point in the collective mind as Vietnam was 50 years before.

    On the feminism topic: If everyone were Absolutely Moral, feminism and the LAW would be obviated.

  • peggysue

    Thanks Nikos

    In spite of all the progress we’ve made in the past few decades it is always sobering to be reminded that sexism and misogyny are still very much alive (and right here on Open Source!) This is exactly the scary thing about Alito being confirmed. Feminism is just basic human rights for women. Some men find the concept very threatening.

  • Abby

    You all need to check out the site that parodies Ann Althouse for her relentless middle-of-the roadness. Altmouse:

    “Totally nonpartisan Bush supporting Constitutional Law Scholar, Ann Altmouse” — Slate

  • wacsailor

    The name of the show is just so… I don’t know… everytime I hear it I think the person is saying open sore. Yuck.