Archives

Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.

Trashing Alito

The San Diego Union Tribune

A sometimes subtle but unmistakable pattern has emerged in major news organizations’ coverage of Judge Samuel Alito’s Supreme Court nomination.

Through various mixes of factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics, some reporters insinuate that Alito is a slippery character who will say whatever senators want to hear, especially by "distancing himself" from past statements that (these reporters imply) show him to be a conservative ideologue.

I focus here not on the consistently mindless liberal hysteria of The New York Times’ editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito’s more than 300 judicial opinions, "we didn’t find a single case in which Judge Alito sided with African-Americans … [who were] alleging racial bias." This, Henderson added, is "rather remarkable."

What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the misleading claim that in 15 years as a judge, Alito has sought "to weave a conservative legal agenda into the fabric of the nation’s laws," including "a standard higher than the Supreme Court requires" for proving job discrimination.

The systematic slanting – conscious or unconscious – of this and other news reports has helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue.

Opening Argument – Coercive Interrogation: Can Anyone Straighten Out This Mess?

National Journal

There is more than enough blame to go around for the disastrous damage done to our international standing and national security by the uproar over the use of coercive interrogation methods — all of them "torture," in the parlance of many critics — to squeeze potentially life-saving information out of suspected terrorists.

Opening Argument – Alito: A Sampling of Misleading Media Coverage

National Journal

A sometimes subtle but unmistakable pattern has emerged in major news organizations’ coverage of Judge Samuel Alito’s Supreme Court nomination.

Through various mixes of factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics, some (but not all) reporters insinuate that Alito is a slippery character who will say whatever senators want to hear, especially by "distancing himself" from past statements that (these reporters imply) show him to be a conservative ideologue.

I focus here not on the consistently mindless liberal hysteria of the New York Times’ editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito’s more than 300 judicial opinions, "we didn’t find a single case in which Judge Alito sided with African-Americans … [who were] alleging racial bias." This, Henderson added, is "rather remarkable."

What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the highly misleading claim that in 15 years as a judge, Alito has sought "to weave a conservative legal agenda into the fabric of the nation’s laws," including "a standard higher than the Supreme Court requires" for proving job discrimination.

Opening Argument – Abortion Battles Without Much Effect On Abortions

National Journal

You might think that something huge was at stake from the sound and fury accompanying the November 30 Supreme Court argument about New Hampshire’s restrictions on minors’ access to abortion, and the pending challenge to the 2003 act of Congress banning "partial-birth" abortion.

Abortion-rights advocates warn that any decision upholding restrictions on abortion in either case would jeopardize women’s health and set the stage for evisceration of Roe v. Wade. Anti-abortion advocates portray the lower-court decisions striking down these laws before they took effect as steps toward the destruction of the American family and the legalization of infanticide.

The reality is less momentous: No matter who wins, the decisions in these cases are unlikely to harm anyone’s health, to prevent anyone who is sure she wants an abortion from getting one, or to save many (if any) fetuses. As is usual in abortion battles, the interest-group hysteria and media hype overstate what’s really at stake.

Which is not to say that nothing is at stake. In the New Hampshire case, in particular, abortion-rights groups have leveraged legitimate concern over possible medical emergencies in fewer than one in 1,000 cases into decisions by federal district and appeals courts striking down the entire parental-notification law.

So for now, at least, clinics are free to perform abortions on any 13-year-old girls who walk through their doors, with no parental or judicial involvement at all.

Based on the comments at oral argument, at least five justices seemed sympathetic to the Bush administration’s quite reasonable suggestion that they uphold the parental-notification law except in the tiny number of cases where it would dangerously delay abortions in medical emergencies.

Keeping It Real

Newsweek

For many intellectuals, the ideal of Blind Justice, impartially weighing her scales, went out the window about 80 years ago. At Yale Law School in the 1920s and ’30s, a highly influential group of scholars called the Legal Realists argued that the law was not a set of fixed, unchanging rules–"not a brooding omnipresence in the sky," as Justice Oliver Wendell Holmes once put it. The Legal Realists contended that, inevitably, judges were influenced by their political views and personal values,

For many intellectuals, the ideal of Blind Justice, impartially weighing her scales, went out the window about 80 years ago. At Yale Law School in the 1920s and ’30s, a highly influential group of scholars called the Legal Realists argued that the law was not a set of fixed, unchanging rules–"not a brooding omnipresence in the sky," as Justice Oliver Wendell Holmes once put it. The Legal Realists contended that, inevitably, judges were influenced by their political views and personal values, whether they admitted it or not. There was a lot of truth to what the Legal Realists were saying. Today it is almost ajournalistic cliche that judges are either liberal or conservative, that the law is nothing but politics in disguise and that judges couldn’t be neutral if they tried.

Nonetheless, they are supposed to try. And, in fact, most judges do try to set aside or at least check their personal political leanings when ruling on a case. Judging from his life story and judicial record, few try harder than Sam Alito.

Alito is Neither Far Right Nor Activist

The San Diego Union Tribune

Liberal critics and many media outlets have spewed tons of misleading stuff about Judge Samuel A. Alito Jr., particularly about his supposed views on abortion and about the significance of two Sandra Day O’Connor opinions disagreeing with prior Alito opinions. So here’s some straight stuff.

The claims that Alito is a "far-right activist" are laughable, except to far-left activists. He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty and fairness.

The American people will figure this out. Any effort to filibuster Alito seems likely to fail, and likely to backfire against Democrats. So, the Senate will confirm him by 60-40, give or take five votes, I’d wager. Most of the no votes (and, alas, many of the yes votes) will reflect political posturing and herd instincts rather than careful analysis.

Once installed in Justice O’Connor’s seat, Alito will be an exceptional justice. His rulings will probably be congenial to the broad middle of the electorate. He will be to the right of O’Connor – that is, the O’Connor of recent years, who has been markedly more liberal than she was before 1991 or so. Alito will probably be to the left of Antonin Scalia, albeit with less of a libertarian streak. He will be well to the left of Clarence Thomas, and far more respectful of precedent.

Alito will try as hard as anyone – and far harder than O’Connor – to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

Opening Argument – Borking Alito: He Is Neither Far-Right Nor Activist

National Journal

Liberal critics and many media outlets have spewed tons of misleading stuff about Judge Samuel A. Alito Jr., particularly about his supposed views on abortion and about the significance of two Sandra Day O’Connor opinions disagreeing with prior Alito opinions. So here’s some straight stuff.

Opening Argument – The Lesson Of Miers: Excellence Should Be Paramount

National Journal

"The Supreme Court [grapples with] the widest range of issues of importance to the law. To give some recent examples: What innovations are patentable and what should be the role of juries in deciding whether a patent is valid or has been infringed? Are police officers entitled to ask the passenger of a car to step outside when they have made a lawful traffic stop? Does the First Amendment protect a government worker if his boss thinks his complaints are a nuisance to the work of the office?…