WaPo Sets Up Its Alito Argument

Want to marginalize a judge and position him out of the mainstream? Look at his dissents. So it's no surprise that WaPo leads off Alito season with a little ditty by University of Chicago law prof Cass Sunstein called "On The Contrary," that looks at his 41 dissents -- 17 percent of his decisions. To make sure we understand the direction of the analysis, Sunstein is the author of a book called Radicals in Robes: Why Extreme Right-Wing Judges Are Wrong for America.

And here's the shocker of the analysis:

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative.

From this launching point, which immediately excuses WaPol from looking at the liberalness of his colleagues, WaPo can launch into cases where his position was less than full-blown liberal on police powers, prisoners rights, racial discrimination, workers' rights and, gun control.

Liberals will read it as confirmation of their worst fears, which is exactly what WaPo was after in going to Sunstein for an op/ed.

I find some reasons to worry in the piece, which was clearly not Sunstein's intent. He sides with government against individual a bit too much, it seems, as in a zoning case when he thought it was just fine for government to restrict land uses in what appears to be an unfair manner.

Ann Althouse, writing for the NYT, agrees:

Yes, chances are that a Justice Alito will please conservatives more often than liberals. Doubtless, many liberals will anguish over Judge Alito's opinion, in Planned Parenthood v. Casey, that would have upheld a law requiring that husbands be notified when their wives seek abortions. Still, they should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia.

Still, she states the obvious: Alito's record is overwhelmingly conservative, and is out there, so this fight is not just a fight for an originialist court, it's a fight to throw out once and for all, the need for and reliance on stealth candidates.

h/t Real Clear Politics