Blog Round-Up – Thursday, December 1st
In nomination news:
Here is the 64 page questionnaire Judge Alito submitted to the Senate Judiciary Committee. Sentencing Law & Policy responds to the sentencing issues in the questionnaire here.
On FindLaw, Rick Hasen has this post titled, “One Person, One Filibuster? Judge Alito’s Controversial Comment on a Supreme Court Voting Rights Case.”
Blogging on ACSBlog, Michael J. Zydney Mannheimer, Assistant Professor of Law at Salmon P. Chase College of Law, Northern Kentucky University has this post, titled, “Is Alito the State’s Advocate in Criminal Cases?”
On Balkinization Marty Lederman has this post on Alito’s membership in the Concerned Alumni of Princeton, a group apparently devoted to the retention of quotas that had excluded women and minorities from Princeton.
In non-nomination news:
Concurring Opinions has this post on becoming a Supreme Court clerk that responds to this article featuring a newly hired Thomas clerk.
On the Volokh Conspiracy David Bernstein has this post on Congress’ responsibility for “Don’t Ask, Don’t Tell.”
The Legal Affairs Debate Club has re-posted a 2004 debate on the constitutionality of the Solomon Amendment. Debating are Phillip Carter, a former U.S. Army officer and recent graduate of UCLA Law School; he co-authored an amicus brief supporting the government and the Solomon Amendment in FAIR v. Rumsfeld and Adam A. Sofen, a plaintiff in SAME v. Rumsfeld.
Jack Balkin has a series of posts on the oral arguments in Ayotte. The most recent on can be found here.
The Mannheimer post referred to in this post attacks Judge Alito for raising sua sponte the issue of whether a state prisoner had exhausted his state-court remedies before turning to the federal courts. The post does not mention the date of the case, but states the author was clerking at the time “from 1996 to 1997.”
Effective April 24, 1996, Congress amended the statute to require federal courts to consider exhaustion any time the state does not expressly waive it. See 28 U.S.C. § 2254(b)(3). It was not required prior to that date, but exhaustion is an important element of federal-state comity going back to the 1880’s, and it was certainly not improper to consider it sua sponte.
Depending on the timing, Judge Alito’s consideration of the issue was either required by statute or permitted by considerations of comity. Either way, the criticism is off base.
Comment by Kent Scheidegger — December 1, 2005 @ 3:16 pm
I agree that if this case post-dated the 1996 act, federal courts were required to consider exhaustion whether raised by the parties or not. However, given the timing, this case was most likely not subject to the act. It is unlikely that the panel would have been unaware of such a well publicized requirement, and evidently neither the majority nor the dissent mentioned it.
However, regardless of the timing, Judge Alito’s approach was improper. When a court raises an issue sua sponte, the appropriate course is to request briefing from the parties, which clearly Judge Alito did not do.
Comment by Marc Shepherd — December 2, 2005 @ 9:55 am
Marty criticizes Alito for “going out of one’s way in the mid-80s to emphasize how one’s philosophy was formed by that youthful dalliance with [National Review].”
I normally find Marty’s posts to be very thoughtful and illuminating, but this borders on the silly. NR did not virulently oppose the civil rights movement, as Marty asserts. It certainly did oppose various federal civil rights bills as unconstitutional, a position emphatically rejected by the Supreme Court, but one with some support among responsible scholars at the time. It is irresponsible to suggest that Buckley, NR, or NR’s subscribers should be viewed with suspicion.
NR was Reagan’s favorite magazine and had a tremendous influence on countless conservatives. It is not surprising Alito would mention it. This shouldn’t (and I suspect won’t) be a relevant factor in the Senate’s deliberations.
Comment by Tim Dowling — December 3, 2005 @ 10:11 am