Given what really went on during the nomination process, Bush ought to be rejoicing. He ought to be congratulating the man who went through that ridiculous carnival treatment. He ought to be counterbalancing the Democrats’ delay tactics designed (in part) to prevent Alito’s confirmation before the State of the Union by ensuring that his swearing in could take place in time for him to attend proudly as a justice in robes along with the rest of the SCOTUS.

Also, after the delay caused by the Miers nomination and withdrawal, Bush had an obligation to try to allow Justice O’Connor to retire as soon as possible, for which I’m sure she’s grateful.

That’s useful as an ideal, but there are plenty of examples where a justice’s vote is affected by what his colleagues are doing. Justice Powell’s custom of offering a “gentleman’s fifth” vote on stays is an example.

Actually, for stays and other emergency matters, they usually don’t meet for a formal conference, but circulate their votes by email and hardcopy, in no particular order. So, for all we know, Alito might have been the first rather than the last to vote. In fact, since the emergency matter arose from the CA8, if Alito had already taken over as Circuit Justice (had he?), he would have cast the FIRST vote as the justice referring the matter to the Conference with a recommendation.

And I think it’s either disingenuous or naive to think that Supreme court nominations are not an overtly political process. They all get used by the White House in some way whether you’re talking Alito, Ginsberg, Thomas, or anyone else appointed in the last couple of decades. The great thing about the Supreme Court is that the baby-kissing and Senate blah blah blah all go away after the nomination.

Of course, the most interesting part would have been if there had been some explanation of Alito’s decision: whether he was deferring to the lower court, found something flawed in the decision, or had some secret liberal agenda against the death penalty. ;) Y’know, like talking about the law or something?

It seems to me that one would hope that once a person assumes the lifetime position on the Supreme Court, that person can stop worrying about the waves that he or she may be making and always vote the way they see it, whether the other Justices are voting 8-0 or 4-4. In other words, the person can finally be genuinely intellectually honest without having to worry about political implications.

This last line is both snarky and rude. Sure, Bush is using Alito to restore some of the shine on his Presidency, but I think your wording implies that Alito is somehow actively trying to campaign for this President’s poll numbers.

Alito himself, since he was appointed by Bush 41, has always and only “function[ed]” as a judge. Alito isn’t stumping for Bush, and he doesn’t owe Bush any favorable votes.

The asymmetry with which you treat Alito’s comments vis a viz Roberts’ is demonstrative of some underlying hostility toward Justice Alito. Why would you let that show in your blog post? Sadly, I think you knew what you were doing.

Had he voted the other way, the story would have been, “Aha! He’s a lock-step conservative, just as his detractors had feared.” Given the vote he cast, the story is, “Aha! He thinks for himself!” Neither characterization would be accurate, but that’s the way news headlines are written these days.

If the Court met in conference and followed its usual practice, the Justices would have spoken in descending order of seniority. So by the time it was his turn to speak, Alito knew that the rest of the Court was split 5-3, and his vote wasn’t going to be decisive either way. So I think he simply called it as he saw it, without really being concerned with whether he was making a wave. However, I suspect he was aware that a vote with the liberals would be seen–in most circles–as more surprising than a vote with the conservatives.

Now, had he cast a lone dissenting vote, or cast a decisive fifth vote, THAT would have been making waves.

One cannot draw very many inferences from just one vote. But it certainly should give pause to those who had predicted that Alito would vote in lock-step with the conservatives. He is his own man, just as his backers predicted he would be.

I think this is exactly right. If I had wanted a sheep to provide a handy extra vote for Nino, I’d have gotten on the Miers bandwagon; I didn’t, I was thrilled when Alito got the nod, and I’m still thrilled today.

Not only are there several perfectly good reasons why Alito may have voted this way (see comments here, but the more important point is, if we (meaning Alito backers) don’t trust Alito by now, what have we been doing for the last three months? Making the best of it? I don’t believe that.

I have far more trust in Alito than I do in our Fearless Leader, because we have seen Alito’s behaviour as a judge for a vastly longer period than we have Roberts, and Alito espoused several philosophical commitments during his confirmation hearings that Roberts either declined to give or flatly decried. We cannot judge Justice Alito one way or another on his first action, but to suggest that we can judge Chief Justice Roberts after a few months in which he has often sided with Justice Thomas and Our Hero is no less absurd. In his first year on the Court, to my reading, Justice Souter joined the Chief Justice in practically every case; see 498 U.S. – 501 U.S.

These are lifelong appointments; I have concerns about our Fearless Leader, concerns which may (and probably will) dissipate over the course of not a few months, but the course of the next five to ten years. By contrast, I believe Justice Alito’s record has given us every reason we could ask for to trust him until he provides some sort of sustained and conclusive reason not to.

Justice Alito voted with five other justices to DENY the state’s motion to vacate a stay of execution that the Court of Appeals had granted. Roberts, Scalia, and Thomas had voted to GRANT the motion.

Adam asked, ‘Is there really anything surprising about Justice Alito not wanting to take the dramatic action of vacating the lower court’s order?’

I don’t know whether it is “surprising,” but it is certainly newsworthy that, in his first published vote, he did not join the three so-called conservatives (Roberts, Scalia, Thomas). Instead, he voted with Justice Kennedy and the four so-called liberals.

One cannot draw very many inferences from just one vote. But it certainly should give pause to those who had predicted that Alito would vote in lock-step with the conservatives. He is his own man, just as his backers predicted he would be.