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A Defender Praises Alito

Appellate whiz Peter Goldberger of Ardmore, PA is as defense-oriented as they come. He comments on TalkLeft frequently. He went to law school with Judge Alito and practices in his circuit. Here's his latest comment, responding to another TalkLeft poster:

Don't guess at Judge Alito's predilictions. I am a full-time criminal defense appellate litigator, and more than half my cases are in the 3d Circuit. Alito -- unlike some judges we both know -- does not "twist the facts, ignore facts, and even make up facts to make the facts fit the argument they want to make." He is intellectually honest in the highest degree.

He has written 8 opinions I can find in capital cases; in 6 he voted to uphold the death sentence. In two cases, he wrote opinions overturning lower court denials of habeas corpus relief to death-sentenced prisoners. Williams, 343 F.3d 223 (2003); Carpenter, 296 F.3d 138 (2002). On the other hand, in one case his opinion to deny relief was overturned by the Supreme Court in a close vote opinion by Souter. Rompilla, 355 F3d 233.

He is very conservative, but he is neither knee-jerk nor dishonest. As two more examples, compare US v Hodge, 246 F3d 301 (2001), overturning a suppression order and upholding a search, with US v Kithcart, 134 F.3d 529 (1998) overturning the denial of a suppression motion and finding no probable cause to arrest.

Finally, check out his opinions in US v Murray, 103 F3d 310 (1997), overturning a federal murder conviction because of the prosecutor's unfair use of evidence of the defendant's prior misconduct (other killings), and in US v Rosero, 42 F3d 166 (1994), reversing a marijuana smuggling conviction based on complex application of international criminal law concerning stateless vessels. Simplistic cartooning won't do here.

Yesterday, Peter wrote in the comments here:

I have known Sam Alito for 33 years; we were law school classmates. He is surely very conservative. He is also very bright, very fairminded, and very honest, and demands the same in others. No one who knows him thinks the expression "Scalito" is anything but a journalistic gimmick; it's not his nickname. He is his own man intellectually; he's no clone of Scalia or of anyone else. Still, I will be very surprised if the President were to appoint a second Italian-American male from Trenton NJ to the Supreme Court at the same time. It's a big country full of qualified candidates; wouldn't that be going rather far in the non-diversity direction? I'm still expecting a woman or a Hispanic from the Southeast or Texas.

My problem with Judge Alito is that his only real-world legal experience before becoming a judge was as a prosecutor and attorney for the Government. In those positions, one looks for the law that supports his side. I think Justices to the Supreme Court should view cases through the lens of the Constitution, not the Government. Unless Alito can show the Senate that he will do that, he's not the man for the job.

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    Re: A Defender Praises Alito (none / 0) (#3)
    by Dadler on Sat Dec 17, 2005 at 01:05:34 PM EST
    While I respect Goldberger's opinion, I'm constantly amazed at people who think they actually KNOW other people that well. The people I know as well as he claims to know Alito number maybe two or three. One is my wife, and now that I think about it she may be the only one. Peole are complicated, egomaniacal creatures who put on many masks in the pursuit of what they want. I think Goldberger is substituting professional hope for actual personal knowledge. What is the worst legal mistake Alito ever made? How has he changed, solidified over the years? I'm sure we could find another bunch of defense lawyers who think Alito pretty much the opposite of what Goldberger does. Sorry, but I'll trust my own assessment of his intellect, temperment and philosophy from what I've read of his actual writing. And what I've seen so far makes me think he's the last thing we need.

    Re: A Defender Praises Alito (none / 0) (#4)
    by Dadler on Sat Dec 17, 2005 at 01:05:34 PM EST
    Peter G, Good post. I agree. Which is why I said the Dems should be putting out there own candidate with a quick PR blitz to hilight what a good nominee looks and sounds like. Instead, they just left the ball in Bush's court. They're playing not to lose instead of playing to win.

    Re: A Defender Praises Alito (none / 0) (#1)
    by Peter G on Sat Dec 17, 2005 at 01:05:37 PM EST
    Yes, TL, it is true that Judge Alito never represented a human being (or any other private party) in his career as a lawyer. That is troublesome. A great judge must have a great heart as well as a powerful mind. As my cites show, however, he has ruled against the government when he thinks the facts and the law call for that result. More often, he rules for the government -- so do all other judges, even the "liberals," most of the time. There are quite a few cases where Judge Alito's decision is not one I could support. You sometimes see dissents by Judges McKee, Rendell, and/or Sloviter in those cases. I'm not saying I'm happy with the appointment, except compared with most of the alternatives. I wish we could have someone with all of Alito's objective qualifications and with progressive instincts. There are many such candidates out there. Or even a true moderate, with equivalent credentials, such as the names you had been promoting (Thompson, Garza, etc.). None of them will be nominated during this Presidency, however, not the progressives, anyway. I'm just trying to be fair to the record, and not paint Alito as something he's not.

    Re: A Defender Praises Alito (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:37 PM EST
    The stop alito moveon.org petition is over 160K in less than 24 hours

    Re: A Defender Praises Alito (none / 0) (#5)
    by Lww on Sat Dec 17, 2005 at 01:05:37 PM EST
    Dadler, could you please give the names of the people you think the Dems would nominate so I can read their opinions. Thanks.

    Re: A Defender Praises Alito (none / 0) (#6)
    by wg on Sat Dec 17, 2005 at 01:05:37 PM EST
    I'm glad to hear how bright and honest Alito is, however to me he remains a highly problematic candidate. For starters he comes from a highly insular, non-representative environment. Federal judiciary is not a particularly healthy environment, a den of undemocratic privilege populated by people who never buy their own groceries, go to banks or pump their own gas. With haughty arrogance however well concealed to boot in most cases. Having somebody from outside that group, somebody with real life experience is what this court badly needs. Second, pay attention to GOPers, he's butter on their toast, bulls-eye as some put it. They will try to package him as nice, decent, brilliant, no reasonable person could possibly oppose while hiding the real reasons he was selected. And that reason is he'll vote their agenda. Agenda some 50% percent of Americans strongly disagree with. The position of the SC judge is essentially ideological despite all that public rhetoric about "strict interpretation of laws nothing else" to the contrary, so his ideological outlook matters greatly. Being Catholic isn't particularly helpful here, they are very nice people but no sensible people would trust them in matters of life and death or anything to do with civil liberties. Trust me I lived among them for decades. Would love to see Peter to say more about his deeply conservative views. What exactly are they?

    Re: A Defender Praises Alito (none / 0) (#7)
    by Lww on Sat Dec 17, 2005 at 01:05:38 PM EST
    "Trust me I lived among them for decades." ( wg,opining on Catholics) Another card carrier with his foot in his mouth. Keep on talking. You show the world what we're dealing with; fascists in the sheeps clothing of a progressive liberal.

    Re: A Defender Praises Alito (none / 0) (#8)
    by roger on Sat Dec 17, 2005 at 01:05:38 PM EST
    LWW, I know, he sounds like you!

    Re: A Defender Praises Alito (none / 0) (#9)
    by wg on Sat Dec 17, 2005 at 01:05:38 PM EST
    I'm sorry you find me "card carrying fascist in the sheep's clothing" (is such thing possible?), but I honestly do not trust them " in matters of life and death or anything to do with civil liberties." Live experience, you can say. Which has nothing to do with them being nice and very pleasant people generally speaking, it is just that they tend not to think about those things very much. Or at least take it very lightly.

    Re: A Defender Praises Alito (none / 0) (#10)
    by roy on Sat Dec 17, 2005 at 01:05:43 PM EST
    I think Justices to the Supreme Court should view cases through the lens of the Constitution, not the Government.
    There for a second I thought TL was asking for an Originalist. I know better. To blatantly put words in TL's mouth, she wants a judge who views cases through the lens of the Constitution as previously reinterpreted by the Government.