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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Friday, November 04, 2005 ::
    Does Alito have dissentary? A former Alito clerk writes in to say:
    Okay, here's a small example of the silly ignorance suffused throughout critiques of Alito:

    The NYT said in its editorial today [11/1]:
    "The concerns about this particular nominee go beyond his apparent hostility to abortion, which was most graphically demonstrated in 1992 when his court ruled on what became known in the Supreme Court as the Casey decision. Judge Alito was the sole judge on his court who took the extreme position that all of Pennsylvania's limitations on abortion were constitutional, including the outrageous requirement that a woman show that she had notified her spouse."
    Note the use of the fact that he was "the sole judge on his court" that took a particular position. This point is ridiculous in the context of a three-judge appellate court panel. A dissent will, by definition, by "lone" in that context because otherwise the dissenter would have had a majority. (I.e., two out of the three judges on the panel.)

    The only time a dissent on an appellate court can meaningfully be called "lone" is when it is a dissent from the majority view in an "en banc" decision -- meaning a decision in which all of the active (meaning non-"Senior") judges on a panel. Most typically (though not universally) an en banc hearing occurs after a three-judge panel of the Circuit has already issued a decision in a case but the rest of a Court grants a rehearing.

    A minor mistake, perhaps, and certainly a technical one, but still ridiculous. And I believe it is a common tactic in the attempt to depict Alito (or any other conservative nominee) as being out of the mainstream.

    :: David M. Wagner 12:44 PM [+] ::
    ...

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