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62 thoughts on It’s over

  3. *snarl*

    DAMN!

    et cetera.

    On the other hand, the one of my two senators who’s worth a shit voted nay.

    Don’t suppose the odds are that great that a) all the Democrats vote nay when the nomination itself comes to a vote, and b) enough Republicans do to make it 51-49 Don’t Confirm. Am cheering myself up, however, by imagining the look on Dubya’s face if that were to be the case.

  4. There are already 57 votes committed to Alito. It’s a done deal.

    It was a done deal two weeks ago, but that didn’t stop the hard left activist base from deciding to flex their muscle.

    Or, more accurately, to demonstrate that they don’t have much.

  6. It was a done deal two weeks ago, but that didn’t stop the hard left activist base from deciding to flex their muscle.

    Or, more accurately, to demonstrate that they don’t have much.

    Why is it that neocons think that everyone who opposes them is far left? There were plenty of people who opposed Alito who were not “hard left”, such as paleoconservatives like Paul Craig Roberts and libertarians like Lew Rockwell.

  7. people voting to sustain the filibuster (and prevent strip-search sammy from being appointed to the supreme court for the next twenty plus years):
    Bayh (D)
    Biden (D)
    Boxer (D)
    Clinton (D)
    Dayton (D)
    Dodd (D)
    Durbin (D)
    Feingold (D)
    Feinstein (D)
    Jeffords (I)
    Kennedy (D)
    Kerry (D)
    Lautenberg (D)
    Leahy (D)
    Levin (D)
    Menendez (D)
    Mikulski (D)
    Murray (D)
    Obama (D)
    Reed (D)
    Reid (D)
    Schumer (D)
    Sarbanes (D)
    Stabenow (D)
    Wyden (D)

    i hope people will remember all those (D)’s next time they’re inclined to attack all democrats as spineless.

  8. Thanks for the list, Jami. I think the D’s on it come close to spineless. Certainly my own Feinstein who stated that Alito was more than qualified to be on the SCOTUS before tucking tail and voting no demonstrates something quite unlike principle.

  9. Thanks for the list, Jami. I think the D’s on it come close to spineless. Certainly my own Feinstein who stated that Alito was more than qualified to be on the SCOTUS before tucking tail and voting no demonstrates something quite unlike principle.

    I suspect she was talking about experience, not ideology.

  10. Piny

    Not one, not one scintilla of evidence that Alito has ever ruled according to “ideology”. Infact, Feinstein (to her credit) was one of the only Senators to have the eggs to stick around when all manner of Alito colleagues from both sides of the aisle came to testify. All said he was scrupulous in ruling according to the LAW not from any agenda.

    Eggs she relinquished when it looked like the usual hard-Leftists wanted Alito bounced because of nothing more than he was nominated by a President with a “R” after his name.

    It’s going to be very amusing to see Feinstein run when Mommy Sheehan takes out her papers to run against her.

  11. Eggs she relinquished when it looked like the usual hard-Leftists wanted Alito bounced because of nothing more than he was nominated by a President with a “R” after his name.

    Everything about his decisions and recorded opinions to date indicates that he is an extremely right-wing justice. No one would have disputed that prior to his nomination. He is not a moderate or moderate-conservative judge. You do not have to be “hard-Leftist” to dispute his stance on choice, on protection from search and seizure, on labor, on environmental law. That’s precisely why Bush chose him, and precisely why Democrats, even many moderate ones, oppose him.

  12. It’s a relatively simple political calculus.

    If nominees should be judged by competence, not by ideology, then Alito (who received the highest rating that the ABA bestows) is clearly qualified, and there is no legitimate reason to oppose him.

    If nominees should be judged by ideology in addition to competence (my own position), then we must recognize that ideology is political. In which case, voting ought to be partisan and ideologically-based – which it largely has been. In which case, Alito wins because the political/ideological complex that he represents is more popular than its opponent.

    It is perfectly sound to pressure members of one’s own party to live up to a particular ideological set, but the vows to punish Dems that didn’t agree with the ideological critique (to say nothing of the rhetoric coming out of the Kos camp) is just self-destructively stupid. People who declined to spend their political capital in a battle that had already been lost aren’t disloyal, they’re rational. The Kos philosophy appears to be: the union rep couldn’t get us the $20/hour raise we hoped for, even in the face of the slowdown in the industry and the lack of profit for the company; let’s kill him, and find someone who CAN get us that raise! That approach doesn’t make money fall from the sky; it just makes it damn difficult to find another union rep.

  13. Not one, not one scintilla of evidence that Alito has ever ruled according to “ideology”. Infact, Feinstein (to her credit) was one of the only Senators to have the eggs to stick around when all manner of Alito colleagues from both sides of the aisle came to testify. All said he was scrupulous in ruling according to the LAW not from any agenda.

    And what does this even mean? Jerry Falwell considers himself a good Christian; so does Cecil Williams. You can honestly hold personal views that happen to be contrary to the informed, reasoned opinions of many other people. I don’t care if Alito managed to find some basis for his rulings in his take on what the Constitution holds, and I don’t care if he sincerely believes himself that Roe should be overturned on Constitutional grounds; that doesn’t mean that he doesn’t read the law through a hard-right lens. And it doesn’t mean that people with their own reasonable interpretations can’t oppose him in good faith, or that they have no right to do so.

  14. Piny

    Please show me a DECISION where Alito rules from an ideological basis rather than rooted in the law.

    I realize some of his opinions rankle those that view the judiciary as a Super Legislature (mostly because they can’t their agenda the usual route of persuading their fellow citizens to their views), but his decisions are Constitutionally and legally sound. The only way he comes off as an “ideologue” is by a deliberate misstating of his record (ie the “strip seach children” canard).

    Ginsburg is as much left as Alito is right and I don’t remember a longtime Republican Senator almost having an aneurysm on national TV while literally screaming some of the strangest revisionist things I’ve heard in a long time as Uncle Teddy did today.

  15. Please show me a DECISION where Alito rules from an ideological basis rather than rooted in the law.

    I explained why this was a ridiculous way to frame the debate on ideology vs. readings of the law, okay? And I’m not going to debate with you about why the idea of a non-specific warrant is an interpretation of protection from unreasonable search that is unusual, to say the least.

    Why don’t you explain to me why it’s unreasonable or insulting to believe that someone’s ideology may inform their reading of texts that everyone admits are frequently disputed?

  16. I don’t care if Alito managed to find some basis for his rulings in his take on what the Constitution holds,

    Well, that has become obvious.

    SCOTUS is about ruling according to Law and the United States Constitution. It’s about American values, not European.

    If one wants to oppose Alito on good faith, have at it. I haven’t seen it from the likes of my own Senators. No good faith at all.

  17. Everything about his decisions and recorded opinions to date indicates that he is an extremely right-wing justice. No one would have disputed that prior to his nomination.

    I would have disputed it. I in fact have disputed it on this blog, and no one here (save a valiant but ultimately unpersuasive pre-hearing effort by Thomas some months ago) has even tried to offer a substantive proof of Alito’s alleged extremism. Your conclusory assertions to that effect are just more of the same, piny. It’s particularly striking that you go so far as to admit that

    I don’t care if Alito managed to find some basis for his rulings in his take on what the Constitution holds

    So there we have it, straight from the horse’s mouth: “Constitution? Who cares? All that matters is he’s an (R), and therefore deserves uncritical, uncompromsing opposition, regardless of whether he’s right on the merits.”

    Today’s lesson is that elections have consequences. When you get a Dem in the White House, you’ll get someone more ideologically amenable to you.

  18. I do NOT dispute that people come to issues with a particular philosophical POV. We act on our values everyday, whether we articulate that or not.

    But judges are charged with doing what they can to mitigate their personal views as much as possible and make the Rule of Law and the requirements of the Constitution paramount. The temptation to become a potentate is great and we do see evidence of judges succumbing to that temptation from time to time (ie the judge who decided a child rapist should not be sentenced to jail, regardless of the law). Nothing in Alito’s record puts him outside the mainstream, even if he is closer to the right bank rather than the left. And nothing shows he has put his own personal agenda ahead of the requirements of his judicial responsibilities.

    If you want SCOTUS politically answerable, change the Constitution and make them run for office. Otherwise, ideology should and must take a back seat to actual judicial decisions and judicial philosophy.

  19. SCOTUS is about ruling according to Law and the United States Constitution.

    Which interpretation of the Law and the United States Constitution, Darleen? There were two or three, broadly speaking, represented on the Rehnquist court alone, and it’s possible that no two justices have always agreed with each other about every case.

    …Of course, that could change once Scalia and Alito are sitting on the bench together.

    If you’ll recall, we have a Supreme Court to make a final decision on the matters of law disputed by (generally) reasonable, intelligent, educated, ethical justices in the lower courts, many of whom have decades of experience in arguing and deciding cases. Each case that comes before SCOTUS has struggled up through other courts–in some cases, each side has had its arguments both affirmed and denied.

    There is no single interpretation of the law, and Ginsburg’s support for Roe is as much based on a reading of the law as Alito’s dispute with it. I happen to think that his reading is incorrect, but it still qualifies as legal reasoning. You seem to think that “ideological” means, “pulled out of his ass.”

  20. Piny

    Are you trying to say you would have had no problem if Republicans had engaged in the same kind of rhetorical slander towards Ginsburg that Alito received from Democrats?

    Ideology is secondary to me (and please, spare me the Nazi strawman and I’ll spare you the Castro/Stalinist one) then temperament and reasoning. If a judge isn’t putting his personal views ahead of a reasonable reading of the Law, then disqualifying him merely on the basis of his personal views is pretty reprehensible.

  21. Are you trying to say you would have had no problem if Republicans had engaged in the same kind of rhetorical slander towards Ginsburg that Alito received from Democrats?

    That, of course, wasn’t going to happen because Clinton consulted with the Republicans and courted Orrin Hatch to come up with Ginsburg’s name. She also was quite forthcoming in her hearings in terms of her views on settled cases (instead of cases that were hypothetical and/or yet to be decided, which any judge should not have to be pinned down on).

    Of course, she could be forthcoming because most people in the country agree with her views on Roe. Whereas right-wing nominees have been much more circumspect about their views since Bork — who was forthcoming, and had the courage of his convictions — was shot down because the public realized he was quite far out of the mainstream.

    As for ideological decisions, I think you could easily argue that Alito’s decision in Casey, particularly with regard to the spousal-notification provision, was ideological. He was attempting to hang his very out-of-the-mainstream opinion on O’Connor’s undue burden standard, only to have O’Connor herself smack him down on it.

    And then there’s the strip-search case, which seemed to view children as property of the parents and wives as property of their husbands.

  22. This stupid line that’s emerging about how the only reason to vote nay on Alito is ideology is retarded. I’m sorry. Strip Search Sammy blatantly ignores Constitutional considerations if they come in conflict with his ideology. Like, for instance, when he wrote an opinion that earned him the nickname Strip Search Sammy–you know, the one where he pretended that there wasn’t really a right not to be searched without a warrant.

    Well, at least as long as you’re in a group of folks he don’t like.

  23. Like, for instance, when he wrote an opinion that earned him the nickname Strip Search Sammy–you know, the one where he pretended that there wasn’t really a right not to be searched without a warrant.

    Uh, yeah, maybe that’s what he ruled. Or maybe you don’t know what you’re talking about. There are various situations in which the courts have held that you can be searched without a warrant, consistent with the Fourth Amendment. But a warrant was in fact issued in the drug search case that you’re referring to, Doe v. Groody. The procedural question that Judge Alito faced was whether an affidavit accompanying the warrant, which included additional instructions authorizing search of “all persons” at a certain house (because the warrant didn’t have enough space on it to include these directions) was sufficient to justify a search of a girl and her mother at the scene. Here’s what happened during the “strip search”:

    During the raid, a female officer asked the dealer’s wife and daughter to go to a private bathroom, turn out their pockets, and then remove their clothes for a visual (not manual) inspection by her. Notably, the other two judges on the panel, who ruled that the affidavit could not be taken into account, never used the term “strip search” (except in summarizing the lawsuit’s claims).

    The fact of the matter is that drug dealers frequently hide drugs on other people to conceal them. To leap from the very narrow, highly fact-specific issue of law that Alito ruled on in this drug search case to a claim that “Alito thinks it’s a good idea to strip search little girls without a warrant” or that he views women and children as “property”, is beyond dishonest.

  24. Yeah. Jesus. I used to defend cops in strip-search cases (oh, it’s so wonderful asking strangers about their genitals in depositions, lemme tell you), and I was just freakin’ horrified by that decision.

    It also blew my mind that anyone could get a warrant before the fact to strip-search anyone, but it could just be a difference between 2d Circuit and 3d Circuit law.

  25. Just as a note to anyone garnering their facts from this thread; the strip-search decision had literally nothing to do with whether or not the cops can strip-search a 10-year old girl. They can, if they’re empowered to do so by their warrant.

    The question in the case, which was extremely narrow and technical, was whether the controlling language should have been what was written in the warrant (which specified the drug dealer in question and his house, but didn’t mention other people) and the accompanying affidavit, which made it clear that the desire and the intention of the searching cops was to search everyone and everything found in the drug dealer’s house. The cops always intended to strip-search anybody they found; the judge who approved the warrant knew they intended to strip-search anybody they found; the only question was whether the warrant was properly configured to permit the searches that everyone knew was desired.

    Turns out it wasn’t, and Alito was in the minority in thinking (very broadly speaking) that the intent of the affidavit ought to be taken into consideration.

    It is highly indicative of the profound weakness of the case against Alito that his detractors are having to resort to intellect-defying stretches like this one to derail him. “He strip-searches little girls!” Uh huh, and you grossly mischaracterize complex issues for immediate partisan ends. Guess I know who to trust in future, huh?

  26. Robert, do you agree that he made the wrong decision, since the warrant did not cover the girl yet he allowed the search?

  27. As for ideological decisions, I think you could easily argue that Alito’s decision in Casey, particularly with regard to the spousal-notification provision, was ideological.

    Well, you’d have to be speaking in regard to the spousal notice provision, because on the constitutionality of all the other provisions, he agreed with the majority of the panel (and of the Supreme Court).

    He was attempting to hang his very out-of-the-mainstream opinion on O’Connor’s undue burden standard, only to have O’Connor herself smack him down on it.

    His “out-of-the-mainstream opinion” was agreed with by four Supreme Court justices. His opinion wasn’t an expression of his personal policy preferences, but even on that score you can hardly call it “out of the mainstream”, since huge majorities of Americans, including majorities of Democrats, favor spousal notice statutes. O’Connor’s jurisprudence is notoriously amorphous, and in the absence of further guidance from SCOTUS, Alito was just trying to reach the conclusion he thought best comported with the undue burden test.

  28. Jon, don’t pretend that it’s not a strip-search if it’s visual and not manual.

    Like I said, I defended NYPD officers in strip-search cases, and so I know very well what constitutes a strip-search, at least in 2d Circuit jurisprudence (the 3d Cir. apparently has a broader standard, but not so broad that it can be done without a valid warrant). Any removal of clothing is considered a strip-search, whether full or partial. It matters not whether the suspect removes his or own clothes. Visual body-cavity inspection is considered quite invasive, certainly no less so than physical body-cavity inspection in terms of the civil-rights violation.

    In any event, the usual standard for strip-searching suspects is that if they are suspects, and under arrest, and the circumstances of the arrest or crime warrants it, a strip-search might be allowed. Certainly narcotics arrestees are susceptible to search given the nature of the crimes, but neither the daughter nor the wife were under arrest, nor were they covered by the warrant, which covered only property.

    Alito, basically, extended the warrant way too far, whether on a too-broad theory of the warrant, or on a theory that the family was basically property to be swept up in the search of the premises.

  29. Well, you’d have to be speaking in regard to the spousal notice provision, because on the constitutionality of all the other provisions, he agreed with the majority of the panel (and of the Supreme Court).

    Well, yes, Jon. Was that not obvious?

    Well, you’d have to be speaking in regard to the spousal notice provision, because on the constitutionality of all the other provisions, he agreed with the majority of the panel (and of the Supreme Court).

    But not five, including the one who wrote the opinion he was trying to base his own opinion on. And there are nine on the court. Do the math.

    Most people think it’s a good idea that wives would notify their husbands, because most people believe that they would notify their husbands or that their wives would notify them. But I doubt, if the question were posed to them, that most people would agree that women who were likely to be abused by their husbands should nevertheless have to notify them.

    And, of course, those polls ignore the rather glaring equal-protection problem that imposes on married women additional burdens that single women do not have, an issue that was not reached by the Court.

  30. But I doubt, if the question were posed to them, that most people would agree that women who were likely to be abused by their husbands should nevertheless have to notify them.

    The spousal notice provision that Alito was ruling on in Casey included an exception for cases of possible abuse.

  31. But not five, including the one who wrote the opinion he was trying to base his own opinion on. And there are nine on the court. Do the math.

    Thanks for the math lesson. But the point was simply to demonstrate that an opinion that you call “very out of the mainstream” commanded plurality support on the court, and was only one justice away from becoming accepted, controlling law. Hence, for whatever else it was, it wasn’t “very outside the mainstream.” Q.E.D.

  32. zuzu

    When someone uses “strip search” to the general lay person, they tend to think “naked, spreadeagle, cavity search”

    Tell me I’m wrong.

    I work in a DA office and let me tell you criminals have no problem with using children, even their own, to hide drugs, transport drugs, use in burglary/grandtheft/petty theft schemes. It is just silly to believe that everyone in a house being searched for drugs would NOT be searched. Even a baby’s diapers (a fave hiding spot).

    Alito may have been in the minority in this very narrow decision, but it was not out of either bad faith or ideology.

    Same with the spousal notification. There is both an implied contractual responsibility between spouses that doesn’t exist for singles AND the law in question had an out women who thought they’d be subject to abuse or were not pregnant by their husbands.

    Or do you think husbands might not have a legal requirement to tell their wives if they test HIV positive?

  33. Well, at least as long as you’re in a group of folks he don’t like

    Yes, of course. Alito really hates children.

    Kicks puppies, too.

    And kittens. Let’s not forget the horrors he visits upon kittens.

    SAVE THE KITTENS! STOP ALITO!

  34. Same with the spousal notification. There is both an implied contractual responsibility between spouses that doesn’t exist for singles AND the law in question had an out women who thought they’d be subject to abuse or were not pregnant by their husbands.

    Or do you think husbands might not have a legal requirement to tell their wives if they test HIV positive?

    Because a woman who gets an abortion without telling her husband is putting him at risk of having the fetus transferred into his body, just like a husband who gets HIV without telling his wife is putting her at risk of getting HIV.

    Pregnancy isn’t contagious that way.

  35. When someone uses “strip search” to the general lay person, they tend to think “naked, spreadeagle, cavity search”

    Tell me I’m wrong.

    It matters not if you’re wrong; the law recognizes certain definitions of what a strip-search entails.

    But sure, if you’re just peachy with the idea of stripping in front of a police officer just so long as they don’t touch you, good for you. Something tells me you’re not.

    The spousal notice provision that Alito was ruling on in Casey included an exception for cases of possible abuse.

    A judicial exception. Most people, as we saw with the Terri Schiavo case, do not want to have the courts involved in their personal decisions.

    Again: there is a vast difference between the idea that spousal notification is a good idea and that spousal notification should be mandated by law.

    But also again: does the general public (and do you) understand the equal-protection problem inherent in spousal notification in the light of Eisenstadt v. Baird?

    In any event, the general public does not decide Supreme Court cases, but they can influence nominations.

    Darleen, I don’t really give a crap if you work in a DA’s office if you don’t understand that strip searches can only be done on the basis of individualized suspicion. If there is reasonable suspicion when swearing out a warrant that a suspect might hide drugs on their family members, then the warrant should be sworn out to include the family members, not just the premises. If there’s no warrant, they should arrest the family members on possession charges (with probable cause) so that they can do the search.

    Or do you think husbands might not have a legal requirement to tell their wives if they test HIV positive?

    Actually, I don’t. At least not in the criminal context, or in the sense that the wife could get some kind of injunction against them doing something with their bodies that they could have done if they were single. Now, deceiving someone about your HIV status, regardless of whether you’re married to them, might be grounds for civil action in the case of infection. But why should married people have an additional burden than single people do (or, conversely, why should single partners have fewer rights of notification than married partners do?).

  36. On whether the filibuster was productive for Dems, this strikes me as fairly accurate analysis, particularly the first point: had Kerry not pressed for a filibuster, the headlines would’ve emphasized that fewer than 60 Senators voted for Alito’s confirmatio. But by pressing for the filibuster, Kerry has set a precedent that Alito-like nominees can get 70+ votes on cloture.

  38. Uh, no, I’m citing the opinion of Ed Whelan on the probable effects of today’s filibuster on Democratic electoral prospects and future judicial nomination battles.

  39. Jon C: The spousal notice provision that Alito was ruling on in Casey included an exception for cases of possible abuse.

    Zuzu: A judicial exception. Most people, as we saw with the Terri Schiavo case, do not want to have the courts involved in their personal decisions.

    And don’t you also have to prove there is/was a past history of abuse? It’s not as simple as going to the dr. in the ER and saying, “I need an abortion, but I can’t tell my husband because he’ll beat me.”

    When homicide rates of pregnant/post pardum women go down, they I’ll be for spousal notification. ‘Til then, I agree with O’Connor’s undue burden standard.

  40. zuzu

    It matters not if you’re wrong; the law recognizes certain definitions of what a strip-search entails.

    I’m not. That’s why you are pounding the law. I’m pointing out the sophist spin to the lay public by the Jeepers! It’s a Bushie Nominee! gang presents.

    As pointed out, the warrant included an affidavit stating “all persons” on the premises at the time of the search. It is damned silly that “all persons” would not logically include members of his family. Again, we are speaking very narrow technical details that reasonable people of good faith can disagree on. It doesn’t make Alito a child molester or the judges that ruled the other way supporters of drug traffickers.

    The agencies I work with do sweeps on a fairly regular basis. NO ONE in the drug houses they search goes away unprocessed. Maybe you need check out the SOP of your local Street Enforcement Team sometime.

    But why should married people have an additional burden than single people do (or, conversely, why should single partners have fewer rights of notification than married partners do?).

    Uh. It’s actually called responsibility. If one cannot live up to it, don’t enter into the contract.

    But hey. That’s just me and the way I was raised.

  41. Robert, do you agree that he made the wrong decision, since the warrant did not cover the girl yet he allowed the search?

    I’m not a lawyer, and it doesn’t look to me like there’s an obviously wrong or right answer.

    The case is technical, having to do with rules of procedure and which documents control what aspects of a police process. Alito’s ruling gives a greater weight to common sense than to a technicality-oriented view of law; since the magistrate had given assent to searching anyone on the premises, and the magistrate’s assent is what is material to a warrant, it was OK. The appeals court instead ruled that the letter of the law had to be followed – it had to be specifically written on the warrant or no go. I can see the case for either interpretation; neither strikes me as radical or unusual. It’s just a question of which positive good value should be endorsed in a particular circumstance.

    Alito made a statement which I find persuasive in this case, to the effect that it was obvious that the cops thought they had their ducks in a row, because they specifically asked the magistrate who issued the warrant for permission to search everybody, and they specifically took along a female police officer in anticipation of having to search women. Thus, Alito felt it wasn’t fair for them to be personally sued for a rights infringement: they did their best to follow the rules, but they aren’t lawyers and they glitched on their paperwork, not on the substantive question of the rights of the defendants to be secure from unreasonable search; a judge had agreed it was reasonable to search the guy’s wife and kids and friends or whoever else was in the house. This seems reasonable to me. So I guess on balance I would come down on the side of the officers in the case, but I can understand perfectly why someone else might rule differently.

  43. But hey. That’s just me and the way I was raised.

    Darleen, that’s the whole fucking point. It is just you and the way you were raised. If you think that part of the responsibility of marriage is to keep coming home to your spouse no matter what he or she does, that’s great for you. It’s not enforceable law, nor should it be, because there are plenty of women out there who would rather not have to choose between telling an abusive husband that they are having an abortion and telling the entire free world, through the courts, that they are having an abortion.

    a nut

    Funny. Last I looked ER docs don’t perform abortions

    Nice job avoiding his/her entire argument. You know exactly what a nut meant.

  44. As pointed out, the warrant included an affidavit stating “all persons” on the premises at the time of the search. It is damned silly that “all persons” would not logically include members of his family. Again, we are speaking very narrow technical details that reasonable people of good faith can disagree on. It doesn’t make Alito a child molester or the judges that ruled the other way supporters of drug traffickers.

    Since you work in the DA’s office, you understand that an affidavit is not a warrant. All it indicates is that the police asked permission to search “all persons;” it says nothing at all about whether or not that permission was granted. The warrant is the response to that wish list, and it frequently allows some requests on the affidavit and denies others. It doesn’t matter whether or not the girl was mentioned on the affidavit or not; she was not on the warrant, and that’s all that matters. The fact that “all persons” appeared on the affidavit and not on the warrant would, in fact, seem to indicate that the police did not have permission to search “all persons.”

  45. The magistrate read, signed and stamped both the warrant and the affidavit, Piny. It is very clear that the police had implicit permission from the judge to search all present in the house. The ONLY area of contention is whether the statement of police intent in the affidavit was sufficient. There is NO contention that the police did not have de facto permission to do the search; only whether they had permission de jure.

  46. Oh for heaven’s sake

    If you think that part of the responsibility of marriage is to keep coming home to your spouse no matter what he or she does, that’s great for you.

    Stop knotting your knickers. I’m very committed and very proud of the work I help with in our office prosecuting ALL instances of domestic violence, child abuse and elder abuse. We also have a very dynamic Victim/Witness advocate program with links up with House of Ruth for one.

    NO ONE should stay in an abusive relationship. But in an ostensible working relationship BOTH partners have a moral/ethical (and sometimes legal) responsibility to each other to be honest and forthright. That includes pregnancy and communicable diseases. Sheesh.

    What is it about the word responsibility that gives some people hives?

    You know exactly what a nut meant.

    Actually, I don’t. A Nut set up the scenario that Abused Woman shows up in the ER needing an abortion right there and then and the Patriarchy is aligned against her starting with White Male Patriarch with an MD in the ER who will just not give it to her. Cuz of the Patriarchy.

  47. Piny

    Guess the word “attached” escaped you.

    In most jurisdictions an affidavit becomes part of the whole of the Search warrant. Affidavits may also include the declarant’s expertise and reasoning in seeking the warrant. It varies from jurisdiction to jurisdiction.

    Again, should cops be monetarily liable when they AND THE JUDGE who granted their search warrant acted in good faith?

    Alito said no, the others said yes. Doesn’t make Alito a child molester.

  48. Yeah, but an affidavit is not a warrant. It’s a supporting document; it’s included so that the judge understands that the police believe there is probable cause to search the things they want to search. The signature on the warrant authorizes the search specified on the warrant. The police, who filled out the warrant form for the judge to sign, did not mention other occupants in the warrant. Now, they could have indicated that they meant, “the stuff on the affidavit:” they could have included the affidavit in the warrant by reference. In this case, they didn’t. The judge was presented with a warrant that neither included the occupants nor referenced the affidavit that included the occupants, and that is what he signed.

  49. In most jurisdictions an affidavit becomes part of the whole of the Search warrant. Affidavits may also include the declarant’s expertise and reasoning in seeking the warrant. It varies from jurisdiction to jurisdiction.

    Again, should cops be monetarily liable when they AND THE JUDGE who granted their search warrant acted in good faith?

    An affidavit becomes part of the warrant, the document. That doesn’t mean it becomes part of the warrant, the enforceable order.

    And absolutely. Is this a joke? Should the police be liable when they don’t know the requirements for a legal search?

  50. Piny –

    The judge signed both documents.

    The affidavit was attached to the warrant.

    The warrant DID reference the affidavit, in the probable cause section. They didn’t reference it in the persons to be searched section – which, as noted, was a cockup on their part. They did their paperwork wrong. There’s no dispute on that point.

    Nor is there dispute on the point that the judge knew that they were going to search everybody they found. OK?

    It is not possible to argue in good faith that the cops involved were going against the judge’s intention – the spirit of the law. The only area of dispute is whether their failure to correctly fill in the paperwork was sufficient cause to permit a lawsuit against the police involved. Two judges said yes, one judge said no. None of the judges involved appear to be idiots or power-crazed madmen; they had a reasonable difference of opinion on which value was most important in a particular circumstance.

  51. But in an ostensible working relationship BOTH partners have a moral/ethical (and sometimes legal) responsibility to each other to be honest and forthright. That includes pregnancy and communicable diseases. Sheesh.

    STDs/STIs are in no way analogous to pregnancy, so please stop equating them.

    I absolutely do not disagree that there is (usually) a moral responsibility to inform your husband/partner that you are pregnant. A relationship simply won’t function without that very basic bit of communication. But, that doesn’t mean there is or should be a legal responsibility.

    And if it makes you feel better, instead of “dr. in the ER,” pretend that a nut said “friendly neighborhood abortionist” or “local(ish) Planned Parenthood” and you’ll get the general idea of his/her argument. (a nut, feel free to tell me I’m an idiot if I’m misunderstanding you)

    And now for a completely different rant: Why can’t we have a gender-neutral third-person singular pronoun in the English language?

  52. Piny

    In related matters, police are protected from liability vis a vis Good Faith Exception Law where they reasonably believe they are operating under a valid search warrant. As I read the case, there is little to support your “absolutely they should be held liable” when their judge signed off on the search warrant and gave them every reason to believe it was a valid search warrant. They were operating under a signed warrant they believed was valid. Thus they felt they DID know what constituted a legal search. Again, and admittedly anecdotally, I don’t know of ANY drug-dealer-locale search warrant where all persons on the premises being searched are NOT searched themselves. It tips the “reasonable man” standard on head.

  54. Gotta love the conservatives—Robert, Jon C., and Darleen—-all arguing about it’s not ideology when Alito’s body of work portrays women as children, warrants as inconsequential, and women’s reprodutive ‘rights’ as depending on their husbands’ will.

  55. Oy. Since there seems to be a bit of confusion about the Doe v. Groody case, let’s look at the actual decision (warning: pdf)

    From the majority opinion:

    The appeal turns on the scope of search authorized by the warrant. To resolve this issue, we must consider under what circumstances the scope of a warrant may be expanded by looking to the accompanying affidavit. We hold it to be clearly established that unless a search warrant specifically incorporates an affidavit, the scope of the warrant may not be broadened by language in that affidavit. We also conclude that, under any reasonable reading, the warrant in this case did not authorize the search of the mother and daughter, and that the search was not otherwise justified.

    In this case, the warrant specifically referred to the affidavit only in the portions for “date of violation” and “probable cause belief.” The part of the warrant which set forth the “specific description of premises and/or persons to be searched” did NOT refer to the affidavit.

    Keep in mind as well that this was a qualified immunity case. Qualified immunity is almost a get-out-of-jail-free card for police officers, as long as they didn’t seriously fuck up and violate clearly established statutory or constitutional rights of which a reasonable person should have known. Any reasonable person, particularly a police officer trained in the execution of warrants, knows that you can’t strip-search someone without a warrant or probable cause to do so. The warrant clearly named only John Doe and not his family, and it also clearly did not refer to the affidavit when it set forth the persons or premises to be searched.

  56. What is it about the word responsibility that gives some people hives?

    Absolutely nothing. But responsibility means little when it’s mandated, particularly in cases where one of the parties has not exercised his responsibility not to abuse his partner.

  57. Now it’s really over- Landrieu votes no, Snowe votes yes: 58 votes to confirm. Welcome to the court, Justice Alito.

  59. Why can’t we have a gender-neutral third-person singular pronoun in the English language?

    Well, we do, according to the style guides I’m looking at. “They” is acceptable for both singular and plural. Just as “you” is both singular and plural.

    Your milage may vary, especially if you’re writing in certain rigorous contexts or are expected to conform to a specific, narrow style. I don’t think that’s the internet, though.

  60. Yeah, I normally use “they” in conversation, but in writing I think it gets confusing. But maybe that’s just me.

    And being from where I’m from, I never use “you” as a plural except in very formal writing. It’s always “y’all” for me.

  61. Darleen says:

    In related matters, police are protected from liability vis a vis Good Faith Exception Law where they reasonably believe they are operating under a valid search warrant.

    And Robert says:

    It is not possible to argue in good faith that the cops involved were going against the judge’s intention – the spirit of the law. The only area of dispute is whether their failure to correctly fill in the paperwork was sufficient cause to permit a lawsuit against the police involved. Two judges said yes, one judge said no. None of the judges involved appear to be idiots or power-crazed madmen; they had a reasonable difference of opinion on which value was most important in a particular circumstance.

    So what? So the police department isn’t personally liable for damages, the Supreme Court isn’t deciding a matter of personal damages/civil liability. They are there to consider points of law. It is highly important that the police departments be held to the highest and most rigorous interpretation of the law as history has shown time and time again that police forces/militaries will regularly attempt to step over human/civil rights when given the chance in an effort to make their job easier.

    We don’t live in disneyland and people tend to be malicious and self serving if given half the chance.

    Which brings us again to Alito’s nomination. Much ado is made here of whether Alito follows ideology or law. As a matter of fact, the interpretation of the constitution, or law as we know it under the constitution is debated quite frequently and has not/probably never well/reached a settled conclusion. Natural Law theorists, Unity Government Theorists (such as Alito) and many others that I have forgotten because I just haven’t the time to ponder such things anymore (lawyers help me out here).

    And Darleen you seem to fail to examine all issues on all sides:

    Uh. It’s actually called responsibility. If one cannot live up to it, don’t enter into the contract.

    But hey. That’s just me and the way I was raised.

    And good for you. But that is a damn weak argument for a law which forces all women to behave in a certain matter regardless of their personal desires/decisions or needs.

    The frequency which with people, particularly other women are s quick to assume that women need the law, police, courts, legislature, husbands and fathers to approve their decisions never fails to astound me.

    I have an idea! We mandate that men willingly submit to a vascetomy after seeding more than four children. If they show especially bad judgement (such as violence causing imprisonment, abandoning their children/responsilities) their danglers be cut short possibly sooner.

    Alito’s interpretation of Casey reflected a serious inability to see women able to exercise their own free will responsibly and that the state has a duty to step in and make her.

    That anyone can even claim they can stomach the above because of an “abuse” exception is just stretching the bounds of reason. The idea that an adult who supposedly has a constitutional right to ‘life, liberty and the pursuit of happiness’ free from government impingement, should have their major personal life decisions put up for the scrutiny and judgement of others is denying that person their basic rights as above listed, pure and simple.

    That other women would support the notion that they and other women cannot make sound life decisions, or that they should have the right to determine their destiny, free of interference from the government is beyond the pale.

    I heard the state of the union, some of it. Bush bragging about how abortion rates have been reduced. Who cares? Then he goes on about welfare rolls being reduced, then he goes on about the number of teen pregnancies going down.

    Isn’t the fact that this society is constantly preoccupied with what women do with their sex organs indicative of how little forward we’ve moved? Isn’t the fact that women still think its ok to defer all her will and independence as a person equally disturbing?

    The fact that Congress felt fine in voting for Alito shows just how truly out of touch these people are. They know full well what he represents and what his intentions are, but they care not, because in reality, what happens to us does not happen to them. They live on another plane. Democracy my ass.

    I

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