That Alito/Scalia contrast again.

Here's a free link to get to Akiba Covitz's TNR piece saying why Alito is not the same as Scalia. The article mostly contrasts the personalities of the two men -- and goes quite far in painting Scalia as an unpleasant person. It picks out a single case to portray Alito as less than "a caustic conservative":

In the 2003 case Williams v. Price, ... Alito wrote the majority opinion overturning a lower court decision in which a convicted first-degree murderer was not permitted to call into question his verdict after a juror was heard making racist comments. This was a grisly murder and just the kind of annoying habeas petition that those of Scalia's ilk think clog the judicial system. To his credit, Alito authored the opinion that provided for a new hearing.

In fairness, we could also pull out a few Scalia opinions that would resonate for liberals. Really, even Scalia is not the caricature that is used in these contrasts. But the challenge should be to understand Alito. Must Scalia distract us? The strongest reason for continuing to talk about Scalia is that the President campaigned on the promise that he would nominate persons like Scalia and Thomas. So why aren't we talking about Thomas too? Because Thomas isn't Italian?

Hallucinogenic tea time.

The Supreme Court heard oral argument today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, the hallucinogenic tea case. A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

UPDATE: Here's the report from SCOTUSblog.

I don't mind being bashed on the highest traffic blog...

But Armando, please, throw in a link to my blog! That's just flat out, passive aggressive, link deprivation! No fair!

Well, by Kos standards, I am "the Right Wing," as Armando tries to understand how the Right Wing thinks by reading my NYT op-ed. Good luck with that! Oh, at least I've led his fevered mind down a blind alley. Nice move dismissing my references to actual case law as "fairly arcane discussion" and then calling me "facile."

Anyway, link, dammit.

UPDATE: Steven Taylor reports that Michael Medved called me a "liberal law professor" on his radio show -- and then Ruth Anne, one of our faithful commenters here, corrected him on the air! Ruth Anne shows up in the comments on this post too and tells the tale. Thanks, Ruth Anne. How interesting to have Kos call me a right winger and Medved call me a liberal on the same day, based on the same essay!

ANOTHER UPDATE: Here's Ruth Anne's blog post about the experience: "When (My) Worlds Collide."

YET ANOTHER UPDATE: I just got an email, with the subject line "Scalito Story," that reads:

You are the worst sort of vile crap to be teaching at a public university, and to be on staff at what should be seen as a prestigious institution is disgusting. It is you and your like that are tearing this country apart. Go home to your cave and commiserate with your kind.

Whew, I feel better.

What do you think are the chances that this person learned what he thinks he knows about me from reading DailyKos?

Mellowing out.

I'm trying to mellow out after yesterday's media overload. How quickly everyone responds to a Supreme Court nominee these days! Oh, how can I marvel at such a thing, when I played the media game all day yesterday? Radio at 7 a.m, blogging all morning, banging out a NYT op-ed in the afternoon, blogging all the while, TV in the early evening, radio again in the later evening, final op-ed edit as I crash into the wall post-radio ... and blog about that! Ah, it's a crazy life, this lawprof-blogger life. You have to ride the wave when it comes. How disconcerting it must be for people to take a day or so to try to understand the work of a man with a long, impressive career. In fact, I have a bit of an aversion to talking about things before taking the time to study them in depth. But if I say no when I'm asked, who will say yes? Better to say yes and be careful not to say more than is fair. Today, though, I need a rest. Of course, I'll read and blog, though. Should I read the blog posts written in the heat of the new nomination, or should I read through some of the old cases, written quietly over the nominee's fifteen years on the federal bench? At first, I thought that was an easy question, but on reflection, I'm really not sure.

Halloween aftermath.

The Isthmus has a giant mass of links and quotes about the Halloween revelries of Madison. Here's a cute (pre-revelry) quote from Kevin O'Connor:

I think those stadium lights are going to make a big difference. I really do. This year when they show the footage of the rioting on the news, we'll be able to see it much better! This is what you get when you stick stadium lights up to try to diffuse a riot: You get a really, really well-lit riot.

You know, all around town there are stencils that say "Don't forget to riot"! But the kids didn't really riot, it seems. And the police behaved properly, didn't they? Go to the Isthmus links for plenty of first-hand descriptions of what happened.

Take note of a serious rumor.

I wasn't going to mention it, but Eric Muller writes "I just got a hit to this blog via the google search 'Is Samuel Alito Jewish.'" Muller chuckles over what he's perceiving as one clueless Googler. But look at my Site Meter's ranking of recent search words. I've been getting numerous hits from "samuel alito jewish" and "alito jewish" in the last two days. Here are my current top hits:

36 ann althouse
27 althouse
11 samuel alito jewish
8 rapex
5 kate moss naked
4 therefore symbol
4 pamela anderson roast
4 ann althouse blog
4 althouse blog
3 seamus farrow
3 alito jewish
2 wsj photos halloween
2 tyler durden sunglasses
2 sexy comedy
2 sexplay
2 sam alito jewish
2 pajama media
2 oogle
2 let it be dvd
2 kate... naked
2 judge samuel alito
2 federalism
2 ann althouse wisconsin
2 "ann althouse"

Put my name aside, ignore my usual traffic over "kate moss naked" and the "therefore symbol" (what this blog is all about, right?), and you can see that the question whether Alito is Jewish is a web trend of the last 24 hours. There's a serious rumor churning up out there, I would guess. Where did it originate?

Quit saying Scalito, read the cases, and appreciate the benefits of a nominee with a long judicial record.

Here's my New York Times op-ed about the new Supreme Court nominee Samuel Alito.

IN THE COMMENTS: Mr. Bungle says: "Sadly this is the news media age when phrases like 'Bennifer' and 'Brangelina' are deployed at every given opportunity. Frankly I'm surprised that 'Bulshito' hasn't been run up the flagpole already." Oh, it shouldn't take long...