Polls on Alito.

CNN reports:

Support for Alito's confirmation grew after widely televised confirmation hearings, the poll found. Before the Senate Judiciary Committee hearings, held January 11-13, 49 percent of respondents backed his nomination. In the poll released Monday, 54 percent expressed support.

The percentage of people who opposed his confirmation remained unchanged [at 30 percent] after the hearings, Monday's poll found.

That says a lot about the quality of the Democratic Senators' presentation at the hearings. They were not able to gain one percentage point of opposition. You'd think that many people would, without giving it much thought, support a President's nominee initially. The 49 percent figure going into the hearing may show that. But the hearings should have eroded that high level of support at least a bit, and surely, some of the 21 percent undecided should have taken the negative position. Yet the hearings won Alito 5 additional points.

Clearly, the Democrats' strategy was poor. But exactly why was it so poor? I've said before that I think it's a mistake to portray judicial decisionmaking as a political enterprise, which is what they did, leaving Alito to prevail by doggedly explaining legal doctrine in response to every attempt at an attack. I think people want the Court to decide cases based on the law and want to believe a judge can do that. If so, the Democrats' attack on Alito would look ugly and offensive.

But it may be that a lot of people really do think the Court is political. If so, the Democrats have an entirely other reason to worry. It would mean that people want the Court to take the political positions the Democratic Senators assumed we would be outraged by. It's hard to say which issues would be most influential, but I note that the Senators tried very hard to frighten Americans about strong presidential power.

The top Democrat on the Senate Judiciary Committee said last week he believed Alito would fail to check what he views as the president's inappropriate expansion of executive power.

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy," Sen. Patrick Leahy of Vermont said Thursday.

Perhaps most Americans disagree.

Bush takes questions from students.

I'm reading the transcript of the President's talk at Kansas State University. I was amused by this interchange:

QUESTION: Hello, Mr. President. I'm an American-Iraqi Kurd. I would like to salute you and salute all the troops of freeing 27 million people that are free.

BUSH: Thank you.

(APPLAUSE)

QUESTION: Mr. President, I would like to share this thought with all our nation and everybody who is questioning what happened to the chemical weapons. Saddam burned 4,500 villages. I lost more than 10 members of my family underground. We found their bones when we freed Iraq. Saddam himself and his people, his followers, they have chemical weapons.

QUESTION: Please stop questioning the administration and their decision. It was the best decision anybody could take: freeing 27 million people.

(APPLAUSE)

BUSH: OK. This is a question-and-answer period.

QUESTION: Mr. President...

BUSH: I hate to cut you off. You're on a roll, but -- what's the question.

QUESTION: Mr. President, all I could tell you, I have two members of my family, they are in the Iraqi parliament, and both of them are women. My sister-in-law and my aunt, they are in the Iraqi parliaments. And I would like you to share this happiness with me and with all the Iraqi people.

Thank you, Mr. President.

BUSH: Thank you.

(APPLAUSE)

And here's my message, here's my message to your relatives in the Iraqi parliament: Work to form a unity government, a government that includes the minorities in the country, a Shia, Kurd and Sunni -- no, no, no, no...

(LAUGHTER)

No. Thank you.

(LAUGHTER)

QUESTION: My husband is Sunni, my mother-in-law was a Christian Catholic, I am Kurdish.

(APPLAUSE)

BUSH: Thank you.

Got a question?

Only in America.

(LAUGHTER)

Hold on.

I wish I could read the transcript of what ran through his head. Thanks. Nice. Are you going to enumerate every family member? Shut uuuuuup! How can I say shut up nicely? What would Laura do?

I also liked seeing Wisconsin in the transcript. Bush is calling on a questioner who's wearing a hat with a W:

BUSH: Is that a Washington Nationals hat?

QUESTION: Wisconsin, actually.

BUSH: OK, yes.

QUESTION: "W" is for Wisconsin.

You're a rancher. A lot of here in Kansas are ranchers. I was just wanting to get your opinion on "Brokeback Mountain" if you've seen it yet.

(LAUGHTER)

You would love it. You should check it out.

BUSH: I hadn't seen it. I'd be glad to talk about ranching, but I haven't seen the movie.

(LAUGHTER)

I've heard about it.

(LAUGHTER)

I hope you go, you know...

(LAUGHTER)

I hope you go back to the ranch and the farms is what I was about to say.

(LAUGHTER)

I hadn't seen it.

(LAUGHTER)

(APPLAUSE)

Well, I haven't heard this one live, but as I'm "hearing" the line "I hope you go, you know..." as telling the student to go get %$#!ed. In the nicest possible way.

"It is in the DNA of this Harper government to improve the relationship with Washington."

Said Janice Stein, director of the Munk Center for International Studies at the University of Toronto, according to the NYT:

Stephen Harper and his Conservative Party defeated the long entrenched Liberal Party in Canadian elections on Monday. A Conservative victory is a striking turn in the country's politics and is likely to improve Canada's strained relations with the Bush administration....

Mr. Harper, 46, is a free-market economist who expressed strong support for Washington at the time of the American-led invasion of Iraq and shares the Bush administration's skepticism of the Kyoto climate control protocol, which Canada has signed and ratified. His party was formed three years ago as a coalition of two conservative parties.

Such positions are in sharp contrast with those of Prime Minister Martin, who rejected cooperation with President Bush's missile defense program, ratcheted up criticism of American trade policies and caustically criticized Washington during the campaign for not supporting the Kyoto protocol.

Mr. Harper did not emphasize his closeness to the Bush administration during the campaign, and there was no indication that Canadians had suddenly embraced American foreign policy. Mr. Harper pointedly promised not to send Canadian troops to Iraq, and said he would be a tough bargainer in trade talks with the United States.

But he did promise $5 billion in new military spending, which would go to forming a new airborne battalion and buying large transport aircraft to airlift troops and supplies during world crises.

I suppose I'm one of those Americans who don't spend much time thinking about Canada. I know it's up there, disapproving of us, like a sanctimonious older sibling. But I like the idea of this change, with new leadership that is closer to ours, friendlier to our goals. It will be interesting, perhaps, to see how things unfold.

About those issue ads.

Another important case issued today is the Wisconsin Right to Life case, which deals with the application of federal campaign finance laws:

It ordered a lower court to reconsider an "as-applied" challenge by an anti-abortion group, Wisconsin Right to Life Inc. The unsigned opinion, only two and a half pages in length, was announced by Chief Justice John G. Roberts, Jr. It ordered a three-judge District Court to consider the merits of the organization's complaint.

The decision came in a case argued just last Tuesday -- Wisconsin Right to Life v. Federal Election Commission (04-1581). The anti-abortion organization contends that the new federal campaign finance law's restrictions on political ads close to election-time is unconstitutional when it is applied to grass-roots lobbying efforts.

The Court's treatment of the case indicates it was ultra-easy. Or, as Rick Hasen opines:

In the short term, the greatest significance is that it allows the Supreme Court to put these issues over to another day. ...

Longer term, the opinion could be significant. First, it gets the courts and the FEC into the business of separating genuine issue ads from sham issue ads. The irony of course is that the bright line electioneering communications provision was sold as having the benefit of keeping the courts out of this mess. It is sometimes going to be impossible to determine whether an advertiser had an electioneering motive, as the facts of this case well demonstrate. It could be that the courts craft a tough test for plaintiffs to fit into this as applied exception. Or, if as I've suggested, the Supreme Court could well be moving toward more deregulation of campaign finance, this could be an important first step toward undermining McConnell without overruling it.

I'll update this post later when I've had the chance to read the case. Right now, I need to concentrate on developments circa 1819 -- McCulloch v. Maryland -- as it's nearly time to teach Conlaw.

Meanwhile, here's the short text of the case.

UPDATE: The AP's Gina Holland has this report:

Wisconsin Right to Life had challenged the part of the 2002 campaign finance law that bans the use of corporate or union money for ads that identify federal candidates two months before a general election. The group's ads named Sen. Russ Feingold, D-Wis., who was up for re-election, and the state's other senator.

The commercials urged people to call the senators and ask them to oppose Senate filibustering of President Bush's judicial selections. Feingold co-authored the campaign finance law with Sen. John McCain, R-Ariz.

The appeal had given the Supreme Court its first opportunity to review the McCain-Feingold campaign finance law in practical use. Justice Sandra Day O'Connor's retirement could leave the court split 4-4 on the law, because she was the deciding vote in the 2003 ruling.

O'Connor was on the bench Monday possibly for the last time. The court is taking a monthlong break.

Here's David Stout in the NYT:

The Supreme Court signaled a willingness today to revisit its landmark 2003 decision on the use of money in political campaigns, directing a lower court to reconsider a ruling against a Wisconsin anti-abortion group and perhaps opening the door to new challenges to campaign-finance restrictions....

On Dec. 11, 2003, the Supreme Court ruled, 5 to 4, that the core of the McCain-Feingold law was constitutional. Part of the law established a new category of "electioneering communications," or television ads that refer to specific candidates for federal office and that are broadcast in the relevant market within 30 days of a primary election or 60 days of a general election.

The law specifies that corporations and labor unions may not pay for such advertisements from their general treasuries, but must instead use money from their political action committees, which are subject to limits on campaign contributions.

Wisconsin Right to Life ran ads in 2004 urging viewers to contact the state's two senators, Mr. Feingold and Herb Kohl, also a Democrat, and urge them to oppose efforts to block President Bush's nominees for federal judgeships. Not coincidentally, Mr. Feingold was running for re-election (successfully, as it turned out).

A lower federal court ruled that the ads were "electioneering," and thus subject to disclosure requirements and spending limits spelled out in the McCain-Feingold law. But Wisconsin Right to Life argued that its ads were not really "electioneering" but instead amounted to "grass-roots lobbying," and under that definition should not be subject to the same curbs as "electioneering."

When the case was argued before the Supreme Court last week, there was considerable agreement that it can be very difficult to distinguish between ads meant to lobby and ads meant to influence an election - especially since many ads try to do both.

Here's the text of one of the ads in question:

PASTOR: And who gives this woman to be married to this man?

BRIDE'S FATHER (rambling): Well, as father of the bride. I certainly could. But instead, I'd like to share a few tips on how to properly install drywall. Now you put the drywall up . . .

VO: Sometimes it's just not fair to delay an important decision. But in Washington it's happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple"yes" or "no" vote. So qualified candidates don't get a chance to serve. Yes, it's politics at work, causing gridlock and backing up some of our courts to a state of emergency.

BRIDE'S FATHER (rambling): Then you get your joint compound and your joint tape and put the tape up over . . .

Contact Senators Feingold and Kohl and tell them to oppose the filibuster.

It makes complete sense to send the case back to the district court to do the as-applied analysis that it thought was unnecessary. The surprising thing is that the Court took so little time and devoted so few words to dispelling the district court's misimpression of McConnell. This is, after all, a case in which the Solicitor General filed a brief extolling the act's bright-line rules and the damage that would be done by as-applied challenges:

Recognition of an as-applied constitutional challenge along the lines suggested by appellant would substantially undermine Congress's effort to develop an objective bright-line rule for identifying the election-related advertisements that may not be financed with corporate and union treasury funds....

Appellant's approach would reintroduce the indeterminacy that Congress and this Court have sought to dispel.

O'Connor's vote decides the sovereign immunity case.

SCOTUSblog reports:

No. 04-885, Central Virginia Community College v. Katz, affirmed 5-4, in an opinion written by Justice Stevens, declining to apply the Seminole Tribe sovereign immunity doctrine to claims brought under the Bankruptcy Clause. Justice Thomas dissented, joined by the Chief Justice and by Justices Scalia and Kennedy. Interestingly, if this decision had not been ready to be issued today, the case might well have been held over for reargument. It's the first decision of the Term in which Justice O'Connor cast the deciding vote and in which Justice Alito would likely have come out the other way.

Very interesting. I'll read the case and have more later.

UPDATE: Here's a lucid explanation of the issues in the case. I will not burden you with detail on the difficult sovereign immunity case law. But I will express my exasperation with this case. The majority is made up of Justice O'Connor and four Justices who have shown very little regard for sovereign immunity. All four have been adamantly opposed to Seminole Tribe, the case that held Congress lacked the power to abrogate state sovereign immunity using the commerce power. And Justice Stevens, who writes the new majority opinion, was among the four Justices who back in the 1980s voted repeatedly to overrule Hans v. Lousiana, a change that would have eradicated sovereign immunity in any case based on federal law, regardless of whether Congress had acted to abrogate that immunity. So O'Connor was the only Justice in today's majority who has taken sovereign immunity seriously in the past, as have all the members of today's dissent (Justice Thomas, who wrote the opinion, and the Chief Justice and Justices Scalia and Kennedy). Why did O'Connor join the Justices she's disagreed with in the past? Her vote is mute, as she wrote no concurring opinion. It reminds me of Justice White's failure to explain his position back in Union Gas. Though he had in other cases voted along with the four Justices who supported Hans throughout the 1980s, he joined the Hans opponents to hold that Congress had the power to abrogate sovereign immunity using the commerce power. He wrote a concurring opinion, but only said that he didn't agree with much of the majority's reasoning. Union Gas was thus left in a weak state, and it was Union Gas that the Court overruled in Seminole Tribe.

Boys are losers.

It's becoming quite the meme, isn't it? Pardon me if I laugh at all this new reporting about how boys are innately inferior. Of course the studies show that, it's a natural consequence of following the rule all these years that whatever is shown to be true of girls at a biological level must be portrayed as superior. And then there's the other part of the gender game: If girls are falling behind, it's because what is good about them is being crushed by bad people who must be exposed and thwarted. If boys are falling behind, it's because what is bad about them holds them back and we haven't hit upon a good enough remedy yet.

A kinder, gentler Condi?

The AP reports:

[Condoleezza Rice] has begun displaying a sure-footed ease as Bush's top diplomat. Last week she displayed self-assurance as she praised the administration of Democratic President Truman for decisions that helped win the Cold War.

That perspective would smack of blasphemy to many rock-ribbed Republicans more inclined to credit former President Reagan with bringing down the Soviet Union.

Rice also supported increased foreign aid and called for a humanitarian approach overseas. That could reflect a practical view that a nation engaged in an Iraq war widely unpopular overseas, and with interests flung widely across the globe, needs help from other countries rather than confrontation with them.

"America is a compassionate society," Rice said last week in announcing a reshuffling in the management of U.S. foreign aid. "We are always going to carry out our humanitarian objectives."

I'm just continuing my project of taking note of Condoleezza Rice's emerging presidential campaign.