8 January 2006 - 2:42pm
Authoritarianism... Scalito
Here is an interesting slice of authoritarian cake, from the Denver Post:
Washington - Cai Luan Chen was 19 when he fell in love with Chen Gui.
Gui was just 18, and China's oppressive population laws forbade them from marrying until they reached their 20s. So Gui moved in with Chen and his parents and a year later discovered she was pregnant.The Chinese government ordered Gui to have an abortion. Officials came to the house and beat Chen when he wouldn't tell them where Gui was hiding.
Chen and Gui fled. She was hunted down and forced to abort the child in her eighth month of pregnancy. He made it to America, where he asked for political asylum, citing a U.S. law that protects couples fleeing China's abortion policies.
Judge Samuel Alito turned him down.

‘Poor fellow, he suffers from files.’
Aneurin Bevan
But the Chen case illustrates that Alito's defining characteristic may not be his politics or religion, but rather his deference to power. In his professional career, Alito has had just one employer: the U.S. government. Before becoming a judge, he was a federal prosecutor and Justice Department attorney. Even in an abortion-related case like Chen vs. Ashcroft, he sees things through the prism of government authority.
I like to remind people that we made great strides under the Warren court, appointed to serve (and rule) by a Republican but Warren had been Governor of CA, the broad sweep of the citizenry was not absent from his mind.
Back to Scalito:
"He rules in favor of institutional actors and defers to agency decisions in many settings while showing skepticism toward individual litigants' claims," a group of students and professors at his alma mater, Yale Law School, concluded after studying his career.
Alito, writing for a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit in 2004, sided with the INS.
The Board of Immigration Appeals' interpretation of the law "contributes to efficient administration and avoids difficult and problematic factual inquiries," Alito concluded.
"A rule is not irrational just because it is underinclusive," wrote Alito. And so it was "reasonable" to send Chen back to China.
The law is a tough business. Federal judges get paid big salaries to break people's hearts; it's part of the job. Perhaps the first immigration judge did get it wrong.
Yet anti-abortion and pro-choice senators alike should ask themselves whether they want someone with the inclinations of a lap dog or a watchdog. Especially at a moment when the White House is asserting new executive powers.
Now if we had a fiesty, populist, raring-to-go opposition party we could say, Bring It On (and not just weak PR crap in the phrase). So many ways to argue so many issues w/r/t Sam Alito... looked at one way, the man is a gift... from the pagan gods, if one wishes to explain a few things to the electorate.
BUT we have Lie down, Fall down Cream Puff Political Party:

Merritt's Bakery, cream puffs 1.35 ea.
Not a lot of strength on view.
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Comments
It appears that this law is not well written and is applied very unevenly. Immigration lawyers complain that its almost a crapshoot as to whether or not someone will get asylum. Complicating the matter is the fact that as the law is written almost ALL Chinese can apply for asylum under the law (e.g., anyone that would like to have more than one kid). This has led to a great deal of human smuggling, forged chinese documents and incredibly uneven applications of an apparently unworkable law. INS attempted to place some limits on the law so it wouldn't apply to every Chinese immigrant by requiring such things as a marriage license, a recent late term abortion or sterilization, etc... However, these are basically stopgap measures and are forcing the judges to make things up as they go. They need to fix the law.
Case law is all about judges making JUDGEMENTS. That's the way the system works. Narrowly written statutes will never fill all the gaps. The majority of "the law" is case law, which is nothing but judges making decisions balancing the Constitution, state Constitutions, prior court cases and statutes and regulations with the individual circumstances of a case.
Perhaps we need to rethink about how we treat immigrants. Maybe we need to quick picking and choosing what is a "good" reason for someone to come here. I don't know, but I certainly don't want judges, who're supposed to independant and impartial arbitors, to be toadies for the administrative branch of gov't. We go down that road, we might as well set up Star Chambers and leave it at that, Soviet style kangaroo courts, maybe?
Case law is about making judgements, but this law it too broad and is yielding lots of contradictory judgements. I may not agree with Alito's decision, but this is not an instance when he is off on his own in right field. Lots of judges are weighing in with varied and unpredictable opinions. That's a sign of a bad law. If it is too vague for the judges to come to a reasonable consensus, then it needs to be rewritten. Otherwise, the law is meaningless and it depends on the judge you get that day to determine the law and that is the opposite of what a statutory system is supposed to provide.
link with some background on Alito decisions...
LOL My own view (and I am not an atty, merely an interested observer) is that to make a finding reinforcing the narrow take of the US immigration law, in that it (asylum) applies to the husband, a married applicant of a wife forced to undergo coercive Chinese family planning (such euphemism) when the couple at issue were not permitted to marry, is interesting.
But then my own view is that Alito comes from a certain dictatorial rigid strata, the "white ethnics" a generation or two on from immigration.... sort of the Guiliani strata for short hand. LOL not one I share.
He pretty consistently rules in favor of the gubmint over the people.
Anyone who claims that police strip-searching a 10-year-old girl in her own home and without a warrant is pretty fucking scary.
I truly wonder at conservative support for such a character. Time was that conservatives stood for restricted government. No longer....