Bench Memos

Unhinged Kerry

At the outset of the floor statements on Alito, I had the ambitious goal in mind of cataloging and explaining the falsehoods propagated by Democrats. But listening to Senator Kerry’s unhinged attack on Alito yesterday evening, I now realize that that project would consume far too much time. So I’ll try to be more selective.

The thought that Kerry might have been President still spurs me to this quickie version. So let’s set aside how ridiculous it was for Kerry to cite Ann Coulter’s support of Alito’s nomination as part of his argument against Alito. And his reliance on the incompetent report from the Yale Alito Project and on Knight Ridder’s abusive statistics.

Some specifics: Kerry complains about the legal position in Alito’s lone dissent from the Third Cicuit’s en banc ruling in Sheridan, but seems not to know that the Supreme Court unanimously adopted exactly Alito’s position four years later. Kerry falsely claims that “a vast majority of the court, including Republicans,” rejected Alito’s position in the Bray case, but the decision was by a 2-1 vote of an ordinary panel (and the majority’s hyperbolic criticism of Alito’s dissent plainly rested on its misreading of the dissent). Kerry falsely charges that Alito, in Doe v. Groody, “believed that the strip search of a ten-year-old was reasonable.” That is a gross misstatement of his position. Kerry completely misunderstands the theory of the unitary executive. He hallucinates about some supposed dissent that he mistakenly thinks that Justice Thomas wrote in Planned Parenthood v. Casey. He speculates about Karl Rove whispering advice to Alito. And he raises the false Vanguard issue that even Teddy Kennedy appears to have abandoned.


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