Eminent Domain

I was ready Saturday to write a long winded analysis of the unhinged Slate article about then-Assistant Solicitor General Alito's memo concerning the Sixth Circuit's decision on a Tennessee "fleeing felon" statute. Fortunately for my exhausted self, Ed Whelan beat me to it.

Read Whelan's article, then read the Slate article by Emily Bazelon. You'll notice a very big difference in tone and rhetoric. Bazelon implicitly raises charges of racism directed towards the statute and Alito. Whelan points out...

Second, Bazelon finds Alito's memo "striking for what it doesn't say" namely, that in "Memphis and across the country, cops were shooting black suspects at a far higher rate than white ones." As it happens, the Sixth Circuit opinion didn't have anything to say about this either. Nor did the Supreme Court. And for good reason. What possible bearing does this point have on the Fourth Amendment question? Or on the due-process issue?

Bazelon injects the race issue even though it had nothing to do with the legal analysis. Should it have been a Fourteenth Amendment Equal Protection issue? Maybe, but it's not in there. The Sixth Circuit didn't address it, the Supreme Court didn't address it. Where is Bazelon's implicit racism charges for them?

In her dissent in the Supreme Court case, Justice O'Connor adopted Alito's position. Yes, the sainted Justice O'Connor, current angel of the Left, agreed with Alito. But in a verbal maneuver that can only be described as deceitful, Bazelon claims otherwise. Whelan again...

Bazelon transmutes Alito's unresolved stance on the question whether the shooting constituted a seizure into a position that it didn't, as she charges that "none of the justices adopted Alito's position."

The Court's decision in Tennessee v Garner was 6-3. Apparently, "3" is the same as "none of the justices." Your definition of "none" may vary.

This is what I've come to expect from Slate's legal coverage. If you ever want a trip through fantasyland, check out the articles from Emily Bazelon and Dahlia Lithwick. It's partisan legal reporting at its worst. The close of Whelan's article says it best...

An honest debate, instead of lies and distortions, would be refreshing.

There's a month to go before the confirmation hearings. So far, there hasn't been any real traction against Judge Alito's nomination. None of the attacks from PFAW, Slate, Schumer, or Kennedy have stuck. If Alito can get through the next month without any real controversy popping up, he's as good as confirmed.