BENCH STUFF YOU SHOULD KNOW FROM NRO

More on Family and Medical Leave Act Case

[Ed Whelan 11/02 10:44 AM]
Just a quick follow-up to my essay yesterday on Judge Alito’s ruling on the Family and Medical Leave Act of 1993.

"Judge Alito was one of 21 judges on seven panels of seven different courts of appeals who, prior to the Ninth Circuit’s decision in Hibbs, applied Supreme Court precedent to the question whether Congress validly abrogated the states’s Eleventh Amendment immunity when it enacted the FMLA. Twenty judges, including Alito, determined that Supreme Court precedent dictated that the answer to that question was no. By my quick tally, ten of these twenty judges were Clinton or Carter appointees, including the most liberal member of the Third Circuit, Judge McKee, who joined Alito’s opinion, and highly respected Democratic appointees like Amalya Kearse, Jose Cabranes, and the late Richard Arnold.

Simply put, any person or group who tries to use Alito’s ruling as ammunition against him (as Senator Schumer did yesterday) has forfeited any claim to be trusted on any representation that person or group makes about Alito’s record. We can spend forever batting down the lies and distortions of the Left, but it’s time for responsible members of the Senate and the media to recognize who speaks credibly and accurately and who doesn’t."

Then There's This From:

Rocky Mountain News: Columnists

On Point: The ''machine gun'' lie

"Here's what you should understand about the claim that Judge Sam Alito "favors legal machine guns": It's a lie.

It is also a sound bite from the Brady Campaign To Prevent Gun Violence that has been picked up by a host of pundits who would rather caricature a legal opinion than understand it.

" 'Machine Gun Sammy,' a perfect Halloween pick," is how the Brady Campaign headlined President Bush's latest Supreme Court nominee. But what the Brady activists failed to acknowledge is that Alito's dissent in the 1996 case United States v. Rybar had nothing to do with a desire to legalize machine guns and everything to do with the judge's determination to follow a Supreme Court precedent from the previous year.

In that earlier case, United States v. Lopez, the court overturned a federal law banning possession of guns within 1,000 feet of any school because the statute was an intrusion into states' regulatory arena and utterly unrelated to interstate commerce. Congress had been steadily nationalizing local criminal codes for years, and the Supreme Court finally threw up its hands and said, "Halt!"

The Constitution doesn't give the federal government the power to regulate every activity in this land, the court said. At the very least, Congress must establish some plausible link to interstate commerce.

In his Rybar dissent that is now being mocked, Alito faithfully tried to apply Lopez to a case involving the possession of machine guns. "Was United States v. Lopez a constitutional freak?" he wrote. "Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?"

Meanwhile, not only did Alito point out how Congress might remedy the law's fatal flaws, he also noted that the "Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done."

Alito didn't favor legal machine guns. He favored abiding by the supreme law of this land."

Ah, the ubiquitous Commerce Clause, the Santa Claus for moonbats, that's used to regulate every bloody thing the moony's detest. Asking Congress to wait a minute and take the time to at least THINK about what you're trying to infer from the Commerce Clause then have the professionalism to have someone other than the family's basset hound write the law is beyond Schumer's ken.

Now, could he really be THAT dumb ya think? Or does he believe his consituents to be that dumb? Or ANY of us? I'd love to get to the intellectual bottom of all this but that'd mean finding an intellect to get to the bottom of, and sadly to say, Chuckie the Shoe ain't got one.