Tuesday, January 10, 2006

Alito Confirmation Hearings: Day 2 Recap.

Ok, so day 2 of the hearings is almost "in the books." Still not much really happening, despite all the talking that took place. So far it's pretty much just the Democrats trying to get Alito to admit that he is a radical conservative with an agenda and the Republicans trying to allow Alito to say that he is a completely neutral legal mind with no pre-conceived ideas about key issues or executive power. As I get ready to leave the office for the day, Lindsey Graham is getting ready to question Alito. Up to that point, here's a quick recap of some of the bigger points from this day, Senator by Senator:

The "first round" of questioning by Senators started today. The basic rule is that each Senator gets 30 minutes to question Alito.

Round 1: Specter
First up, is committee chairman Arlen Specter. Specter started right up questioning Alito about privacy and the right to choose. He doesn't really get very far. Basically, Alito said that the constitution does protect a right to privacy in several ways, that stare decisis is important, and that SCOTUS should not be motivated by public pressures. He indicates that his statements in the past about Roe v. Wade reflected his opinions at the time, but that now he believes that precedent must be taken into account. Alito even points out that he has twice ruled abortion statutes unconstitutional because of SCOTUS precedent -- of course he fails to mention that doing so as a lower court is perhaps not that significant, given the requirements of vertical stare decisis.

Specter moves on to ask about executive power. Alito makes a (relatively) bold statement that war does not give the President a blank check and that the bill of rights has to be adhered to at all times. Alito eventually declines to give any specific answer about the Authorization to Use Force (AUF) and the wiretapping issue, noting that it is a difficult question that might have to come before SCOTUS.

Round 1: Leahy
Next up is the ranking Democratic member of the committee, Patrick Leahy. Leahy continues on executive power and asks about Alito's opinion about a host of executive power issues, including torture and FISA. Alito answers that nobody is above the law, that the President must comply with the Constitution, and then generally refuses to give specific answers and replies that the specific answers would depend on specific facts and involve difficult issues that might have to come before SCOTUS.

Leahy asked Alito specifically about the now almost infamous "strip search of the 10 year old girl" case. Alito says that the case turned on technical issues of whether a reasonable police officer could have read the warrant as authorizing the search, that he felt that a reasonable office could, and that he hasn't really had an opportunity to reconsider the issue. Leahy disagrees with Alito, but moves on.

Leahy ended up with a few questions about Alito's participation in "Concerned Alumni of Princeton." Alito basically said that he couldn't recall any active participation and believes that he probably joined merely as a reaction to ROTC being ejected from campus.

Round 1: Hatch
Next up was Orrin Hatch. Hatch spends most of his time either explaining or giving Alito the chance to explain why he did not recuse himself from the Vanguard case and why he was not required to do so (and pointing out that a review panel reached the same result, as did numerous "experts" in ethics). Hatch also takes the time to point out cases where Alito has ruled against the executive branch.

Hatch moved on to talk about Alito's judicial philosophy. The gist of Alito's testimony at this time was that he believes in stare decisis and precedent and believes in deciding cases as narrowly as possible. He suggests that it is when judges try to answer too much that they run the risk of making mistakes.

Round 1: Kennedy
Edward Kennedy was up next. Kennedy started out trying to hammer Alito on the Vanguard issue and trying to suggest that Alito was not being genuine in suggesting that he did not realize his personal connection to Vanguard. Kennedy makes some comments about the need for litigant's to believe in impartiality of the court. Kennedy also asks some questions about executive power and whether the American public can get "a fair shake" from Alito. Kennedy then went through a number of specific cases and argued with Alito about whether the executive branch actions were unreasonable or not. Alito generally suggests that the cases being discussed involved specific technical matters, etc.

Round 1: Grassley
Kennedy was followed by Chuck Grassley. Grassley basically lobbed softballs to Alito. Makes the point that Alito did not stand to make any individual financial gain in the Vanguard case, that Alito won't rubberstamp executive decisions, that Alito does not think the President is above the law, that Alito does not believe judges should impart their personal values into interpreting the Constitution, etc. Grassley does take a bit of a shot at blogs, though.

Round 1: Biden
Joseph Biden. Biden starts off pointing out that there are a number of troubling ethical issues all combining to consider. Vanguard, CAP, etc. Biden moved on to talk about O'Connor and the fact that Alito is specifically replacing O'Connor and how much that should play into the hearings. Biden grilled Alito about discrimination cases and basically says he's "puzzled" about Alito's rulings and explanations, in light of other members of Alito's court, etc., and their comments about how troubling Alito's positions were. Biden seemed to be trying to make the point that Alito is more likely to rule in favor of discrimination and discriminators than O'Connor would.

Round 1: Kyle
Biden was followed by Jon Kyle. Kyle lets Alito talk about the use of foreign law. Alito basically says it might be instructive in specific situations, such as cases involving treaties and private law cases governed by some foreign law, but that it should not be a factor in interpreting the Constitution. Kyle also put some documents into the record suggesting Democratic findings that the CAP issue should not be a problem. Kyle gave Alito the chance to give specific examples of cases where Alito ruled against discrimination.

Round 1: Kohl
Herbert Kohl up next. Kohl tries to criticize Alito for comments that he made in support of the Bork nomination. Doesn't really seem to get very far with that; Alito basically says that the statements were made when he was a member of the Reagan administration, that he was a supporter of Bork, and that they should not be read further than that. Kohl gets into the reapportionment and one person/one vote issue. Alito answers that he's not opposed to the concept of one-person/one-vote, but just that Bickel took the concept too far. Kohl also asks about the Family Medical Leave Act and criticizes Alito for a ruling that Kohl says denied a plaintiff the right to sue for damages. Alito basically says that Kohl does not understand the law and that the issue in the Alito case was distinguishably different from the one in Hibbs, the Supreme Court case that Kohl tried to argue ruled differently. (Note: Ann Althouse had post on this issue some time ago, basically saying the same thing as Alito said here (if I recall correctly): Althouse 10-31-05.)

Round 1: DeWine
Next up is Mike DeWine. When DeWine actually gets around to asking a question, rather than just commenting and reading from an article about O'Connor, he asks Alito whether he will grant sufficient deference to rulings of Congress. Alito indicates that Congressional findings are due great respect, etc. Some questions and answers about whether SCOTUS is working hard enough to resolve splits among the circuits; Alito understandably hesitant to really say much, other than that splits can be problematic.

Round 1: Feinstein
Diane Feinstein. Feinstein begins attacking Alito on commerce clause issues. She asks Alito about the "machine gun" case, in which Alito authored a dissent suggesting that Lopez (SCOTUS case) required the invalidation of a federal law limiting instrastate possession of machine guns. Alito suggests there was no factual support presented that the gun had traveled in interstate commerce; Feinstein responds that it should be pretty apparent that a Chinese made machine gun had to have traveled in interstate commerce to get into the state.

Feinstein moves on to ask Alito about when circumstances would allow for overturning prior precedent of the Court. Alito basically says that it's justified when the existing rule proves to be unworkable and must be reconsidered. He gives examples involving commerce clause regulations of local government and advancements in technology making rules about electronic surveillance need reconsidering.

Feinstein tries to get Alito to say that an exception for the health of the mother is always required in abortion statutes, and Alito answers that it is a "compelling interest" throughout the pregnancy. Feinstein then ends with a quick question about FISA, and Alito basically just says (again) that it depends on specifics of the statute and the AUF.

Round 1: Sessions
Next up was Jeff Sessions. Sessions basically asks for an assurance that Alito will be independent on the bench. Alito says he will, and Sessions basically says that's good enough for him. Not much of any substance in Sessions' questioning of Alito. At one point Alito pointed out that conservative judges can be activist just as much as liberal judges; Sessions agreed with this, but commented that the real problem is with liberal activist judges.

Round 1: Feingold
Russ Feingold followed. Feingold tried to get Alito to talk about the NSA controversy and executive power. Alito basically refused to give specific answers, under cover of the statement that the issues might have to come before SCOTUS. He repeated (again) that the President must follow the Constitution and Constitutional laws. Feingold also tried to ask (again) about Vanguard and really got no substantial answer; something about Alito not really remembering if he had told the clerk to recuse him from cases involving Vanguard or not.

Round 1: Graham
Lindsey Graham came next. Graham was just getting started as I turned the t.v. off. It looked like he wanted to talk about the same issues again (surprisingly) and that he was asking about 9/11 and whether it was a criminal matter or an act of war. Perhaps shockingly, Alito answered this question by indicating that his personal views on that did not really matter.

Round 1: Schumer
Next was Chuck Schumer. I was on the road commuting and missed this. But check the link below to SCOTUS Blog for a play by play of Schumer's questioning.
(UPDATE: From my home: Apparently, from reading SCOTUS Blog's play by play, it looks to me like Schumer tried to get Alito to say he still stands by his comments that his personal belief was against Abortion back in the 1980's, but Alito refused to take the bait despite several tries by Schumer. Schumer appears to have tried to stay more or less on one topic, but nothing particularly shocking seems to have come from his questioning, either.)

Round 1: Cornyn
Schumer was followed by John Cornyn. Again, I was on the road commuting and missed this. SCOTUS Blog should have the play by play.
(UPDATE: From my home: Apparently, from reading SCOTUS Blog's play by play, it looks to me like Cornyn pretty much patted Alito on the back, repeated praise for Alito from others, and once mistakenly called him "Scalia." Again, nothing shocking.)

(UPDATE: From my home: Apparently, despite Senator Specter's statements early in the day that they would get through everybody's Round 1 Questioning today, even if they had to stay into the evening, they recessed with a couple of people yet to go (Durbin, Brownback, and Coburn). So recess until tomorrow morning.)

Resources on the web:
Washington Post (transcript of Day 2 a.m. session).
Washington Post (transcript of Day 2 p.m. session).
SCOTUS Blog (liveblogging as the hearings proceed).


Anonymous Realhoops said...

Great recaps! Thanks. They really help out for those of us who can't sit and watch the hearings but want to keep up with what the esteemed Senators are so passionately grilling the nominee about.

Keep it up!

6:34 PM  
Blogger SamuelAlito said...

This is what they told me at the murder boards:

"If the senators talk much more than you do, you get confirmed. If you talk about the same, it will be very close. If you talk more than the senators, you are doomed."

My biggest critics, Kennedy and Biden, barely paused to let me speak! This is easier than I thought.


8:42 PM  
Blogger Kierkegaard Lives said...


Today see if you can work the following into every answer:

"precedent" or "stare decisis"
"enumerated powers"

... if things keep going the way they did yesterday, these hearings appear to be a mere formality. Not that that's so unexpected, of course, but it would be nice if these hearings actually brought forth something of substance rather than partisan rhetoric from both sides.

7:36 AM  
Blogger 'Thought & Humor' said...

Now that the confirmation
hearings for Judge Alito to
the U.S. Supreme Court have
begun - if you have followed the
press in recent months - you may
have seen that at least three-quarters
of the comments have focused on Alito's
position on abortion. Both sides
in the fight feel that he might be
the deciding vote that could
overturn Roe v. Wade. So
opponents are demanding
that he either say that he will
vote to overturn Roe so they
can torpedo the nomination,
or commit to upholding Roe.

If that sounds extreme, let me
remind you that Roe was the
one issue that brought down
the eminently qualified Judge
Robert Bork.

Why such an obsession with
Roe v. Wade? The answer is
that this is the underlying
precedent relied on in all
of the major social issue
battles since 1973. The
principle set forth in that
decision -- individual
autonomy over not only
one's body but also the
meaning of life itself --
is the foundation for
"gay" rights and same-
sex "marriage" today.

If the defenders of Roe
can't get an answer from
Alito -- and it would be
unethical for a judge to
say how he would decide
on any case -- you can
expect them to concentrate
on the question of a judge's
respect for precedent. That
is just another way to get to
the question.

But there is some validity to it.
What lawyers call stare decisis
means in Latin "let the decision
stand," and it serves an important
function, providing the law with
stability and predictability, which
in turn allows people to know how
to order their lives.

But the Roe decision has never
enjoyed widespread acceptance.
On the contrary, the passage of
time has only increased the
conviction that Roe was wrongly
decided. Even the Supreme Court
acknowledged this in its Casey
decision when it spoke of affirming
the "central holding" of Roe, that is,
the result of Roe -- instead of Roe
itself. Then, as now, the best case
that could be made was "respect
for precedent": Roe had been on
the books for a long time, so
women had come to "rely" on
the availability of legalized abortion.

But stare decisis is a matter of
prudence, not bedrock principle.
As even liberal columnist Michael
Kinsley recently pointed out,
liberals did not "express any
alarm about the danger of
overturning precedents"
when the Court reversed
itself on the issue of gay
rights in the Lawrence
case. The earlier decision,
Bowers, was as old as
Roe was at the time of
the Casey decision.

And when the Brown
decision outlawed school
segregation, "the separate
but equal" standard that
had been the law of the
land for twice as long
as Roe had been on the
books, the Supreme
Court rightly reversed it --
it was a bad precedent.

As it has throughout its
misbegotten existence,
Roe is the beneficiary
of a thinly disguised
double standard. If
the subject were
anything other than
abortion, there would
be little talk of respecting
precedent. On the
contrary, the Court
would be urged to
revisit a wrongly
decided case that
had caused great

It is scandalous that
Roe's defenders
would seek to hold
a Supreme Court
nominee hostage,
demanding that he
assure them how
he would decide
a case, even before
that case is before him.

But make no mistake,
as you hear all the
chatter and listen to
the talking heads
pontificating: That
is precisely what is
at issue. And it is a
power grab by
abortion defenders,
in an attempt to
sustain bad law.

11:20 AM  

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