Alito Confirmation Hearings: Day 3 Recap.

Day 3 of the Alito hearings is now officially underway. I'll pick up the recaps where we left off yesterday, near the end of "Round 1" of questioning. I'll try to update this post as the day progresses. (And as an aside, I notice that my own comments are getting a bit "snarkier" as the day progresses ... perhaps I'm becoming a bit too cynical about this whole process or something?)

Round 1: Durbin
Richard Durbin is the first Senator to get a crack at Alito this morning in the Round 1 questioning. Durbin starts right off with privacy questions. He asks Alito about Griswold. Alito recognizes both Brown and Griswold as cases based on the text of the Constitution (Equal Protection and Due Process, respectively) and says that Roe is different because it is not rooted on text of Constitution. Alito says consideration of Roe has to start with stare decisis, that it's an important precedent, but refuses to say that it is "settled" in the sense that it cannot be revisited.

Durbin moves on to ask about CAP. Durbin doesn't buy Alito's answers yesterday that he joined CAP to react to the ejection of ROTC from Princeton and asks what the ejection of ROTC has to do with CAP's policies regarding women and minorities. Alito again says he doesn't remember CAP but that it's his best explanation for why he joined.

Finally, Durbin asks about a series of specific cases and rulings and suggests that the "small person" will be crushed under Alito's rulings. Alito responds with a specific case in which he ruled for the "small person."

Round 1: Brownback
Sam Brownback is next. Brownback enters a couple more "reference" letters into the record to show that some people support Alito. Brownback makes the (obvious?) point that sometimes precedent has to be revisited when it is contrary to current values. Brownback mentions a number of scholars who disagree with Roe and suggests it should be revisited.

Brownback asks Alito for a statement about Alito's interpretation of the Constitution. Alito says it should be similar to statutory construction, but that it is somewhat different because the Constitution has to endure over a much longer time than most statutes and because some issues were not specifically addressed by the framers.

Finally, Brownback takes a moment to point out another case that should be revisited (while we're appointing new Justices who, certainly, should revisit any cases that specific Senators disagree with): Kelo. Not much else from Brownback.

Round 1: Coburn
Tom Coburn is last for Round 1. Coburn makes more record with a list of cases where Alito ruled for the "little guy." Coburn apparently doesn't agree with the concept of stare decisis; he asks Alito where it is in the Constitution (Alito acknowledges it isn't) and says the framers never mentioned it. It's not clear if Coburn is suggesting that stare decisis should be abandoned and all of the judicial system thrown into chaos and unpredictability or what.

Coburn and Alito bond a little bit over their distaste for "foreign" law.

Coburn moves on to talk about (surprisingly?) abortion. Although he agrees with the "health of the mother" exception, he thinks courts have interpreted "health" too broadly. As support, he (for some reason) relies on a foreign health study from New Zealand (which apparently is more relevant than foreign law).

Coburn asks Alito why he wants to be on the Court. Alito says to use his judge-skills to make a difference, of course.

... and thus Round 1 comes to a close.

Round 2: Specter
Specter tries to make a point about SCOTUS decisions which seem to undermine Congress' powers (at least in Specter's view). Specter suggests that part of the purpose for these hearings is to "send a message" to SCOTUS -- apparently the hearings are really not just about determining Alito's qualifications to be confirmed.

Round 2: Leahy

... I'm not going to be able to watch any more of this until sometime this afternoon .. so until then, go check out the liveblogging at SCOTUS Blog to keep up to date with what is being asked, answered, and commented.

... ok. I'm back. Let's see what I've missed, based on the liveblogging at SCOTUS Blog ...

Round 2: Leahy
Leahy apparently felt that Alito had given (gasp) some inconsistent answers. Leahy attempted to pin Alito down on such things as executive power and interaction of the three branches of government. Leahy then asks about another specific case and Alito again tells him that the result was driven by the specific facts of the case (the water pollution case).

Round 2: Hatch
Hatch asked some really difficult questions of Alito. Like whether Alito's friends and people who know him consider him fair and impartial and whether Alito himself thinks of himself as a fair and impartial judge. Although Alito likely was sweating a bit, he handled those tough questions by representing that he is, indeed, fair and impartial. With that settled, Hatch then went on to defend Alito by pointing to more cases where the "little guy" won and defending his decisions in cases like Vanguard.

Round 2: Kennedy
Kennedy (finally) brings some drama to the hearings. Kennedy started off by pressing on Vanguard, but then moved on to talk more about CAP. Still not satisfied with Alito's responses about "not remembering" why he joined CAP, Kennedy quotes some inflammatory material about CAP's policies toward minorities and gays, argues that Alito's responses about ROTC being the likely reason for joining CAP don't make any sense, and then . . . (dramatic pause). . . moves for executive session to subpoena documents about Alito's involvement in CAP. Kennedy and Specter argued about whether this came out of nowhere or whether Kennedy had told Specter ahead of time, Specter refuses and says "he's the chair" and that he'll "consider" it later.

Round 2: Grassley
Grassley brings to mind the Joe Montana Fed-ex commercial about inappropriate use of football metaphors. Grassley says the Democrats are hurling "hail Mary's" and then compliments Alito for everything except his choice of tie. Grassley basically asked nothing new and his most stunning contribution in Round 2 was to ask Alito if Alito is biased on False Claims Act cases. Guess what Alito said?

Round 2: Biden
Biden, apparently, is just perplexed about many things about Alito. I believe yesterday he was "puzzled." Tune in tomorrow to see what he is then. Today he asked Alito about, among other things, abortion cases, the FMLA case (again), and CAP ... and was perplexed about Alito's responses. Oh, and he suggested that Alito seems, even if he is sincere, to be out of touch with the little guy.

Round 2: Durban
Umm... yeah. Nothing to report on Durban's "Round 2" questioning.

Round 2: Kyl
Kyl begins by defending Alito on the CAP issue. He reads from some CAP material indicating that the ROTC issue was, in fact, an issue that CAP was concerned about at the time. He calls Kennedy's material "scurrilous" (great word, by the way). Kyl afford Alito the opportunity to point out that the appeals process makes certain cases more likely to come up and that the end-result in a statistical number of cases does not necessarily reflect a personal preference for one side of an issue over another, but more likely a procedural result of the way the system is. He also let Alito explain why Alito cannot answer specifics about how he would rule on cases that might come before the court. What a helpful Senator.

Round 2: Kohl
Alito explains to Senator Kohl why he will explicitly say that he will honor "bedrock" principles in cases like Brown v. Board and one-person-one-vote, but not Roe; something about Roe still being very much the subject of a lot of litigation, whereas the others are now settled and not litigated.

Round 2: DeWine
DeWine reiterates his concern about SCOTUS overruling decisions by state and federal legislatures (wonder why?).


Round 2: Feinstein
Feinstein whines a little bit about Alito suggesting that abortion cases will come before the Court so he can't answer questions about it, and yet answering questions about one-person one-vote even though that issue actually is in cases before the Court. Feinstein also says that she, as a member of a Congress, is concerned about SCOTUS cases that suggest limits on Congress' Commerce power (shocking, I know).

Round 2: Sessions
Sessions praises Alito for coming through all of the background investigations (FBI, etc.) with so little "mud" on him. He asks Alito another really tough question: Can Alito show that he is in touch with issues of deep morality? Alito says "Yes." Good stuff. It appears that Sessions is also challenging whether SCOTUS really has authority to be final say on matters of the Constitution, because Article III doesn't explicitly say so (of course he doesn't really explain how removing this power would not result in Congress being completely unchecked in its decision-making; perhaps as a member of Congress that doesn't concern him, though).

...Brief Recess...

Round 2: Feingold
Feingold wants to know exactly who helped Alito prepare for the hearings. Alito says he'll get Feingold a list. A little discussion about ineffective assistance of counsel in capital cases (basically everyone agrees that it is important), and some discussion about the fairness of the death penalty in general. Feingold asks if Alito agrees with some specific cases (like Roper) and, in a completely unforseen response, Alito suggests that they are precedent and entitled to respect. Feingold also doesn't want to quite let Vanguard go; Alito tells him that it is important to recuse when required, not when not required.

Round 2: Graham
Graham wants Alito to educate everyone about "eating clubs" at Princeton. Alito didn't belong to any, but he'll tell us about them anyway. In addition, Graham points out a number of people (including Rumsfeld) who did. Keeping with the pattern for the day, Graham stops to ask Alito a very difficult question: "Are you a closet bigot?" Thankfully, Alito assures the Senator that he's not "any" kind of bigot. Graham also offers a stirring soliloquy about "guilt by association." Graham makes a point of criticizing those Democrats who will vote against Alito because of his earlier opinions on abortion by noting that Republicans voted for Justice Ginsburg even though she was pro-Roe. He does tell Alito that Alito will be confirmed, however (which begs the question of what these guys are really doing, doesn't it?).

Round 2: Schumer
Schumer is pretty hung up on Roe v. Wade and Alito's refusal to answer questions about it. He tries about every angle imaginable to get Alito to say that he wants to vote to overrule Roe; Schumer argues over Alito's position on "settled" vs. non-settled law, argues about the 1985 memo, argues about the consequences of not allowing any exceptions for health, rape, incest, incestual rape, etc. Alito basically just sticks with the pat answer: "The statement in the memo was one sentence and not an attempt to lay out a comprehensive position on every aspect of the issue, and I can't say more because the issue might come before the Court."

Schumer also wants to talk about CAP. He wonders why Alito felt the need to include it on his job application if he can't really even recall joining the group. (I'm guessing Alito will resist the temptation to just come out and say, "because the administration I was submitting the application to was going to like seeing it there, obviously.")

... ok ... that's it for me for now. I have a teleconference at 4:30 to get ready for. If I get a chance, I'll try to finish updating what happened today later on. I doubt it will be anything earth-shattering, but you just never know.

(UPDATE: From my home:

Round 2: Cornyn
Cornyn spends a lot of time up front talking about how Alito is his own justice, not a clone of anyone else, will review cases on his own and make up his own mind, etc. Cornyn apologizes for "accidentally" calling Alito "Scalito" yesterday (certainly among the top 5 high points of the hearings so far, in my opinion). Cornyn also declares Alito to be in the conservative "mainstream".

Round 2: Durbin
Durbin babbles a little bit about executive power, then starts asking questions about whether "non-believers" are protected by the Constitution. Alito quickly responds that people are free to worship or not worship. Durbin tries to delve deeper by referring to a specific case, and Alito knows about the case and explains the rationale for the ruling. Durbin goes on a bit more about religion and government support of religion.

Round 2: Brownback
Brownback, in perhaps the wisest move of all Senators so far, decides he doesn't need to ask any more questions to make up his mind (because, of course, these proceedings are really going to make up the minds of some of the Senators and they really didn't all know ahead of time how they'd vote, really, we believe that.)

Round 2: Coburn
Coburn rambles on a bit more about abortion, about how his grandmother was born as a result of a rape, about how the laws seem inconsistent that you can be held civilly liable for killing a fetus if you kill a pregnant woman, but the pregnant woman can have an abortion, and then starts asking something about how we'd explain this apparent inconsistency to space aliens when they invade. Alito basically says that he would tell the martians that the two situations involve different types of law and different decision-makers, and that tort law is different from state government decision-making about whether abortion is ok or not.

Coburn concludes with one of the most absurd statements of the hearings so far: that the confirmation process for SCOTUS should not be driven by the candidate's legal mind, but by his heart and soul (which, of course, means that the kindly old fellow who lives down the street and is always ready with a wave and a smile but can't actually read or write would be Coburn's ideal SCOTUS candidate).

This brings Round 2 to a conclusion. More to come tomorrow, so get a good night's sleep and get ready for the excitement.)

....
Resources:
Washington Post (Transcript of today's hearing)
Washington Post Supreme Court Blog (sort of liveblogging the hearing)
SCOTUS Blog (liveblogging)
Samuel Alito Blog (liveblogging)