Alito Confirmation Hearings: Day 5 Recap.

Day 5 of the Alito-marathon is underway. More panels today. I don't know that I'll have time to watch much of this today or to do much recapping, but I'll try to provide some periodic updates as the day progresses. As always, the fine folks linked below will likely have more detailed and thorough consistent liveblogging.

Mixed Panel #2
The first panel this morning, of both Pro-Alito and Anti-Alito folks, consists of: Professor Nora Demleitner from Hostra Law School, Professor Erwin Chemerinsky of Duke, Professor Anthony Kronman of Yale, Beth Nolan, a former White House Counsel, Professor Charles Fried of Harvard, and Professor Laurence Tribe of Harvard.

Of this group, Demleitner, Kronman, and Fried are testifying Pro-Alito. Demleitner is a former Alito clerk who considers herself politically liberal but who believes that he simply follows the law carefully. Kronman was a classmate of Alito's at Yale who testifies to Alito's studiousness at Yale and indicates that it was impossible to see Alito's political affiliation during law school; he thinks of Alito as a judicious judge. Fried was at the Solicitor General's office at the same time as Alito and testifies that Alito urged not arguing to overturn Roe and suggest Alito is in the mainstream, even if toward the right bank of the mainstream.

Chemerinsky, Nolan, and Tribe are testifying Anti-Alito. Chemerinsky stresses the importance of this confirmation for the future of constitutional law, stresses the unprecedented power grabs of the current administration, and stresses the importance of separation of powers and checks and balances; he testifies that Alito's record shows too much deference to the government and shows no willingness to act as a necessary check and balance. Chemerinsky says, of the strip search of the little girl case, that any reasonable police officer or judge should know that it's unconstitutional to strip search a ten year girl who is suspected of nothing. Nolan testifies about her background working with the executive office (Clinton) and that this administration has gone much too far; coupling that with Alito's deference would be a cause for concern. Tribe also testifies that Alito doesn't show concern for individual liberties.

The Senators then asked questions of the panel. Generally the questions and answers followed the same patterns as the Senators' questions of Alito and of the testimony already provided by this panel. For example, Specter asked Chemerinsky if Alito would serve as a rubber stamp for the executive (questions Specter asked Alito repeatedly) and Chemerinsky answered that his record gives no reason to think he'll enforce checks and balances (just as Chemerinsky just testified).

... Short break taken for the memorial service for New York Times reporter David Rosenbaum . . .

Panel #3 (Anti-Alito)
The next panel of witnesses include Fred Gray, a civil rights attorney; Kate Michelman, a pro-choice activist; and Ronald Sullivan, from Yale Law School; Amanda Frost, from American University Law School; John Flym from Northwestern.

Gray is up first. As a legend in civil rights litigation (being the attorney who defended Rosa Parks definitely makes you a legend), he testifies about voting rights and is Anti-Alito. Gray is troubled by Alito's views about the Warren Court's protection of voting rights for African-Americans. He warns that Alito could turn the clock back on progress in this area. He is Anti-Alito.

Michelman testifies about her own experience with securing an abortion prior to Roe. She testifies that Alito has shown no concern about how his rulings will affect real people and he has a drastically different perspective on womens' privacy rights than O'Connor did. She is Anti-Alito.

Sullivan talks about the 4th Amendment and Alito's decisions in that area. Notes that Alito has a clear pattern of siding with the government, even if his opinions don't appear radical. Sullivan says Alito does too little to protect individual privacy and dignity, especially for "little people" (like the 10 year old girl who was strip searched; Alito apparently showed more concern for the indignities of a wealthy defendant searched in an IRS case), Alito goes as far as possible to excuse and overlook government wrongdoing, and is a strict constructionist only when doing so favors the government. He is Anti-Alito.

Frost is mostly talking about recusal issues. She explains how it works in the federal system and the SCOTUS level specifically. She recommends ways to improve the system and provide more accountability. She is Anti-Alito.

Flym testifies that Alito should have recused himself in Vanguard. Flym was counsel in Vanguard. Flynn argues that even small monetary interests, even in mutual fund situations, can be sufficient to warrant recusal. He also questions Alito's answers on the Vanguard issue because Vanguard was all over the pleadings and it should have been obvious to Alito early on that he had a conflict. Vanguard was another case where Alito went out of his way to find a "dubious" legal principle upon which to rule against the little guy. He is Anti-Alito.

During questioning by the Senators, Michelman suggests that Alito should be rejected because he will move the Court in a bad way on privacy rights and suggests that privacy is not a "single" issue, but something that will have profound implications for everybody. Alito is a danger to constitutional freedoms.

The stirring value of the Senators' questioning is clearly evident once again today. Kennedy asks Flym (the attorney who actually MOVED for recusal of Alito in Vanguard) if Flym thinks Alito should have recused himself. Guess what? Flym answers YES. With quality information like this continuing, maybe they should try to stretch these hearings out for a few more weeks.

After a couple more Senators make sure everyone knows they are around by saying hi to everyone and thanking them, but without doing anything of substance, this panel is finished.

...another short recess...

Panel #4 (Mixed, again)
This panel includes Kate Pringle, another former Alito clerk; Congressman Charles Gonzales, representing the Hispanic Caucus; Congresswoman Debbie Schultz from Florida; Jack White, from the ACLU and NAACP, and also another former Alito clerk; Reginald Turner from the National Bar Association; Theodore Shaw, of the NAACP Legal Defense and Education Fund.

Pringle testifies about her experience working with Alito. He was a hard worker, he was fair, he was a good boss, he tried really hard to consider everyone's thoughts and views, he respects the institution of the courts, etc. She says Alito did not come to cases with a political agenda in mind. She is Pro-Alito.

Gonzales testified that the Hispanic Caucus was (gasp) disappointed that a Hispanic was not nominated. The caucus is concerned about Alito because he likes to allow discrimination in jury selection, seems to favor race and gender discrimination, and does not look out for minority and individual interests. Alito does not share the basic values needed to be on SCOTUS. He is Anti-Alito.

Schultz is Anti-Alito. Alito ruled in favor of overruling Roe and voted to require women to get husband's permission to get abortion. Alito would have ruled wrongly (whatever that means) if Schiavo case had been before him. In the strip search of a 10 year old girl, Alito didn't understand why her attorney kept bringing up the fact that she was just a 10 year old girl. Senate should guard it's legislative authority. She is Anti-Alito.

White, as former Alito clerk, thinks Alito is the bomb. Alito worked hard, was fair, and was loyal to the fair judicial process. Alito was non-ideological. After White spent his time working closely with Alito, he did not even know Alito's personal beliefs on the wide range of issues that had come before the court (I imagine this is supposed to bolster the idea that Alito did not let his personal views influence cases, but it could just as easily suggest that White was just not very perceptive). Alito treated everyone with dignity and respect. He's swell. He is Pro-Alito.

Turner indicates that the National Bar Association is a bar for African American Lawyers. Alito is hostile to individual liberty. Alito is against legitimate affirmative action programs. Alito has been the most frequent dissenter in the 3rd Circuit when it comes to remedying civil rights violations and protection of citizen welfare. Turner and the National Bar Association are Anti-Alito.

Shaw, who is allegedly the final witness, notes that the NAACP LDEF usually does not take a position on federal court nominees. But guess what? In the case of Samuel Alito, they made an exception. Don't get him wrong, he doesn't mean to attack Alito personally or disparage his character, or call him a racist or whatever. It's just that Alito is a danger to civil rights. Alito's record is markedly anti-civil rights and pro-discrimination. Don't be misled by the loyalty of former clerks and their testimony about Alito's collegiality. On discrimination, civil rights, apportionament, criminal judgment, Shaw and the NAACP LDEF are Anti-Alito.

After questions from the Senators (which I did not get the chance to watch, regretfully), the hearings appear to be over for now.

Specter has proposed a schedule for next week, Leahy disagrees, they'll talk, etc. And then Specter moved into what appeared to be an advertisement on Alito's behalf. Apparently Specter supports Alito? Who knew?

Anyway... that appears to be about it for this week of the hearings. I don't know for sure how we'll all survive the weekend without the drama like this, but I guess we'll all have to manage. If anything else happens, I'll update.

....
Resources for keeping up today:

Washington Post Supreme Court Blog (updated sort of liveblogging)
SCOTUS Blog (liveblogging again)