Alito Hearings, Day 2, Round 1

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11:04 Now we're just repeating what Alito has said before about the limited role of the judge. From what I've been able to tell while trying to pull together clothes for the kids to wear to school, I think he's saying this even better than Roberts did, but the content is nothing new or especially noteworthy. Specter orders a 15-minute break so that I can get the kids dressed. I'll pick up with Senator Kennedy's questioning in a new post.

10:57 Hatch asks for cases when Alito voted against executive powers. He mentions one related to racial discrimination in the selection of a jury and another murder case with the executive denying habeas corpus due to racial bias. Hatch interrupts after a few cases to say that any tencency can be found in 5000 cases with selective appeal to the evidence. Everyone has cases that members of the Senate will disagree with.

10:52 Certain sorts of cases come with clearance sheets. He usually thinks about recusal issues then, and he indicates which cases he would need to recuse himself from. This case didn't have that sort of step. (I got a little distracted and missed the reason why, but there seem to be two kinds of cases he's talking about.) He was dismayed when he discovered that there was a recusal notice after the case was decided. He didn't think he'd been required to, but his personal policy would have led him to. He wanted to make sure the person involved didn't think she'd gotten anything less than a fair hearing, so he recommended that the decision be vacated. After that he wrote up his own forms for such cases and instructs his law clerks to prepare a clearance sheet and look for potential reasons to recuse himself, taking great measures to make sure he doesn't vote on a case without having that form filled out. In the case in question, no financial benefit was at stake, no recusal was legally required, and he did recuse himself once the issue was raised. Hatch points out that a similar issue came up with Breyer, and he and Senator Kennedy supported Breyer on it. He also mentions opinions from top ethics experts that Alito did nothing wrong. (Hatch also mentions that the new panel of judges in this case ruled the same way Alito and the other two with him in the original hearing for the case had ruled.)

10:45 On to the recusal issue. Hatch reads quote after quote from people about Alito's integrity. Over 300 judges, lawyers, and other members of the legal community testify to his excellent integrity. He asks him to respond to the charge. Alito says the rules are very strict for federal judges, and he went beyond the letter of the rules so that questions couldn't even be raised. He would do some things different now, but it isn't because he violated an ethical standard. He didn't go beyond what the code of standards requires in this one case, and he says he normally would have and would do so if he had to do it over again.

10:38 Hatch comes in and makes sure he was not a founding member, not a board member, not even an acting member. Are you against women and minorities attending college? Absolutely not. Hatch: "I felt that that would be your answer. It really overcomes the implications that you were." Alito says that he appreciated the advantages of attending a co-ed school. Alito says a little about the elitism at Princeton. He acknowledges that at the time a poor immigrant's kid from a public school wasn't as easily received. He chose not to belong to the elite eating clubs there at the time (they've gotten better since) but chose to ate where students could interact with faculty. He also indicates that a number of social groupings he was involved with showed how much support he had for coeducational interaction. Hatch pushes him further on ROTC's inclusiveness with respect to minorities, and he says he was proud to be a part of that institution.

10:35 Leahy moves onto ethnic and religious discrimination, both of which applied to Leahy and Alito's forebears due their Catholic immigrant status. Now he moves into the Concerned Alumni of Princeton issue. He seems to be upset that someone could be proud of something with the origins of this group in the light of his background. Alito says he's tried to remember this and has no specific memory. He must have been a member, but he would remember if he'd been actively involved in any way. If he'd signed up for membership, it must have been around that time. He was angered at the time about ROTC being expelled, since he'd been a former ROTC member. He respected his friends' opposition to the war in Vietnam but didn't think that justified seeing the military as a bad institution that Princeton was too good for. Leahy says everyone knew that in 1985 CAP stood for too many women and minorities at Princeton. Alito proudly stated it as a credential in a job application at age 35. How could someone as careful as him say such a thing? Alito says that his background shows that he wouldn't have been comfortable with that sort of thing, so it wouldn't have entered into whatever relation he had with that group.

10:28 We're now on to the strip search case. Alito disagreed with the majority (of 2!) whether the warrant allowed the searching of other people on the premises. He thought the warrant allowed the search of other people on the presmises. The other two didn't. He was displeased that a girl had been searched, but there's no 4th Amendment rule that a young girl can't be searched. Leahy says he protected what the majority thought was an overreaching government. Alito points out that there was evidence that this particular drug dealer hides drugs. Police officers prepare warrants under time pressure. The warrant should be read as the judge authorizing what the police had asked. Judge Chertoff disagreed, and it's a reasonable disagreement. A reasonable police officer could read the warrant the way those police had. Leahy disagrees that it wouldn't be reasonable and then changes the subject.

10:22 A Reagan Administration memo Alito wrote made the argument that the attorney general could have immunity over spying. He says he didn't think they should make that argument in that case, but they made the argument, and he was willing to argue it once that decision was made. The case was decided, and the attorney general has no such immunity.

10:19 Alito says anyone whose 4th Amendment rights are violated should have their day in court. He agrees that those are important rights.

10:17 What about spying? The president has to comply with the 4th Amendment. There may be statutory issues with the meaning of FISA and the meaning of the use of military force. To resolve the issues, Alito would need to know the arguments the president is making for the claim that use of military force is authorized and so on. Then there are constitutional issues about whether the FISA law is constitutional or whether the spying is a violation of the 4th Amendment. He couldn't make a decision without hearing the president's detailed theory about this. You can't evaluate a theory that hasn't been put forward in detail.

10:14 Alito says everyone has to follow the law and the Constitution. Specific questions should be resolved within Justice Jackson's framework. Leahy is pressing him on no one's being above or beneath the law, but he thinks Alito would put the president sometimes above a law passed by Congress or could immunize someone else. Doesn't that put him and others above the law? Alito responds that the president has to follow the laws and the Constitution, which is part of his oath of office and part of his job description in the Constitution. But some cases are in a twilight zone. The specifics of the situation need specific decisions at the time. There may be questions about the constitutionality of an act of Congress. Leahy asks if a president could authorize someone to be murdered if murder is illegal. Alito responds that it would have to be an unconstitutional law. What about torture? Congress can outlaw torture. Can the president immunize someone from that law? Alito says Congress exercizes its legislative power, but speci It fic issues need to be factored in. You need to know what was done and why and what specific factors come into play. Democrats are going to view this as a dodge, but it sounds to me as if he really thinks complicated sets of factors are involved. It would be nice to know more, but every time he starts to enumerate factors that could come into play Leahy asks him another question.

10:04 Leahy is up now. He's starting with torture. Alito says there are theoretical issues with practical consequences. The theoretical issues need to be explored, and the Supreme Court hasn't done that. He says he hasn't done that in his 15 years as a judge.

10:01 Specter has moved on to presidential powers in wartime. Alito gives the standard answers virtually no one would disagree with but says little about details. The Bill of Rights still applies. The president doesn't have the legal ability to do absolutely anything. With the wiretap issue, we finally get a mention that these issues could come before the court, either the Supreme Court or his current court.

9:55 Specter asked him about a few cases he'd decided. His answer is brief. He decided the cases based on what he thought the law required.

9:52 I forgot to include his response on the living Constitution issue. He thinks it's living in the sense that the principles have to be applied in a new context. He doesn't think it's living in the sense that the principles change. This was 9:46 according to SCOTUSblog (see link below).

9:48 In 1985 as a Reagan Administration attorney, he thought Roe was wrongly decided. As a judge, post-Casey the first issue has to be stare decisis. You have to approach it with an open mind. This is exactly the right thing to say unless you take the Thomas view that precedent is irrelevant, and he's just denied that view.

9:46 Alito says that reaffirming a precedent strengthens the precedent. That's a factor that should be taken into account in making a judgment about stare decisis. It counsels against reexamining the merits of the precedent. That's not an inexorable command, but it's a relevant factor. This is still the Roberts line. He's no Thomas, but I think anyone from Scalia to Ginsburg could agree with this.

9:42 Specter asks about Rehnquist's reversal on Miranda. He opposed it in principle and later upheld it as central to people's understanding. Alito thinks there's something right about that general principle, but he doesn't endorse or reject Rehnquist's application of it in that case and says nothing about it's relation to abortion.

9:41 Specter wants to know if the court would be undermined if it overturned Roe. Alito says it's going to be undermined if it acts for a result no matter the issue. He doesn't say that that's what overturning Roe must involve. He says there does need to be a presumption against overturning precedent because of stare decisis. So far this is the standard line Roberts gave. He doesn't say what it would take to overturn that presumption in this case or whether he thinks it would be very difficult or very easy.

9:38 Specter asks about abortion. Alito believes in a right to privacy, implied by several constitutional statements. He says that Griswold is interpreted now as involving a right to privacy with respect to contraception, and that extends just as much for single people. He didn't say that he agrees with it, though SCOTUSblog seems to think he did.

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