10:55 Kohl wants him to say whether he'd be at the center of the court. He says he'd be like he's been on the court of appeals. He should just point out that this line of questioning is irrelevant, but he's too nice. Specter calls a break until 11:10. I guess I'll be picking up with a new post then. I was hoping this would be done before lunch, but I know Feinstein and Durbin both plan to go. Schumer is present, so he might intend to ask more too. I didn't see Feingold, but he may want to ask some more questions.
10:53 Do you see yourself as filling the role she's filled as being at the center of the court? Kohl equates calling them as you see them with looking sometimes to the left and sometimes to the right. Alito says no one can duplicate the way anyone else works, but we can emulate great jurists of the past, trying to do what they've done well. He says he'd try to emulate her in the ways he's just described. He wouldn't think he could equal her in those ways, but he'd emulate her conscientious, dedicated way of going about her duties.
10:51 How will you be different from O'Connor? How are you not like her? How will she be remembered? Alito: She'll be remembered with great admiration, a pionerring figure and an inspiration for many who have pursued legal and other careers. She's been very dedicated, meticulously devoted to the facts of each case. It's important that we look to the details of each case. I'd emulate her dedication to the case-by-case process of adjudication.
10:49 Kelo now. It's a precedent of the course with all that entails, though Alito wouldn't have decided that way. Private property is an important consideration. Do you agree with Justice O'Connor's dissent? If it were to come before me, I'd have to consider if there's a reason not to follow the new precedent that grew out of an earlier precedent. That question could go one way or the other, but decisions are presumptively to be followed. If I got beyond it, I'd have to go through the whole judicial process that ensures that cases are decided in the best way.
10:46 Alito: If I'd been writing the Constitution knowing what I know now, I'd choose either a long term but a term limit or a life term. Those options would be the best.
10:44 Should judges have term limits or age limits, or should they serve as long as they wish? (That's a false dilemma. You can have ways to disqualify a judge without setting arbitrary limits irrespective of the judge's abilities to continue to carry out a judge's function.) Alito says the Constitution says federal judges have life tenure. State courts can have term limits, and many do. If you had a short term, it would be like an elected judiciary with those advantages and disadvantages. If you had a long term, it would be more like what it is with those advantages and disadvantages.
10:42 I missed the question, but Alito says acts of Congress are presumptively constitutional because members of Congress take an oath to the Constitution. That's entitled to great respect because of the structure of our government. Policy decisions are supposed to be made by the legislative branch and carried out by the executive. Congress can carry out investigations and so on. There's a heavy presumption of favoring constitutionality of what Congress has done. The Supreme Court has to decide in cases where the constitutionality is challenged. We've done that since 1819.
10:38 Kohl asks if the court should consider public opinion when deciding cases. Alito says the reason the courts are structured the way they are is so courts wouldn't do that. State judges are sometimes elected officials. The point of lifetime tenure is because the federal courts aren't supposed to follow public opinion but the law.
10:37 Biden was pushing Alito to comment on a Scalia dissent regarding executive power. Alito didn't want to comment.
10:33 Some have said that Roe could be overturned simply because it was wrongly decided. Alito says different judges and justices have different views on it. His is that you need a special consideration to overcome this principle, but it's not an inexorable command. You have to be able to revisit a case like Plessy v. Ferguson. No one would want a system of stare decisis that made that impossible.
10:31 Biden asks what stare decisis it's Alito says it's a doctrine that gives due consideration to precedent. Circuit courts have to follow Supreme Court precedent. Biden says no Supreme Court justice is required to follow precedent. Alito says there's horizontal stare decisis. A court should follow its own prior precedents, but it's not an absolute requirement. It's the presumption. Biden says you're entitled to break from precedent. Alito says people would question it if you disregarded the factors that go into the stare decisis process. Not every question is completely open.
10:27 Biden gives a long exposition of his view and then claims that it's a question. Alito says he hasn't studied the authorities on the issue enough to give an opinion beyond that the first issue to come up is the political question doctrine. I missed what that even is if they explained it at all.
10:24 Biden seems to think Alito is taking the view that the president can move from a state of peace to a state of war without Congress. Alito says that's not what he said. This came up with Vietnam and the former Yugoslavia. Lower courts dismissed them because of the political question doctrine.
10:22 Can the president invade Iran tomorrow without congressional approval? Alito says that's not settled. There's a lot of debate about it. The Constitution gives Congress the power to declare war. It gives Congress the power of the purse, which is required for military operations over time. Congress has the power to maintain the army and navy. The president has the power of the commander-in-chief. The president can take emergency military action on his own when Congress doesn't have time to act. Biden wants to know if the time to act is the deciding question. Alito says at least then he can act without congressional approval. A lot of scholars think congressional approval can take many forms.
10:18 Biden has begun. He's getting to the aministration's view that his power exceed what the consensus of constitutional scholars has suggested.
10:16 Hatch wonders why would anyone want to do these jobs if it's going to involve this kind of unfairness. It's so obviously unfair, and it's going to make people not want to do it given that constitutional law professors can make so much more money.
10:13 Hatch says Kennedy cited a letter from a professor defending Breyer on a case that some said he had a financial interest in. The same professor has defended Alito. That's a bait-and-switch. Hatch defended Breyer at that point as an honest man. Kennedy won't do the same in a similar situation. Neither judge went into public service to make money. Making a mistake and rectifying it doesn't make someone dishonest.
10:11 Hatch wants to respond to Kennedy. Bringing up Vanguard and CAP goes beyond the pale. He does dodge the issue of his commitment in his hearing by saying no law makes him recuse himself. This isn't the way to go. The way to go is to say that admission of an oversight would have been fine. Kennedy said as much. He just doesn't acknowledge that Alito did admit it to be an oversight. Hatch does rightly point out that he rectified the situation and did everything he could to live up to his word. Hatch says that means he did live up to his word. Even if you take it as a promise for his entire time of judicial service, he did comply. Hatch says it's beyond the pale to imply that this means he's dishonest, evne though ethical experts and the ABA didn't find a problem.
10:07 Kennedy says Alito didn't back away from his criticism of one person, one vote. That's because he didn't criticize that principle. He had reservations about one application of that principle, one that no longer remains in effect. Kennedy is demonstrating very clearly that he either hasn't paid any attention or simply doesn't understand very important distinctions.
10:05 Kennedy says he's pleased that Alito has distanced himself from the views of CAP, which misdescribes it once again. He calls it a reprehensible group and wonders why he thought his membership in this organization would enhance his reputation for the Reagan Administration. He then infers that since there was no change from 1992 to 1993 that it must never have been there to begin with. I still haven't seen evidence for that.
10:03 Kennedy says he's made his share of mistakes. He says none of this would have come about if he'd just admitted that it was an oversight from the beginning, as if trying to explain a mistake amounts to not admitting that it was a mistake.
10:02 Alito says he takes recusal very seriously. He served for 15.5 years and has a record of deciding on the merits. Our court uses a different system for pro se cases, and these sheets don't come up.
9:59 Alito says he can't recall what was on earlier lists. In 1994, he removed the U.S. Attorney's Office off the list. He sent a letter to his clerks to do that. He had recused himself from anything related to the office even for four years afterward, not just things he was involved with. Kennedy says he had to put Vanguard on the list to fulfill his promise. Alito says if he didn't then it was an oversight, and that wouldn't have been on the top of his list of recusal concerns because it was a mutual fund, which federal judges don't have to recuse themselves from. It took twelve years for a case involving Vanguard to come up. Kennedy lists multiple explanations, as if Alito is asserting all of them (rather than what he said, which is that he doesn't know the full explanation of what has happened but has been putting forth potential explanations).
9:53 Kennedy points out that his Vanguard funds grew. He asks if it was on his recusal list in 1991. He doesn't know about anything before the system was computerized. Those lists don't include it. In 1993-1996 it's not on it. His sister's law firm is on it, but not his largest investment. Alito says that's the list they have. He doesn't now exactly how it came about. It says no changes as of 1-28-93 from 1992.
9:52 We're back to the recusal issue. Kennedy calls it a promise not to do it. Alito corrects him: he said that he wouldn't do it.
9:51 They're dealing with fine details about a particular kind of agency and how it fits into the issues in question. These administrative agencies relate to the balance of Congress and the presidency. Alito says we now have a well-developed line of precedent that he has no quarrel with. These executives see to it that the laws are carried out. Congress can limit whether the president can remove such an individual and not be limiting the president's authority over the executive branch. Alito had differeted with that and outlined a different strategy. Alito now says he has no quarrel with the current line of precedent but would have done things differently.
9:45 Kennedy is up now. He's staying with executive power. He asks if the Humphrey case is the leading case. Alito says it was, but it was followed up by Morrison. Kennedy brings up Alito's dissent in the latter. He gives a quote from Alito that makes it sound as if there's a way to get around Morrison, which he just said is a controlling case.
9:42 Specter wants to comment on Rehnquist's statement. He had refused to answer the question. His staffers found a Rehnquist article on the subject. Specter asked if he's the same William H. Rehnquist. He said yes, and he said he now disagreed with the article. The court couldn't take away the jurisdiction of the Supreme Court on constitutional issues. That's the principal function of the SCOTUS. Its authority would be vacuous without it. Specter went through all the other amendments, and Rehnquist wouldn't answer. He was confirmed 65-33 for Chief Justice. Nominees answer as many questions as they have to to be confirmed. Nominees can be influenced by these proceedings in subtle ways. You'll remember what we say to you on important issues.
9:38 Leahy refers to Alito's speech about the unitary executive at the Federalist Society. He thinks Alito is taking a different example now. I'm not familiar with all the terms they're using, but it sounds as if Alito is distinguishing again between the president's ability to be the sole authority over the whole executive branch and the president's authority over anything else. Morrison says Congress can restrict the president's ability to remove inferior executive officers, provided that the president's authority to control the executive branch isn't limited. Alito says his speech defended the president's control over the executive branch. He repeats that it was an 8-1 decision (which isn't true; Justice Kennedy recused himself, so it was 7-1). That's a strong precedent, a resounding Supreme Court decision on the question. I think the point is that that changes things.
9:34 Leahy raises unitary executive with respect to Congress's ability to create causes of action, in effect making a private attorney general. Alito says those issues aren't connected.
9:32 Does Congress have the authority to say the Supreme Court doesn't have jurisdiction over free speech? Alito hasn't had to deal with this question as a judge and hasn't written about it or studie it in any focused way. There's a division of thought among leading constitutional scholars on the issue. Some say Congress has plenary power to define the limit of the Supreme Court's power. Others think that things like the First Amendment aren't included in that. Rehnquist at his hearing took the second view. Alito says doing this would be awkward and undesirable, because it would lead to lack of uniformity in decisions. Conflicts in the circuits would develop, with conflicting decisions governing in different parts of the country. If you took it from federal courts in general, you'd have conflicting state courts, and the Constitution would be taken to mean different things in different states. Alito says the same would be true of any amendment.
9:28 The House of Representatives puts into a spending bill a provision saying no funds can support a certain issue. Does that violate the Constitution? Alito says it's never been done with respect to a constitutional decision. It has been done in the anti-trust area. If that limitation of funds is constitutionally allowed, then Congress can do it. If it's about a constitutional question itself, he's not sure. He doesn't think there's any precedent on it. Congress has control of the purse, and that includes great latitude. He doesn't know what constitutional objections would be raised with respect to a non-constitutional question. (Leahy is thinking of further things along the lines of what Congress did with respect to the Shiavo case.)
9:24 Could Congress have passed a law in the Civil Rights era removing the court's powers to hear segregation cases? Alito says there's a debate in constitutional law on this. Some say it can eliminate court jurisdiction by topic, relying on language in Article III. Some say taking jurisdiction over a category of cases would violate the equal protection clause. Alito says he hasn't taken a part in that debate and wouldn't like to take a position on it. Scholars argue that the case law isn't definitive. Cases have been taken in a variety of different ways.
9:20 Could Congress subpoena someone on death row about to be executed, an hour before execution? Alito says he can't think of an objection, but he'd have to hear whatever arguments there were to be made.
9:19 We're moving on to oversight powers held by Congress. Alito says there's no question that Congress has general oversight powers.
9:17 Leahy is talking about refusal to medical procedures. Alito says people have had that under our legal system for a long time. Alito says the background to that is in English common law. Leahy says that's foreign law. Alito says the background to our whole legal system is English common law. (Scalia on this topic says that's the one piece of foreign law that we should pay far more attention to than most judges do.)
9:13 Leahy asks about a rule where if four Supreme Court justices want to stay an execution, a fifth member will join as a courtesy. The intent is to prevent any 5-4 upholding of an execution. Alito says he hadn't heard of that rule until the hearings for Chief Justice Roberts, but he thinks it's an sensible rule.
9:11 Do you agree that the Constitution doesn't allow execution of an innocent? The Constitution is designed to prevent the execution of an innocent. (The correct answer would be that it does allow it but seeks to prevent it. Alito's answer is partially correct. What Leahy wants him to say is false.)
9:10 Leahy asks about a hypothetical case. Everything has gone according to law. Execution is about to happen. DNA evidence or a confession or someone else comes up. Is it unconstitutional to execute? Alito says it's unconstitutional to execute someone who is not guilty beyond a reasonable doubt. The ultimate tragedy is killing someone and then finding they didn't do it. Alito says he's only had a handful of cases where there was even a suggestion of that possibility. Procedures of last-minute cases like that depend on whether the conviction was in a state or federal court. The first procedure is to file a petition with the trial court. If a state court, it would be a state collateral relief petition. Different states handle them differently. You could attempt to file a second habeas position in a federal court and then follow the proper procedures for that.
9:07 Leahy begins his 25 minutes by asking if the Constitution permits the execution of an innocent person. Alito says no one can be convicted unless shown guilty beyond a reasonable doubt. Supreme Court decisions and the 8th Amendment have tried to make sure the death penalty isn't assigned arbitrarily. It's designed to prevent executing an innocent or someone guilty of the offense but not deserving of that penalty.
9:04 Leahy has some opening comments emphasizing the importance of this hearing and why the issues such as expansion of powers are important right now.
9:03 Specter is calling things to resume. The Kennedy staff finished going through the Library of Congress files at 2am. Judge Alito's name never appeared in any document. It's not in any official CAP documents or any of the letters to or from CAP. There are canceled checks to the CAP magazine, none from him. It lists financial contributors to CAP and the magazine. He's not listed. It has minutes from meetings in the two years before he listed it in his application. He didn't attend any of those meetings. No articles in the magazine were written by him, none quoted him, and none mentioned him.