Alito Hearings, Day 4, Round 2

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1:07 Leahy wants reassurance that Alito would be a check and balance. He was concerned about his criticism of independent counsel law. There are other legitimate issues, but those are the ones he's really concerned about. Specter says there have been about 18 hours of him answering some 700 questions. There are differences of opinion about the comprehensiveness of his responses. They'll resume at 2:30 with the ABA report and then the 3rd Circuit judges. Right now they're adjourning to discuss the FBI background report. I'm not likely to pay much attention to anything from here on except if I'm in the car and can't blog anyway, so this should end my liveblogging of the hearings. My concern has been to understand Alito himself from his own mouth, and that's now concluded.

1:05 They're going to move into executive session now, which they do at this time with every nominee. Specter is explaining that this is routine. Leahy wants to close up with some thoughts while Alito is still present.

1:03 If the system is broken, and people's lives are at stake, doesn't that give more deference to these people? Alito says it's a lot at stake, but he can't add to the record. Asylum seekers often testify in another language, sometimes one where it's hard to get a translator. The quality of transcripts is often really bad. Sometimes we send it back in that case if it's too hard to say anything. Sometimes mannerisms and facial expressions mean something different in their cultures. Congress needs to address these bigger problems, though, not appeals judges.

1:01 Someone refused to serve in the military in Guinea. They beat and raped his wife and burned down his house. Alito dissented and said he should be sent back to Guinea. There were several other cases like this where Alito was in the minority. Judge Posner has criticized our courts on this issue. Why do you consistently rule on the government's side? Alito says he has ruled in favor of asylum seekers. Durbin says no dissents in favor of them. Alito says Posner is right. These aren't always handled well. A court of appeals judge has to follow the legal framework Congress has given. We have to accept factual findings by judges unless no reasonable fact finder could come to a contrary opinion. That's a tough standard to follow. A judge could disagree but not have much choice if a reasonable person might agree.

12:56 Alito said he was concerned that a minor had been searched, but there's no rule against searching a minor. That would be bad, because drug dealers would then hide their drugs and firearms on drugs. The warrant could have been drafted better, but police officers work under time pressure. They're not complicated commercial documents, according to the Supreme Court.

12:53 One was how long someone could be detained on premises while the premises were searched. It was something like six hours or longer, with no arrest warrant. There was no justification for seizing other than being on premises when the search took place. The other case was about interpreting the warrant. The standard the Supreme Court gives is practical common sense. The affidavit the police prepared said they had probable cause to search anyone on the premises, because this drug dealer hides drugs on people. They asked for that. The warrant said the affidavit is incorporated in the warrant. It only mentioned the one person on the warrant, but viewing it from a practical standpoint it sounds as if it's saying the affidavit is right that there's probably cause to search anyone on the premises. Even if that's not right, a police officer could reasonably think the magistrate is saying anyone on the premises could be searched.

12:52 An IRS investigation patted a veterinarian down at 5am, then went to his house and did so with his wife. Alito said they went too far from the 4th Amendment point of view. Then in another case a year earlier someone searched looking for a drug dealer. The affidavit said it could involve someone else in the house. The warrant didn't. The mother and ten-year-old girl were strip-searched. Why was it too far with one case and not the other?

12:49 He wants to continue discussing court-stripping. He hopes it never happens. The possibility was raised during the Schiavo case. On the judges testifying, he wants assurance that it wasn't Alito's idea. He was never asked if it was a good idea.

12:48 Durbin wants ten minutes with flexibility to go more if he needs it.

12:47 Alito agrees that interstate commerce looks like treaties. Racketerring laws require proving interstate commerce before they can be prosecuted. It's not feasible with drugs, but juridictional elements are in most of these laws. In firearms cases that's easy to do.

12:45 Are there just three branches? Alito says that's all he sees. Does every agency have to be in one of them? Alito thinks yes. The Constitution sets up three. He starts to talk about removal procedures and how to go about that sort of thing, but he stops and just summarizes with a yes.

12:44 Should Congress restrain itself in the same way the courts should and thus avoid a confrontation? Alito says he hasn't addressed this in writing the way a number of nominees have. He's read a few authorities who have addressed it. He gave a speech against it as a policy idea. It's a bad way to proceed as a matter of policy. He says there are serious constitutional questions. Sessions wants to try not to confront that question if possible.

12:41 Sessions says Congress hasn't formulated a view on FISA yet, so why should Alito? Shouldn't Congress do so first? Alito says that would be helpful. He says it would be the height of judicial irresponsibility to take a view on it without going through the procedures necessary for the right sort of opinion to be fair, especially on such momentous questions.

12:40 Sessions steps in to say the ABA has concluded the opposite. He asks what it was like being debate partners with his sister. He takes the Fifth Amendment on who was better (which could be taken either way). He says it structured their arguments so they were about other things than home issues.

12:37 Schumer says Alito's record is the problem. He seems to look as if he's reaching for whatever legal theory lets him decide for the big guy against the little guy. He says the evidence makes it very hard to vote yes. This is no surprise. He says he hasn't heard anything to dissuade him from thinking Alito won't always try to vote the rightward course.

12:35 The memo Alito signed and his service as an attorney amount to two different roles with different responsibilities. That memo was about federalism policies of the Reagan Administration, which went beyond simply compliance with constitutional standards. It involved implementing a policy that it was better for states to do certain things even if federal law could. As a lawyer he had to seek an approach to work within that framework. It led to a separation of roles between federal and state lawyers. Schumer says he's satisfied if he thinks it's constitutional.

12:34 Schumer talks about the difficulty regulating a bill against odometer fraud given inter-state traffic. 90% of guns in New York come from out of state. New York can't inspect every car that comes across the George Washington Bridge. You can't have 50 different standards for 50 different states. But state primacy gets the attention in Alito's memo for the Reagan Administration.

12:30 Alito says he'd have thought about Rybar differently if Raich had occurred earlier. He thought about it in terms of Lopez. It would have changed his thinking and analysis. He would have had to take it into account.

12:28 Schumer reads Scalia's concurrence in Raich and Thomas' dissent. Alito says the second conflicts with Supreme Court precedent.

12:25 Schumer is giving constructions in the Constitution that are easy. No one under 30 can be a senator. Only natural-born citizens can be president. You need an amendment to change that. Alito agrees. What about denying citizenship to a person born in the U.S. even if their parents were illegal aliens? Alito says it's an issue in play. He'd have to go through the whole process. Alito says he won't say anything that someone could characterize as an argument he's making. Some people point to the expression "under the jurisdiction of the United States". He doesn't want to comment on that issue.

12:21 Alito says he'd have to refresh his memory on the details. This is about reaffirming a decision of a lower court on an alternative ground. He doesn't remember the details, but that might be the difference. Schumer says it's grounds for saying he treats different kinds of parties differently. Schumer asks Alito to reply after having refreshed his memory.

12:19 Schumer moves to another case. There was an appeal. The plaintiff was seriously injured in an accident. The majority said that it wasn't appropriate to excuse the company's waiver when it would be depriving him of a trial in comformity with applicable law. Alito's dissent would have ended the case if it had prevailed. But this wasn't the government. It was a company. Why was it ok in one case and not in the other?

12:17 One issue involves principles of exhaustion and comity. Exhaustion issues must be considered by a federal habeas court even if the state prosecutor doesn't raise it. That makes it a different sort of case than a dispute between parties. Schumer says he understands the explanation but isn't sure he agrees.

12:16 Schumer concludes that the procedure is the same. One case is a sexual harassment plaintiff. The other is a government case. He claims that Alito must have been willing to insert an argument not presented for the government but wouldn't do it for a sexual harassment case.

12:15 Schumer tries to play some of Alito's cases against each other. Alito begins to answer. One is a dispute between private parties. Schumer interrupts that he can't understand why Alito was willing to examine one but not another. Apparently this is about a case where a person's being mentally retarded never came up.

12:12 Schumer asks if he expects to be fair. He does. Does he believe he's prejudged any case? He says no. Will he apply the law evenhandedly? He thinks he will. Has he done so in the past? He believes he has. This is getting pretty condescending.

12:09 He asks about wiretaps. I missed the important details of the question. Alito says he needs to know a constitutional ground for wiretapping to answer if it could be ok if it violates a law. I guess the question is a difference between wiretapping and searching a home on constitutional grounds (4th Amendment). Wiretapping has to do with Title III and thought to stem from 4th Amendment requirements. Searches can take place in a variety of places for a variety of reasons. There's a 4th Amendment issue in both cases, and it could play out differently in both contexts.

12:08 Schumer is now up. Specter says he needs to ask new questions as per some earlier conversation. Schumer says he thinks his old questions should bother Alito, but he'll ask new questions.

12:07 Feingold is troubled that judges are testifying in favor of him. How does that affect recusals? What if these judges' opinions come before the court? That's something Alito hasn't thought about. He'll answer it after having thought about it.

12:06 Congress can attach conditions to receipt of funds as of South Dakota v. Dole.

12:03 Now we're on religious speech about views on homosexuality. A school district had prohibited expression of political viewpoints. Anything a student said about another student that would be offensive, including activities a student engaged in or ways they dressed would have violated the rule. The statute was struck down because it was overly broad. It prohibited a great deal of constitutionally protected speech. Justice Brennan's opinion (I missed the case) said students don't lose speech rights in school, even if children's speech can be more regulated than adults'. There has to be a threat of disturbance on school grounds or threat to another student's constitutional rights. This rule didn't satisfy that standard.

12:02 Alito says he can't think of a reason why Congress couldn't prohibit discrimination against gays and lesbians, but he'd have to hear the arguments.

12:01 He describes a class he taught that included many people from diverse backgrounds. He saw how valuable that environment was. The Supreme Court sees a diverse student body as a compelling interest, back to Bakke but most recently in Grutter, which Feingold mentions seven justices joined (not true: only six did). Alito says it's a precedent, and that's the conclusion they've drawn.

11:58 Alito: It's a fundamental right and objective of our system that no one is to be convicted without proof beyond a reasonable doubt. Feingold thinks they have a constitutional right not to be executed that gets violated if they get executed when actually innocent.

11:57 Feingold restates Kohl's question if it would be unconstitutional to execute someone when evidence has come out to prove innocence. Alito says you have to follow the complex procedures. Actual innocence is very important, but it's not the same as legal innocence. A state prisoner has to follow state procedures, and so on.

11:54 Alito: It couldn't be constitutional to admit evidence gained by torture for use in prosecuting a crime.

11:54 Feingold says it's a problem if it's not justiciable. It's a problem if the Supreme Court couldn't help us decide this. Alito says we'd have to look to the Baker v. Carr framework, and it would be irresponsible to prejudge that now.

11:52 Feingold: I know that all it says is that the president's power is at its lowest ebb, but it seems to leave open ambiguity and vagueness to alter the balance of power in a major way. Alito: This sort of major constitutional issue often comes up in a context that's not justiciable. I don't want to suggest in any way how I might come out on a particular question. On an issue of this magnitute, all I can do is give the Supreme Court's framework provided for us.

11:51 Is it ever possible in theory, even under Justice Jackson's test? The Constitution trumps the statutory enactment of some cases. Under some analysis or in some cases, can the president's constitutional power trump the statute? Alito says that's exactly in Justice Jackson's category where the president claims authority to do something explicitly approved by Congress. He seems to countenance the possibility that it could be justified, but it would have to be based on the facts of the particular case.

11:47 Feingold is now up. He reiterates Alito on the president following constitutional laws. Can the president claim inherent power that at time allow violation of criminal law and still be following the Constitution and laws consistent with the Constitution? If a law is statutorily constitutional, can the president ever violate it? Alito says you can't separate constitutional questions into those categories. It would be rare for a president not to abide by a statute passed by Congress.

11:41 Grassley has more to say about the false claims act. He's giving historical background. I'm not sure the relevance of this. I didn't follow it the first time they talked about it. He says it was hard to pass, and people keep trying to gut it. It's brought in lots of income to the government, and it enforces business ethics of some sort. People don't want the government looking over their shoulder. This was meant to serve a worthy purpose of not having to rely on whistleblowers. He says the downside is lots of personal injury lawyers making lots of money, but it has a purpose.

11:39 Grassley steps in to talk about political science theories that anyone might have. Someone bound by the Constitution to hear cases that come before the Supreme Court needs to decide within the constitutional authority, regardless of a political science theory. Alito has said that he will decide apart from his personal views and will decide according to a case and the details of that case. Alito says that's right. He'll look to precedents of the Supreme Court, and there are governing precedents in that area.

11:33 I think I've now missed his responses on environmental regulations three times. She's now onto his statement that the federal government has no place regulating on health and safety. He says now that both federal and state governments have some role in that. He says that his memo isn't broadly dealing with the scope of Congress's power but expressing what the Reagan Administration's federalism view said and advising them to be consistent with their own views. That's what it seems to be about in context from his reading of it now after 20 years.

11:29 She asks if there's a conflict between principles, and it hasn't been decided if one trumps the other. He says that's close to how he sees it. Presidential power is at its lowest in this situation.

11:24 Alito says two questions come up. One is statutory interpretation on the use of military force. That may be an easy or difficult question, but it would have to be approached in terms of the text of the law, the terms that carry a special meaning because of the subject matter being dealt with, and so on.

11:20 She moves to FISA. Following a declaration of war, the president has 15 days to wiretap. Also, an emergency wiretap can be performed provided they go to the FISA court within 72 hours. If Congress has explicit authority in the Constitution to pass that law, is the president bound by it, or does his authority supercede that? Alito says the president is bound by constitutional laws. If it violates the Constitution, that's another story.

11:17 She's talking about no one above the law in the context of intelligence in a time of war. She doesn't say anything particular but moves to plenary authorities to defend the United States.

11:15 Specter jokes about her previous dramatic entrances. He gives her ten minutes, and she asks for twenty. He gives it to her.

11:14 Senator Feinstein is up next, but she's late. Specter said she should be arriving imminently. I suspect his 'should' in that sentence has a moral connotation. Specter asks Feingold to go now, but Feingold wants to defer to her first. Specter says they can wait another minute or two.

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