Alito Hearings, Day 2, Round 2

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1:03 They're recessing until 2:15. What I've heard (while moving from room to room) from Kyl's questions hasn't been too probing. Kyl still has 20 minutes left. I expect to begin a new post when they return, assuming I've found the bear by then, but I have to run an errand in between, and it's possible they'll resume before I'm back.

12:59 I missed little bits while trying to find a stuffed bear that seems to have disappeared, but Kyl is now on asking about foreign law. Alito says judges can look at how treaties are applied in other countries. A contract involving people in New Zealand might need to look to New Zealand contract law. It's not helpful in interpreting our Constitution.

12:49 Biden: O'Connor is more prepared to give the benefit of the doubt to the employee in cases like this, but you're more prepared to give the benefit of the doubt to the employer. The test she set is like yours, but if she'd been in your spot she would have been with your ten colleagues. Alito: Those colleagues didn't apply that standard. They thought pretext was sufficient, and I disputed that.

12:47 Alito says it gets into a technical Supreme Court question. There were three circuit court camps on this. Alito was in the middle camp on the issue. O'Connor agreed with Alito's analysis on the issue that pretext is sufficient in most cases but not all. If the reason given by the employer is incorrect, that's a reason for a jury in most cases but not all, and this is one of those "not all".

12:45 Another case. Someone was forced to quit after she'd brought a discrimination claim. Her employer had said "I'm going to hound you like a dog for bringing this discrimination claim". The jury concluded she was forced out because she was being discriminated against. 10 our of 11 judges agreed. Alito didn't. Alito said an employer may choose not to disclose real reasons for animosity. It might be based on sheer personal antipathy, which is legally ok. How do you distinguish that from subtle discrimination?

12:42 Biden: The person who had the job before recommended her and couldn't understand why they didn't hire her. Alito: They had somewhat different qualifications, and reasonable people could prefer either over the other.

12:39 Biden: What people do now is not discriminate because someone is black, Jewish, or a woman. Now they wait until they have someone else to hire and then hire them instead. The corporation set the rule up so they couldn't do this. The supervisor who doesn't want to work with a black woman can't then look around as much as they want before telling someone she wouldn't be promoted. Alito: But both of these candidates were from within. There was no evidence that they didn't want to hire her and thus kept looking around. Nothing like that was presented us in that case.

12:37 Alito: The strong cases tend to settle. The weak cases tend not to. Four federal judges looked at this. Two thought the evidence was not quite sufficient. Two thought that it was. That division illustrates that reasonable people would disagree on how to interpret the facts in this case. There was no direct evidence of discrimination. There are more subtle forms, much driven underground, but all there was to point to was a minor violation of the company's internal practices. They would decide whether to promote someone and then tell the person if they would before interviewing someone else. They interviewed her, decided not to tell her, then interviewed someone else.

12:34 Justice O'Connor experienced discrimination, partly because she's a little older. It's much more subtle now. No one admits to negative attitudes about certain groups of people. It's harder to make a case now even though there's no doubt that it still exists. He moves to cases. Someone qualified was denied a job. The corporation failed to follow the usual internal hiring procedures, and they gave conflicting explanations for why they hired someone they said was more qualified. The superior court said she hadn't made a sufficient case for discrimination. Two third circuit judges said she had a case. Alito said she didn't. Alito's standard for these cases, according to his colleagues, would eviscerate Title VII by ignoring realites of racial animus in some people who are incapable of acknowledging that a black woman is qualified for a job. Biden says Alito dismissed that, setting the bar very high for disgruntled employees to demonstrate discrimination.

12:30 Biden says he's not insinuating that Alito is immoral, but some of them are puzzled at certain statements and actions. He says he was well aware of CAP's other issues. He wants to know when or if Alito was aware of the other things the organization did. Now he brings in the ridiculous issue of whose spot Alito would be taking. O'Connor views things from a real-world perspective, as if Alito can't. She was a legislator (though Alito was a prosecutor). Her focus on the impact on individuals was both criticized and praised, but this isn't just about Alito himself. It's about whether his taking her seat would alter the constitutional framework in this country by shifting the balance on 5-4 issues.

12:20 Should the Supreme Court fill in gaps left by Congress, as Justice Souter said at his hearing? Alito says he doesn't know exactly what Souter was referring to, but he sees his role as interpreting what Congress passes and not adding or subtracting from those. Judges should decide the case before them. That's hard enough. If they issue opinions about questions not before them, you magnify the chances of getting something wrong. Focusing on a concrete case prevents commenting on broader issues that you haven't heard all the arguments on. Courts can't repeal or amend statues. They can determine what a law or statute means and then enforce it. They can extend the principle of charity to lawmakers and argue that the lawmakers didn't mean the law in the way that it would lead to an absurd or unjust result. If it's something the lawmakers need to think about in revising it because they hadn't thought about the real-world consequences, judges can recommend that kind of revision. Judges don't make policy and thus shouldn't act in order to achieve a certain result.

12:15 The Constitution is an enduring document that doesn't change. The judge has to apply it to new cases. Grassley: Does the court play a role in making this society more just? Alito: If the courts do what they're supposed to do, it will produce a more just society. The Constitution and the constitutional system we have is designed to produce a more just society. Different people have a different part to play. The whole system won't work if people play other people's roles. The whole system will then work toward producing a more just society.

12:13 If something comes up where the Constitution has been violated, a judge has to decide accordingly. If that involves another branch of the government, then the judge has to rule so. Grassley: How do you decide if it's unconstitutional? Alito: Precedent is the first thing to look at. If it's a new question, you have to reason by analogy from previous precedents.

12:10 Can a judge be objective in this? Alito: There are objective things to look to. There's the text of the Constitution. There's anything that sheds a light on what those reading it at the time would have read it as saying. There's a whole body of written doctrine at the time, and there are precedents in existence by which we can reason by analogy. He's sounding closer to an originalist here, though more Scalia on precedent than Thomas.

12:09 What about things the Constitution couldn't foresee? Alito says some wording is open in the Constitution, and unusual searches and seizures needs to be applied to things like television or automobiles. Searches must be reasonable, and a warrant must be issued before a search is undertaken. Congress can then apply (e.g. the wiretapping statute) to new situations.

12:07 What if Congress is too slow? Can the Supreme Court then act? Alito says judges need judicial self-restraint, because there are few external restraints on the judiciary. The judiciary needs to restrain itself to avoid stepping over the line and invading the area given to the legislature. Grassley asks what about cases Congress hasn't acted at all? Alito says the judiciary doesn't make laws. It has to perform its own role, not the role of Congress or the executive.

12:05 Legislators make policy decisions. Judges apply those. But do political ramifications enter into judicial decisions? Alito says life tenure is to insulate judges from the way the wind is blowing at a particular time. If people lose sight of individual rights, the court needs to stand up for them. It enforces the Constitution and laws steadfastly and not in accordance with the way the wind is blowing.

12:03 Grassley proceeds to draw Alito out to state the obvious, that he isn't an executive power absolutist and believes in separation of powers. Alito says we have a democracy so that the people can make certain decisions to elect two branches. There are some things that neither branch can do, in order to protect the people. The executive's duty is to be viligant in enforcing the constitution.

11:59 See the SCOTUSblog round 2 liveblog for some of the stuff I've missed. Grassley seems to be focusing on the many statements from ethics experts, judges, and others about Alito's integrity, saying Kennedy's claims are outrageous and outlandish and aren't reasons to oppose his nomination.

11:54 We're up to Grassley now. He says forgetting a promise isn't that bad among this crowd because senators don't keep all their promises to their constituents.

11:52 Kennedy ranted about more stuff Bush has done without asking a question. Specter then lets Alito respond to a claim Kennedy made that Alito had gained significantly from Vanguard, which Alito denies.

11:49 I missed a little while outside bringing the kids to the bus, but Alito is now separating out a distinction between the scope of executive power and who within the executive controls executive power. The unitary executive doctrine says that the president is the answer to the second question, not a statement about the scope of executive power. I guess Kennedy had been taking some Alito statement on this as about the first issue.

11:45 Now we're back to torture. Alito wrote that the president's interpretation of a statute should be just as important as the Congress's interpretation. He responds that the text is the first thing, and that eliminates lots of disputes. He says the legislative history and intent of legislation is not irrelevant. He does look at that as a judge. Part of the memo listed what the administration intended to do. Some of the memo details theoretical problems that weren't explored, and this statement was part of that.

11:42 Kennedy now goes into a long line of misquotes and misinterpretations of Alito, most of which he's already clarified at this point as not meaning what Kennedy portrays them as. In only one of them does Kennedy add "which you've now clarified".

11:40 Kennedy moves to the strip search case. He says the 4th Amendment is clear, and the search warrant wasn't precise enough. He makes it sound as if Alito would approve of searching the ten-year-old. Alito responds that he didn't approve of the search, but it was a case where the search was carried out in a way that wasn't threatening. It was done by a female officer, etc. We can'[t have a rule against searching minors, because then that's where drug dealers would hide their drugs. The affidavit clearly asked for authorization to search anyone on the premises. The warrant said it was based on the issue of probable cause, which sounded as if their was probable cause for anyone on the premises to be searched. Kennedy says Judge Chertoff took strong exception to that and then changes the subject.

11:35 Kennedy goes to a specific case about whether it was reasonable for U.S. Marshals to use a level of force that one colleague of Alito's called gestapo-like. Alito says reasonable people could disagree on this, but the law says that the judiciary and not the jury (as Kennedy seems to think) should make that decision. I missed most of the details here due to getting coats and shoes on the kids, but it sounded to me as if Kennedy wants a more restricted use of the word 'reasonable' than Alito does.

11:30 Alito responds that he sees all three branches as equal. The executive makes policy decisions for the country, and the other branches have other roles. One phrase he used in the past that Kennedy is harping on him for was inapt and misleading. I didn't catch the statement. He says he hasn't changed his view, but the way he said it before was not the best way to describe his view.

11:27 Kennedy moves on to executive power. He seems to be giving a speech against Bush rather than asking questions. He then accuses Alito of bending over backwards to find the most aggressive use of executive power possible for the sake of limiting the average individual's freedoms. Methinks Kennedy is bending over backwards to use the most aggressive language possible to exaggerate and selectively misrepresent Alito.

11:25 Round 2 begins. Senator Kennedy pushes Alito on his "promise" before the judiciary committee to recuse himself from cases involving Vanguard, and the name 'Vanguard' was all over the briefs and the court opinion. Alito says he has admitted it was an oversight. Kennedy says nothing about the Breyer case that Hatch had mentioned but continues to suggest that Alito's response is inadequate.

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