Alito Hearings, Day 2, Round 3

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4:39 Sessions goes back to the strip-search case. The question is whether the police were liable for civil damages. There was probably cause, and the magistrate accepted that and appropriated what was in the affidavit. Alito says he thought it was reasonable for the officers to take that as fulfilling what the affidavit asked for, given the context and the specific request. Specter has called for a break until 4:55. If I'm able, I'll resume with a new post for the fourth set of questions, which should begin with Senator Feingold.

4:34 Decisions of foreign courts isn't helpful to determine readings of our own Constitution. We have our own judicial precedents and traditions. Other decisions won't help except from the perspective of political science. It's worth looking at in that sense, but it's not helpful in interpreting our Constitution.

4:31 Activism is not following the judicial role. It's not a conservative or liberal thing. It's not activism to strike down a law that's unconstitutional. That's been settled since Marbury v. Madison two centuries ago. Sessions agrees that it isn't, as long as it's faithful to the Constitution.

4:30 Some joking about salaries: Can the president cut your pay? The president can't. Congress can't, either. They can increase it, though. Sessions' point is that the executive doesn't have absolute power here. [I had to run upstairs to find a runaway, so I missed what I think was the serious part of this discussion.]

4:25 Sessions has moved to Roe. Alito says he opposed a frontal assault on Roe. Reagan's position was that it was wrongly decided. They didn't follow Alito's proposal, and the Supreme Court rejected their argument. Alito ruled that HHS could? couldn't? fund abortions, because he thought the law required it. If he'd been implementing an agenda to uphold any abortion regulation that came along, he wouldn't have voted that way. I lost something here.

4:19 I missed more, but he's now talking about how easy it is to prove that a gun has been transported in interstate commerce. Sessions says Congress could put that in the statute as an element of the offense, and that would meet constitutional muster. If it doesn't have that, it can't meet the standard of beyond a reasonable doubt.

4:11 Senator Sessions says he hasn't seen a nominee this forthcoming in a long time. That's pretty much the opposite of what Nina Totenberg said at the last break. I'm not following the proceeding discussion well. Sophia's still pretty cranky. It's got something to do with how he makes decisions and what steps take place beforehand to ensure that both sides can make their case well. He says his mind should be open even during the oral argument, though he might have a tentative view at that point. Sometimes answers to his questions change his mind. Sometimes his colleagues' considerations change his mind. He seems to be describing the whole process of how a case proceeds from the beginning to the opinion. Sometimes he's even changed his mind when writing an opinion. Sometimes his colleagues are convinced by the reasoning, sometimes not. It's only at the end of that process that the issue has been fully explored at the relevant sort of level. Sessions then points out that this is why he won't pronounce on cases like Bush v. Gore.

4:05 She's pushing again on the equation of minor to parent and wife to husband. He says different situations can have some aspects in common even if very different situations. Abuse can come up in either context, and it's a tragedy in either case. [Teething kid just woke up, and I missed the end of his answer. They're on FISA again, and I might not be fully coherent here for a bit until things calm down.

4:01 She wonders about a memo he wrote for overcoming Roe. He says he didn't advocate in the memo that Roe be overruled. What was his view on stare decisis at the time? So stare decisis wouldn't have been an issue, and he didn't address it. Stare decisis is an issue for a judge. An advocate tries to achieve a result. They have to argue about it to convince judges, but it's not their job to give it due consideration.

3:59 Casey allows regulation or prohibition of abortion except for health or life of mother, which Roe originally said. She asks if the Constitution requires this. He says it's clear in the case law that the case law requires it. (That doesn't answer the question, does it?)

3:58 He says there's a substantive component to the privacy rights in the 4th Amendment and liberty rights in the 5th Amendment. She wants to know why his Casey ruling was different from O'Connor's. You look at the group that's affected by a law, not a group that's unaffected. She was looking at unmarried women. Her standard said an undue burden needed to be an extreme obstacle. It couldn't just affect some women. He denies the equation of adult married women with husbands and children with parents. This was an analogy between two very distinct situations.

3:55 One situation with a special justification for overruling a precedent is if it proves unworkable. He lists a couple cases. One involves whether something is a traditionally sovereign function. Lower cases had to decided whether something was on either side of a line. The standard proved difficult to work with. Eventually they overruled it because of unworkability and left it to Congress. Real-world changes in a situation can enter in. Old rules for wiretaps looked to property law. Electronic surveilance changed that. The 4th Amendment principle needs to be allowed differently. It protects people and not places. The focus shifted from property law to whether someone had an expectation of property.

3:52 Feinstein moves to Roe and stare decisis. Some special justification is needed to overturn a precedent. Can you give examples besides Brown v. Board of Education? Factors include initial vote on a case, length of time a case has been on books, reaffirming it, reaffirming it on stare decisis ground, whether it's been relied on, whether workable. Right in the most important part of his answer, I got interrupted, so I missed some crucial stuff here. She says he's not answering the question. She wants examples of special justifications for overruling prior precedent.

3:49 She brings up a case where Congress did have findings, but he still overruled it. He says he didn't think Congress's facts went to the issue. The Supreme Court has said that findings of fact are very helpful when provided and will be treated with respect, but they're not necessary, and they're not necessarily definitive. She wonders why he could strike down Rybar because of no fact-finding, when previous laws did have fact-finding. He says most of what the legislative history cited didn't go to the issue in Rybar. The other statutes had jurisdictional elements. In this case the possession, not sale, of a machine gun would need to have an effect on interstate commerce. That's not a heavy burden to show, and it's what the Supreme Court precedent required, and Alito didn't see it.

3:46 She wants to know what he meant by federalism being strengthened at this point. He says some activities have traditionally been handled by state and local governments. He mentions a concurrence by Justice Kennedy on this. I'm not following all the details here. Commerce power was seen to reach everything when Alito was in law school, and Lopez was the first time in a long time that such a reduction in federal power had happened. That's why it's so noteworthy. Most cases on this are well-settled precedents, but he won't talk about particular cases.

3:42 We seem to be on machine guns again. She wants to know whether he might have sustained the law if there had been Congressional findings. He can't give a definitive answer, because that would have been a different case. He'd have to look at the findings. Then he could bring experts into the court and have them testify with regard to those findings. That can happen in commerce clause cases.

3:38 Senator Feinstein now begins her questioning with asking about Supreme Court cases that still have relevant cases appearing in the courts. Lopez is a precedent that has been followed as a precedent. Congress's power under the commerce clause affects how our economy has developed.

3:36 DeWine asks about the cert pool. Eight of the justices use the cert pool to decide whether they will vote to hear cases. Stevens has his staff write up memos on each case for him to read. Alito is aware of the issue but hasn't thought past what might happen with the confirmation proceedings. He'd talk to the justices to see the reasons why they do what they do. A lower court judge has conflicts between very heavy caseloads and the need for the judge to deal with the cases directly. We need ways to get assistance from clearks and staff.

3:34 A judge applies worked-out principles in one context to a new context. There have been principles worked out in the pre-internet world. It's difficult to apply them now in the internet world. Obscenity has no protection by the First Amendment. States can regulate sale of pornography to minors. Parents' ability to monitor is greatly decreased because of differences in aptitude. Communication differences over the internet need to be taken into account. It's hard to say more than that.

3:31 DeWine wants to know about Congress's ability to protect children from internet porn. The Supreme Court has struck down laws more than once. The 1st Amendment is about free speech, but pornography doesn't contribute to the public debate, degrades women, and harms those involved with it. He quotes Justice Stevens saying that it's of lesser value than free speech in general, even if preventing all erotic material would be bad.

3:29 Alito says the Supreme Court is his boss, and he doesn't think he can suggest that they would double their workload. Circuit splits should ideally be resolved by the Supreme Court. They're undesirable, and it's a problem. That's one job the Supreme Court has. Sometimes there are differences of opinion about whether something is a circuit split or whether it's advisable to wait before taking on an issue to improve their chances of effectively deciding it when it does come before them.

3:27 DeWine moves on to the number of cases the Supreme Court decides. Circuit splits occur when different circuit courts disagree on the same issue. This is becoming very common now, almost one a week. Organizations across state lines get confused. Federal judges have trouble applying the law. It undermines uniformity in federal law. He asks Alito his opinion on this. Is it a problem? Is there a solution?

3:24 DeWine moves on to precedent and Roe v. Wade. It's been reaffirmed and reapplied after a number of cases that wouldn't reaffirm it or overturn it. It's also been restricted quite a bit. Other cases applied for decades have been overturned. He gives examples, including Lochner. So that doesn't give it special deference. It's also been incredibly controversial, and facts of Roe have changed. The plaintiff based the case on false statements and now wants it overturned. The author has admitted that the trimester framework is arbitrary. Justice Powell says he couldn't find the right in the Constitution but decided with his gut. DeWine quotes Judge Posner that super-precedent is precedent so assumed that none challenge it. Roe is precedent, but it's not on that level. He apparently has no question.

3:18 DeWine is wondering about what Congress now legally can do. I have so little familiarity with this issue that I'm not even sure what the issues they're talking about amount to, so I'm sort of tuning out. It has to do with the government giving funding to states on condition that they implement certain regulations, e.g. the 55 MPH speed limit in exchange for federal funding. Beyond that, I don't have a sense of what the issue they're debating really is.

3:16 DeWine is worried about the Supreme Court's reduction of the role of Congress. He wants to know about the fact-finding role of Congress. Alito mentions his Rybar case where he thought if Congress had done more fact-finding it would have been a very different case. He presumes members of Congress go about their work in good faith based on their oath to defend the Constitution. Congress can hold hearings and examine complex social issues. They can hear from constituents. They can hear from experts and examine evidence. That's entitled to great respect.

3:11 DeWine returns to the Vanguard issue. The case involved two people who sued about something that couldn't have affected Vanguard as a company, and no outcome of that case could have affected Alito's mutual funds. He calls for a return to substance.

3:07 We're now up to Senator DeWine. DeWine lists a whole bunch of quotes about and by Sandra Day O'Connor that would lead any Democrat to vote against her. He then says you can distort anyone's record and says what his colleagues are doing is wrong. He begins listing details of cases when Alito has ruled in favor of minorities on discrimination cases.

3:05 Kohl asserts that Bush v. Gore involved legislating from the bench and judicial activism. He wants to know what Alito thinks about it. Alito says he hasn't looked at the case the way he would if he were going to rule on it. One issue there is equal protection, but he's not sure he's done the kind of study he needs to do if he's judging on it. He decides legal issues by putting aside his own personal views, and he hasn't done that with all the details of this case. Only at the end of that can an impartial judge make a decision, and he says he hasn't done that with Bush v. Gore even if similar issues never could come before the Court.

3:02 Kohl's been asking about the family medical leave act. I just missed a bit to go outside to get the kids from the bus and getting their coats and stuff put away.

2:57 Kohl repeats the question about one-person, one vote even though Alito had just answered that. He repeats that he didn't disagree with that principle. He was talking about how he'd gotten interested in law in college with the issue of how far that principle went. Did the districts have to be almost equal in population, or were larger variations in population permitted? Right at the end of Warren's tenure, the Court held that they had to be almost exactly equal. Alito's father's plan had been struck down even though the variations in population were under 1%. The Court later said larger districts could be allowed in legislative districts, and you could take into account municipal and county lines. One problem is that the census isn't perfect, and population changes between each census and the next. Insisting on absolute population equality after census figures had changed disregards municipal and county lines, and people don't know which district they're voting in. It introduces many factors we don't need.

2:54 The Casey opinion points out that not many women would have problems getting their husband's permission for an abortion. Is it less of a right because not many people need it? Alito responds that the law was unclear. O'Connor had a few statements about extreme burdens or undue obstacles. How do you apply that to the numerous provisions of the law? The plaintiffs said they all were undue. Justice Stevens later agreed, because even a 24-hour waiting period would prevent some from having an abortion. Most on the third circuit found that most didn't. Informed consent and 24-hour waiting periods did not. The disagreement was only on spousal notification (with the violence exception and so on). Alito says he wrestles with it, but that was the best he could do under the circumstances.

2:50 Kohl asks about traditional values: which ones did you have in mind? Alito says in 1985 he would have meant living in your neighborhood in peace, raising a family with traditional beliefs, sparing psychological threats from outside, and practicing your own conscience.

2:48 In 1985, Alito outlined the development of his thought. The decisions of the Warren Court stimulated his interest in constitutional law, and one particular book stimulated his intertest especially. He was a liberal but critical of the Warren Court. The main point Alito took from the book was judicial restraint. He never opposed one-person, one-vote. His father's work in the legislature on reapportionment raised questions about how far that needed to be taken. The Warren Court made it clear that they need to be almost exact in population. This particular book thought the Supreme Court had taken that principle too far, and Alito's father's work became very difficult.

2:45 Alito mentions that he disagrees with him on some issues, and those were some of them. He's an imporant constitutional scholar whose work deserves respect, and his nomination was worth supporting at that time by someone working for Reagan.

2:44 Alito responds that he agrees with Bork on some things and disagrees with him on some. On Griswold, he disagrees. On reapportionment, he now thinks one-person one-vote is a fundamental part of our constitutional law and doesn't see a reason why it should be reexamined at this point. Every district has been reapportioned on this basis numerous times. Under the 4th Amendment we now require a warrant for surveilance, and that led to FISA. That's the current prevailing view, and Alito has no problem with it at this point.

2:41 Kohl points out that Alito once thought Bork was one of the most outstanding nominees of all time. He thought minorities had no constitutional right to have vote counted equally. He thought Roe v. Wade was usurpation of state legislative authority. He had a broad view of executive power. Do you agree with some of this, and would you support some of this on the Supreme Court?

2:40 Kohl responds that a number of cases brought in rights that following the law rigidly wouldn't result. Can you be innovative and see new things no one else have seen? Alito says applying isn't easy, even once you get the principles, but you need the principles in the Constitution and not the judge's principles. Sometimes this leads to innovation. The equal protection clause's true meaning was not recognized from Plessy v. Ferguson to Brown v. Board of Education.

2:37 Alito responds that the Constitution can be specific or general. Applying to a new situation is the judiciary's job. It should be neutral, and it shouldn't involve substituting their own preferences for those in the Constitution. They can't inject policy views or preferences about where society should be moving.

2:36 Senator Herb Kohl takes over. He starts by describing difficulties in agreement on judicial issues. There are lots of 5-4 decisions. If judges just follow the law, it's inadequate. Rights are guaranteed by courts when laws don't do it. Judges need a more expansive, imaginative view of the Constitution for this.

2:34 On to precedent and stare decisis. Kyl brings up a case about weapons possession near schools where O'Connor took the same view that Alito had taken. He also mentions a 9th Circuit opinion agreeing with it. Then he asks Alito to describe his position. Alito responds that it's not about Congress's regulation of machine guns. There are ways Congress could do that. This statute hadn't done it in one of those ways. It just prohibited possession of firearms without Congressional findings on the effect on interstate commerce or a jurisdictional element. Most such laws have a jurisdictional element in the statute. It might make it illegal for felons to possess firearms. Then you just need to show a felony conviction. In the cases in question it didn't have that. Congress could regulate possession of a machine gun by inserting a jurisdictional element. That's easy to do. His opinion followed the Supreme Court mandate exactly. This was a regulation of possession of a firearm without a jurisdictionaly element and without a Congressional finding. If those had been in the law, it might have been fine.

2:27 Racial discrimination now. Kyl asks if he's upheld claims of a black plaintiff. Alito mentions a few cases. One was similar to a case where he decided against, but he thought the facts fell on different sides of the line in the two. He mentions a few more cases. Some of these are discrimination. There's also age discrimination and disability discrimination. One involved him as the lone dissenter in a statute of limitations case on racial discrimination. The Supreme Court agreed with Alito that the longer statute of limitations applied.

2:24 Kyl now takes up the issue of replacing O'Connor. He says that nearly half of Supreme Court appointees replace justices appointed by a different party. Justice Ginsburg replaced centrist Justice White. No senator expressed concern that she might rule very differently. That's a results-oriented test, which Alito has said judges shouldn't concern themselves with. Kyl then takes up Kennedy's claim that Alito has total disregard for rights of individuals and asks for cases Alito has sided with rights of individuals. Alito says he rules on an individual basis. One case involved a black man stopped by police because he fit a suspect's description, a black man in a black car. Alito's opinion called that illegal racial profiling. Another was about a drug test that counted as a search and seizure absent consent of the searched party. He has reversed death penalties. Kyl mentions one about tax evasion with a search not carried out properly. Alito says it was like another case where he did think a search was carried out properly, but in one case he thought it was and another not. Kyl concludes that numerous cases involve Alito finding the government acting improperly in many contexts and many cases where the government he found the government to have some immunity.

2:18 Kyl moves to cases like the pledge "under God" case. Alito says those sorts of cases are hard because of conflicting concerns that are hard to sort out.

2:17 Senator Kyl resumes his questioning. He adds some more evidence to the record from people who testify against claims made by the Democrats. Kyl asks again about when Alito joined CAP. Alito thinks it must have been around the time he wrote the statement but can't remember, but Kyl notes that the ROTC issue was alive at that time.

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