Alito Hearings, Day 2, Round 4

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7:10 The hearings should continue tomorrow at (I think he said) 9:30. Assuming Cornyn is done, Senator Durbin will start things off tomorrow with Senator Brownback and Senator Coburn wrapping things up for the first round through the 18-senator lineup. Each senator goes down to a 20-minute time limit for the second time through. My brief calculations show that they can finish the second round tomorrow if they devote roughly the same amount of time to the whole proceedings. Then I assume Thursday will begin the testimony from others, and that will probably take two days if the Roberts hearings are indicative.

7:04 Specter ends the proceedings for the day. He says something about the endurance of the Alito family for staying through the whole thing when almost everyone else had emptied out by then. He notes that Mrs. Alito smiled at the "stopped beating your wife" reference. Alito responds that that was because they didn't ask if she'd stopped beating him. Everyone laughed, and Specter told him to insert more of that subtle sense of humor many people had been talking about that they'd seen little of so far.

6:58 Cornyn moves onto O'Connor's broad view of presidential power to hold prisoners without charging them in a terrorism context. Scalia dissented. His overall point continues. If O'Connor is in the mainstream, then so is Alito.

6:55 They've been summarizing some facts about the response to Roe. It was criticized heavily among legal theorists before Alito's statement in 1985. Casey overturned almost the whole thing except the central holding, replacing the trimester approach and the reasoning with an undue burden standard. I don't think this line of discussion went anywhere except to say that nothing Alito has said is necessarily out of the mainstream.

6:50 Cornyn now moves on to an O'Connor quote that Roe is on a collision course with itself. He brings in Alito's preferred earlier course that the administration put together an approach based on that very O'Connor opinion. Alito says certain provisions could be challenged on their own terms. [I missed most of what he proceeded to say.]

6:47 Cornyn points out that the machine gun case was ruling against the government for the little guy. Alito says the government didn't make the case they needed. [I missed something here about another case that involved a similarity to O'Connor.]

6:43 He points out the similarity between the federalist structure of O'Connor on the commerce clause and guns and the case Alito has been criticized about. There's nothing really new going on. Cornyn seems to take his time setting things up, but at least you can see a logical ordering to his procession through his points once it's over.

6:41 Cornyn spends a lot of time leading up to a quote from Judge Higginbotham in favor of Alito. Higginbotham is very liberal and was once with the NAACP. He goes on that if O'Connor is in the mainstream, so is Alito. Both set limits on Congress, set limits on affirmative action, and have criticized Roe v. Wade. She agreed more with Rehnquist than with any other justice.

6:34 Cornyn recalls Biden's statement about how forthcoming Alito has been. He says Schumer is just trying to find a pretext for a vote against Alito because he doesn't yet have a complete justification, so he's trying to set up the charge that he's not being forthcoming.

6:30 Senator Cornyn is now pointing out the "have you stopped beating your wife" questions of Schumer. He gets Alito to say that abortion isn't in the Constitution, but privacy is implied by the 4th Amendment and in some case the 1st, 5th, and 14th.

6:27 Schumer demonstrates lack of imagination by assuming silence means he hasn't changed his mind but doesn't want liberal senators to know instead of the other possibility that he has changed his mind but doesn't want conservative senators to know. But we have to keep in mind that this is a senator who thinks pro-lifers are way out of the mainstream, so it's not as suprising with someone with such a warped view of the makeup of the country to have as warped a view of the makeup of the Senate so as to assume that the only people there who could be angry at his response on abortion are those who want to keep it legal.

6:22 Alito says some of that is because the Supreme Court trumped 3rd Circuit precedent.

6:20 Schumer reads quotes from 3rd Circuit judges about Alito's respect for 3rd Circuit precedent. They say he bucks the statutory standard and ignores precedent. Quotes say he overlooks case after case. (SCOTUSblog says this is what majorities say about dissenters all the time.)

6:16 Now he's off on Bork's view that precedent isn't all that important. If the Constitution doesn't protect the right to abortion (as Alito wrote in 1985), then it should be overruled despite stare decisis. Then he brings in the 1988 quote from Alito on Bork, which Alito has already put into context and minimized quite a bit. Alito said he was one of the most outstanding nominees in the 20th Century in terms of ability and in terms of understanding constitutional history. How could he be so good if he rejects stare decisis? Alito says those weren't related to his comments on stare decisis. Schumer says this was a voluntary interview with media in New Jersey as he was a U.S. attorney in support of the nomination.

6:12 Schumer confirms that he doesn't think stare decisis means you can't overrule a case (as if we didn't know that by now). Then he gives a Clarence Thomas quote from his hearing about the value of precedent, and yet he sought to overrule many cases. What do you think of his theory of stare decisis and how he applies it? Alito won't comment on all of those cases. Schumer says Scalia commented on it. "Justice Thomas doesn't believe in stare decisis period." He says he wouldn't do that, but Thomas now overrules anything he thinks was wrongly decided. [For the record, I think Thomas has the right view, but it's not the predominant view among conservatives, and it's no sign that Alito isn't a conservative simply because he disagrees. After all, Scalia disagrees.]

6:08 Schumer wants to know not about how he would decide but about what's in the Constitution. Alito: It protects liberty and due process, substantive protection. It certainly protects the right to free speech. Schumer: Why can't you say the same about abortion? Alito: There's language in the First Amendment about free speech. With abortion it involves intepretation of certain provisions within the Constitution. Schumer pretends that this shows that he couldn't be approaching this without bias. He gives a terrible analogy about someone hating his mother-in-law and twenty years later not answering if he hates her still but just saying he's been married to her daughter 21 years instead of a year (which ignores the different capacities he's been in and the ways answering it now would compromise the judicial role that answering in the other context didn't).

6:01 Senator Schumer is now on. He starts with the Constitution not protecting abortion (from the 1985 note). Those words accurately reflected your view at the time. Do they accurately reflect it now? Alito says that it was accurate at the time in 1985, made from an attorney in the solicitor general's office. If the issue came up for Alito as a judge, stare decisis would come up first. It's an important issue. If it were to get beyond that, there's an important decision-making process. Schumer says it's not about case law or stare decisis. It's about what the Constitution says. Have you changed your view on what the Constitution says? Alito says he'd address it in accordance with the judicial process as he's practiced it. Schumer's sounding like a strict constructionist or orginalist here. What's going on?

5:56 He asked a bunch of constitutional questions Alito wouldn't answer. Alito called it a slippery slope. He says there are easy questions at the outset, and then you verge into unclear questions. Graham admits that he'd been trying to set a trap and is glad he didn't fall for it.

5:53 Graham goes off against Bush for the spying and torture stuff. He's really speaking to other people now. He even told Alito this isn't for him.

5:50 He won't say he's a strict constructionist because it depends on what it means. Graham doesn't want to pursue the detailed views. Alito says he's a strict constructionist if all that means he doesn't make things up as a judge (Graham's way of putting it.) A person who merely interprets the law will look at the language of the law, the legislative history, prior practices and cases analogous to it, and so on.

5:48 We're onto the Geneva Conventions. He thinks they express important values to the American people. He won't comment on whether the treat is self-enforcing, which is an issue before the courts right now. One issue is whether there can be an exception to FISA. Graham is with Feingold on this. He reminds that the death penalty is on the books for someone engaging in torture in violation of the Geneva Convention. This isn't Senator McCain banning torture. Alito says the president has to comply with the Constitution and the laws that are consistent with the Constitution. There are interpretive issues of the law in case.

5:44 Who should decide whether to let someone go? The military could decide if military or intelligence value is at stake. Can the courts make those decisions better than the military? Alito answers that they have no such expertise. That's a powerful consideration. But so is the court's role in protecting individual rights in cases that come before the court.

5:41 The other case involves Germans caught in Japan at the end of WWII. They were unsuccessful in their habeas petition. That's been taken as lack of jurisdiction because it wasn't a U.S. territory. Alito doesn't assert that that's the right interpretation. But he says that's been modified if not substantially overruled. [I lost something there on applying this to Hamdi.]

5:39 Graham wants to be assured that the president can prevent combatants from returning to their home base when captured. He wonders how to determine whether someone was a lawful or unwful combatant. Is there a case when it was decided by a court and not the military? Alito doesn't know of any, but he doesn't know the whole area of cases fully. Is there a constitutional right for a non-citizen prisoner to sue over how they've been held? Alito knows of none. Graham points out two cases, which Alito is familiar with. German saboteurs were taken into custody and put before military tribunal. The Supreme Court sustained their being tried before a military tribunal. One claimed American citizenship. All or most were executed. Graham says that's sustained by the Supreme Court in those circumstance, and that's a precedent. Alito agrees.5:35 Senator Graham is up now. He wondered if Alito agrees that we're at war. Alito is hesitant, because there are particular legal definitions of expressions related to be at war, and he's not prepared to comment on those complex and difficult issues right now. I missed some of the following questions and answers about Hamdi.

5:33 Isaiah bonked his head at some point, and changing his diaper amidst his anguish over that and then searching for some kiddie ibuprofen took me this long. What I gathered from what I heard of the rest of Feingold's questioning is that he wanted more information on particulars of the recusal issues, and what I heard of Alito's response seemed satisfying to me, but I didn't get the details. It's possible something in there was difficult for him to answer in a satisfying way, but I didn't get a feel for that amidst the chaos here.

5:18 I missed about ten minutes getting the kids some food. Feingold is now pointing out that it's not a political game or trivial matter to raise ethical questions about a nominee.

5:08 What about the argument the president was asserting? Alito says he's studied it from the internet and not from anything anyone in the administration has said or given to him. It would be inappropriate for them to tell him what to say, but they haven't done that.

5:07 Feingold wants to know about practice sessions with administration officials on this issue. He says questions on this came up in the practice hearings, but no one told him what to say on any issue. Did anyone give feedback or comments on the answers? In general, there was feedback, mostly about the form of the answers. Not as to the substance but on the format and style.

5:05 I'm missing stuff again. They've been getting into pretty picky details that it's hard to follow when Isaiah keeps knocking over the towers Ethan is building out of video tapes.

5:00 Feingold says he asked Alberto Gonzales the same question in January and calls it a hypothetical situation, but it wasn't. Alito: The president has the obligation to execute and follow the laws, especially the Constitution. He must take care that statutes consistent with the Constitution are complied with. Those are the important general principles. Applying them depends on facts of the case, and a judge needs to hear the arguments on both sides before deciding. Feingold then proceeds to assert his own view on the case.

4:58 Senator Feingold is up now. What are the limits, if any, on the president's power to protect national security regardless of what Congress passes. Alito: That puts us in Justice Jackson's twilight zone. The president has Article 2 powers minus what Congress has taken away. The specifics of the case tell us beyond that. What type of power is the president asserting in what situation, and what has Congress done? Feingold: How about warrantless searches and wiretaps? Alito: As I understand the situation, in involves statutory questions (interpreting FISA, the meaning of the authorization for the use of military force) and constitutional questions. Those could come before the third circuit or the Supreme Court on two important questions -- protection of individual rights and protection of the country.

4:52 The questioning hasn't started up again yet, but Judge Napolitano was just on talking about Concerned Alumni of Princeton. He said he was on the board of directors of that organization from the late 70s to early 80s, so he knows their agenda more than anyone in the hearing room. They never opposed coeduction at Princeton. What they advocated was not decreasing the number of male students at Princeton. They could do that while increasing the female population as much as they want. He's pretty upset that the organization he was once part of has gotten a bad rap with absolutely no one challenging this aspect of the portrayal by the Democrats.

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