Alito Hearings, Day 3, Round 1

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11:18 Alito says his court debated this issue. Alito argued that they should do it. It would be a useful education issue. The majority disagreed. It's a little different on the Supreme Court. It would be presumptuous to talk about it. One justice said a TV camera would make it into the Supreme Court over his dead body (Specter says that was Souter). Specter asks if he'll keep an open mind. Alito says he will, despite the position he took on the 3rd Circuit. Specter calls for a 15-minute break. Senator Leahy will pick up after the break. I'll start a new post, as has been my practice at each break.

11:15 Specter moves on to cameras in the Supreme Court. The court has made decisions on all sorts of important subjects. Who has the right to die, who has the right to life, who will be president, what Congress can do and how it can reason. Congress sets the size of the court, when terms start, time limits on habeas corpus, speedy trials, and so on. He mentions that Breyer and Scalia on TV makes a good show. A lot of people are interested in the Supreme Court. Alito's picture is on the front page of every paper. Brit Hume listened to the Anita Hill hearings while at a baseball game.

11:12 New legislation takes away from the court the jurisdiction to determine habeas corupus for detainees. He cites O'Connor's opinion that everyone has that right. Another has to do with combatant status. This might come before the court, but Specter wants to know what factors are relevant to maintaining equilibrium on these issues. Alito says there are important principles in reviewing any legislation that someone contends has altered jurisdiction. One precedent says you can't take it away unless the statute makes it clear that that removal was intended. It can't be taken away by implication. He says another that I didn't quite follow.

11:08 Specter asks about some specific tests, and Alito says there's still litigation on this. It could come before the court. Specter asks where a particular standard came from. Alito says the court tried to find a standard to remedy violations of the 14th Amendment while retaining the remedial element of section 5 of the 14th Amendment. (I'm not sure if they're getting the amendments right here. I'm pretty sure he said 15th before and 14th now.) There's still some ferment in this area, and it will come up in future cases. Specter says he's also addressing the current Supreme Court and telling them that they've been calling Congress school children.

11:05 Alito says this isn't a mathematical or scientific formula to give certain results in certain situations, but many tests of the court are like this. Section 5 of the 15th Amendment gives Congress some power to pass certain laws regarding this, but some interpret it to be a narrow authority. Scalia thinks it's not beyond actual violations of the 15th Amendment. No prophylactic measures based on moral authority. He bases this on the historical origins of the 15th Amendment.

11:03 He's talking about a Scalia dissent now over a difficult standard (congruent and proportioned) that came up in Alito's family leave case. Specter says it was pulled out of thin air. Scalia says it's judicial arbitrariness and policy-driven decision-making. The majority opinion was a taskmaster to see to it that Congress had done its homework. There were 30,000 people surveyed and voluminous hearings.

11:01 He's worried about stripping detainees' habeas corpus rights. The court declared a law unconstitutional because of the Congress's method of reasoning. Does the court have a superior method of reasoning? Alito says all three branches are equal. Judges have no superior reasoning power to Congress. Courts can apply a legal standard as to whether something affected Congress. Specter says the case in question (not Alito's) said the method of reasoning was defective. Hatch steps in and says he's starting to worry about Alito if he still thinks Congress reasons well after these hearings.

10:58 Specter is on for his second round of questions. The senators now get 20 minutes each. There will be a break after Specter. He starts off saying he thinks the court has usurped Congress's role to use reasoning for passing laws by overturning laws that the court doesn't think is reasoned well. He emphasizes checks and balances again.

10:56 Coburn wants him to share his heart as a person. He refers to his opening statement. He's not from an affluent background. His parents were both very poor growing up. Kids learn a lot from what their parents do and the stories of their parents' backgrounds. In an immigration case, he can't think of his recent ancestors. It's his job to apply the law, not to bend it or change it to achieve any result, but he does say to himself this could be his non-citizen grandfather. Cases with children make him think of his children treated the way in the case. In discrimination cases, he thinks of people in his family who were discriminated against because of religion, ethnic background, or gender. In disability cases, he thinks of people he admires who have disabilities and struggle with barriers in society that society doesn't think about that it puts up against them.

10:51 Coburn asks why Alito would want to be a Justice of the Supreme Court. It's a chance to make a contribution, to use whatever talent he has in the most productive way he can think of. Alito says he couldn't do a lot of things well, but most of his career has been as an appellate attorney and an appellate judge. The Supreme Court has a very important role to play. It's important that it does that well, and I'd do my best to further that. It's important for it to exercise restraint, which is the principal check on how the judiciary does its work on a daily basis. It's not checked in the same way Congress and the president are checked by each other (or by the other half of Congress in its case).

10:49 Coburn pushes on the fact that the Constitution never says someone coming off the court needs to be replaced by someone who holds the same philosophy. Alito says everyone is an individual, and O'Connor had a distinguished and historic career. No one can be expected to fit that mold. The president appoints, and the Senate advises and consents. He brings up the Ginsburg replacing White case again.

10:46 Coburn says he's performed abortions if the woman was otherwise going to die. But Doe v. Bolton expanded Roe to almost any case. Informed consent is usually absent. Lack of information is common on this issue. He has a study that studies ill health effects of abortion, a breast cancer study, and a professor's testimony as to the complications. There's a lot we don't know, and the complications have major impact.

10:43 Coburn points out that Durbin changed his mind on abortion. He used to be pro-life, at least through 1989. How can he be critical of something that Alito said inaptly in 1985?

10:42 I missed more, but they're now on foreign law. Alito is saying what he said yesterday. He says the framers would be stunned at our using foreign law in the way some have done to interpret our Constitution. They wanted us to have the rights of Americans, not the rights of citizens of other countries. There's a host of practical problems figuring out which countries to survey. You also have different court systems where courts have a policy role, which would make it more appropriate for them to weigh in on policy issues. It's also misleading to look to just one narrow provision of foreign law without considering the bigger picture of their whole system of law. Coburn comments that it's a pick-and-choose method that violates democratic principles, because our people don't get a say in those laws.

10:36 Good. He's clarifying what CAP was about, with Napolitano's statement from yesterday. No, I guess he isn't. He's just submitting it to the record. Oh, well.

10:35 Brownback gives the first Kelo reference but doesn't ask a question. He encourages him to consider revisiting it if confirmed. Senator Coburn is now up.

10:33 They're talking about checks and balances and using terms I've never heard before. At issue is the scope of a certain doctrine that he won't talk about because it's in litigation now.

10:27 I missed a bit, but Alito is talking about a teacher who asked kids to draw what they were thankful for. The teacher hung all the pictures but the one that was a picture of Jesus. That violates treating religious speech as equal to other speech.

10:24 There's a Jersey City case Alito had to deal with. It's an ethnically, religiously diverse community right near Ellis Island, which is a major entry point for immigrants. They had Christmas, Chanukah displays, with also Muslim, Hindu, Buddhist, Latino festivals among other ethnic groups. Displays like this reflect valuing all these groups.

10:22 Now we're on religious displays like the 10 commandments. Alito says we have a number of Supreme Court decisions now. A display with religious and secular components was found not to be a violation.

10:21 They're talking legal theory and interpreting the Constitution, and I got the sense that he's saying things he didn't say yesterday. I missed some stuff, but he's said that he thinks the text and original understanding are the most important thing for interpreting the Constitution. The Constitution is an enduring document, which isn't true of other legal documents. It's also very hard to change it through the amendment process. Finally, it's not a detailed code on every point. Some things are vague. "Unreasonable searches and seizures" is a principle that needs to be applied to the situation at hand.

10:16 Brownback is talking about internment in WWII, listing a case never overturned that Congress has apologized for. The case remains on the books. He goes through legal scholars on Roe. Larry Tribe says it has no substantive basis. He reads something by Justice Ginsburg that Isaiah turned the TV off during, so I missed it. Edward Lazarus also questions its status as settled law. John Hart Ely says it has no basis in the Constitution. Alan Derschowitz has criticized it as judicial activism best left to the political process. I believe he said these are all liberals.

10:12 Brownback is now onto sterilization of the genetically inferior. He gets Alito to say some decisions are repugnant to phrases in the Constitution and the traditions of our country, including a line from Oliver Wendell Holmes.

10:11 We're on Plessy v. Ferguson as I'm able to listen again. Alito's talking about how it was wrongly decided but also not even applied properly. The separate facilities weren't equal. That was an important justification for Brown v. Board.

10:05 We've transitioned to Senator Brownback, but I can't follow anything yet aurally.

9:59 My mom just called. Arrgh. See the SCOTUSblog liveblog for what I'm missing.

9:54 Durbin is upset about Alito's use of the fact that 5 of 6 of the last presidents are left-handed. It isn't an apt analogy for discrimination because there's no law on that and not much discrimination. Alito says the analogy was to illustrate the difficulty of statistics. He says he struggled over the case in question. It's important that everyone be treated equally. Nothing is a greater poison for law enforcement than even the slightest hint of unfairness.

9:51 Durbin is pushing the CAP silliness again. Alito is saying the same thing as before. Durbin gives a quote from a woman who once worked for Alito about this, saying she was really disturbed about it. Alito says the fact that he hired her in the first place shows his concern for women's equality in the workplace. Durbin asks if women or minorities had anything to do with it. Alito says no. The thing that's bothered him about Princeton's administration is the ROTC issue. He lists a whole bunch of decisions related to that that bothered him and continued over a long period of time.

9:46 Durbin is now pretending that "we" have struggled to find ways to make it rare but keep it legal.

9:44 Durbin seems to be repeating the question Alito just answered. Roe is an important precedent of the Supreme Court. It's been on the books a long time. It's come up and been reaffirmed on the merits and because of stare decisis. That increases its value as stare decisis because more people rely on it and because it's wise to favor decisions by prior justices. That's entitled to considerable respect. Is it settled? Depends on if it means respect of stare decisis or can't be overturned. Yes if the former, not if the latter. [None of this is new. He said all this yesterday more than once.] It's being litigating now.

9:41 Alito: Brown v. Board is based on equal protection of the law, which is in the 14th Amendment after misapplication of that amendment. Black people were denied equal treatment. The principle and language of the 14th Amendment are clear. Griswold is about a marital right to privacy. Justice Douglas based it on emanations and penumbras from various amendments, but it's later been understood as from due process in the 14th Amendment. That's Alito's understanding of it. The contraceptive issue isn't likely to come before the courts again, either the 3rd Circuit or the Supreme Court. Abortion is in litigation. If Roe comes up on the Supreme Court, the first issue is stare decisis. An attorney in the solicitor general's office at the time could say that. A judge can't now without taking into account a whole range of cases decided since then. If it got beyond that, then it would be like other legal issues. Approach with an open mind, and try to achieve good decision-making with any other case.

9:37 Senator Durbin says he couldn't vote for a nominee who didn't see a right to privacy as seen in Griswold (as if no one had thought of a right to privacy before that). He also mentions Brown v. Board and says both cases use language not in the Constitution. He doesn't understand Alito's conclusion. Schumer wanted to know if Roe established a right to abortion (that's not what Schumer wanted to know), and he says Alito wouldn't acknowledge that. Durbin can't square the open mind language with the memo about abortion. Durbin misrepresents Alito's testimony yesterday about one-person one-vote as if he's changed his mind (not what he said). He lists that he's changed his views on some things but won't distance himself from this. Accepting Griswold but not a constitutional right of abortion when a woman's life is at risk seems inconsistent.

9:32 We start off with Senator Durbin, but Leahy has to get some words in on what he's calling inconsistencies that the Democrats want to clear up. He says he likes to make up his mind after asking questions, despite some of his colleagues' already having made up their minds before hearing from him. Leahy says he's sure it's guaranteed to be a fair hearing with Specter as chair.

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