Alito Hearings, Day 3, Round 2

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1:06 They've officially recessed and now are going back on when they should quote each other and respond to each other. It's best for the other person to be there. (The problem is that Coburn was up during his time, and Durbin wasn't there.) Durbin can respond to Coburn, but Coburn can't leave the meeting he's in. They can deal with this once both are present. They're breaking for lunch now until 2:00. I'll pick up in a new post at that point. Senator Biden should be next.

1:00 Grassley chairs the finance committee, so it's not surprising he's getting into issues of finance that I don't understand. They're talking about the false claims act. I've missed enough details that I can't really say more.

12:54 OK, my friend has moved on. He just wanted to stop in for a few minutes while visiting from out of town. It doesn't sound as if much new came up during the first half of Grassley's time. We're on to some judicial philosophy issues about how often to use legislative history. Alito says he's often used it for statutory interpretation, but the text of the statute is most important. Sometimes all you need is the language of the statute itself. Ambiguities can be resolved by looking to legislative history, but it requires caution. One member of Congress on the floor doesn't necessarily reflect the view of Congress as a whole.

12:44 Grassley is on now. A friend just showed up at the door, so I'm not paying much attention now.

12:39 Kennedy wants to disrupt the hearings to vote on subpoenaing some records about CAP that won't say anything at all about Alito. Specter says he'll consider it but won't interrupt the hearings. He takes umbrage at Kennedy telling Specter what he has received.

12:35 Kennedy says ROTC was a dead issue in the 1983-1985 period. The only statement his staff found during that time said it was on campus and popular again. Alito says it continued to be a controversy among faculty who wanted it removed. There was controversy over course credit, which ROTC required and ROTC leaders' relation to the faculty.

12:33 Alito points out that he didn't even identify with most of those things. He wasn't the son of an alumnus or a member of an elite eating club, etc. If he saw those, he wouldn't have identified with them. He did get upset over the ROTC issue. It was offensive that it was beneath Princeton to have an ROTC unit on campus.

12:30 Kennedy lists more things and says something that Napolitano's claim contradicts about CAP's official view. Alito said he was unaware of any of this until recently.`

12:27 Kennedy reads a quote from an article by some member of CAP who published an article in a publication CAP put out. Alito says he wouldn't have been part of the organization if he thought they stood for that. He doesn't and never has endorsed any of that.

12:25 Kennedy and Alito are playing "you said" and "that's not what I said" on CAP. Nothing new here. Kennedy just doesn't listen very carefully.

12:22 Kennedy is trying to push Alito on a slippery slope question about how long he intended that pledge to apply. Alito says he didn't rely on that in his decision at the time of the case. What he had in mind at the time of the hearing was the expression of the policy he has basically followed the whole time he's been a judge, to bend over backwards not to let anything give even the appearance of violating ethical obligations. Alito says looking at it now doesn't make it seem as if 12 years later is the initial period of service. Kennedy wants Alito to draw an exact line as to how long an initial period of service is. He needs to take a philosophy course on vagueness.

12:19 Kennedy's back to the pledge to the judiciary committee about recusal. Why was a pledge not a pledge but just for a short period of time? How long did you intend to keep your pledge? Alito says the question he was responding to had the expression "during your initial time of service" in it. That's how he interpreted it. Kennedy says he doesn't understand what he just said. (I guess that reflects his level of intelligence.) Hatch comments that he'd be glad to explain it.

12:16 Alito is defending the purpose of dissenting. I didn't get a chance to get the reasons all down, but they're all good reasons. Hatch steps in to point out that Alito has dissented in a very low percentage of the cases he's heard (79 out of 5,000).

12:14 Hatch returns to the recusal issue, saying "initial service" doesn't mean 12 years, as Alito's adversaries want. They want him to be a patsy for big government who doesn't think for himself. The implication that the administration wanted to feed him responses in these hearings was insulting.

12:12 Hatch lists a bunch of cases to show that the Dems have cherry-picked cases in one direction to misrepresent his record. These involve the individual against the government, women's rights, persecution of Muslim women religiously by the U.S. government by deporting someone to a Muslim country that would force them to wear a veil. These are all about the law, though, not about wanting a certain outcome. So are the others.

12:06 Hatch criticizes his colleagues' tactics for presenting his record as unfair, partial, and so on. It betrays that they have an outcome-based approach to law, which Alito has rejected. Alito says it's wrong to keep a scorecard to see what percentage of cases favor which kind of party. Cases should be decided individually. There are decisions on both kinds in every kind of case. In every type of discrimination case, for example. Hatch says most such cases are decided at the lower level, and at this level it's mostly on procedure, and it's decided on the law that applies.

12:02 Hatch probes on a discrimination case. Alito says he followed Supreme Court precedent, and something like 20 other judges appointed by all the recent presidents decided similar cases by the same precedent, whether they agreed with that standard or not. It was the congruencey and proportionality test he was discussing earlier.

11:59 I missed Alito's clarification of a case with environmental implications. Senator Hatch comes in to correct Senator Durbin on Roberts' statement that Roe is settled law. Roberts said that in his hearings for the circuit court, where it is unquestionably settled law. His testimony for his Supreme Court hearings was consistent with Alito's

11:52 Why about the FCC? Those removals have been sustained. It's a line of precedent that culminated in the 8-1 Morrison case to remove an independent counsel.

11:51 Now I see where this is going. Leahy wants Alito to comment on whether the president can order the FBI to violate a law passed by Congress. Alito says what he said before. If the Constitution prevents the law, then the president can't do it. If the statue is unconstitutional, then the president doesn't have to follow it. What if the president signed the law? The courts have the last word if it's challenged in court. That's the court's duty in constitutional questions when laws come before the courts. Leahy says he agrees.

11:49 Leahy and Alito are engaging in "but you said" and "that's not what I said". I completely sympathize with Alito here. I'm zoning out a bit here, so I missed most of the details. I was going to call them important details, but I'm not at all sure that this line of questioning is important to begin with. It sounds as if Alito is just filling Leahy in on things he doesn't understand very well.

11:45 Ethan's bus just arrived, so I missed some stuff on the unitary executive. See SCOTUSblog has another post for this segment, so see that.

11:40 In the statutory question, this isn't about what Justice Jackson's framework dealt with. War powers are divided between the executive and Congress. The commander-in-chief has authority in foreign affairs. Alito won't say which of the two opinions he thinks is right. It's divided between the two. The president doesn't have a blank check, but he does have an awesome responsibility in time of war. Leahy says Roberts admitted to O'Connor's decision as more tracking Jackson's framework.

11:38 Alito says O'Connor wrote the opinion of the court in response to Leahy's question whether O'Connor was correct or Thomas on Hamdi. Alito says there was a statutory question in Hamdi. It was passed to prevent the repetition of interment like that of the Japanese in WWII. O'Connor looked to standard due process standards in this area.

11:36 Senator Leahy has begun. He's back to checking presidential power. Justice Jackson had three categories. The twilight zone is where Congress has not acted, yet Alito said a Congressional act like FISA is in the twilight zone. It should be in the zone where the president's power is at its lowest ebb. He reiterates O'Connor's line about no blank check, reminding Alito that he said he agreed with it.


It's amazing how much mudslinging Kennedy is currently doing.

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