Alito Hearings, Day 3, Round 4

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5:39 Now we've got a 15-minute break. Two senators have requested a third round. He didn't say who, though I think they're both Democrats. Three senators remain in the 20-minute round before that (Durbin, Brownback, Coburn). They'll resume at 5:55 with Senator Durbin. I'll start a new post for that.

5:38 That's not likely to be the case with one person, one vote. (I think one problem here is that Schumer and co. are confusing the principle itself and how it's applied. The principle is settled. How it's applied isn't. With abortion, even the principle is not settled in the public mindset, and cases challenging aspects of Roe are being filed all the time. The two seem to be in agreement on this.

5:34 When does a nominee feel more constrained about when to talk about views and when not to? The more accepted an issue is in society, the more free a nominee feels to talk about it. Is the issue open? Do people strongly disagree? Brown v. Board is a commitment to equal justice under the law. Virtually all Americans embrace this. Alito says he doesn't expect someone to ask that to be overruled. That's not a realistic possibility. But continued attempts to address the abortion issue will come up and are coming up.

5:31 Cornyn reads Cass Sunstein in favor of Alito. It includes a statement that Alito doesn't endorse the originalism of Scalia or Thomas (though Sunstein gets Thomas' view wrong; he doesn't endorse original understanding either but rather original intent).

5:28 Do you feel like your a clone of Scalia, Thomas, or Bork? Are you your own man who comes to your own conclusions based on careful study, experience, and the law. Alito: I am who I am. I'm not like any justice on the Supreme Court now or in the past. No jurist is equal to any other jurist. My record shows that. It's 15 records and over 4,000 cases long. Most of those cases go no further.

5:25 Cornyn apologizes for inadvertently referring to Alito as Scalia, under the influence of the joke nickname Scalito. He says that's a bad joke, because he's no clone of Scalia and is an independent person.

5:23 Cornyn is on now. The statistics up to 3pm today give him a higher rate of answering questions than Ginsburg did at her hearing.

5:19 Schumer doesn't understand how someone could be proud of membership in an organization that he later doesn't remember. (Perhaps it's because the lack of memory only came later?)

5:12 Schumer seems to have lost all sense of logic. It's such a mess that I don't even want to begin to summarize it. He's taking things out of context left and right. He's pulling Alito's statements and then applying them to things that weren't part of the immediate discussion.

5:10 They're talking about a sentence in Alito's Casey opinion that Schumer says is very strong and doesn't allow for some important rights, e.g. a child being beaten by her father. Alito says it was one sentence and not meant to be taken absolutely with a comprehensive treatment of the issue.

5:07 Schumer just ran right over a whole bunch of important distinctions and set up a wonderful false dilemma for Alito. It's too bad I was standing up making sandwiches for the kids and didn't get any of it down.

5:02 Back to Roe. Stare decisis then keep an open mind. But didn't answer further questions. He reads testimony from Clarence Thomas saying he'd keep an open mind. Schumer uses the euphemism "the right to choose". Is he implying that Clarence Thomas doesn't keep an open mind? I hope Alito calls him on that, but I think he's too respectful.

4:59 Schumer is on now. He's quoting Alito from yesterday and asking if there's anyone who would testify otherwise (e.g. no one above the law, no open mind, no respect for Congress, etc.). I don't doubt your sincerity. (Really?) People are saying you responded to over 300 questions, but you haven't answered enough of them. A response isn't an answer.

4:55 Graham says what Alito says is much less loaded than what she said. We can't make judges pledge allegiance to one case and force them to lose their independence. People set aside her writings and gave her the benefit of the doubt, knowing that the vote would change. You never know, but it was overwhelmingly likely that she'd vote differently from Justice White on abortion.

4:51 Graham respects Justice Ginsburg. When she was the ACLU's lawyer, she fought for some of the most unpopular causes and did so in an ethical manner. He greatly respects her. She said on abortion that it isn't a conflict between the interests of a fetus and a woman or that it's about a woman's control of her body. It's about a woman's whole life and ability to stand apart from the government. Government money for childbirth requires paying for abortion. That intrudes on a choice Roe had ranked a fundamental right. The government ought to pay for abortions in certain circumstances. What if a Democratic president appointed her in this climate, and we took the Democrats' stance now? She would have had a very rough time, not 96 votes. Would I have the ability to ask her to recuse herself because of her public stance before the hearings? Alito says that it's established that prior writings don't have that requirement.

4:46 Lindsey Graham lists a number of people who were members of eating clubs at Princeton, including current and former senators. How do I know if you're really a closet bigot? I have reams of quotes from people who worked with you, African American judges with glowing quotes about who you are, the way you've lived your life. Sam Alito, whether I agree with him or not, is a really good man. Guilt by association is going to drive good men and women from sitting in that nomination spot. He apologizes for what he and his family have had to sit through.

4:42 Lindsey Graham is now up. 300 people have testified to Alito's excellence in ethics. You couldn't say that about most of the senators here. He asks why Alito would make a conscious decision to sit even with a conflict, and Alito says there's no reason he would. There's nothing in it for him. Why would Alito bring all this grief on himself consciously? Graham says that's a reason to accept his word as the ABA did.

4:37 Supreme Court recusals are different on the Supreme Court. Under the code of judicial conduct, Alito says he isn't required to recuse himself in Vanguard cases. He won't promise what he'll do with that. The decision-making process on a court with a fixed number of jurists on each case affects the decision-making process. It allows a tie. That's much less significant on the courts of appeals. Someone else can sit in on the case, and it will be decided with three judges regardless. There are strict obligations as to when to sit, but the standards are higher for sitting when a judge is not required to recuse.

4:36 Alito says conflicts of interest with financial matters are not temporally limited. The question asked has a temporal limitation, but Alito's failure to recuse was not for that reason.

4:33 There was something about habeas, and now we're back to conflicts of interest.

4:30 Feingold asks if certain factors can lead to unfair trials. Alito says jury selection is important. State legislatures need to decide issues of election of judges. Sometimes it's appointed, sometimes elected. He saw the work in three states of state supreme courts, and he has a high regard for judges in all three, with different means of getting into office.

4:27 He gives a statistic that Alito favors the government in death penalty cases. Alito says he does both in different cases. Sometimes it has to do with procedure, but that can uphold or overturn a death penalty.

4:25 Alito agrees with Feingold on the importance of high standards in these cases. But circuit judges can't disturb these cases unless they can judge it unreasonable, as he said before. That case involved a very experienced attorney of competence and dedication to the defendant. Another attorney assisted who was extremely dedicated to the case. In the Pennsylvania justice system, all judges except maybe one said it was effective representation. He would have ruled the same way if he'd been on the Supreme Court at that time, but now that decision is a precedent.

4:22 Feingold begins with the death penalty. He cites a case Alito decided. Some evidence about a defendant's horrible childhood was never presented by the defendant's lawyer, and the Supreme Court reversed it. It was indigent representation. Some of these cases have been 5-4, with O'Connor the deciding vote.

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