Alito Hearings, Day 3, Round 3

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4:04 Alito says members of Congress are elected to make laws. Members of the judiciary are appointed to interpet and follow the law. Specter calls a recess until 4:20. Next up is Senator Feingold. I'll pick up with a new post for that.

4:01 Sessions quotes Roberts on overreaching by courts undermining respect for law. Alito agrees that it can have that effect. The functions are different. It's undemocratic if an unelected branch of government makes decisions rather than interpretations.

4:00 Alito agrees that the so-called inferior courts are totally the creation of Congress.

3:55 Sessions is harping on judicial activism, i.e. overturning statutes passed by states or simply redefining what the text means. That's overreaching. He goes through the definition of marriage, the Kelo takings case, the pledge of allegiance, and several other hotbutton issues.

3:53 Sessions gives quote after quote in favor of Alito as not an ideologue. One said that left-wing idelogues will of course not see him as unbiased, but liberals and conservatives alike who are not ideologues do.

3:48 We're now on to Senator Sessions. He says there's very little mud on Alito. He's #4 among 98 appellate judges in terms of his independence. His rulings for asylum seeker and a few other areas I missed are higher than most other judges. On civil rights, his critics have cherry-picked. His panels were unanimous 90% of the time. They were 100% of the time when Democratic appointees were on his panels.

3:43 There's been a common law right to refuse medical treatment. It's battery if that's refused. The Supreme Court assumed that to be a fundamental due process right, but the case they're discussing didn't see a violation of that in Virginia's regulations about what needed to happen first before someone could be taken off life support. In a case about assisted suicide, they determined no right to that. Some concurring opinions indicated that medical technology changes or empirical evidence might change things.

3:41 Terry Schiavo makes her first appearance in the proceedings. He thinks there are constitutional issues, jurisdictional issues, and statutory issues. Congress specifies the jurisdiction of the lower courts, and that can be changed by laws. If it's a constitutional right, then federal courts get jurisdiction.

3:39 She says it's very difficult to prove wetlands become navigable. You could strike down all sorts of environmental laws on technicalities, and that would be catastrophic. I'm not sure I follow how that's relevant to what he did.

3:38 Other people might be able to take legal action, but cases within the 3rd Circuit's jurisdiction are cases raised within it.

3:37 We're onto a pollution case. Overthrowing a law on a technicality can have enormous implications. She asks about a Supreme Court case. He says it's a precedent that was decided after one of his. He hasn't thought now about whether it creates doubt about his own decision and what he would now say on the issue, but he'd follow Supreme Court precedent if in conflict with a prior 3rd Circuit decision. You need a plaintiff who has suffered injury in fact. Everyone agreed that the plaintiffs had not even alleged personal injury.

3:34 She thinks we're still in the Rehnquist Court. Oops.

3:33 Brown v. Board is not now subject to challenge. Roe v. Wade is. It's in litigation. I'd be very respectful of stare decisis and not make a decision without going through the whole process.

3:32 He basically reiterates what he said before. The main issue is what 'well settled' means (which he's said before). It's not well settled in the sense that he's already made up his mind before a case. It's well settled in the sense that it's not subject to stare decisis. She wonders how he can say one man, one vote is well settled when there are cases in the courts now on that issue.

3:28 She quotes Roberts on precedent and Roe. He used the term "settled law" in the context of precedent on this issue in his Chief Justice hearings. She wants him to comment where he might differ.

3:26 Feinstein congratulates him on his equanimity. She wonders about his use of "precedent is not an inexorable command" when Rehnquist used that in his dissent on abortion. Alito says that expression has been around a long time. Then I missed a few sentences.

3:23 I've had to miss most of this getting warm washcloths for Sam to use on Isaiah's head. We're still on free speech it seems, and it somehow relates to underage drinking. This must have been one of his cases.

3:16 Free speech now. Alito affirms the importance of free speech.

3:12 I had to get the kids from the bus, so I missed a bit there. It sounds as if I missed some anti-trust stuff, which I know nothing about anyway. We're on good judicial philosophy stuff now, but I'm missing most of it. Isaiah's got a huge zit on top of his head, and Sam's poking at it. I can't hear a thing.

3:02 DeWine finally gets to talk. He's back to the lack of deference of the court to Congress. He wants to focus on disability access laws.

2:59 Kennedy responds. He thought it would be a matter of routine to get those records, and he followed the usual procedure. He thinks getting that information is extremely important. I guess he doesn't trust the New York Times. He accuses Alito of not being forthcoming on the matter.

2:58 Specter moves onto the Nov 26 New York Times story on this. The Library of Congress and Princeton library records give no record of Alito as a major donor or active member. A few of his classmates were involved and didn't remember his being involved. The substantive matters are being attended to, however. Specter says we should have all the facts.

2:56 Specter now returns to the Kennedy letter issue. His chief of staff got an email and later a snail letter near Christmas, perhaps Christmas Eve. Usually they get logged in, but this one wasn't at that time. He just saw it now. Specter was in Iraq then. His chief of staff talked to him about it on the phone, and Specter from what he knew didn't find the matter meritorious. With so many requests, usually staff-driven, it's taken to be less significant unless the senator directly brings it to him or at least to Leahy.

2:54 Kohl lists statistics of Alito's rate of finding for an individual in discrimination cases. Alito responds by pointing out Kyl's statistics. He mentions also that these are cases where the lower courts already found the plaintiff's case to be not meritorious. It's already selected to be less likely to be a meritorious case. Immigration judges are not to be disturbed unless no reasonable fact-finder could reach that conclusion. Congress explicitly told judges to do this. So a judge can't substitute the judge's own judgment. Could a reasonable person have reached that conclusion, even if I don't myself? Then it has to be denied for review. Kohl insists that his rates are less than most judges in the national sample, who were about evenly divided in their decisions.

2:49 He reiterates what he already said about what he thought traditional values would include in the mid-80s. He adds now the ability to express religious views in school. That was a live issue then. He says he hasn't distanced himself from the abortion statement. He says the role change he's undergone and the case law since then change things. Basically he says he's already answered these questions.

2:44 Alito: That's a long list. The 1985 reapportionment statement, as I've explained, was about issues when I was in college. I was explaining the development of my thinking about the role of the judiciary and constitutional law, especially judicial self-restraint. The first persuasive case for that that I saw was the book in question, the first constitutional theory book I read. I linked with my father's experiences in the NJ legislature. A live issue at the time related to what one person, one vote meant. Was it exactly equal districts, or could other factors be legitimate such as respecting county and municipal lines?

2:42 Kohl has a problem with changing his mind or only having meant certain implications and not others by earlier statements. I though we'd already covered this.

2:40 Yet again Alito has to say the same two-step process, the stare decisis issue considering the trail of case law now on this issue, then going further. It's not realistic to go beyond that at this time. There are abortion cases before the Supreme Court and lower courts. It's inappropriate to go further than that.

2:37 Kohl now. He wants more on why he comments on some cases and not others. Alito says once again that some issues aren't likely to come before the court, while Roe is right now in litigation before the courts. It could realistically come up. How many times are they going to make him say this again?

2:33 Justice Blackmun wrote Roe v. Wade. This is a justice who has ruled that he would refuse to follow any precedent on the death penalty. He wouldn't be a part of the machine of death. Kyl finds a deep irony there. He doesn't think that's the right process, though. Kyl also says he had concerns about CAP as a Princeton alum, but he has no concerns about Alito on that issue and doesn't think old documents of that organization will shed light on Alito. This is an organization that does not endorse everything people might publish in their publication. He calls this an unfair smear campaign by the Democrats. He's now reading quotes by people who have called him very forthcoming.

2:26 They're talking about the fact that cases are currently in process on abortion. Alito says the process for deciding cases is important. The arguments aren't a formality. Judges need to study them and the authorities cited. Then the conference discussion takes place, and it's not abstract constitutional law but cases impacting the real world. Cases shouldn't be decided in any of their minds without going through that whole process. The whole rule of law is undermined otherwise.

2:24 Kyl compares Alito's rate of deciding for plaintiffs to someone else's that I missed (or the average?). His is higher.

2:21 Kyl gets Alito to reiterate that he wouldn't belong to an organization that he knew had said what Kennedy read. He also reads that the publication in question says opinions published it in are not necessarily the opinion of CAP.

2:19 Durbin is responding to Coburn. He admits he changed his mind on abortion. What he was upset about is that Alito wouldn't acknowledge whether he had changed his mind. He wants to respond to Hatch also, but he isn't there. Specter wants to settle his issue with Kennedy, but Kennedy isn't there. Both get postponed.

2:18 Biden says the only explanation of Alito on CAP that makes sense is that he made it up on his job application to impress an ultra-conservative administration official.

2:12 They've been debating something about the Family Medical Leave Act. Biden says it's related to maternity-related disabilities, and he thinks Alito's decision confuses him because it didn't take that into account. I didn't get the details.

2:08 Biden is pushing on real life differences between the two cases.

2:06 I'm missing enough of the details due to an MTAmazon rebuild error that I don't see what the real issue is. Biden is pushing on the economic power of a husband to divorce his wife if she has a husband. Alito says the informed consent was less difficult than the spousal notification, but both involved the undue burden standard. The same provision was relevant in determining the standard.

2:01 Biden is starting off with substance. He's asking about spousal consent for abortion. Alito is talking about how you decide cases in terms of who is affected within the scope of a prohibition. How many of them would be inhibited from having an abortion? You don't look at those the law in question doesn't affect.


Thanks for your concise running commentary.

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