Alito Hearings, Day 3, Round 5

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6:37 Coburn is now done. They're trying to figure out what to do now and the rest of the week. Senator Biden wants 20 minutes. Senator Feinstein and Senator Durbin want 10 more. Specter says those will be tomorrow. Then he says he wants to do third round questions tonight. Leahy is arguing for doing them tomorrow so they can look through the transcript. It looks as if they're just saving it all for tomorrow. They'll start at 9:00 tomorrow with some uncertainty about who will go in addition to those three and how long they will take.

6:31 Coburn lists the statistics on choices to have abortions. Most are convenience. 3% are health issues, including Down's Syndrome. It's not a health issue but a convenience issue. Our policy isn't consistent, and that's damaging. There's legitimate disagreement about rape, incest, malformations, and so on. But decisions are based on expediency.

6:28 Alito: The first is tort law. Decisions are made by state legislatures, or perhaps it's common law through state courts. There are different approaches to doing that. The second is Roe having to do with the 4th, 5th, 14th Amendments made at the federal level. Coburn: How is that logical? Alito: The tort situation is left for development under state law. States have taken different approaches expressing the legislature's decisions, as long as they comply with the Constitution. Supreme Court decisions establish precedent on how we apply the Constitution.

6:25 Coburn: If I hit a pregnant woman with a 36 week fetus, and the fetus dies, I can be held accountable for that death. We value that as a life. If the woman terminates the fetus, no law stops it.

6:24 Alito says things like that have a bearing in the stare decisis phase. Courts should always be receptive to information. There's no such thing as bad knowledge. Then they need to decide how it affects how the legal standard gets applied in the particular case.

6:22 24 weeks is now easily viable. That used to be very rare or unheard of. How does the court take into account questions about technology? Also, alive = brain wave and heartbeat. Why not consider alive when that occurs? Should that play a role in the decision of the courts?

6:21 Coburn has delivered over 4,000 babies. His grandmother came into existence because of rape. He raises a question about the health of women. When? At the time or later? We know it has health consequences. Twice as likely to commit suicide. Twice as likely to have alcholism or drug addiction. I missed the third thing he said.

6:20 They discussed the details of some other fine lines. Brownback said something complimentary and ended after a few seconds. Coburn is on now. He reads a statement from someone who was in CAP that CAP has never taken a stand on co-education. He mentions the AMA. He doesn't endorse everything their journal puts out. Finally someone is speaking to the main issue here.

6:13 They're discussing a case when a student body voted on whether to have a prayer at graduation and who to have deliver the prayer. Alito says that's a tough case, because it involves private religious speech but not individual private speech. It's collective speech by means of a democratic vote. Durbin asks about the outvoted minority. Alito says that's why it's an issue that can be debated. There's an argument for both sides.

6:06 Alito says he has no comprehensive and unified view of how to apply the establishment clause. His personal views are part of his private life and how he's raised his children. His obligation as a judge is to interpret and apply the Constitution. Religious and moral views don't interfere with the particular role of a judge. That doesn't involve imposing religious and moral views on the rest of the country. Durbin agrees and strangely thinks he faces the same issue.

6:01 Durbin describes the unitary executive theory as giving the president extraordinary power. Some argue that the president can then ignore laws as commander-in-chief during war. Alito says that's not how he uses the expression. He means that the president has authority over the whole executive. The scope of powers behind that is a separate issue. How many times does he have to say this? This has got to be at least the fourth time.

5:58 I guess Durbin is up after all. We've now gone through all the senators today and are repeating the one we started with this morning.

5:56 Now they're considering pushing some of it into tomorrow.

5:55 They sound like they're shifting things around to give Senator Feinstein her extra ten minutes earlier, because she has to leave. I imagine she'll go before Senator Durbin's 20-minute session.

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