Law: January 2006 Archives

Byrd on Alito

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Every now and then Senator Robert Byrd (D-WV) does something that really impresses me. When I disagree with him, it's usually quite strongly (e.g. his insane claim that preemptive war never happened before G.W. Bush and that just war theory could never countenance preemptive self-defense). Yet he has these moments when I really wish he were representing me instead of the two senators from NY who rarely say or do anything I agree with. Senator Byrd's statement in defense of Judge Alito's confirmation is one of the best I've seen so far.

He takes the Republicans on the judiciary committee to task for grinning and not asking any questions (which I have to say, in their defense, was only the case after the first round; most of them asked hard questions the first time around and only proceeded to rebut their colleagues' arguments after they had exhausted their serious questions). He takes the Democrats on the judiciary committee to task for making the confirmation of a judge an issue of partisan politics rather than relying on the judge's qualifications and character, though he acknowledges that those go back to President Washington's nomination of John Rutledge. By implication, he takes a strong departure from some Democrats on this issue who were challenging exactly his character in a way that Byrd clearly sees as illegitimate, because he concludes with praise for Alito as an honorable man.

In the last week two very different sources seem to be saying the same thing. Small restrictions on abortion at the state level have significantly reduced the number of abortions in this country. In an article at the Heritage Foundation site, University of Alabama political scientist Michael New has addressed one problem in arguments for this conclusion. It's unclear if laws restricting abortion cause a drop in abortions or an underlying factor explains both the drop in abortions and the election of those who would pass such restrictions. In this case that underlying factor might be a value change in the populace. New's study compares laws that pass (and thus reflect the value change) but get overturned by courts (which don't reflect value changes) with laws that pass and remain on the books. It turns out that, even taking into account value change, there is enough of a decrease in the number of abortions to justify thinking that abortion restrictions do reduce the number of abortions.

Dawn Johnsen, law professor at Indiana University and former lawyer for the Clinton Administration official and NARAL, complains at Slate about exactly this effect. She thinks the senators have focused on entirely the wrong question at the Alito hearings. We shouldn't care so much about whether he would vote to overturn Roe outright. What we should care about is whether he will continue to allow such ridiculous restrictions as Sandra Day O'Connor has allowed in the past, e.g. allowing parents to have some role in the weighty moral decisions of their morally immature children, not allowing people to make such a grave choice in the spur of the moment except in emergency situations, ensuring that women who seek abortion have been made fully aware of all the options, and restricting a procedure that my pro-choice Norwegian friend (who is extremely liberal on any ethical issue you can name) calls the most vile procedure he's ever heard of.

Senator Feingold just explained his vote against Judge Alito's confirmation. I have appreciated the efforts of this senator to consent to nominees he very strongly disagrees with, but it seems this time he wasn't willing to do that. One of his primary arguments seemed to me to be really strange, though I think his line of questioning at the hearings should have led me to anticipate this. He said the Constitution guarantees that no one can be deprived of life without due process. Then he complained that Alito doesn't want to admit that someone who is actually innocent has a constitutional right not to be killed. Alito's response to this was quite clear and, I think, right. The Constitution guarantees that someone's life won't be taken without due process. It doesn't say that anyone has a right not to be killed if due process is followed, and that's true even if the person is actually innocent. If someone is convicted of a crime they didn't commit, provided that due process was maintained, no constitutional rights have been violated. People can be convicted while actually innocent, and the Constitution guarantees only due process, not the inevitability of actual innocence carrying the day. Feingold's position is completely unworkable. How can there be a constitutional right to something that is virtually impossible to guarantee in any significant way? The only thing I could think of is that Feingold didn't understand what Alito was saying, because he doesn't seem to me to be the type to misrepresent someone deliberately.

But what he said next made me question even that. He went on to pretend that Alito didn't admit to his recusal mistake upfront, a common meme among the Democratic senators during the hearings but one that is patently false given that Alito's first response was that it was a mistake, before he went on to speculate about the explanation for his mistake.

Kate Michelman's Testimony

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I was following along with Kate Michelman's testimony at the Alito confirmation hearings, thinking her story presents a fairly hard case for the pro-life position. She and her three girls were abandoned by her husband, and she was forced to go on welfare. She then discovered she was pregnant and after much soul-searching decided to get an abortion. She had to sit before a committee who asked her offensive questions before she could be permitted to have an abortion, and they then required her to find the husband who had abandoned her and ask his permission to have an abortion, a truly demeaning situation to be in. I had no problem seeing what she was saying as a strong consideration for allowing abortion (not that I'm convinced that even in her case it's morally ok, but perhaps it's a reason for legally allowing it in such cases).

But then she just went loopy. She claimed that Alito had no consideration for people like her in his Casey ruling. She said that he would have forced people like her to do exactly the sort of thing she had to do before Roe. But people like her weren't involved in the law in question. She was abandoned by her husband. In those cases, spousal notification was clearly not required by the law in question. It was explicit about that. She also ignores the distinction between spousal notification and spousal permission. She was forced by law to get permission from her husband who had abandoned her. The law Alito said would not have created an undue burden simply required a woman to tell her husband that she was doing it. He wouldn't have to agree that it was right. He wouldn't have to give her permission. As far as the law was concerned, he could forbid it, and she could still have the abortion. Isn't it slander to make morally evaluative claims of someone in a public forum based on misrepresentations of the facts? Whatever her situation as a young woman was, if she's so unconcerned about the truth that she'll cover it over for the sake of political results then in this context she's going to have a hard time retaining my sympathy. She undermines her whole story designed to earn sympathy when she demonstrates how far she is willing to go in service of evil. Someone can have a hard time earlier in life, but it doesn't justify false testimony.

It also doesn't justify an entire career focused on making abortion an absolute right no matter the circumstances but trying to promote that through a public face that spekas mostly of hard cases like her own. This instance of serious misrepresentation of the facts behind some serious moral issues is not just an isolated case with Judge Alito. This is the standard pattern of most pro-choice activists, and her testimony is simply one example of the sort of deception usually involved in that movement as a whole. I'm not questioning her motives. I think her desire is generally good but misguided. What she places of highest value is something that I think is of lower value than the right to life. But that's a disagreement on a moral question. People can disagree on those. What angers me is that her public argument is usually to bring out her difficult case as if it's a reason for allowing abortion-on-demand and a reason to criticize anyone who seeks (or even allows, as in this case) any restrictions on abortion in any circumstances. That's intellectually dishonest.

The ABA committee is on now, saying they had evidence that in 1992 Alito did have Vanguard on his recusal list. Something happened between 1992 and 1993. Kennedy's inference that he never had it on his list wasn't just unfounded. There's evidence against it. It's not clear why the 1993 list says it was taken directly from the 1992 one, when the 1992 list had it and the 1993 one didn't. They're also telling Kennedy that Alito admitted at the outset that it was a mistake, which Kennedy has all along been claiming that Alito hasn't done. He still doesn't see the compatibility between admitting something is a mistake and explaining why it happened.

I've updated my Concerned Alumni of Princeton post. I had well over 1000 hits yesterday, many hundreds just for that post, which led me to make sure my current views on it are recorded in that post. It includes what's become clear to me since the hearings started, since I wrote it before they had begun.

If you want to follow the hearings and don't have access to a TV with CSPAN or a radio with NPR, see SCOTUSblog. Their liveblogging is usually either at the top or right near it. They're continuing through the current portion. I don't know if they intend to cover the whole hearings.

1:07 Leahy wants reassurance that Alito would be a check and balance. He was concerned about his criticism of independent counsel law. There are other legitimate issues, but those are the ones he's really concerned about. Specter says there have been about 18 hours of him answering some 700 questions. There are differences of opinion about the comprehensiveness of his responses. They'll resume at 2:30 with the ABA report and then the 3rd Circuit judges. Right now they're adjourning to discuss the FBI background report. I'm not likely to pay much attention to anything from here on except if I'm in the car and can't blog anyway, so this should end my liveblogging of the hearings. My concern has been to understand Alito himself from his own mouth, and that's now concluded.

1:05 They're going to move into executive session now, which they do at this time with every nominee. Specter is explaining that this is routine. Leahy wants to close up with some thoughts while Alito is still present.

1:03 If the system is broken, and people's lives are at stake, doesn't that give more deference to these people? Alito says it's a lot at stake, but he can't add to the record. Asylum seekers often testify in another language, sometimes one where it's hard to get a translator. The quality of transcripts is often really bad. Sometimes we send it back in that case if it's too hard to say anything. Sometimes mannerisms and facial expressions mean something different in their cultures. Congress needs to address these bigger problems, though, not appeals judges.

1:01 Someone refused to serve in the military in Guinea. They beat and raped his wife and burned down his house. Alito dissented and said he should be sent back to Guinea. There were several other cases like this where Alito was in the minority. Judge Posner has criticized our courts on this issue. Why do you consistently rule on the government's side? Alito says he has ruled in favor of asylum seekers. Durbin says no dissents in favor of them. Alito says Posner is right. These aren't always handled well. A court of appeals judge has to follow the legal framework Congress has given. We have to accept factual findings by judges unless no reasonable fact finder could come to a contrary opinion. That's a tough standard to follow. A judge could disagree but not have much choice if a reasonable person might agree.

12:56 Alito said he was concerned that a minor had been searched, but there's no rule against searching a minor. That would be bad, because drug dealers would then hide their drugs and firearms on drugs. The warrant could have been drafted better, but police officers work under time pressure. They're not complicated commercial documents, according to the Supreme Court.

10:55 Kohl wants him to say whether he'd be at the center of the court. He says he'd be like he's been on the court of appeals. He should just point out that this line of questioning is irrelevant, but he's too nice. Specter calls a break until 11:10. I guess I'll be picking up with a new post then. I was hoping this would be done before lunch, but I know Feinstein and Durbin both plan to go. Schumer is present, so he might intend to ask more too. I didn't see Feingold, but he may want to ask some more questions.

10:53 Do you see yourself as filling the role she's filled as being at the center of the court? Kohl equates calling them as you see them with looking sometimes to the left and sometimes to the right. Alito says no one can duplicate the way anyone else works, but we can emulate great jurists of the past, trying to do what they've done well. He says he'd try to emulate her in the ways he's just described. He wouldn't think he could equal her in those ways, but he'd emulate her conscientious, dedicated way of going about her duties.

10:51 How will you be different from O'Connor? How are you not like her? How will she be remembered? Alito: She'll be remembered with great admiration, a pionerring figure and an inspiration for many who have pursued legal and other careers. She's been very dedicated, meticulously devoted to the facts of each case. It's important that we look to the details of each case. I'd emulate her dedication to the case-by-case process of adjudication.

10:49 Kelo now. It's a precedent of the course with all that entails, though Alito wouldn't have decided that way. Private property is an important consideration. Do you agree with Justice O'Connor's dissent? If it were to come before me, I'd have to consider if there's a reason not to follow the new precedent that grew out of an earlier precedent. That question could go one way or the other, but decisions are presumptively to be followed. If I got beyond it, I'd have to go through the whole judicial process that ensures that cases are decided in the best way.

10:46 Alito: If I'd been writing the Constitution knowing what I know now, I'd choose either a long term but a term limit or a life term. Those options would be the best.

10:44 Should judges have term limits or age limits, or should they serve as long as they wish? (That's a false dilemma. You can have ways to disqualify a judge without setting arbitrary limits irrespective of the judge's abilities to continue to carry out a judge's function.) Alito says the Constitution says federal judges have life tenure. State courts can have term limits, and many do. If you had a short term, it would be like an elected judiciary with those advantages and disadvantages. If you had a long term, it would be more like what it is with those advantages and disadvantages.

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.

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?)

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.

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.

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.

7:10 The hearings should continue tomorrow at (I think he said) 9:30. Assuming Cornyn is done, Senator Durbin will start things off tomorrow with Senator Brownback and Senator Coburn wrapping things up for the first round through the 18-senator lineup. Each senator goes down to a 20-minute time limit for the second time through. My brief calculations show that they can finish the second round tomorrow if they devote roughly the same amount of time to the whole proceedings. Then I assume Thursday will begin the testimony from others, and that will probably take two days if the Roberts hearings are indicative.

7:04 Specter ends the proceedings for the day. He says something about the endurance of the Alito family for staying through the whole thing when almost everyone else had emptied out by then. He notes that Mrs. Alito smiled at the "stopped beating your wife" reference. Alito responds that that was because they didn't ask if she'd stopped beating him. Everyone laughed, and Specter told him to insert more of that subtle sense of humor many people had been talking about that they'd seen little of so far.

6:58 Cornyn moves onto O'Connor's broad view of presidential power to hold prisoners without charging them in a terrorism context. Scalia dissented. His overall point continues. If O'Connor is in the mainstream, then so is Alito.

6:55 They've been summarizing some facts about the response to Roe. It was criticized heavily among legal theorists before Alito's statement in 1985. Casey overturned almost the whole thing except the central holding, replacing the trimester approach and the reasoning with an undue burden standard. I don't think this line of discussion went anywhere except to say that nothing Alito has said is necessarily out of the mainstream.

6:50 Cornyn now moves on to an O'Connor quote that Roe is on a collision course with itself. He brings in Alito's preferred earlier course that the administration put together an approach based on that very O'Connor opinion. Alito says certain provisions could be challenged on their own terms. [I missed most of what he proceeded to say.]

6:47 Cornyn points out that the machine gun case was ruling against the government for the little guy. Alito says the government didn't make the case they needed. [I missed something here about another case that involved a similarity to O'Connor.]

4:39 Sessions goes back to the strip-search case. The question is whether the police were liable for civil damages. There was probably cause, and the magistrate accepted that and appropriated what was in the affidavit. Alito says he thought it was reasonable for the officers to take that as fulfilling what the affidavit asked for, given the context and the specific request. Specter has called for a break until 4:55. If I'm able, I'll resume with a new post for the fourth set of questions, which should begin with Senator Feingold.

4:34 Decisions of foreign courts isn't helpful to determine readings of our own Constitution. We have our own judicial precedents and traditions. Other decisions won't help except from the perspective of political science. It's worth looking at in that sense, but it's not helpful in interpreting our Constitution.

4:31 Activism is not following the judicial role. It's not a conservative or liberal thing. It's not activism to strike down a law that's unconstitutional. That's been settled since Marbury v. Madison two centuries ago. Sessions agrees that it isn't, as long as it's faithful to the Constitution.

4:30 Some joking about salaries: Can the president cut your pay? The president can't. Congress can't, either. They can increase it, though. Sessions' point is that the executive doesn't have absolute power here. [I had to run upstairs to find a runaway, so I missed what I think was the serious part of this discussion.]

4:25 Sessions has moved to Roe. Alito says he opposed a frontal assault on Roe. Reagan's position was that it was wrongly decided. They didn't follow Alito's proposal, and the Supreme Court rejected their argument. Alito ruled that HHS could? couldn't? fund abortions, because he thought the law required it. If he'd been implementing an agenda to uphold any abortion regulation that came along, he wouldn't have voted that way. I lost something here.

4:19 I missed more, but he's now talking about how easy it is to prove that a gun has been transported in interstate commerce. Sessions says Congress could put that in the statute as an element of the offense, and that would meet constitutional muster. If it doesn't have that, it can't meet the standard of beyond a reasonable doubt.

1:03 They're recessing until 2:15. What I've heard (while moving from room to room) from Kyl's questions hasn't been too probing. Kyl still has 20 minutes left. I expect to begin a new post when they return, assuming I've found the bear by then, but I have to run an errand in between, and it's possible they'll resume before I'm back.

12:59 I missed little bits while trying to find a stuffed bear that seems to have disappeared, but Kyl is now on asking about foreign law. Alito says judges can look at how treaties are applied in other countries. A contract involving people in New Zealand might need to look to New Zealand contract law. It's not helpful in interpreting our Constitution.

12:49 Biden: O'Connor is more prepared to give the benefit of the doubt to the employee in cases like this, but you're more prepared to give the benefit of the doubt to the employer. The test she set is like yours, but if she'd been in your spot she would have been with your ten colleagues. Alito: Those colleagues didn't apply that standard. They thought pretext was sufficient, and I disputed that.

12:47 Alito says it gets into a technical Supreme Court question. There were three circuit court camps on this. Alito was in the middle camp on the issue. O'Connor agreed with Alito's analysis on the issue that pretext is sufficient in most cases but not all. If the reason given by the employer is incorrect, that's a reason for a jury in most cases but not all, and this is one of those "not all".

12:45 Another case. Someone was forced to quit after she'd brought a discrimination claim. Her employer had said "I'm going to hound you like a dog for bringing this discrimination claim". The jury concluded she was forced out because she was being discriminated against. 10 our of 11 judges agreed. Alito didn't. Alito said an employer may choose not to disclose real reasons for animosity. It might be based on sheer personal antipathy, which is legally ok. How do you distinguish that from subtle discrimination?

12:42 Biden: The person who had the job before recommended her and couldn't understand why they didn't hire her. Alito: They had somewhat different qualifications, and reasonable people could prefer either over the other.

12:39 Biden: What people do now is not discriminate because someone is black, Jewish, or a woman. Now they wait until they have someone else to hire and then hire them instead. The corporation set the rule up so they couldn't do this. The supervisor who doesn't want to work with a black woman can't then look around as much as they want before telling someone she wouldn't be promoted. Alito: But both of these candidates were from within. There was no evidence that they didn't want to hire her and thus kept looking around. Nothing like that was presented us in that case.

11:04 Now we're just repeating what Alito has said before about the limited role of the judge. From what I've been able to tell while trying to pull together clothes for the kids to wear to school, I think he's saying this even better than Roberts did, but the content is nothing new or especially noteworthy. Specter orders a 15-minute break so that I can get the kids dressed. I'll pick up with Senator Kennedy's questioning in a new post.

10:57 Hatch asks for cases when Alito voted against executive powers. He mentions one related to racial discrimination in the selection of a jury and another murder case with the executive denying habeas corpus due to racial bias. Hatch interrupts after a few cases to say that any tencency can be found in 5000 cases with selective appeal to the evidence. Everyone has cases that members of the Senate will disagree with.

10:52 Certain sorts of cases come with clearance sheets. He usually thinks about recusal issues then, and he indicates which cases he would need to recuse himself from. This case didn't have that sort of step. (I got a little distracted and missed the reason why, but there seem to be two kinds of cases he's talking about.) He was dismayed when he discovered that there was a recusal notice after the case was decided. He didn't think he'd been required to, but his personal policy would have led him to. He wanted to make sure the person involved didn't think she'd gotten anything less than a fair hearing, so he recommended that the decision be vacated. After that he wrote up his own forms for such cases and instructs his law clerks to prepare a clearance sheet and look for potential reasons to recuse himself, taking great measures to make sure he doesn't vote on a case without having that form filled out. In the case in question, no financial benefit was at stake, no recusal was legally required, and he did recuse himself once the issue was raised. Hatch points out that a similar issue came up with Breyer, and he and Senator Kennedy supported Breyer on it. He also mentions opinions from top ethics experts that Alito did nothing wrong. (Hatch also mentions that the new panel of judges in this case ruled the same way Alito and the other two with him in the original hearing for the case had ruled.)

10:45 On to the recusal issue. Hatch reads quote after quote from people about Alito's integrity. Over 300 judges, lawyers, and other members of the legal community testify to his excellent integrity. He asks him to respond to the charge. Alito says the rules are very strict for federal judges, and he went beyond the letter of the rules so that questions couldn't even be raised. He would do some things different now, but it isn't because he violated an ethical standard. He didn't go beyond what the code of standards requires in this one case, and he says he normally would have and would do so if he had to do it over again.



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