Tuesday, January 10, 2006

Alito hearings

A friend of mine has been watching the Alito confirmation hearings in the Senate today.  I read a bit from the blogs and papers, but I liked my friend’s summaries better, so here is most of it.


      The hearings begin in earnest.  These hearings are thus far very like the Roberts hearings.  Same players.  Same approaches.  New Judge, but much the same level of competence, although I think Alito is a bit more forthcoming.  Specter came out hard, right out of the box, on Roe vs. Wade.  His questions were lifted straight out of the last hearings.  What do you think about Stare Decisis?  Roe has been upheld 38 times – does that mean it’s a super precedent?  Alito came back rather forthrightly.  He mentioned that all courts should be insulated from public opinion, and solely concerned with the rule of law.  At the same time, he said stare decisis is the first thing a court must consider when approaching a given case.  He said it’s important for Reliance – the ability of society, lower courts, etc, to know what the law is and how to behave accordingly.  He also said that, while stare decisis is the first consideration, he would not say that no precedent should ever be overturned, but simply that a case needed special circumstances to be overturned.  He said that every time a precedent is reaffirmed it strengthens the precedent, but stare decisis is not an inexorable command.  His main point was that Constitutional principles and rights do not change, but that situations and factual applications to each case do.  He dealt with his own statements on Roe from ’85, stating a personal opinion that Roe was wrongly decided, basically dealing with the difference between the role of an advocate taking a position and a judge taking a position.

      Specter and Leahy both spent considerable time looking at Presidential and Congressional power.  Leahy in particular went after Alito on the issues brought out in the last few weeks about the NSA surveillance, the Foreign Intelligence Surveillance Act, and Presidential immunity vs. Congress’ power to pass laws.  Leahy brought up the recent bill passed by Congress forbidding torture, that the President signed, but with a statement that this basically didn’t apply to him or those under his command.  Leahy’s questioned whether if Congress passes a law making an activity illegal, does the President have the right to immunize himself and those under him from the law?  Alito said that the Bill of Rights still applies during time of war, especially since that’s when there is the most temptation to stray from them.  He said all theoretical issues have practical applications, and that no one is above the law, including the President and the Supreme Court.  He also said, as far as Presidential vs. Congressional powers that there is a “twilight zone” where the President’s power is at its lowest ebb, but questions of the constitutionality of a given law passed by Congress applies.  There was a lot more, about strip-searching 10 year olds and surveilling Quakers, but really I would only put those in as examples of colorful Senatorial oration, so I will not expand on the full content.

      Orrin Hatch spent his whole half hour inoculating Alito from Democratic attacks.  He discussed the hot button issues raised in the last couple days of his CAP membership, and Vanguard recussal issue.  (CAP being a Princeton group he joined in college to protest the ROTC being kicked off Princeton’s campus, which turned out to have had some questionable positions on other issues.  Alito says he was never an active member and was unaware that the group objected to women at Princeton.)  The Vanguard issue is a made up bit of flotsam, a mutual fund where Alito had money when a case came before him.  He didn’t know the conflict, because the person pressing the suit was representing herself, and the standards for paperwork are lower in those circumstances.  He saw to it there was a second trial when he realized the conflict, and the second court upheld his decision.  It’s a silly thing raised to imply Alito has integrity issues, and doesn’t hold any water. 

      Kennedy’s being Kennedy.  He’s using phrases like “an all powerful Presidency.”  Enough said.


      Up to the break there weren’t a lot of fireworks.  The Dems speechified, but didn’t question Alito too closely.  The Senators as a whole spent a whole heck of a lot of time on executive power.  When Grassly came to the plate he mentioned that he had a much more positive view of Alito than Kennedy did, and his only concern was that maybe Alito was too cautious and paid too much attention to precedent.  He brought up search and seizure, surveillance, etc, and gave Alito a good deal of time to actually talk rather than listen to Senatorial Pontification.  The general gist of Alito’s responses is as follows:  There are problems facing government today that the framer’s of the Constitution could not foresee, since cars, telephones, cell phones, the internet, etc. weren’t in existence.  The court therefore has to be guided by the Constitutional principles the framers put in place.  He said judicial restraint is important, that it is hard enough focusing on the matter and the facts at hand, and going beyond them magnifies the chances of getting it wrong.  Congress makes laws.  The judiciary interprets.  Grassly mentioned that Justice Souter said the Court should fill in legal vacuums, the places where Congress had failed to make laws.  Alito disagreed, and also stated that results oriented jurisprudence is never justified.

      Biden’s soooo smooth.  He couches things in such “non-threatening” terms as he’s trying to trap the object of his questioning.  It’s inspirational in a way.  Biden passed a fair bit if his time praising Saint Sandra Day O’Connor.  He claimed that whom Alito would replace was pivotally important, since O’Connor was the linchpin upon which our entire court was balanced, and Alito could shift the balance of power and throw our whole system of jurisprudence into the bleak chasm of chaos and confusion (paraphrase.)  The Smooth One went on for a while about the discrimination SDO’C faced in her younger days, and used that to transition to the topic of discrimination in general.  He made the point that discrimination has become more subtle in recent years, and so it’s harder to make a case.  He tried to prove that Alito comes down too often on the side of the establishment rather than the individual.  He failed.  My question is, if discrimination is becoming more subtle, does that mean that society is changing and it’s no longer as societally acceptable, and thus the laws put in place to stop various forms of discrimination are working?  Based on his questioning I think that Biden would argue that it simply gotten craftier and learned how to go underground.  He dwelled a lot on specific cases, mostly taking a “How could you rule this way.  I’m not judging, just trying to understand, because your rulings baffle me” approach.  <ED: Which says more about Biden than Alito, really. – R>

      Kyl’s only had part of his time.  He’s focused thus far on how foreign law applies to US law.  Alito’s response was that there are times when foreign law applies to some extent - treaty law, for example, or contract law where the parties involved include both US and foreign citizens.  However, he said foreign law should not be used to interpret our own Constitution.  A huge sigh of relief went through the entire Republican Party at this point in the proceedings.

Committee broke for lunch.  Then:

      Hah!  I knew it.  Feinstein hit the Commerce Clause and Congressional powers first, and then went on to Roe.  Feingold is starting right off with the NSA surveillance/ warrantless searches and Presidential crimes.  These people are so predictable.


      Lindsay Graham just got in a good one.  Russ Feingold spent a VERY long time trying to hammer at Alito for potential ethics issues concerning the Vanguard case I mentioned earlier, and his failure to initially recuse himself.  Apparently he had made a promise to the Senate 12 years before, when he was first put on the 3rd Circuit that he would do so, despite the fact that it was not legally required.  Alito basically said he didn’t recuse himself from the Vanguard case earlier because of an oversight and memory lapse, although he corrected the situation when it came to his attention.  Feingold had a very hard time accepting that he could have forgotten the issue after 12 years.  When Graham’s turn to question Alito came he started with a comment that he hoped that the Senators could forgive the memory lapse in the same way they would want their memories to be forgiven when they come before the Judge to be questioned about Abramoff.  Nice shot I thought.

Yes, I’ve been impressed with what I’ve heard from Graham too.  He is putting on the “no nonsense” face for this hearing.

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