More on the Alito hearings today.
Durbin also spent a fair bit of time on the question of discrimination, revisiting the CAP controversy, as well as several specific cases, trying to infer that Alito is insensitive to racial and gender inequity, and also that Alito tends to rule in favor of institutions, not individuals. (He covered a great number of Alito’s supposed positions and flaws.) Alito had an answer for everything, since most of what Durbin said was quite a reach, picking a few limited cases to try to claim a pattern. Alito made the point that statistics are often misused, and that sometimes a pattern can be the result of cause, and sometimes the result of chance. Durbin brought up a decision from Alito regarding mining, on the surface so that he could say that Alito ruled in favor of the institution, but it was really so that he could repeatedly use the phrase “the crushing hand of fate.” Durbin likes hyperbole.
Brownback then went on to discuss Alito’s view of the Constitution and his view of religious liberties. Alito had some interesting things to say about the Constitution, starting with the opinion that the Constitution means something in and of itself, not what any member of the Judiciary wants it to mean. A judges job is to interpret its meaning, and to do so the judge must look at the text, and the meaning of the Constitution at its adoption. He said that statutes change, but the Constitution is meant to endure. It does so by being a basic structure, protecting fundamental rights, but times change, so the Constitution is not a specific code. The framers left it for the courts and legislature to apply the principles established in the Constitution. As regards religious liberties, i.e. displays in the public square, Alito expressed the position that there should be a robust rather than naked public square, with people of all religions and backgrounds able to express themselves, rather than no one being at liberty to do so.
Coburn covered some of the same territory as the others, but also returned to yesterday’s topic of whether foreign law should influence US law. Alito’s main point during the exchange was to say that the Bill of Rights’ purpose was to give people rights recognized almost nowhere in the world at the time it was written, so looking to other countries to interpret the Constitution is inappropriate. Coburn hit on many other topics already addressed at length; Stare Decisis, abortion, Sandra Day O’Connor, and whether Alito was too inclined to the Executive branch.
Mostly the questions seemed a lot like yesterday, covering Abortion, abortion, CAP, abortion, congressional authority, and abortion. But some action occurred later, to the joy of all of us hoping for some verbal fisticuffs.
Very fun fireworks between Kennedy and Specter. Kennedy is still flogging the CAP question that he says deals with the fundamental issues of equality, continuing to try to make it out that Alito is a racist and opposed to women getting an education. He now wants to subpoena papers from the time that Alito was in CAP. Specter said he’d consider it, but that Kennedy had never requested it before, so basically it couldn’t have been that important before, or something to that effect. Specter didn’t get to finish because Kennedy jumped on him, saying that he had mailed a request and he wants an executive session to protest Specter’s ruling. Specter said he hadn’t made a ruling, since this was the first he’d heard the request, so there was not going to be an executive session. Specter also said that there could be a difference between what Kennedy had sent and what Specter had received. Kennedy threatened to call for a vote on executive session over and over until he got what he wanted. Specter replied with, “I’m not concerned about your threats to have votes over and over again. You’re not running this committee, and I take umbrage at your telling me what I received.” These are not exact quotes. Things were going pretty fast and furious, and voices were definitely raised and agitated.
The subpoena request is ridiculous, though, because, as Specter would point out later in the day, the NY Times got full access to those documents in the midst of their own investigations of Alito, so why does Kennedy need to have some legal action to get them? Showboating.
The topics of the afternoon – abortion, abortion, CAP (now spoken of with impunity by Dems as a radical organization – eventually they will declare Alito a radical himself, without even a blush at how far they have come, from discussing his support for the ROTC to declaring him a racist misogynist), abortion and sometimes abortion. Oh wait, Biden spoke a bit about maternity leave. The Democrats have determined what they see as Alito’s areas of weakness, and now are pounding away at the truth until they can reshape it to fit their needs.
Biden took the first turn of the afternoon. His Smoothness actually asked some specific questions, briefly even, and listened to the answers. His foci were abortion notification, family medical leave, and the inadequate leave provided for women who have complications during their pregnancies. He questioned Alito’s approach to the Undue Burden Standard and St Sandra’s determination that State statutes that require a doctor to explain the pros and cons of abortion are acceptable, because it is the State’s responsibility to promote life. Biden protested what he said was Alito’s extension of that to require the notification of a husband. Almost all of Biden’s questions/statements this time around were related to women’s issues.
Kyl played advocate for the nominee, really just giving Alito the chance and the impetus to answer some of the other Senators questions again in a way that made him look good. He focused on –DRUM ROLL – abortion and CAP. The Republicans are all pretty much filling the same role which Kyl assigned to himself – make the nominee look good. I won’t bother writing their various approaches to this task, unless any one of them is particularly creative about it.
Kohl again came back to the main topic of the day when he took up his next turn. He questioned Alito on why he would answer some questions about his opinion on Supreme Court rulings and not others. He named specifically the ruling on Brown vs. the Board of Education, One Man/One Vote, and the Griswold decision, which determined that couples have a right to privacy and birth control. His question was that if Alito would state an opinion on those rulings, and say he agreed with them, why would he not make such a statement on Roe. Kohl claimed that these other decisions were just as likely to come before the court “on the margins” as Roe, so Alito should feel free to opine about abortion. Alito’s response pretty much ignored the inanity of Kohl’s saying that issues like Brown were likely to come before the Court again, (can he really believe that the Court’s are going to reinstitute segregation?), and simply said that he had to make a distinction between the other cases Kohl mentioned and Roe, because abortion cases are very likely to come before him, either on the Supreme Court, or the 3rd Circuit. He said the others are not realistically in question. I’d love to know where Kohl get the idea that the SC is going to decide that birth control should be at risk. Kohl moved on from there to immigration, again coming at Alito from the tack that he rarely finds for the little guy. He said specifically that Alito only overturned immigration judges, in favor of the immigrant, in one out of eight cases. Alito’s response was perfectly reasonable. He made the point that Congress has set limits on the Appeals Court’s ability to overturn immigration judges. The lower Court can only be overturned if it can be concluded that a reasonable person could not have come to the same conclusion. The Appeals Court cannot make a judgment based on the facts of the case, but only on whether the case was handled properly in the previous trial. Kohl really had no substantive response to this very reasonable (and deferential to Congress) answer.
Lindsay Graham just said another gem. They were discussing Princeton again, CAP and Alito being tarred by someone else’s statements, which Alito has vehemently disavowed. Graham made the point that Alito could be saying he disagrees with racist views simply because now he wants to be on the Supreme Court, and really be a closet bigot. The Senator said that the thing which made it clear that this was not the case is the way Alito has lived his life. He said he had reams of testimonials, from African American judges, liberals, and women saying what a good man Alito is, and how much they support him, even while disagreeing with many of his views. Graham said that he was sorry that Alito and his family have had to go through the smearing of his character in this process. Here’s the gem – “Guilt by association is going to drive good men and women away from where you’re sitting now.” Such a good point. How many people will be willing to go through this process in the future if it is acceptable for even the highest character to be dragged through the mud, rather than judged by his qualifications?
Schumer’s now up, and pounding…Roe.