Alito Questioning: Day 1, Part II
Questioning of Judge Alito will continue at 2:15 pm ET, after the lunch break, continuing with Sen. Kyl.
KYL FIRST ROUND QUESTIONING CONTINUED: CAP letters entered into the record – found some Democrats to say Alito is nice to women and minorities. (And perhaps a picture of the Judge petting a kitten, I’m not sure.) And now I’d like to talk for a while about something that has absolutely nothing to do with your thought process to make a political point about the Ginsberg/White issue Brownback brought up yesterday. And now let me throw you a softball so that you can talk at length about your minority/women/discrimination rights history – especially by pointing out specific cases which I think make your point for you. (But these haven’t been choreographed between the Judge and Sen. Kyl. Nuh uh.) And now, allow me to give you a softball platform to discuss the machine gun case and compare it to Lopez, and it’s all Congress’ fault. (RH notes: Interstate commerce versus jurisdictional elements – again, using the “reasonable interpretation” meme and trying to box out anyone who disagrees as outside the “reasonable” mainstream. It’s a good political tactic, but I’m hoping someone will call him on the fact that his position is, in fact, outside the judicial mainstream. And Kyl is consistently cranky looking. I’m just sayin’.)
KOHL FIRST ROUND QUESTIONING: Alito says judges should not put their own personal belief in as to how the law ought to be, but ought to be bound by how the law is. Raising the Bork specter – the philosophical dividing line of liberal/conservative ideology in the jurisprudential context. (Or, alternatively, are you a Bork?) Alito’s answer: I was trying to keep my bosses happy. (Or, alternatively, I’m willing to say whatever it takes to make myself look good to my audience at the moment. Ahem.) On to a discussion of Alito’s thoughts on the Warren Court. What are traditional values? Lots of nice points about kids and safety. Well, what about your Casey dissent, then? Alito talks about the “undue burden" application – and how tough it was for him in applying it to this case. Alito then says that “one person, one vote” wasn’t practical based on statistical population variation problems that his father had working for the NJ legislature. (RH notes: boy, isn’t a voting district statistics discussion a real turn on? *cough*) Kohl then brings up Chidester, and it being repudiated by Hibbs. Shorter Alito: Family Medical Leave Act blah blah blah Nuh-Uh. Getting into gender stereotypes and other issues relating to this particular case.
DEWINE FIRST ROUND QUESTIONING: Starts by quoting Stewart Taylor, paragon of fair-minded legal journalism. *cough* (Ouch, that hurt to type.) Goes on to testify on Alito’s behalf on discrimination cases and the Vanguard question. (RH notes: Shouldn’t they swear him in if he’s going to be a character witness? Shorter DeWine: Thinking that you would keep your word on Vanguard is absurd.) Let me testify again on your behalf about employment discrimination cases. Allow me to give you an opportunity to stroke Congressional egos and explain how deferential you look forward to being to us. Asking about Spending Clause power and what Alito thinks about SD v. Dole, wherein Congress is allowed to hold monies as a cudgel to get states to do as it wishes. (Do I hear the states’ rights people squeaking?) Wow, in a surprising move, DeWine brings up Roe. Color me shocked. No litmus test here. Nope. “Hello, evangelical base? I’m phoning home while I’m on teevee.” On to Supreme Court docketing question and circuit splits – Alito ducks question so as not to offend his boss (Wow, that’s new…snark intended. Although, all kidding aside, I’m not certain what DeWine was thinking in asking him this question because he really can’t answer it in his current job.) Then on to online porn. (RH notes: Suddenly, couch potatoes everywhere perk up their ears.)
FEINSTEIN FIRST ROUND QUESTIONS: Begins with Commerce Clause and federalism issues. Good on Di for calling Alito on his attempted dodge earlier on lack of Cong. direction. Lopez – talking about Kennedy’s opinion, and state level issues. Dodging DiFi’s question on the Calibrese law review article that he cited in his machine gun case – but shows hint that Alito already feels that Commerce Clause has peaked. (RH: Intriguing. Hopefully more on this later.) On to Chidester, invalidated the law despite findings of fact – contradiction? She’s really hammering him on his “findings of fact” dodge from earlier…and on lack of deference to Congress – why one case and not the other? On to woman’s right to choose and Roe, emphasizing Specter’s discussion of precedent – throws Alito’s quote on stare decisis back at him. (RH: Again, good one. Excellent prep.) Alito tries to dodge, and DiFi calls him on it and re-asks: what special circumstance could you foresee to overcome protracted testing of Roe of 30 year period – what analogous cases? Alito refers to National League of Cities case string through to Garcia. Says Constitution does provide for right of privacy. In Casey decision, explain why you were so far off from O’Connor? Alito – never equated adult woman to that of a minor who was required to provide notice for abortion. Health of mother exception – do you agree that this must be in statute in order to be constitutional? Alito only says compelling interest in case law – not that he agrees with the concept. Goes back to Alito memo outlining strategy to overturn Roe – what was your view of precedent at the time you wrote memo? (RH: BINGO! Great question.) Alito says he was trying to achieve a result, not follow stare decisis as the judiciary must – but not saying what he thought at the time other than the “I was just representing a client” dodge. Electronic surveillance/FISA: Alito said this morning that “generally there has to be a warrant” – DiFi says ALL surveillance within the US has to be done via warrant. What sort of exception are you providing with “generally?” Alito says exigent circumstances can be an exception. Youngstown precedent? Alito says he recognizes it, and finds it to be a useful framework for addressing issues of executive power. But have to address it via statutory questions on what Congress did and meant – both via FISA and the AUMFA. (RH: Shorter Alito: Yep, I’m leaving a loophole.)
SESSIONS FIRST ROUND QUESTIONS: Other Senators are being mean to you and it makes me sad. Wow, today I learned from Sen. Sessions that Judges actually read briefs along with the law when they make decisions. Fascinating. Tell me more about this thing you call “l-a-w.” (RH notes: I’m sorry, but Sessions puts me in a coma.) “Young staff attorney” (RH: um, hello? He had graduated from law school and served as an AUSA for a time before going to the AG’s office. Did he have no brain, no integrity of his own for his job application or personal statements of belief? He wasn’t exactly a babe in arms – he was late 20s/early 30s.) And we’re back to abortion, and horses and burros, oh my. Suddenly, Sessions finds his excitement over state’s rights, and decides to testify himself about Alito’s judicial philosophy. Will you swear to be a strict construction kinda guy? I will.
Break until 4:55 pm ET.
photo: Luke Redmond