Alito Questioning: Day 1, Part III
FEINGOLD FIRST ROUND QUESTIONS: Starts right off at a gallup – FISA/AUMF/liberty issues. Can President violate or authorize others to violate the laws of the US? Alito: President must adhere to Art. II requirement to execute the laws and follow Constitution. Altio gets a point for using a Brennen opinion (Baker v. Carr) – so good prep from Lindsey Graham. Separation of powers fall within political question doctrine, according to Alito. Feingold then gets into moot court practice sessions. (RH:BAM! And Feingold drops the hammer here – was Alito prepped by Executive branch officials and others on how he should respond to this potentially justifiable question – and, if so, doesn’t that mean that Alito has a bias and ethics issue with this now? Can you say big fat problem for the WH, either way? I thought you could.) Alito is visibly uncomfortable answering this – “I don’t recall if this specific issue was covered” – the general area of wiretapping and FISA may be justiciable. Persons present? Dodged the answer, said no one has ever told him what to say. Did anyone give you feedback or suggestions on practice session answers? Again, Alito uncomfortable. Says that Administration folks only gave hints on style, not substance. Did anyone talk about President’s legal bases that Preznit was asserting? “Nobody actually told me…” (RH notes: Hmmm…did they inadvertently tell you? How about indirectly? Indecisively?) Says he researched the issue from information he found online from reporting and releases. Says no one in WH has briefed him on how to handle those questions. Alito says it would be very inappropriate for them to tell him what to say, and that no one did so. (RH: I’m thinking Russ is going to dig into this further with someone, or he would nt have brought it up.) Brings up Mitchell case: no absolute immunity for officials in a national security context. Alito says some high ranking officials in all 3 branches have immunity from civil damages – but it does not preclude criminal liability, impeachment or removal from office, or from injunctive relief (ordered to comply with law). Feingold digs into a course Alito taught at Pepperdine – in reference to Padilla case, and question of veracity of executive in times of national crisis. Alito brings up Japanese internment case as example where executive branch gave false representations. Problem of judicial fact-finding. Then on to Vanguard – you promised committee that you would recuse if Vanguard, Smith Barney or other investment issues, or for any issues involving sister’s law firm. Statement was clear, unambigious and not time-limited. (RH: Again, BAM! Feingold on fire today.)Then brings up fact that clerk keeps list for all cases of recusal issues – including for pro se cases. Alito just doesn’t know how companies and his sister’s firm got on or off the recusal list, and can’t explain his prior differing explanations, other than the one case where he had an ethical complaint about a refusal to recuse. Sen. Hatch then tries to step in an explain to Alito what Alito should have said in response to Feingold’s questions. Feingold politely calls bullshit.
GRAHAM FIRST ROUND QUESTIONS: Lindsey starts off with an Abramoff joke. (RH: Who knew that was funny in DC these days?) Then begins by discussing differences of being at war and criminality. Alito doesn’t answer based on fact that he’d be dealing with some of those questions from bench, either in 3rd Circuit or on Sup. Ct. (RH: Am interested to know what “legitimate government interest” Graham thinks exists to allow the Preznit to trample on the Constitution whenever he likes. My understanding is that there has to be a legitimate purpose that is narrowly drawn to meet only that purpose, not wide-ranging, whenever the hell you feel like actions.) Going on to enemy combatants with Graham justifying WH actions in that regard. (RH: For public info., Graham is a JAG attorney, so the military jurisdiction questions have significance for him. I would note that some of our more shameful actions have also occurred during wartime decisions – see Korematsu.) Alito walks Graham back to Milligan. Then onto Geneva Convention. And FISA court and application of law to the President. Alito says the President is not above the law – are you a strict constructionist? Alito: I think that depends on what you mean. And goes on to dodge whether the FISA opinions (from Yoo) would be considered strict construction. Graham then goes on to detail how this Preznit’s overreach could have chilling effect for future conflicts. Graham then goes on to set things up in terms of the counter-argument to filibuster, should Democrats launch one. Alito gives quote of the day.
SCHUMER FIRST ROUND QUESTIONS: Roe statement in 1985 was accurate statement of what he thought at the time, now have to look at stare decisis from the bench. Schumer then asks about whether Alito believes or not the Constitution gives right to privacy for abortion. Alito says he would use judicial mindframe/stare decisis. Alito refuses, over and over, to answer the question on what he personally feels, since he stated it once before — my reaction is that the weaseling and refusing just looks bad. Then on to stare decisis. And Judge Bork. Schumer then goes on to note a number of cases where Alito’s dissents and opinion goes outside of precedent — noting concern that there is a pattern of disregarding precedent by pointing out the large number of cases involved that raise concerns. Alito’s response: Nuh-uh (while looking angry).
CORNYN FIRST ROUND QUESTIONS: Arrrrgh. (RH: Sorry. Couldn’t help myself.) Let’s start with abortion. And strict construction. And whether you are one of us. *wink* Alito discusses Griswold and protection of liberty. (RH: Okay, I’m calling bullshit on the "some people are going to vote against you" crap. Sure, and some people have made up their minds to vote FOR him. Maroon. Stop grandstanding.) Then Cornyn gives us a lecture on how thankful he is that Plessy is no longer valid. Blah blah blah competent blah blah blah Democrats shouldn’t be mean to you blah blah blah your friends like you blah blah blah. And yet more abortion — this time Casey and undue burden. No litmus test, though. Nope.
And a note: I’ve been asked to appear Wednesday evening on Air America on the Majority Report with Janeane Garafalo and Sam Seder to talk about Alito, among other things. I’m scheduled for around 7:50 pm ET. If that changes, I’ll let everyone know.
photo: Ferran Jordá