Alito Questioning: Day 2, Part I
Hearings begin this morning at 9:30 am ET. You might ask yourself: how is it that a reporter can re-cap Tuesday’s hearings in a story about the Democratic performance, and not mention either Russ Feingold or Dianne Feinstein? Because the story appears in the WaPo. Wankers.
For something amusing this morning, I suggest Prof. Bainbridge. Mwahaha.
DURBIN FIRST ROUND QUESTIONS: Explicit versus implicit constitutional protections – Brown v. Bd. versus Griswald, and Alito’s failure to answer Schumer’s question yesterday. Roe is “very important precedent” – won’t say settled law of the land as Roberts did. (RH: The dance of the seven veils has nothing on this tap dance.) On to CAP – former AUSA colleague calls Alito on the fact that he was no longer a young man in 1985, touting CAP on job application was a marker for a certain mind-set. Alito’s answer is that he doesn’t recall much about the group (but that he remembered it enough to put it on his application to get the job). Then on to the “little guy” line of questioning – Durbin hits a jury/race issue from an Alito opinion. Alito discusses it in relation to statistics and the habeas standards on black letter interpretation grounds. Question relating to Alito’s mine safety case – construing statute narrowly in favor of corporate interest against workers – Durbin says this is pattern for Alito.. Alito responds that it is statutory interpretation, and that there are a number of cases where he does come out in favor of the little guy, including a case for a kid who got to transfer schools due to excessive bullying.
BROWNBACK FIRST ROUND QUESTIONS: Starts with Plessy – was precedent for a long period, then overruled. Reconcile stare decisis. Brownback then goes on to talk about cases that he thinks are wrong (Buck and Korematsu) – some precedents are not entitled to respect because they are repugnant to the Constitution. Blah blah blah Roe bad blah blah blah activist judges bad blah blah blah. How do you interpret the Constitution? Shorter Alito: I’m going to give a vague answer so as to not offend anyone, but I will say I will look to text and precedents. And now on to religious liberties. (RH: Anyone else get the feeling that Brownback is using his time on camera to play to the religious right in preparation for a Presidential run? Nothing like a big, fat bully pulpit to jump start your campaign fundraising, I always say. Of course, it may just be my cynicism – he may be personally vested in this
as well as using it for fundraising.) Art. III, Sec. 2 of Const. – appellate jurisdiction and exceptions clause. Then onto gay marriage. (RH notes: Did James Dobson write Brownback’s questions today?) Finishes with concerns on public takings case.
COBURN FIRST ROUND QUESTIONS: Starts with entry of more supporting documents to buck up Alito. On to foreign law questions, making Pat Buchannon happy. (RH: Oh, and fuck Coburn – “pro the destruction of human life” – what an ass. I dare him to say that to a 14 year old child who has to make the impossibly difficult choice between carrying the child conceived in rape by her own father and terminating it…I’ve seen that occur, and it is so wretchedly painful, whichever way the decision goes. As much as I went through to conceive a child, the difficult miscarriages and all those years of wanting a child so badly – and yet I can still have understanding and compassion for a woman in a difficult situation who has to make this supremely tough choice. There is a reason that this choice cannot be made by anyone but the people involved in the individual situation – we cannot know all the facts. Tom Coburn sure as hell doesn’t know them – it is a decision between the woman, those involved around her, and her interaction with God, if that is her faith persuasion. The hubris of speaking for God, as Coburn is doing, is just wrong. And is it me, or should the concern stretch outside the womb to the cutting of safety net programs and support programs for poor, abused and neglected children – which just underwent a massive budgetary cut from the Republican Congress. Pro life my ass – life has just as much value outside the womb – start acting like it. /soapbox) Oh, and in case you were wondering, Coburn doesn’t like abortion. Now, allow me to lob the softball “Talk about what’s in your heart.”
SPECTER SECOND ROUND: Question of Court usurping Congressional power – where is the line for separation of powers? Shorter Alito: Depends on the facts. ADA question – and questions of Commerce Clause interpretations and other standards for interpretation – “rational basis” standard for commerce? Alito discusses history on this and essentially declines to answer how he feels because of potential for future cases. Specter is peeved about the Court usurping legislative power (his thoughts). On to habeas issues and legislation to alter jurisdiction. (RH: And then my cable network decided to conduct a very long test of the emergency broadcast system.) Open court to television? Alito for it. (RH: this is a pet issue for Specter.)
15 minute break – reconvene at 11:35 am ET.
LEAHY SECOND ROUND: Concerned Alito is retreating from a part of his record – answers inconsistent with past statements. Checking Presidential power – Youngstown case. On to Hamdi – who was right, O’Connor or Thomas? Alito responds by going through fact pattern, dodging question. Unitary executive theory: In past you’ve criticized Morrison, now you say you respect it? Alito – entitled to stare decisis consideration. Presidential signing statements – what weight? Alito: Unitary executive entirely different question from signing statements. Leahy – could President order FEC to stop investigation of contributor? A: Court adopted functional approach. President is not above the law. L: Could President order FBI to conduct surveillance in a way not authorized by statute? A: If statute is constitutional, then President is bound by the law. Questions on standing issues for corporate pollution case.
And a note: I’ve been asked to appear Wednesday evening (tonight) 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.
(Graphic courtesy of Raytrace Rendering.)