Alito Questioning: Day 2, Part III
BIDEN SECOND ROUND: What basis do you look at with regard to abortion cases and rationality and undue burden? Alito answers re: informed consent. Biden getting at disagreements between Alito’s and O’Connor’s interpretations of this. Biden gets to issues of economic and power disparities between men and women, and question of disparity between protection of physical versus emotional threats for notification protections in abortion laws. Questions on medical leave – and disproportionate gender issue. Then CAP – goes into history that it was well known that Princeton was an Ivy hold out on admissions for women and minorities in that time frame. Was part of rationale in listing it on application that it would appeal to the crowd at DoJ at the time? Alito says he just must have been a member at the time and that’s why he put it on the form.
DURBIN PRIVILEGE: Correcting record from other Senators’ statements made regarding Durbin’s previous statements.
KYL SECOND ROUND: Sen. Kennedy’s accusations are scurrilous. (RH: And then my local cable company decided to have a long storm warning, which stopped when…) Kyl reads a letter from some person who says the CAP issue shouldn’t apply to Alito and that Democrats are mean. (RH: So maybe I didn’t really miss anything.) Then Kyl cherry picks positive statements about Alito to highlight. (RH: Nope. No hypocrisy here. Or grandstanding.)
KOHL SECOND ROUND: Start with Roe questions and rationale for not giving an answer. Kohl points out inconsistencies in what Alito has said in the past versus what he is saying today. Much discussion about Alito’s record – and giving Alito an opportunity to explain record on immigration cases, and why his record was at variance with norm. Alito talks about reasonable person standard. Kohl reiterates that Alito’s record was 1 out of 8, national sample was app. 50%.
SPECTER: Regarding Kennedy’s CAP letter. Specter says Chief of Staff got computer letter plus letter delivered to staff – but Kennedy’s letter never properly logged in. Specter says he hadn’t seen the letter, but did speak to his Chief of Staff about it over New Year’s break on the phone. Specter says he found matter un-meritorious at time of conversation. Specter now saying that Kennedy ought to have brought the letter to his attention while they were working out at the gym. Now pointing to NYTimes reporting on the matter – as evidence? Records coming from Library of Congress for committee’s review. Kennedy says he hasn’t been to the gym (again…shocker…)(RH notes: Looks like the Republicans are now going to try and make this all about Kennedy, rather than being concerned whatsoever about the fact that Alito was involved with an organization which supported views that were against women and minorities being allowed to attend at Princeton, as well as anti-homosexual and other offensive views of a number of its members that were published in the group’s magazine. Clearly being offended by Kennedy doing his job and following up on things is more important than whether there is a question of bias on Alito’s part – or whether he is the sort of person who would join such an organization to curry favor.)
DEWINE SECOND ROUND: Questions about Olmstead. Alito says he has no concerns on this. Antitrust cases? Alito says he is not antitrust expert – talking about specific antitrust case re: 3M/monopolization case. On to search and other criminal law matters. Definitely a prosecutorial perspective – without much discussion on the defense end of things. Free speech questions – questions about restrictions of speech in public places. (RH: Ten commandments monuments, anyone?) Alito says freedoms of speech and the press are most important in public arena. DeWine argues that there is a shrinking public forum. Commercial speech? Pitt News case. Alito talks about need to narrowly tailor any restrictions on speech.
FEINSTEIN SECOND ROUND: DiFi – you said precedent is not an inexorable command – did you mean it like Rehnquist meant it with regard to Roe? Alito brings up Plessy again – need to have an open mind on the judiciary. Can’t reach a conclusion until you have gone through the factual process. Alito says that he agrees emphatically with Roberts’ statement that he would keep his personal views separate from his decisions on the court – that is role of judge. Agrees that stare decisis – and reaffirmation of decision strengthens its value for precedent. Long line of precedents relating to Roe – logical that overruling would take a special justification. And then DiFi says “Why can you say you are for one man, one vote, with four cases pending before the Supremes, but you can’t say how you feel on Roe? Makes no logical sense that you can comment on one litigated issue but not another.” Magnesium Electron (clean water act case) – questions about Alito’s vote on appeal. Then hits end of life decisions (Schiavo) issue. Alito says mainly state courts and Cruzan.
SESSIONS SECOND ROUND: Blah blah blah. You are an independent judge and I like that, and I sure like the way that you think. Blah blah blah. People who are mean to you are unAmerican – I’m not saying this, though, Mr. Chairman, I’m just reading this from other folks. Blah blah blah. Sessions is pissed about property takings case and pledge of allegiance case. (Hello, religious right.) Marbury v. Madison – judicial review, not contained in Constitution, question of how this tips balance of powers.
Recess until 4:20 pm ET.