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Thoughts on Day 3 of Alito Questioning

Having forced myself to slog through the entire Tivo-ed questioning of Judge Alito in one fell swoop, I’ve learned a few things.

Number one: A number of the Democratic Senators were using their bully pulpit in these hearings to educate the public, sometimes in not so subtle ways, about executive power, and the overreach of the Administration in a number of areas, particularly in the area of controlling government through the administrative agencies regardless of Congressional legal mandates and in areas of national security and military policy.

This says to me that Democrats were certain they could actually get air time to discuss those views and did not want to waste the opportunity, since they might not get it otherwise, with the talking head shows booked up with the likes of Lanny Davis and Joe Lieberman and all. Interesting commentary on the state of the media all by itself, isn’t it? Or perhaps they were trying to educate the media — trying to wake them up a bit? We’ll see. But there was something going on above and beyond questioning the nominee, and I think it was a direct reaching beyond the media filter into the living rooms in America.

Number two: Senators of both sides of the aisle felt that they had to constantly give history and civics lessons as they set up their questions — not for the nominee or themselves (although I do wonder about Cornyn and Coburn’s ability to follow things without flow charts), but because anyone in the public who was watching could not be assumed to know the history of things like the illegal abortion versus how things are after Roe, or that Supreme Court justices sit on the bench for life after they are appointed.

We do a piss poor job of education in this country if that is the case — and Democrats really suck at getting any message out if young-ish women in this nation have no clue what they are talking about when they say Roe. We have to do better, because ignorance only helps people to be lemmings.

Number three: When you Tivo the hearings, you can forward through the dull parts. And I’m going to do that for you, too, in the summary. What follows are my highlights of the issues which were brought up but not remotely resolved in Thursday’s session — or that need further discussion (in later articles here).

I thought Sen. Leahy brought out two important points to start the day’s questioning: death penalty and general criminal law framework and philosophy, by talking about "The Rule of Four;" and further discussion on the Unitary Executive theory — about which Alito gave a speech to the Federalist Society in 2000.

Unitary executive issues came up repeatedly throughout the questioning, which I felt was often being used as much to do public education on the issue and, perhaps, to pull the media into the importance of the question as well, as it was an attempt to determine where Alito falls in the philosophical curve.

I thought Sen. Kennedy’s questions regarding executive power and the line between Congressional law enactment and Administrative enforcement was excellent — I just wish that Kennedy could have spent more time on this issue and less on Vanguard, because I think it would have been more beneficial. (But maybe it’ because I’m a wonk — and I can see Alito hedging around the edges on this, and I got the feeling that, if pressed, he might have been less coached, less boilerplate, less black and white in his answers today, since that slipped a slight bit in his back and forth with Sen. Schumer.

Was very pleased that Biden raised the Yoo issue — it needed public mention in these hearings — and that Feinstein and Feingold then went the next step forward with it to specific questions on plenary authority for the President in a time of war and the consequences for ilegal activity on prosecution of terror suspects. (Feingold’s questions on evidence gained through torture being inadmissible was clear and straight-forward — would that all of the questions had been that way.)

I was also pleased that Feingold raised the issue of the people prepping Alito and how many of them were involved in shaping Administration policies that are being called into question currently. I want to do more digging on this for later, but this troubles me a great deal — given names like Harriet Miers and Ted Olson and others on the list. It’s sloppy and wrong, and stinks ethically on the Administration’s part.

The most pointed exchange today was with Sen. Schumer, who did a good public PR thread on the logical next step from overstepping on wiretapping to next doing it with entering people’s homes and elsewhere without warrants by order of the Preznit. That’s something that even Joe Sixpack can understand, and get pissed about if he’s sober enough to think about it.

But my overall impression is more of an esoteric one. After watching Alito for four days now, he strikes me as a very intellectual, analytical, black and white world kind of guy. He doesn’t strike me as someone who weighs things out in shades of gray — based on his answers to the myriad of questions, he’s either an automaton who has been repeating rehearsed lines from the murder boards sessions, or he prefers to think about the law in terms of how things are in the Constitution, in his philosophy and in the statutes — and the practical world be damned because it’s outside fo his purview to think about that sort of thing.

But in my experience, it is the real world consequences of legal actions that can be so devastating. And this detatched view of the world as not being a part of how you think about the matter at hand really goes to the heart of the differences in conservative and liberal philosophies, I think. And is why I fear what the Court will become with Alito, if he is confirmed.

His approach is inherently conservative — don’t color outside the lines, what can I say to make the whole committee happy, what should I put on my job application to make them impressed and me likeable. Not exactly someone I can see standing up to Scalia in the deliberation room.

Alito never foreclosed overturning Roe — he left that door wide open. That in and of itself is frightening to me. But when you add in the deference to government interests over those of individual citizens at a time when there are so many individual liberties being tested, I’m not willing to come close to giving Samuel Alito the benefit of the doubt.

And I hope that enough other Senators see it my way. I hope.

The other observation is a brief one, but it bears mentioning: Senators sure do like to talk, and to hear themselves talk. But in the context of these hearings, that is detrimental — especially for Democrats, who are already at a disadvantage getting their message out given that networks like MSNBC booked only conservative guests for Day One of the hearings. And I’ll not even mention Faux News except to say fair and balanced, my ass. We need a message. We need to be better about getting our message across.

All of that said, a full transcript is available via the WaPo, should you wish to know the entirety of the hearing. The NYTimes and the WaPo have articles discussing Alito’s conservative leanings as well.

(The lovely picture is by an artists named Anthony Gonzalez, and is entitled "Gathering Thoughts." There are other equally lovely paintings through the link, but the use of layers of color in the depiction of the draped fabric is just exquisite in this piece.)

UPDATE: I meant to mention that the hearings begin at 9:00 am ET this morning, with more witnesses and testimony to be heard. And second, Scotusblog has been doing amazing work on these hearings — including having a wonderful play-by-play from yesterday’s testimony, as has the Supreme Court column in the WaPo.

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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