Tuesday, The Second Day Of the Hearings.

The morning session has begun. This is the first round of questions by Senators posed directly to Judge Alito. I have been watching since the beginning of the session, but refrained from blogging it until my DSL connection was more solid.

Interesting general point: Even though the Republicans, thus far, are devoting their time to answering the Democrats questions through their questions to Alito, Republican ire is more prominent than Democratic ire. That’s the natural state for most of Republicans, most of the time, and what it communicates here is a sense of outrage at the Democratic Senator’s presumption that they have any other role than to rubber stamp the President’s selection.

How this plays to people who are watching one can’t know, but I suspect that there is a basis in this attitude for doubts to be raised about Republicans who have essentially rubber stamped almost everything the Bush administration has chosen to do, an administration about which a majority of Americans now have grave doubts.

Through-out the morning, Alito was considerably less impressive than my first take on him yesterday. His explanation that he hadn’t remembered his sworn promise to recuse himself in the Vanguard case was almsot laughable. His humble guy pose toggled between being entirely too believable, and being just that, the kind of pose arrogance often assumes to hide its true face.

Whatever I missed, I’m sure you’ll find covered by Reddhead at Firedoglake, who is also live blogging the hearings.

It’s Kennedy’s first chance at questiioning Alito and he’s doing well, less confrontational in tone than he sometimes is, but he’s going at the questions of Presidential power, and he has managed to explain quite clearly the matter of the President’s signing statements which proclaim his right to essentially nullify the very law he is signing into existence. Kennedy notes the use of the phrase the “unitary executive” in the signing statement and Alito’s association with the concept.

In general, Alito is considerably less impressive than Roberts, he is also coming off as defensive in his use of highly technical justfications, even while he proclaims his committment to “common sense.”

Kennedy went after the Vanguard issue, Alito’s promise that he would recuse himself on that case because of his holdings and his failure to do so. His answer, he forgot.

I think the most interesting thing that Alito has said this morning, was in response to Kennedy exploring the case in which Alito found no problem with a strip search of a ten year old child, an appelate case in which Alito’s position was a dissenting one, Judge Alito said something like, “Well Senator, reasonable people will view these situations differently.” These situations meant not merely the facts of the case, but also the law, including constitutional interpretations of the law.

>>It is precisely that recognition that is entirely missing from the whole notion of strict interpretation, original intent, the whole Federalist Society approach to the constitution, that it is a kind of Rosetta Stone which when properly read, allows only one interpretation - theirs, of course.

Grassely, outraged about references to Vanguard, points out Bar Association found Alito to be ethical. But Vanguard is about something different than personal ethics, it’s about making promises you don’t keep.

Grassely asks Alito nonsense questions like do you believe the power of the presidency is unlimited, do you believe in the separation of powers…to which he is able to say of course No, and Yes. None of which means anything. President Bush would answer the same way, but that is not the way he has governed.

>>What Democrats have to try and get across is that the interpretation of the constitution that Alito has always expoused is a political one, which grew out of a dissatisfaction with the results achieved by the Warren and the Burger, and in some fundamental ways, the Rhenquist Courts. Truth to tell, our constitutional interpretations have a political element, too, but that fact doesn’t mean that either are arbitrary, or necessarily activist.

Grassley asks what about situations which arise that the “framers” couldn’t possibly have anticipated?

Alito rightly says one applies the principle to the new, modern context.

Grassley asks if that can be done without Judges resorting to their own subjective judgements. Alito’s answer is unremarkable in his defense of “objectivity” in judging. Still, isn’t the case of a ten year old awakened in the middle of the night in her own home, stripped search to see whether drugs are hidden on her person exactly what the framers meant when they wrote of the right of citizens to be free of unresonable searches and seizures, and secure in their persons????

A statement Alito made in response to this case of the ten year old was particularly odd, that his position would actually protect children in the future from being used by drug dealers as potential places to hide drugs, were they to know that kids that young were off-limits for strip-searches! Did I hear that right?

Now Grassley asks the old “living” constitution issue, though he doesn’t use the word, only if Judges are free to change the constitution in order to meet contemporary situations. Hope some Democrat asks Alito if that’s would he thinks the Brown desegregation case did? Because Grassley notes Democrats’ statements pointing out that the Supreme Court has been vital to furthering the extension of justice in this country in recent years, and asks if that is the correct role for the court?

Alito thinks that if you do your judging correctly, you will extend justice - correctly being the way he would - how convenient. One example

Grassley: what do you think can be done to restore the balance between the branches of government, and he doesn’t mean the imbalance between the current presidency and the total dive that a Republican congress has taken in defending the institutional constitutional integrity of that body - he means that intrusive Supreme Court. Yeah, well, who exactly is it intruding on, is the real question. It’s failure to intrude on the Schiavo case is what produced those several “Justice Sundays,’ and the people gathered there are all Alito supporters.

Biden’s up now, and he starts by effectively defusing the notion that Democrats are going after Alito’s personal integrity. He just wants to know what happened between Alito swearing under oath that he would recuse himself in a specific case should it come up and then not doing so.

Biden addresses why it is understandable and acceptable that Senators keep in mind what Justice a nominee will be replacing on the court - and that there is nothing unusual about doing that. The question is whether or not Aito’s taking O’Connor’s seat will fundamentally alter the constituional framework of this country. Biden worries it will. Me too.

>>>I wish people would get over their automatic irritation with Biden, he sometimes is very effective, and I think he’s been at his best so far. I say that because of his ability to make points in language that anyone can understand. All conservatives, most of the SCLM, and even some liberals/progressives et al, have come to believe that the majority of Americans are hostile to the Supreme Court. What we found out in the Bork hearing was the degree to which that perception is mistaken. I think it’s still mistaken, that’s why the right and the SCLM have continued to make wrong guesses about where polls are going to show most Americans are on an issue like Schiavo, or like the NSA warrantless searches, or like the value of Democrats being vigorous in their questioning of Alito.

Biden is posing an admittedly long-winded question about a discrimination case, in the context of O’Connor’s experienced-based sensitivity on those issues.

Alito’s answer - again, reasonable people can disagree - Alito’s explanation minimizes the evidence of discrimination, and Biden points out that the failure, in this case, to follow the corporate rules involved, of deciding on a yes or no directly after an interview, before proceeding to look for another candidate, is exactly how discrimination works these days - Alito tries to weasel out, Biden counters with evidence from the case, and then asks why Alito didn’t let the jury decide - a majority of the third circuit made a statement that Alito’s interpretation of “intent” to discriminate would eviscerate the 9th amendment.

>>The issue of discrimination cases is a more fruitful area than many of you might think. With Bork, we found out that most Americans didn’t want to see the gains of minorities and women rolled back, they didn’t want to have to revisit those struggles, and that’s the spectre the Democrats succeeded in raising were Bork to be elevated to the court.

Biden keeps stressing the “real” world - which is a good stress. He’s going to get into the Casey abortion rights case in the second round…

Biden ends with emphasizing that as he perceives Alito’s leanings in his decision as an appellate court judge, his replacement of Connor on the Supreme Court will make a big difference in how the constitution is interpreted in the future, and by extension the way Americans live their lives in this country.

Senator Kyle has the last ten minutes of the morning session, and he’s giving Alito another opportunity to speak to his view of the “unitary theory of the executive.”

Kyle asks what was asked of Judge Bork, why do you want to be on the Supreme Court. He wants to serve his country.
Asks use of foreign law, and interestingly, picks out a Breyer opinion, but not the more recent case of Justice Kennedy, who is a Republican-appointed Justice.

Kyle’s final question is meant to convey that Alito really does back the major decisions of the Warren court, without mentioning names - and yes, indeed, Alito thinks Truman was wrong to seize the steel industries and the Supreme Court was right to curb that executive power grab…this is a dominant theme…not to worry America, this guy shouldn’t frighten you….

Lunch Break…We’ll back anon.