Tuesday, Day 2, 2nd Afternoon Session

Senator Feingold comes out of the shute and goes straight at the issue of Presidential power in a time of war. Alito demurs answering specifically on the basis that the issue may come before him as an appellate judge.

Then Feingold does something brilliant; he reveals that the question he’d asked Alito was precisely the same question that Feingold had asked of AG Gonzales on the occasion of his own confirmation, and that Gonzales had renounced the torture memo, claimed there was no such thing going on by the administration, all of which turned out not to be true.

Nice way of reminding the audience what people/Republicans say at a confirmation hearing may have nothing to do with how they act in office.

Feingold goes after interpretation of the FISA law and points out that Alito’s mushy answer, if that’s the best he can come up with, would leave the country in a constitutional crises, if the courts can’t decide such things.

Feingold asks if the issue of the President acting against the provisions of a congressional statute was ever raised in the moot court sessions Alito particpated in as preparation.
Alito is vague…but under pressure agrees the issue, if not Feingold’s specific question came up. Then Feingold asks who was there and what feedback they gave him. Alito pretends not to understand what Feingold is asking, who clarifies, he wasn’t suggesting that the administration gave him talking points, but what about feedback? Alito insists he hasn’t been briefed by a member of the Administration. Now Alito is splitting hairs, again. Feingold asks if it is ethical for members of the administration to be prepping him on issue they may be defending in court. He says yes, if they gave him answers, which they didn’t.

Feingold goes onto Alito’s position regarding immunity of AG convicted of violating rights of individual citizens as regards civil damages. This is the John Mitchell case, I believe. Feingold brings it around to statement in the brief to today’s context of warrantless wiretaps. Feingold moves onto some class notes of a course given by Alito at…wait for it, Pepperdine law school. The notes indicate a lot of deference by courts toward the Presidency in times of emergency. Oh, Oh, Michele Malkin’s gonna be upset, Alito just said that internment of the Japanese after Pearl Harbor was a great constitutional tragedy. Alito is great at expressing the dilemma, but not so good at indicating how he would resolve dilemmas.

Feingold makes a statement to other Senators, regarding the notion they’re pushing that questions asked by Democrats are somehow illegtimate attempts to torpedo a nomination. This leads Feingold into the Vanguard case. Good moment, there. More like those, please.

Feingold tries to clarify the Vanguard issue about recusal, Hatch takes umbrage, Feingold doesn’t relent. Good.

Lindsey Graham is up next.

Begins with the issue of Presidential power and recites the straight neo-con line that we’re at war, which means we’re in a different area than criminal prosecution. Graham is trying to strattle the line, but he’s just an enabler for the worst proclivities of the Bush adminbistration.

Now Graham is embracing Hamdi, but insisting it isn’t inconsistent with any claims of power claimed by the Bush administration. To his credit, or because he’s smart, Alito is equally reluctant to get into this area as he was with Feinstein. What Graham is doing now is making this into a teachable moment - but of course the lesson is a partial one. He’s leading Alito. Wonder if it’s true that Graham participated in moot courting Alito. So now Graham is showing that in the past, during a time of war, the military decides status of prisoners. Of course that begs the question of the fact that there is a question of just how and why and for how long we are at war today.

Graham is such propogandist, despite his claims of being a Jag lawyer. We don’t even know if Padilla is an illegal combatant; the government has changed what it’s charging him with. The German saboteurs, Graham is waving around, was caught off our shore, in the process of their activities.

Weird, Graham is making Alito look rather weak. It seems as if Graham is trying to make it look as if the Democrats’ concern about presidential power is part of a desire to give terrorists access to our courts and to the bill of rights.

Now Graham is aligning himself with Feinstein’s concern about whether the use of force resolution included authorization for the President not to obey the Fisa law, and then asks if anyone who calls himself a strict constructionist would think that force resolution included a blanket exemption to the Fisa law, and the answer he wanted was no. Graham admits he’s talking to other people, rather than Alito. Wonder who? Bush.

Did Graham actually try and get Alito to comment on filibusters? Naturally, he refused, but surely that moment was a setup.

Graham ends with plea for working together, all branches of government working together. What crust. As if at any point in the last five years, this President, and yes, this Republican congress has tried to govern from the center.

I’m wondering if this whole thing wasn’t a kind of setup; Graham gets tough with Alito, Alito won’t answer his questions, even obvious, easy ones, that encroach on issues that might come before him, therefore that validates his refusal to answer Democrats’ questions.

General impression; Alito gives the appearance of being open, he hasn’t had as many occasions to decline to answer as Roberts. But I’m still left with the feeling that he hasn’t been genuinely honest.

Oh, here we go, Graham wants to know what the process has been for Alito and his family? I wonder if Graham ever asked himself that question even once throughout the Clinton administration, during which honest public servants were called before congress and escoriated, wrongly, again and again.

Schumer is up. He starts with abortion. I half wish he’d follow up on Graham, but don’t blame him for not, was an immensely confusing half hour.

Schumer insists there is no right answer on Alito’s view of Roe or abortion, he just wants to know what Alito’s personal view is of whether or not the constitution protects the right of individuals to choose to have an abortion. Do you believe that now, yes or no. Schumer doesn’t care which way he answers, just wants a direct answer.

This is a followup to the admission this morning that his memo in 1985 represented his personal view at the time. Schumer is asking if that is still his personal view, aside from all other issues. He wants to get him on the record. Schumer’s right, why can’t these guys own up, and just say, No, I don’t think Roe was rightly decided, though I recognize it is now constitutional precedent.” Alito keeps trying to make Schumer’s question one about how Alito would rule, but Schumer insists it isn’t, he just wants to know what Alito’s personal belief is at this moment about whether or not the constitution protects the right to choose an abortion.

Schumer gives up, and notes he’s doing so, because he knows the refusal is permanent, and therefore regrettable.

Schumer moves to stare decisis - to question Alito’s reassurance that stare decisis rules, until the Supreme Court changes its’ mind. He produces a chart to show the variance of Justice Thomas, after his promise of respecting stare decisis at his confirmation hearings, compared with all the precedents he’s indicated since he feels need to be overturned. Quite amusing, if too tragic to be funny.

Schumer was effective, but there is something about this entire hearing that isn’t working. I don’t think that Republicans are succeeding in questioning the Democrats’ integrity, though that is what each of them is attempting to do. But the Democrats have not been able yet to create the kind of tension that attracts attention, that sparks the kind of controversy they need to be able to filibuster.

Cornyn now. Shameless. After the usual sniffiness about Democrats being a nervy lot to dare to ask any genuine questions, the Texas Senator brings up Leon Higginbottom, a widely respected appellate Judge who just happens to be an African-American, and a liberal, who made a positive statement about Alito being Higginbottom’s kind of conservative. This is all about proving that Alito is in the mainstream, and I fear it may be working.

>>When I say it’s working, remember we’re dealing with a media that is explictly bias against Democrats, and as practioners of conventional wisdom, had already decided Alito couldn’t be stopped.

>>Don’t blame Democrats; they’ve been focused and tough.

On the other hand, Alito hasn’t been either forthcoming or particularly impressive. But he hasn’t made any mistakes, either.

Cornyn, like all the Republicans keeps coming back to Roe, and keeps trying to show that O’Connor was just as conservative as Alito, especially on Roe. As if Democrats are saying they were always entirely happy with her. No one on our side has said she’s an model Justice. There probably is no such thing. There have been some great Justices, but no model Justice.

As the session comes to an end, there is an sense of exhaustion in the room.

During lunch, the Republicans were already spinning that Alito had been forthcoming. Schumer was busy taking the other line, that he hadn’t been. I don’t think that Democrats have in any way given up, but it is clearly an uphill battle, mainly becaue there is no clear constiuency making a public enough stink about Alito’s record.

Republicans are actually benefitting from the fact that there are so many other negative issues about both Bush and congress that are competiting for the public’s attention.

Alito did seem to accept Griswald, which means at least a marginal acceptance of privacy. That was the big turning point for Bork.

I’m taking a break to do some cooking.

I’ll be back with a wrapup post later, and a suggestion for how the blogisphere might be able to light the spark missing thus far.

If any of you get a chance, try and take a look at Lindsey Graham’s segment of the hearing; tell us what you think was going on.