1 Live Blogging Of The Alito Hearings

[Real time posting here, “The Hearings Begin.” Click through!.]

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We’re going to give it a try anyway, improvising as we go. We plan to do it for the full set of hearings.

We invite anyone who is interested to participate, either in our regular comments, or by adding quick comments using the shout box to the right. If you’re already registered, just sign in and you’ll see the box within the box which allows you to add a “shout,” or answer a shout; if not registered, please do so, and join the discussion.

We’ll start a new post when the hearings begin, which we’ll update through-out the first session today, then come back and start a new post to keep track of the second afternoon session.

On the other side of the break, our first entry in this discussion.
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Is Alito All But Forgotten? Along With What Really Happened to Mr. Bork?

It occurs to me as we approach the beginning, today, yes, today, of Sam Alito’s confirmation hearings that we may have become distracted by the thorough-going nature of this Presidency’s grab for illegitimate power, it’s corrupt and unconstitutional ways, the splendid array of targets it presents to us on what seems like an hourly basis, and thereby failed to notice the next big fight is upon us.

If Alito gets confirmed, the rescue of our democracy from the crazed crowd currently occupying the White House and running Capitol hill gets a whole lot harder.

I can practically hear the muttering response: Yeah? So what are we supposed to do about it, with nothing at our disposal but a useless Democratic Party…mutter, mutter…spineless…mutter, mutter…no guts…bunch of poll-driven centrists…a corporate party just like the Republicans…

A personal admission here; I had intended to put up this post last week in an attempt to rally the left blogisphere, and its huge readership, evidenced in those 100 plus comment threads we see commonly these days, into a loosely organized grassroots efforts to give support to Democrats in the coming hearings. I didn’t because of a bout of discouragement of my own. Not about Democrats in the Senate, about an embrace of helplessness of which, in my view, the constant attacks on Democrats by voters sufficiently engaged to leave comments on a blog who should be the Democratic base are a harbinger.

I don’t share that cynicism about the Democratic party, especially not after last year, when Democrats stopped the President and the congress on Social Security, and especially not after the final three months of last year, when by standing together they stopped passage of the revised Patriot Act because it was insufficiently revised, almost stopped a terrible budget resolution that pays for tax breaks for the wealthy with benefit cuts for the middle and working class, did stop drilling in ANWR for now, and are now standing ready to demand of Alito that he actually answer their questions. Yes, they still need more coherence, they still suffer from a lack of cohesive leadership, from being seen as a minority party, and from the constant Gore-like drubbing they get from what Kos has recently suggested we call the “traditional” media, but I’m still happy to call the SCLM.

We stop Alito and the “conservative” judicial movement with Democrats as they are right this moment, or we don’t stop him at all. Nader isn’t going to stop him, Cindy Sheehan isn’t, the Green Party isn’t, nor, btw, should anyone take umbrage at that observation, I’m not attacking anyone, simply stating a fact.

How to help Democrats? By staying in touch with them, each of us, one by one, letting them know, through phone calls, emails and faxes, that we want them to challenge the administration, right down to the wire, and that we want them to challenge Alito to fully answer their questions, and if he doesn’t, or his answers are unsatisfactory, that we want them to filibuster, and to keep filibustering until George W. Bush finds a candidate that is acceptable to those Americans who voted for Democratic members of congress. If enough of us do this, we can tilt the balance of the coverage toward a recognition it is grassroots Americans who have doubts about this administration and their hand-picked candidate for the Supreme Court. A majority of Americans don’t want a Supreme Court that will make a radical turn to the right, as evidenced by the astonishing lack of popularity for the Republicans did in the Schiavo case, and by the 56% of Americans for whom even the threat of a terrorist attack is not enough to persuade them to give up their constitutional rights, both positions, remember, came as total surprises to the SCLM, many of whom are still predicting that liberals will be the losers on the NSA issue, and that Abramoff is a bipartisan scandal….

That is what happened to Robert Bork. The only person who “borked” Professor Bork was Professor Bork. What was decisive was the ability of the liberal/left and the Democrats in the Senate to convince a majority of Americans that Robert Bork’s America, just as Kennedy pointed out and is roundly criticized to this very day so doing, was an America in which they wouldn’t want to live.

More on that later, after the first committee session.

2 The Hearings Begin

A Note To Readers: If you want to follow this from the beginning of the hearing and work toward the end, you can scroll to the bottom of the post which starts with the beginning of the hearing, and then work upwards, although each update works in the opposite direction, if you get my meaning.
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UPDATE 8: Whoops, they aren’t taking a lunch break. So, now it’s Alito.

They’ve been lowering expectations like mad, but it’s clear he’s going to be impressive.

He’s humble, and believable so…and relaxed, and telling a story about his life. Make no mistake about it, he’s an immensely attractive guy, and he’s going to be tough to defeat.

Damnit, I wish I could believe that he can really leave behind all the positions he’s taken on various issues, and approach being on the court beholden to no aspect of the legal movement in which he grew up as a lawyer.

Everyone she try and get a chance to watch him during this first introduction of himself to the American people, because that is what the Democrats are going to up against in trying to wrestle answers out of him, and trying to create a construct that will allow enough Americans to view his confirmation in other terms than their personal approval of who Alito seems to be as a person, and more in terms of how his views might affect them personally, where they live, and how they live. A tall order, methinks, but not one we or the Democrats can shirk.

Ah, the rule of law raises it’s leonine head. He’s for it; who’d a thunk it?

The guys is likeable folks. Robert Bork wasn’t. He wore his arrogance on his sleeve.

Opening comments were very short; very, very short. Hmmm.
Not once during his brief statement did he look at the sheaf of papers before him, though he made an indication at first that he might be reading his statement. I suspect that was a piece of rehearsed stagecraft, though he did it well, and it was believable. Lots of good sound bites there, and no negative ones.

Our work is cut out for us.

I’ll try and recover my notes and stick them in the appropriate update so at least we’ll have a contemporaneous record.

So, Day One ends, stay tuned….
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UPDATE 7: Well, I just lost my update on Senator Graham et al because I overstayed my time allotment. Sorry about that; Graham’s was a particularly important statement, and Senator Durbin, also lost for the time being, was particularly effective. I’ll try and recover what I can remember and post it.

Right now, Senator Launtenberg is introducing Alito, after him Christine Whitman will do the honors. Before anyone gets mad at Launtenberg, he’s the Senator from Alito’s home state, so he’s doing a pro forma introduction, although Whitman is starting off endorsing Alito, and there you have your liberal Republicans for you.

After this, they’ll break for lunch and I’ll try and piece together those last Senatorial statements if anyone is interested.

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UPDATE 6: First Break: I’m listening to NPR, right off the bat, I’m brought up by the moderator’s (Daniel Swerdling?) first observation that it’s like watching people from two different planets, I agree on that, but not on what distinguishes the difference; according to NPR guy, it’s Democrats painting Alito as Darth Vadar, Republicans as the opposite. Nonsense. Luckily, Nina Totenberg is there to correct everything. Worth listening to NPR just for her, not because she mirrors a liberal point of view, because she is such a good reporter and analyst. Senator Graham is up next. Tottenberg mentions there’s some discussion that Graham as been moot courting Alito…is that kosher?
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UPDATE 5: Senator Feinstein was tough, very tough. She went straight for abortion rights,and privacy. She was very specific, and didn’t bother all that much with emphasizing comity. She placed special emphasis on the role that O’Connor has played on the court, making it clear that she doesn’t think President Bush has the right to insist on changing the balance on the court, unless the Senate decides to ceed him that right.

Sessions of Alabama is up now. Standard issue about activist judges. Interesting pairing with Feinstein. Sessions has always been a nasty guy, he doesn’t bother with comity, especially as regards all Democrats, even those who are his fellow committee members. So, Sessions is using part of his introductory remarks to answer some issues raised by Senator Kennedy, the point seeming to be that you can’t trust what those Democrats say. During the lunch break I’ll try and do a separate post on Session’s objections to one of Clinton’s appeal’s court nominees where the issue was one of an American company using indentured forced labor in Burma.

Feingold is up now, then a fifteen minute break:

Russ admires Alito’s legal qualifications, wishes him well, and vows, as with Robert’s nomination, he is approaching this one with an open mind, which can hardly be doubted since he voted for Roberts, didn’t he?

No one is entitled to a seat on the Supreme Court solely because he is nominated by the President. Hope we hear more about that.

DeWine mentioned that the “advise and consent” function of the Senate is phrased with vagueness by the constitution, there isn’t even a requirement that the nominee be questioned, but DeWine doesn’t draw the obvious conclusion, that the founders left it up to the Senate itself how to carry out that function, the fact that nothing specific is required does not mean that any or all such requirements demanded by any particular Senator, or the Senate at large is unconstitutional.

Feingold went straight to the NSA controversy, but he also emphasized the need for Alito to be willing to speak openly on all matters pertaining to his judicial philosophy and past statements he’s made.

Fifteen minute break is happening now….

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UPDATE 4: Kyle of Arizone and Kohl of Wisconsin were a perfect pair, both giving unremarkable reptitions of their side’s positions’ Kohl struck me as particular weak, but that’s okay, it went by quickly.

Mike Dewine took a different approach, one I found just a bit startling. He defined the constitutional conflict as one between democracy and the Supreme courts ability to nullify legislation it deems unconstitutional. DeWine actually seemed to be questioning that right, which is a very hard right, Christian Coalition position. Give DeWine credit, he managed to make it sound as if what he is talking about is a problem of common sense over legalistic elites. The point is still bogus, because Republicans are so willing to abondonit as a principle when they find it necessary to get what they want. DeWine emphasized the confusion wrought by differing opinions by the same court on the same issue - confirming one affirmative action program, striking down another - pitting all that legalistic tinkering with good muscular use of ordinary American’s common sense, as expressed at the ballot box. Well, there goes original intent; one thing we know about the founders is that they conceived of the Supreme Court, as they conceived of the Senate as a check on democracy unconstrained by constitutional elucidated protections for minority opinions.

UPDATE 3: Biden just finished his statement. Some of you may not believe me when I say this, and be assured that I’ve experienced those hair-pulling moments Biden can produce even in the most loyal Democrat, but put quite simply, he was magnificent. Relaxed, focused, eloquent, and best of all, he said something essentially different from anyone else.

This is a first impression so don’t beat me up if I change my mind upon reading a transcript, but I would urge all of you to get hold of a transcript and judge for yourself.

Here’s what Biden managed to do, I think. He put the entire hearing in the larger political context of an on-going American dialogue on the meaning of the constitution. He focused less on the recent Presidential assumptions of power, and more on the conservative judicial movement. He reminded everyone that it isn’t just liberal groups who organize to get their voices heard, and that there is entire body of essays and opinions that prides itself on a revisionist view on constitutional interpretation, though it claims to be the genuine one, too, a view that challenges al notions that individual privacy is a value protected by the constitution, a view that seeks to limit radically the meaning of equality before the law, and other views that can rightly be said to be controversial. Biden’s approach to the candidate was to depersonalize the proceedings; it’s not about some kind of personal response to whether or not Alito is a good guy, a qualified judge, that can be taken for granted; what is at issue is whether or not he is willing to engage in a conversation about the constitution that American have a right to hear.

Check out the first comment - a reader gives a link to a site where you can hear the hearing for yourself on your computer - highly recommended that you do so; why should I have all the fun.
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UPDATE 2: Kennedy is talking now. At his eloquent best. Acknowledged Alito’s family. One statement is going to drive the right crazy; that the President has “vowed” to continue to spy at will, without warrants or any superivison, on any and all Americans in countervalence of their civil liberties. Said a good deal more succinctly than that.
Now he’s going after Alito’s record, including his court decisions - and mentions abortion, good for him, damnit, although I think it’s right not to put that at the center of the hearings, that’s exactly where the right wants to stage this battle. Wow, Kennedy’s doing a check-list a very tough one, of questions about Alito, including why he said he would recuse himself in a case in which he had financial holdings and then didn’t.

One aspect that always happens in these opening statements; the Senators appear to be talking past one another, becaue the remarks are prepared ahead of time.

Grassley is up now…same themes as Hatch…Alito is well qualified,

>yes he is, that is not the issue, that is no longer sufficient…

Grassley…and all we have to know is that he will uphold justice, not be political…meticulously apply the law…

>>as if when that is done, there is always only one interpretation to be made…

>>Grassley doesn’t think Judges should be on the side of the little guy, should be on the side of the law. Sounds good, doesn’t it? That’s one which needs carefully countering. Is the law an end in itself…or does the law serve the needs of the nation and its citizens? Can’t we ask the same question about the constitution; is it an icon to be worshipped in ritualized ways…or is it a living, breathing document because it still pertains to the way Americans live today.

Naturally, Grassley emphasizes the limited role of courts…the question is do these Republican want to limit the Supreme Court out of any relevance in the lives of ordinary Americans?

Constitution constrains judges just as much as it constrains congress, not sure if Grassley mentioned the President; everytime they emphasize separtion of powers they are stepping into a depthless mudhole.

Grassley emphasizes judicial restraint…Kennedy pointed out a study which should just how conrestrained Alito has been vis a vis interpreted statutary law.

Biden next, stay tuned.

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UPDATE: Spector started off the opening statements; as of now, he’s clearly in the tank for Alito, trust me. He emphasized the abortion issue, which Republicans see as a sure loser for Democrats, he made fun of NOW, and his statement lacked a point of view, although he made some vague mention of presidential power vs civil rights.
However, having watched ever minute of the Bork hearings, I can tell you that he’ll climb out of the tank if it looks like there is a groundswell of discomfort and dissatisfaction with the thought of Alito as our next Supreme Court Justice.

Leahy is up now. He’s doing great. Exactly the opposite of Spector. He’s framed the debate to be precisely about the role of the court as a protector of the rights of ordinary Americans against government encoachment. He’s being very specific, very tough, even provocative, he’s setting up what the political context is, the context being the Bush administration’s reach for unprecedented power in the service of an extreme right-wing agenda. A great opening; worthy of reading the transcript; we’ll try and find it and reproduce it here. Probably on Leahy’s Senate website.

Hatch is up now…exactly what you’d expect, the straight Federalist argument, unelected judges are the problem, interpret don’t legislate, which is going to be harder argument to make now that we know that the President doesn’t think the congress has any right to legislate something he doesn’t approve of…ah yes…we aren’t aloud to ask Alito certain questions…and yes, he’s rolling out the Ginsberg example, don’t these guys ever get tired of lying..oh, that’s right, Hatch is a Christian, a Mormon, by definition whatever they say can’t be a lie…Interesting, Hatch is quite defensive about the stuff already dug up about Alito’s past writings before he became a judge…

Ah ha…Hatch hits on where the right will take its stand, this is a judicial process, not a political one. That will have resonance with a lot of Americans, who wrongly have come to associate politics with something crooked and corrupt, but politics is how a democratic republic does its business; there were no politics in the Soviet Union, except for those between members of the ruling class. Hatch wants the committee to rise above the hue and cry of the masses, yunno, all those petitions, all those emails, (everything that brought Bork down, methinks I smell fear here)…Wow, Hatch ends on separation of power…might be a mistake.
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The setting is impessive, but I’m always moved by these expressions of what I always saw as our civil religion.

Mrs. Alito is wearing a red dress. She’s lovely, a professional herself, a trial lawyer. The kids are there, all in all a lovely family.

Alito introduces his family. You’d be happy to have them as next door neighbors. We’ll be getting a lot of this, nice family, biography as history, biography as politics. Judge Alito can be a good man, with a splendid family, and still not be the right choice to fill Justice O’Connor’s seat on the court at this point in her history.

This session is devoted to opening statements by members of the Judiciary Committee, this afternoon will be devoted to Judge Alito’s own statement to the committee.

3. The Alito Hearings Live

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.

4. The Alito Hearings Live

UPDATE: The committee is in recess, next up will be Senator Feingold, followed by Senator Graham.

The closest the morning session brought to us in the way of a bombshell, actually, it was more like lit sparkler, was Alito’s admission to Spector, that his statement in 1985 was wrongly decided did represent his won opinion.

Tuesday, Second Day Of The Hearings, Afternoon Session

Kyle continued his questioning of Alito, without event, or much of interest being said, except that there are occasions that can be noted when Alito has been nice to women and minorities.

Kohl is up now. He wants to know how Alito views Justices who changed what decades of “neutral” Justices thought were adequate interpretations of the 14th amendment, which allowed legally sanctioned segregation of African-Americans.

Alito’s answer is unremarkable; he isn’t a fool, after all. And he’s obviously worried about the implications of his barely remember membership in a Princiton club that was exclusive to white guys. In fact, Chris Bowers has an interesting take straight from Washington take on that issue.

Yes, he’s willing to admit that the process of constitutional jurisprudence can be complex, on occasion…

Kohl just did something smart, he brought up Bork, whom Alito has called one of the finest nominees for the Supreme Court in a century, and then went on to remind everyone of Bork’s positions…which, once regular Americans heard them, were soundly rejected by a majority of them.

Seems Alito didn’t mean what he said at the time all that much; he was just an employee, of the Reagan administration, supporting the boss. A bit slippery that. However, he is separating himself from Bork’s rejection of Griswald, at least in reference to the right to use contraception being a constitutionally protected right to privacy.

Oh, now Alito’s for one man, one vote, he’s saying its settled law, no reason for revisiting, damn if he isn’t saying that it’s especially so now that so many localities have redistricted according to that ruling…right, by Republicans. But that does distance Alito from some of the more regressive positions of Bork.

>> yeah, but what about when Texas gets to redistrict a second time and the civil servants in the Justice department say it doesn’t meet the standards of a court ordered review to make sure of no disparate impact on minorities, and gets overruled by political appointees

Hey, Alito says that the decisions of the Warren Court stimulated his interested in constitutional law - cites Alexander Bickel, a liberal critical of the Warren Court’s activism…stimulated him in the way his view of those naughty nasty 60’s activist students at Princeton stimulated him to recoil and join that exclusive Princeton club where activists weren’t welcome, no doubt.

What is it with these guys and the sixties.

In defining traditional values, Alito says one of them is being free to live your life according to your own values and conscience…interesting…that’s sort of why I support Roe.

Kohl asks about Alito on Casey, and why he didn’t feel the decision didn’t make the Pennsylvania law forcing married woman to inform their husbands before seeking an abortion an undue burden…blames it on O’Connor’s vagueness as to undue burden…Alito wrestled with decision. Glad to hear that.

>>For God’s sake, that undue burden had to be part of the constitutionality of a state’s restriction of abortion, so wasn’t that enough for him to figure out that a spousal notification restriction would be an undue burden; Alito’s excuse is that he guessed wrong on what O’Connor had in mind, not that he pushed toward the most restrictive interpretation of what she meant.

>>You think anybody but those among the kool-aid faithful is buying this?

>>Something odd about Alito’s list of traditional values, sounded like a roll call of reasons for white flight…the right to live among people with similar values, the right to live without a fear of crime…

Kohl onto medical leave act…yet another case in which Alito’s ruling was at odds with a broad view of legislation..Chitester is the case…Alito leaps at a chance to explain…probably wiggled out of that one…

Kohl’s last question is about Bush V Gore as an example of judicial activism, asks Alito if court should have taken the case…Gee, Alito hasn’t really formed a opinion on it, he’d have to look up his notes!!! Kohl isn’t buying that - it was a huge case…Alito still insists he hasn’t thought about it the way he needs to decide cases, which would be to put aside his personal attitudes…

Mike DeWine is up now…Oh, oh, Mike’s disturbed…about all those distortions, and who does DeWine turn to for help? Our old friend, Stuart Taylor, in an article DeWine wants put in the record. It’s a setup - a description of a right wing Judge…who turns out to be Sandra Day O’Connor. DeWine’s point, you can distort anyone’s record. Yes, you can, and that’s what Taylor did, in order to defend Alito.

Also, when O’Connor joined the court, her presence couldn’t, at that point change dramatically the direction of constitutional law.

>>Me thinks the biggest problem for Democrats is that these hearings aren’t all that interesting, partly because Alito isn’t.

DeWine plays the “how dare they question your integrity card, then turns to how Alito approaches judicial decision-making.” Now DeWine is continuing to express his dismay, as he did in his opening, at a Federal Court proclivity to rule too many laws, or provisions, thereof, unconstitutional, and focuses on limitations on the ADA law. Alito’s answer sounds beyond reproach, but still manages not to say anything specific.

DeWine asks what congress can or can’t do under the spending clause, in terms of what conditions they can attach to such money. Alito answers in terms of the ruling case, S. Dakota v Dole, yes highway funds can be subject to drinking age limitation and highway speed limitation.

Now to Roe; DeWine accepts Roe as precedent, but not super-precedent; DeWine thinks Casey challenges Roe, and points to Plessy as long-held precedent overturned - now DeWine is into a non-looney defense of the possibility of overturning Roe, with highly selective criteria, one might add. Then he points to Marbury vs Madison as super-precedent; he should talk to the Family Research Council. DeWine’s rap on abortion is about why it’s ripe for overturning.

DeWine is finishing up with protecting kids from porn on the internet. Holy Cow, is that really a function of the Supreme Court? Alito’s answer is so boring I can’t summon the energy to note it. It is a difficult question, he admits.

Clearly it is DeWine’s strategy to put the audience to sleep.

Diane Feinstein is now up. She wants to start with the commerce clause and the issue of Federalism. Asks his opinion of Lopez. Alito is trying to demur, that he can’t speak to something that specific, though he will admit that congress’s power under the commerce clause is quite broad, but we still do have a Federal system.

In light of the above, she wants to talk about the Rybar case, about guns. Grand jury indicted to two counts of illegally possessing a machine gun, and then pled guilty. Alito’s dissent challenged Lopez, according to Feinstein.
Alito’s decision was based on the Federal law having had no findings that intramural gun possession impacted the commerce clause, but there were no such findings….
Feinstein response is that most people understand that the Chinese model of a machine gun has implications for interstate commerce, like the gun came from somewhere outside the state…

Asks Alito what he meant by activities traditionally handled by states, still on Federalism here. Feinstein’s point is that Lopez is regarded by some as a revolution, she agrees that it is a possible revolution, one that could severely limit the power of congress under the commerce clause.

She returns to Chitester, where there were findings. She wants to know if Alito thinks courts have a right to assess whether congress’s findings of fact are sufficient. He manages not to really answer. She’s caught him in a contradiction - Rybar didn’t have findings, he just admitted laws don’t have to - she points out that there were prior laws that had lots of findings.

Feinstein moves onto Roe; she wants to know what “special justification, by example, which allows for overthrowing precedent by, excluding the justification for Brown. She’s asking, she explains, because of Alito statement to her in her office that no law had been more tested than Roe. He finally gives an answer - one special justification would be unworkability. She asks about privacy. He says yes, there is constitutional protection, which he locates in the liberty aspects of the 14th and 15th amendment.

>>why not the bill of rights, searches and seizures, and why not the 9th and 10th amendment, which provides, in both cases, that rights not enumerated in the constitution are not to be assumed to be absent thereby, but return to the people.

Feinstein moves to issue of health as well as life of the mother in abortion restriction cases. He replies that case law is clear that both health and the life of the mother are important through-out pregnancy.

God, this guy just can’t say anything straight.

Session’s is up, and I’m taking a short break.

5. The Alito Hearings Live

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.

6. The Alito Hearings Live

This is the second day of Senatorial questioning of Alito.

On this third day of the hearings, where do we stand?.

In a deep hole.

The Democratic Senators have been doing a good job, they have.

You won’t know that from reading or watching any of the SCLM, and that is part of the problem, as Armando at Daily Kos demonstrates with devastating precision. Go read it, I’ll wait.

The Democrats went after all the issues they should have - privacy, abortion, the Bush administration’s pursuit of power that encroaches on the power of the congress, not to mention the civil liberties of all of us, they went after Alito’s lack of candor, his multiple explanations for breaking his sworn word to the committee on the issue of recusal, and his memory lapses regarding CAP, the Princeton alumni organization formed with the specific intent of lobbying against admission of women and the use of affirmation action for minorities at Princeton.

Alito was ready, and although his dodging and weaving was considerably less artful than John Roberts’, it was good enough to let the media do what it does best, look the other way when Republicans are lying.

Think that NYTimes reporting is bad? Look what Salon gives us - Walter Shapiro, a typical sort of liberal pundit, the kind who likes to be on Hardball way too much. He hasn’t been recently, and his coverage of the hearings for Salon reads like a sample resume for a place on a Chris Matthews pundit panel.
***********************************************************
It’s title,”The gang that couldn’t question straight,” says it all, all you need to know about where Shapiro is coming from and going to, and in case of any doubts on that score, here’s his sub-headline: “Eight Democratic senators had a chance to grill Samuel Alito Tuesday — but their artless queries could have been dodged by a tree sloth.”

What we get from Shapiro is the same kind of shoddy reporting Armando points to at the Times, but this being Salon, it’s snarky shoddy reporting.

With the clock ticking, the committee Democrats failed to advance any major new lines of argument or prompt any damaging admissions from George W. Bush’s latest pick to replace Sandra Day O’Connor on the bench.

Instead, Alito’s foes fell into the predictable trap of prefacing every question with a three-minute speech and then phrasing the query so artlessly that even the cast of Teletubbies would not have been fooled.

That bit about the speeches simply isn’t true, not of all the Senators, many of them went right after Alito. Shapiro focuses on Biden, and seems to criticize him for being too polite, needlessly praising Alito’s “integrity.” As it happens, having live-blogged yesterday’s proceedings, Biden’s remarks were prompted by many attempts to portray Democrats as unfairly questioning Alito’s integrity in the face of the Bar Association’s giving the nominee it’s highest rating, which included an assessment of his integrity; the remarks were smart, and didn’t keep Biden from revisiting Alito’s forgotten promise to this same committee to recuse himself in a specific circumstance.

I imagine some of you are tempted to leap to Shapiro’s defense, after all, isn’t it always true that Democrats are “feckless” and ineffective? Isn’t Biden always a verbose blowhard. Well, in a word, “no.”Think Democrats would get anywhere if they followed Shapiro’s advice? Let’s take a look at just how coherent is Shapiro.

No one watching the hearing yesterday could fault Schumer for being either too polite, unfocused, or feckless, and Shapiro doesn’t, no, he criticizes Schumer for being too partisan, and…actually, I’m not sure what Shapiro is getting at…too aggressive?

With the 30-minute rounds of questioning alternating between fawning Republicans and feckless Democrats, darkness had already fallen over Washington when Chuck Schumer, the most fiercely partisan Alito foe, finally got his moment at the microphone. Schumer devoted six long minutes to demanding that Alito explain whether he still believes, as he claimed in a 1985 job application, that “the Constitution does not protect a right to an abortion.” Each time Schumer repeated the question in a hostile tone, Alito would respond with an evasive answer like, “I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.” Finally, Schumer gave up in frustration as he said, “I know you’re not going to answer the question. I didn’t expect really that you would.” Question for Sen. Schumer: If you didn’t expect a useful answer, why did you waste six minutes asking the question?

Question for reporter Shapiro: Why did it not occur to you that the point of those six minutes was to provoke from Alito a concrete demonstration of the extreme limitations of Alito’s so-called candor. That moment was extraordinarily effective for anyone paying attention. But is there anything the SCLM does better than it does not paying attention?

The conventional media wisdom is already formed; Alito will be confirmed because the Democrats couldn’t draw blood.

It is true that yesterday’s hearing lacked tension, drama, and ultimately interest. Yes, it was boring. Watching and listening to it felt like a lonely task, like not that many other Americans were paying attention. Which is probably true. I think it may be the case that waiting until the confirmation hearing to get opposition to a judicial nominee in gear is proving to be too late. But Senators are understandably reluctantly to take hard stands on a nominee before that nominee has had a chance to be heard publicaly. And it may also be the case that in the ever-increasing target-rich environment of corruption the Bush administration and the Republican dominated capitol have managed to create, this issue of how Judge Alito’s addition to the Supreme Court will affect the future lives of individual Americans has understandably gotten lost.

I don’t think I’m alone among those bloggers who’ve been paying close attention to the hearings in feeling that the growing likelihood that Alito is headed for approval is not the fault of those Democratic members of the Judiciary committee. They have been tough, focused, and as effective as one can be when up against a well-prepared nominee whose essential arrogance, despite all the odes to humility we’ve heard during these two days of the hearings, justifies his practiced evasions about what he really believes, and how he will approach constitutional issues once he’s elevated to the bench of the Supreme Court.

In case you think that Walter Shapiro might have done better than those pathetic Democrats, here’s how Shapiro describes Alito’s performance.

In a reflection of either overconfidence or a shrewd recognition of his limitations as a public figure, Alito spent the long day refraining from any attempt to make himself charming, colorful or even interesting. Gone was the man-of-the-people number from Alito’s opening statement Monday, which stressed his blue-collar New Jersey roots. In its place was Alito as the Law Student from Hell, the geek who memorized every bit of case law in the library without developing a single opinion that would make him an intriguing dinner-party companion.”

Shapiro does mention the intricate minuet Alito treated Senator Specter to when he inquired about Alito’s current view of Roe v Wade, and Shapiro even gets the implication of Alito’s use of the word “inexorable,” when pointing out, after pledging his troth to “stare decisis,” that the weight of precedent isn’t always, in every case, inexorable. Shapiro gets that it means Alito is likely to be on the side of reversing Roe v Wade, by hook or by crook, but somehow Shapiro doesn’t get that Schumer was making the exact same point in his inquiries of the Judge.

It’s also typical of the media coverage of the hearings that no one mentions that Senator Specter is clearly in the tank on this nomination. That fact is everywhere present, in his invitation to sitting Judges to testify on Alito’s behalf, in the compressed nature of the hearings, in the way Specter has presented the candidate, and in all of his public comments, which have been those one would expect of a perfect representative of the current right wing Republican Party.

Let’s compare this traditional media coverage of the hearings to that of a blogger, “Madman In The Marketplace” at “Liberal Street Fighter.” This Madman’s analysis is exactly right, and presents the picture of Alito’s performance most Americans just aren’t going to get a chance to see.

Samuel Alito, a man manifestly outside the political and social mainstream of American life, is facing the Senate Judiciary panel all this week. Like most rightwing extremists in the modern Republican party, this man is completely unable to straightforwardly express what he believes. He bobs, he weaves, he spins out mealy-mouthed strings of blather…

edit

Lets face the truth of what we face here. Alito is just another drone in a movement that has been advancing steadily toward total domination of our government. A movement that stands for things that most Americans reject, a movement who’s leaders and political infighters have made an art of lying, obfuscating, spinning and soundbiting. A real political party, one that actually stood for something and wanted to fight for it, would demogogue their lies. Point out that Alito is too much of a coward to actually stand by what he really believes.

Be sure to read the whole thing. You’ll notice that there is ample criticism of Democrats, and even liberal interest groups like PFAW there, not all of which I agree with. It was never going to easy to shoot down Alito, and I don’t believe that Democrats exhibited any sign of either being feckless or of cowardice.

For other views from our side of the blogisphere, don’t miss the coverage going on at Liberal Oasis, and at Bush V Choice.” And check out MyDD, whose Chris Bowers is in Washington covering the hearings.

In his post, Madman In The Marketplace, asks this question in reference to Democrats. “Perhaps they don’t fight because we don’t demand that we fight.” Without agreeing that Democrats aren’t fighting, and haven’t spent the last year fighting, and succeeding, on Social Security, for instance, and at the end of the year, congressional Democrats blocked passage of the insufficiently revised Patriot Act, drilling in ANWR, and every Democrat voted against that immoral Bush Budget, though that was not sufficient to stop its passage, Madman’s question is the right one.

We do need to ask ourselves if we are doing enough to support, and to demand through our support, a significant say in the direction of the Democratic Party.

I can’t pretend Alito isn’t a whole lot closer to becoming a Justice to the Supreme Court than he was two days ago, but the hearing isn’t over, the decision as to whether Democrats will find a basis upon which to filibuster is still to be made.

Madman references the Bork hearing; he sees a different Democratic Party there. I think that’s wrong. But one cohort is missing here. Grassroots support. Yes, MoveOn has been active and so have other groups who organize such support. But what could make a difference is if Democrats on the committee were to get, between now and Friday, thousands and thousands of emails and calls, expressing the doubts of ordinary Americans that Alito is being honest, doubts about the impact of his presence on the court, and support for the Democrats to invoke a filibuster on behalf of people who took the time to communicate their sense that Alito, whether by intention or not, was not sufficiently open and honest about his judicial beliefs to deserve approval by our side of the aisle.

The hearings have begun and the first recess has just been called, but I thought it was more important to offer a summary of where we are, than to keep minute track of the hearings.

However, I will be blogging them live again today.

Think about what I have said. I was one of the thousands of activists who organized to oppose Robert Bork; we didn’t have an internet or a blogisphere in those days, but we managed to practically drown Democratic senators in letters and telephone calls of support. We did it the old-fashioned way, made the call, sent the letter yourself, then called our friends to ask them to do the same and then to call ten friends of theirs.

Janet Strange at Booman Tribune, where the coverage is also worth reading, has made the task of getting that communication to Democrats on the committee by providing telephone and fax numbers and email addresses.

Let us know in comments any pithy talking points you recommend from your own message sent to Democrats.

7. The Alito Hearings Live

We’re into the second morning session, which now begins the second round of twenty minute sessions all Senators will have to ask questions of Alito.

Leahy started out. He expressed his unease at the way Alito has backed away from previous positions the dot his history as a lawyer. He went right to the issue of presidential power, carefully leading Alito through a series of considerations that point to Alito’s confusion, according to Leahy about what Justice Jackson said about the twillight area between circumstances that heighten and don’t heighten presidential power. He then went to Hamdi, I think it’s Hamdi and read a majority opinion by Justice O’Connor, and a dissenting one by Justice Thomas and asked Alito which one he agrees with. Naturally, Alito slip slid away from saying anything too definite.

Leahy will never produce fireworks, that is simply not in his nature, but I remember that in questioning Bork, his quiet, steady, non-legalistic style was deadly effective.

Hatch comes out swinging.

He’s contentious, annoyed, and sharply abrasive about “liberal interest groups,” whom he accuses of lying, and other unfair practices, burning up the airwaves and cyperspace with scurrilous, untrue, assertions about Alito, that depend on cherrypicked cases and out of context quotes. Hatch should know, no one is better at exactly that kind of argumentation, and through-out his twenty minutes he demonstrates his mastery of scurrilous assertion based on carefully selected proofs that are partial, and often distorted.

Even while he’s in attack mode, Hatch is bristling with defensiveness. Odd. Although the ready outrage is SOP for conservatives these days, it’s surprising to see him attacking his fellow Senators on the committee for daring to ask questions.

It’ll be worth waiting the transcript for Hatch’s question period, he’s moving too fast and in too detailed a manner for me to do more than summarize. The upshot - Alito is right at the center of the mainstream, his critics can barely be considered to be true Americans.

One by one, Hatch asserts the superior values of Alito, his honesty, humility, mainstreamedness in that he won’t legislate from the bench, and that it’s wrong to look at the results of his ruling, if he rules that way, it’s only because his reading of the law and the constitution and the Supreme Court precedents is invariably right and just.

Feel reassured? One example, the Chittester case doesn’t really restrict anything, and in other cases Alito has found for parties who were female, or minority, or the little guy, end of discussion. You can check out this Progress Report from the Center For American Progress for a different point of view.

Hatch does a real number on the outrage of Democrats bringing up Vanguard and recusal again and again. This makes him furious…what’s so discuss. Everyone agrees that he’s a moral giant, why are these partisan pygmies attacking him. Turns out making a promise under oath is a relative matter. Who knew?

Kennedy is up, and he goes right at the Vanguard issue, explaining he hadn’t planned to focus on that, but given that he was the committee Chairman to whom Alito made that pledge, and in light of Hatch’s attack on all questions about Vanguard…trust me, a delicious moment. What Kennedy wants to know, when Alito made the promise, for how long did he think it was operative, when did he think his sworn oath was up? Naturally, he gets no answer, how can Alito remember what he thought at the time. This time, the dance is more like a gigue than a minuet.

Kennedy wants to talk again about that Princeton organization CAP. No, Alito still doesn’t remember much about joining it, or why. Kennedy reads a devastating series of articles about or statements by the organization, devastating for the extremity of its rejection fairly mainstream positions about the rights of women and minorities. Alito disavows that his own belief mirror in anyway one particular sets of statements. Kennedy doesn’t look particular relieved.

Woops…this isn’t going to be pro forma stuff…time out while I go and watch what’s going on, (as opposed to listening)….

Wow. You’ll want to look for this on the news tonight. Kennedy wants the committee to subpoena William Rusher’s (editor of the National Review at one time, big-time conservative) which are in residence at the Library of Congress to check out if there is more information there about Alito’s role in CAP. Think I got that right. Appears Kennedy had sent to Specter in December making he request. He renews it now.

Specter is livid. He claims he didn’t receive it…you’ll see this bit on the news I’m betting…it’s left up on the air, though Specter promises to consider the possibilities.

Grassly up, last Senator before lunch. Same old, same old, as he admits, but then Republicans are forced into this because of the Democrat’s nastiness. It’s a less brittle but still bristling repeat of the Hatch material..

Tensions are high today. Just adjourning for lunch is turning out to be difficult. Senator Durbin wishes to have two minutes to answer a comment about his presentation this morning that Senator Coburn had a response to in his own presentation, Durbin wants to correct the record, Specter prefers he do it after lunch, since Coburn isn’t there right now, which Durbin agrees to, but not before mild-mannered Leahy expresses his own dismay about Coburn’s remark, which was made while Durbin was gone.

After an all too brief they, and we shall return

8. The Alito Hearings Live

QUICK UPDATE: Day 4.

Morning session has begun, and I’m watching and noting. I am also dealing with a sick dog, so some of my attention has been distracted.

In summary - mostly Democrats have used their time, Republicans are holding back, reserving their time for later, or perhaps the end. There will be an executive session at some point before lunch, and the afternoon will be taken up with witness panels for and against.

Let me emphasize to all of you that Democrats have done a fine job, again, today, one that no one our side should be muttering about.

I have been disappointed to see less than universal appreciation of this fact on our side of the blogisphere.

Jeralyn Merritt, for instance, of whom I am a major fan, standing in for Eric Alterman at Altercation, concurs, based on her own, admittedly partial viewings of the hearings, with the Walter Shapiro take in Salon that I blasted yesterday She faults Democrats with bloviating and approves Shapiro’s characterization of their “artless” questioning.

They spent countless minutes spouting off their views, followed by close-ended questions he could answer or refuse to answer in a sentence or two

My take on Alito is that one of his most effective slip-sliding-away techniques has been the use of long, case law detail-laden, often winding answers that don’t really engage the clear intent of the question asked.

It was Republicans who asked those silly single sentence broad questions, like, “Do you believe in the doctrine of separation of powers.” To which Alito was able to answer, with reverential feeling, that yes, he does, deeply belive in it. Which I’m sure is true. I”m sure that Bush and Cheney could and would say the same thing, and mean it, or at least think that they mean it. However, saying that does not seem to affect their embrace of the “unitary theory of the presidency,” of which Judge Alito has been a major advocate, and which clearly undermines the conception of the separation of powers doctrine as its been understood for some 200 years or so.

Read the whole post, though, because Jeralyn is always worth reading, and be sure to follow her links to Will Bunch at Attywood, who has some fascinating material which undermines Alito’s use of his attitude about ROTC to explain why he may have joined CAP. In case you have already read Altercation, and didn’t click the Attywood link, can do so here

Other critics are upset that the Democrats haven’t been tougher, haven’t gone at Alito with outrage, or with some notion of a Perry Mason style of questioning that would have succeeded in piercing Alito’s smooth, well prepared refusal to engage in an actual dialogue that might force him to acknowledge his clear history as a proponent of Federalist Society jurisprudence, or somehow or other break him. Such critics insist that Democrats have been ruled by fear.

I have seen none of that myself. No fear, certainly. This hearing is not an adversarial event. If Democrats have gone out of their way , at various points, to emphasize respect and comity, it has usually been as an answer to the constant din set up by Republicans that Democrats are being disrespectful meanies who are engaged in a massive smear campaign.

Another observation as of this morning - the conventional wisdom is already cast in stone - feckless, foolish Dems, Alito a shoe-in.

The media coverage of the hearings has been as bad as anything I’ve seen since the coverage of Al Gore in the 2000 campaign. Which is to say, it’s been outrageous. Atrios, in linking to Crooks and Liar’s post about Brian Williams’ nastiness about Joe Biden, shared in the early morning hours with Don Imus, seems to assume that Williams’ characterization of Biden was accurate, or at least might have been.

It wasn’t, and it isn’t.

What it was is the equivalent of Williams’ obsession with Al Gore’s wardrobe in 2000. Total and complete nonsense, but effective in undermining any notion that what was at stake in that election, and continues to be at stake in the elevation of anyone to the Supreme Court, actually matters to the way most Americans live their lives. Clearly, it doesn’t matter to how Brian Williams will live his, as it doesn’t, to be frank, to most multi-millionares; no ten year old daughter of Brian Williams is ever likely to be strip-searched, is she?

This morning Democrats were especially well focused, in particular on trying to get Alito into a genuine substantive conversation that squares his long history of espousing a specific extremely conservative, even radical, set of legal theories with his endorsement during the hearings of broad principles which his own rulings, associations and writings have been focused on undermining in one way or another.

As he has done through-out the hearings, Alito used boilerplate verbiage, combined with copious references to case law that don’t really do any squaring of anything.

I’ll be back at the lunch break with more, I hope, depending on how my 14 year old canine love fares during the day.