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.