Alito Hearings: 1/11/06

1:00: Grassley asks whether Alito is biased on questions related to the False Claims Act. Alito says no.

12:59: Grassley asks about the False Claims Act. Alito says it has produced tangible results. Should an issue of its constitutionality come before him, he’d have to study it more thoroughly.

12:58: Grassley asks Alito’s position on legislative history in interpreting statutes. Alito says he has often looked to legislative history. He begins with the text of the statute, he says, but when there is ambiguity, then there should be a cautious review of legislative history with a realistic evaluation of the legislative process.

12:57: Grassley asks what role longstanding historical practice should play in interpreting the Constitution. Alito says that it should in a number of ways. For example, one can look to what Congress did via statute around the same time the constituion was ratified.

12:55: Grassley says there’s nothing inherently wrong with dissents, but that Alito has dissented in only 1.6% of all cases he’s heard. Further, sometimes the Supreme Court has agreed with Alito’s dissents.

12:53: Grassley quotes a latino lawyer who said that Alito diversified the New Jersey U.S. Attorney’s office. He also notes that Alito has hired women/minorites as law clerks. Sen. Grassley enters letters into the record from individuals saying Alito is committed to diversity.

12:51:Sen. Grassley: ” Do you believe in the principle of ‘one man-one vote’.” Alito: “I do…”

12:50: Grassley asks about Voting Rights, including Alito’s statements on the Warren Court’s reapportionment cases. Grassley defends Alito, saying he never said he disagreed with the principle of one man-one vote. Grassley asks for clarification. Alito agrees that he never said disagreed with one person-one vote. However, he thought the court had taken one principle (one person-one vote) to the extreme.

12:47: Grassely continues his praise. Next, Grassley quotes Alito as saying that no person is above the law and no person is beneath the law. What does this mean, Grassley asks? Alito says everyone has equal rights, whether they are poor or non-citizens, everyone deserves to be treated equally.

12:45: Sen. Grassley says Democrats are throwing last minute Hail Marys and asks Alito to bear with the committee. Grassley compliments Alito’s intellectual honesty and integretity. He says it’s too bad people are distorting his record on employment discrimination and Vanguard cases.

12:42: Sen. Kennedy moves for executive session to subpoena documents from CAP. Specter says this takes him by suprise but Kennedy says it shouldn’t because Kennedy sent a letter about this topic. Specter says he didn’t receive it and refuses to rule. Kennedy wants to appeal. However, Specter says there’s no decision to appeal. Specter says he’ll consider it and that he’s the chair and moves on.

12:38; Kennedy says it doesn’t make sense for Alito to say he was in CAP because of ROTC. The ROTC had already been returned to ROTC when Alito touted his membership in CAP. Further, CAP’s magazine had only made one mention of ROTC, and this ROTC-citation said that ROTC was popular on campus.

12:34: Sen. Kennedy continues his CAP discussion. He points out that the New York Times said in 1980 that CAP was against the admission of women. He then cites a letter from CAP sent to all living alumni saying Princeton admited too many blacks and too few legacies. Kennedy then points out the president of the university sent a letter to all alumni refuting these statements. Alito says he doesn’t recall any of this and said that all these things are antithetical to his values.

12:28: Sen. Kennedy then begins asking about Alito’s membership in the Concerned Alumni of Princeton. He says that Alito has said he was in CAP because of the ROTC issue. Kennedy then says that Alito has said he has no recollection about joining the group, or seeing their magazine. Kennedy cites an article in the magazine that says that blacks, the disabled and gays don’t “know their place.” Alito says if he’d known that was a part of CAP’s mission, he wouldn’t have joined. Kennedy points to language from the organization’s magazine saying it hoped Princeton gay students would participate in AIDS experiments and contract the disease. Alito says he wasn’t aware of these statements when he mentioned in his job application that he was a member. He was not aware of it until recently.

12:26: Sen. Kennedy says that Sen. Hatch was not correct about when Chief Justice Roberts made certain statements about Roe: they were during his consideration for the Supreme Court, not for the D.C. Circuit.

12:24: Sen. Kennedy continues discussion about the Vanguard Cases. Kennedy says Alito made a pledge not to rule on these issues, under oath. How long did he intend to keep the pledge? Alito says the issues he ruled on were unrelated the concerns Congress had about him ruling on Vanguard cases. Further, he says that his pledge did have a condition: “inititial service.” Kennedy states he’s confused by that. When did Alito feel he would be relased from his pledge? Alito said he did not rely on that condition when ruling on a Vanguard case. However, ex post, his ruling was within the scope of his conditional pledge not to rule on those issues in his “initial service.” Alito said he has bent over backward not to violate ethical rules or apparent conflicts of interest.

12:19: Hatch asks how a judge knows whether he is out-of-step with one’s colleagues. Alito said sometimes three judges have different opinions, and two judges will come together to create a majority if their opinions are closer. Alito says that judges should always be repsectful of the views of his/her peer court members. Hatch notes that Alito has only dissented 79 times out of over 5,000 cases and that the dissents were respectful.

12:14: Sen. Hatch turns to the Vanguard Cases. Hatch notes that Alito’s orginial statement about the Vanguard cases said that he wouldn’t rule on these cases during his “initial service.” Hatch says Alito ruled on Vanguard cases 12 years after he made this statement.

12:12: Hatch continues asking Alito about cases he’s ruled on that helped “the little guy.” He cites a case in which Alito said that persecution on the basis of feminism was a basis for asylum. He again aks whether Alito think of himself as a fair judge. Alito said he is.

12:11: Sen. Hatch then notes that by the time decisions go to the Court of Appeals, they have already been ruled on by a lower court– and thus, discrimination cases Alito has decided largely relate to procedural, rather than substantive issues. Then Hatch points to cases whether Alito has ruled in favor of plaintiffs in discrimination-oriented cases, and cases regarding statutory rights.

12:06: Hatch asks that Alito responds to a tactic used by Democrats: pointing to results and then making inferences based on those results about whether someone can get a “fair shake.” But Hatch says virtually everyone who knows him considers him to be fair and impartial. How does he respond? Alito, of course, says he’s not biased.

12:04: Sen. Hatch asks about the congruence and proportionality test, as related to the Family Medical Leave Act (which Alito declared was unconstitutional). Alito says that he thought this test and this conclusion on the Family Medical Leave Act were mandated by the Supreme Court’s precedent.

12:02: Sen. Hatch clarifies one of the other senator’s citations of Chief Justice Roberts confirmation hearings were improper/unanalogous, because the Roberts’ quotes came from his confirmation to the D.C. Circuit hearings. Alito has only declined to answer 5% of the questions, Hatch says.

11:58: Leahy asks about a Clean Water Act case in which a number of people sued due to pollutants in their water (a 3rd Cir. case). Leahy asks why Alito threw this case out. Alito says that he plaintiffs failed to show injury in fact, therefore they lacked standing. But Leahy says, why not send it back to lower courts to see whether there might be standing. Alito says there was no evidence of harm to the Deleware River, and the plaintiffs had not argued that that they had additional evidence that could be presented below.

11:52: Leahy says Alito has chastised congress in the past for delegating issues to administrative agencies. Alito denies that he’s said that. Leahy asks about removal of admistrative officers and Alito says that the functional approach of Morrison applies– Congress cannot interfere with the executive branch. Leahy then asks whether the president could fire an investigator. Alito says it depends on the facts. Next, Leahy asks wehther the president could force the attorney general to order wiretaps. Alito says not if these acts were unconstitutional.

11:47: What weight should courts give Executive Signing Statements when interpreting legislation, Leahy asks. Under the unitary executive theory, what weight should be given? Alito says he views the unitary executive theory and this signing-statement question completely differently. Unitary executive theory is not about the scope of presidents’ authority, but who controls the powers that the constitution grants to them.

11:45: Leahy asks whether Alito still believes in a unitary executive, as he has said in the past. Alito says now, however, these issues are governed by a line of precedent, at least with respect with removal of executive officers. Alito says, however, that on questions unrelated to removal, courts have not acted yet.

11:42: Leahy is concerned that some of his answers are inconsistent with past answers. He asks about presidential power in Youngstown. When Congress acts to limit presidential power, exective war power is at it’s lowest ebb, he notes. Leahy asks about Hamdi, noting that Alito said yesterday that authorization of force is not a blank check. Leahy asks whether the majority or dissent was correct in Hamdi. Alito says that O’Connor wrote the majority, and traces her reasoning. Leahy presses back; was O’Connor’s opinion consistent with Jackson’s concurrence in Youngstown? Was the majority or the dissent correct? Alito says he’s explaining his personal view on the authority: the president does not have a blank check.

11:20: Fifteen minute recess.

11:18: Specter turns to cameras at the Supreme Court. He notes that courts have the final say on the most critical American decisions. So why shouldn’t SCOTUS be open to the public? Alito said that he wanted cameras in the Third Circuit and promises to keep an open mind.

11:14: Specter asks what factors Alito would consider to maintain balance between congress and courts when interpreting legislation that has altered jurisdiction in habeas cases (as in the Great Writ). Alito explains that the writ should not be repealed by implication. Laws purporting to suspend it would need to be reviewed under “standards like that.”

11:11: Specter notes that these hearings aren’t just about asking questions, they are also about sending a message to the courts. Congress is a co-equal branch, making legislation, and SCOTUS ought remember that.

11:10: Specter asks about the congruence and proportionality test the courts have created in interpreting Amendment 14.5. He asks why the courts can’t just use the same test that’s used under the commerce clause, giving deference to the findings of Congress (employing a rational basis test). Alito says that it’s the subject of continuing litgation. But Specter asks where the congruence/proportionality test come from “if not thin air.” Alito says the court was trying to retain the necessary remedial connection to section 5 of the 14th Amendment. He concedes, though, that the results have not always been predictable, noting Nevada v. Hibbs. However, it’s an issue of continuing litgation.

11:05: Specter asks about United States v. Morrison, and about the record Congress compiled showing the effect that violence against women has on interestate commerce, and it’s implications for bias by state actors. He notes that the court called Congress’s reasoning defective and asks Alito whether he thinks Congress has less inferior reasoning abilities– and whether there is “something we’re missing.” Alito says the branches are equal, that Congress has sound reasoning abilities, and that he’s “always felt that way.”