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Alito in the 5pm Hour

RECESS! Until 9:30a.m. Plenty of time to calm down before you have to sleep.

7:00: Specter says that he appreciates Alito’s “subtle humor.” Specter notes his wife smiled when he was rhetorically asked if he had stopped beating his wife. Alito says that no one asked if she had stopped beating him. Senator Leahy agrees to certify the proceedings as funny if Specter will keep them shorter.

6:59: Cornyn calls Judge Alito Judge Scalia. Whoops. (He explains that he was thinking of Alito’s nickname. Much better, thanks.)

6:57: Cornyn turns to Presidential powers and Hamdi. (Hamdi isn’t there either; that you can bank on.) Alito says that O’Connor had a broader view of Pres Powers than Scalia.

6:55: Alito agrees that Casey didn’t create a constitutional right to abortion on demand.

6:53: Cornyn says that Ginsburg and Larry Tribe have criticized the Roe trimester framework. Alito agrees that Casey moves to the undue burden standard.

6:48: Cornyn says he has a “shocker” – that Roe doesn’t lie in the balance in the Alito confirmation. O’Connor rejected the trimester framework of Roe. Cornyn points to the fact that Alito urged not mounting a frontal attack on Roe. (This just seems to me to illustrate that Alito was tactical, not that he didn’t want it overruled.) Alito does say that he was persuaded by O’Connor’s Akron dissent criticizing Roe to some extent; this is an interesting point, but he probably means that he was persuaded by the criticism, not the fact that she would accept a constitutional right to an abortion.

6:44: Alito says that his job was to apply Lopez, not to decide whether it was right or wrong.

6:42: Alito says that Lopez holds that the Commerce Clause power is not all encompassing. Rybar was on all fours with Lopez. Cornyn says that Texans like the idea that the federal government isn’t all powerful.

6:41: Cornyn wants to make sure that the federal government has enumerated powers. Alito says yes, this is America.

6:38: Cornyn turns to Justice O’Connor. (Not literally, she’s probably working; to the subject of her.) He says that Alito and O’Connor have similar views.

6:36: Cornyn says that the praise from Alito’s colleagues on the Third Circuit is important. Cornyn reads praise from the late Judge Higginbotham.

6:34: “It must be strange to have people listen to the questions and answers here.” <-- not many people Senator, no worries. 6:32: Cornyn quotes Biden complimenting Alito's responsiveness. Cornyn says sometimes it is important to back and correct mistakes. (I wonder which precedent he's thinking of here.) 6:31: Alito agrees some rights are set out in the text, whereas other decisions rests on penumbras. Griswold has later been understood, he has, as arising from the constitutional protection for liberty. 6:29: Cornyn is up. Alito agrees that the Constitution doesn't say abortion, only "liberty." Alito says that various amendments protect privacy. (He's saying more favorable things to Roe than Cornyn wants; I don't think Cornyn quite realizes it.) 6:28: Alito says that there is a stare decisis doctrine in constitutional cases, although it is not definitive (e.g., Plessy). 6:25: Alito has talked about various cases cited by Schumer, defending his votes in those cases. Schumer tries to cast doubt on Alito's adherence to precedent, then returns to Alito's 1985 statement that he doesn't believe that the Constitution protects a right to abortion. (This is probably the best job a Democrat has done to put together a single line of criticism, but the bar is pretty low.) 6:17: Schumer has quotes from other Third Circuit judges in various opinions criticizing Alito's adherence to circuit precedent. (These quotes pretty much reflect things majorities say about dissenters all the time.) 6:15: Schumer's basic (though long) point is that stare decisis is uncertain. Schumer repeats Alito's endorsement of Judge Bork as "one of the most outstanding" modern nominees. Alito says that he was a supporter of the nomination. 6:10: Schumer is reviewing various attempts to overrule precedents. Justice Thomas doesn't really believe in stare decisis in constitutional cases; neither does Judge Bork. 6:07: On to stare decisis. Alito says it is a strong principle that courts generally follow. 6:05: One more time; the old college try. Alito acknowledges substantive due process has been recognized, that's about it. 6:04: Trying again. No dice. 6:02: Schumer tries again. Does he stand by the statement personally now? Alito won't answer. He will only address it through the judicial process. 6:00: Does he stand by his 1985 statement that the Constitution does not embrace a right to an abortion? It was an accurate statement at the time. It was his personal view -- not a dodge. If it came up now, the starting point would be stare decisis, which was the start and end of Casey. If he got beyond that, he would have to go through the judicial decisionmaking process. 6:00: On to Senator Schumer. 5:59: Graham wants to know what the process has been like and how to improve it. Alito says everyone is doing their job. 5:57: Graham - we shouldn't hold the lawyer responsible for the positions of their clients. 5:55: Could Congress set a super-majority requirement for judges? Alito says he shouldn't answer. Graham says he is glad Alito doesn't answer. Sigh. 5:53: The President and Congress should work together. What if the Congress attempted to appoint judges rather than the President. Alito, "I have a certain self-interest in the answer." (Badaboom. He doesn't have the timing of Roberts.) (Again, thanks for the notes in the comments. It's good to know that I'm not here alone; there are 6 of us paying attention.) 5:52: Graham to Alito, "you don't have to listen, I'm talking to other people now." 5:51 On the AUMF, could a strict constructionist say that it is an exception to the warrant requirement. Alito says that a strict constructionist would interpret the law based on text, legislative history (which is interesting), past practice, and a host of considerations. 5:50: Alito says whether he is a strict constructionist depends on what that means. If it means someone who doesn't make things up, he's one. 5:48: Graham is on AUMF and says that it doesn't create an exception from FISA. He knows the issue may come before the Court, but what the heck. Graham says U.S. law already subscribes to the Convention Against Torture. He wants to know if the President can decide not to follow the law. Alito says again that the President has to follow constitutional statutes, and that he can construe statutes. 5:46: Graham wants to know if Geneva grants a private right of action. Alito says it is at issue in Hamdan; some treaties are self-executing and others aren't. Graham wants to know if Geneva has ever been read to create a cause of action; Alito doesn't know of a case, but isn't sure. 5:45: Graham wants to know if Alito thinks the Geneva Convention is good. Alito says yeah, but it's not really up to him. Graham wants to know if he is proud. Alito says it expresses deep American values. 5:44: Alito says courts don't have military affairs expertise and should recognize that, which is a powerful consideration, although there is another powerful consideration to exercise the jurisdiction they have. Graham says that traditionally courts don't run military jails. 5:42: Alito agrees that the judiciary doesn't have as much expertise on intelligence matters. But there is a balance between expertise and protecting individual rights. Graham says the military can make decisions about letting people go. 5:40: Graham turns to Eisentraeger. Graham says that the people trying to kill us, sue us, RIGHT?! Is that a good summary of the law. Alito says that he doesn't know "that he would put it that broadly." Eisentraeger has been substantially modified, if not overruled. 5:37: Graham wants to know if there is a constitutional right for a combattant to sue to challenge his confinement. Alito says there isn't a precedent. Graham asks about habeas challenges. Alito says there may have been a lower court decision. It's a trick question! Graham says there was: In re Quirin in the S. Ct. Alito now remembers, and does know the facts. (These issues are before the S. Ct. with respect to the Graham-Levin legislation [emphasis here on "Graham"] in the Hamdan case, which is probably what Alito should be saying.) 5:36: Graham wants to know traditionally who determines someone's status as a combattant. Alito says that Hamdi holds that a detainee has due process rights. But it doesn't decide the kind of tribunal. Graham wants to know if a court has ever decided status, rather than the President doing so. Alito can't but isn't an expert. Graham cares not a bit about the answers; he's on a role. 5:32: Graham is on Hamdi, and its holding with respect to the AUMF (the use of force statute). Graham asks whether the court can require the Executive to release a combattant at a time they could go back to the battlefield. Alito answers from the perspective of WWII, where the prisoners were held. They agree with each other that Hamdi gives the President discretion. 5:31: Alito says that the country has been at war, "in a lay sense." He is careful to distinguish the term of art. Alito acknowledges that the Bill of Rights survives in a time of war. The Constitution applies both in peace and war. 5:30: Graham wants to know if the 9-11 attacks were a crime or an act of war. Alito decides not to answer and to say that his personal views don't matter. 5:29: Sen. Graham is up and promises to beat a dead horse (seriously) and cover over and over the same subjects he has already discussed repeatedly. 5:28: There is a Hatch/Feingold exchange. Specter - he welcomes it because it livens up things. Leahy says that Specter heard him snoring. 5:28: Hatch reiterates that there was no ethical obligation to recuse and that Alito has held himself to the highest ethical standards. 5:26: Hatch takes some time to point out that Alito had promised to recuse from Vanguard "during his initial service." The Vanguard case in question arose 12 years later. 5:24: Alito says that it was not computer glitch. He had said to the contrary before based on what the Third Circuit had told him, but he had received incorrect information. Alito explains that he evaluated whether he had violated the Judicial Code of Conduct because he had been accused of unethical behavior. 5:22: Feingold asks if Alito told the clerk to take off people/groups from his recusal list, and Alito doesn't think so. Alito explains that the list was just an aid. He may have submitted a new list that didn't include them. 5:19: Feingold turns to Vanguard. (The Democratic Senators are asking about so many issues in such little detail -- at least in terms of a series of questions and follow-ups -- that they are not really accomplishing anything.) He thinks the questions are legitimate. He asks if Alito told the Third Circuit clerk that he was to be recused from Vanguard. Alito doesn't know, although the court's computer lists don't include Vanguard for 1992 and 1993. (Thanks much for the notes in the comments.) 5:17: Feingold is going off about Judge Luttig's opinion in Padilla. He wants to know the role of judges in national security cases. Alito says that it more difficult when there are issues relating to facts on the battlefield. But he has no answer. 5:15: Alito says that absolute immunity is used sparingly, but necessary to remove the threat of political reprisals. 5:09: Feingold comes back to the Mitchell v. Forsythe, the case involving the immunity for wiretapping. Alito says that absolute immunity is limited, although some high officials have it from civil damages. Alito's memo says "I do not question" absolute immunity in that case. He says that statement was the individual client's position and the Administration's position, not his own. 5:08: Alito researched the NSA controversy on his own; he found the Administration's defense on the Internet. (Not on a blog, I hope.) 5:07: Feingold wants to know if the practice sessions Alito had involved the President's power to order the violation of the criminal law. Alito can't remember. Alito does remember that the NSA controversy. Feingold wants to know who was there, and who gave him feedback. Alito says no one told him what to say. The advice he got generally related to the format for the hearings. Alito did not get any feedback as to the substance of the answers. 5:05: Feingold wants to know if the NSA controversy is a political question. Alito says he can't answer because people might actually care (not really, because it could come before him). 5:03: Feingold wants to know judges' role to resolve separation of powers questions. Alito explains that courts resolve controversies. The political question doctrine excludes disputes that should be resolved by the other branches -- e.g., vetoes, pardons, impeachment. Baker v. Carr explains the factors. 5:00: Feingold does not like torture. He wants to know if the President can violate the criminal law or direct others to violate it. Alito says that the President is obliged to follow the Constitution and statutes that are constitutional. (I'm just getting into this, but Alito seems to be leaving substantial room for the President to say that a particular statute violates his constitutional prerogatives.) Feingold says that answer is "serious"; the alternative, I suppose, was that Alito was joking. Feingold says that the President doesn't have such authority. 4:58: Russ Feingold is asking about limits on Executive Power. Alito won't talk about the NSA controversy, because it's a controversy. Hi, it's me. Is there anyone out there? I get the sense that we have 20,000 hits today, all from Alito's relatives.