Liveblogging of Alito Hearings 11AM
on Jan 13, 2006 at 10:57 am
11:56 Sen. Coburn thanks everyone and that’s the end of the panel. There will be a 5 minute break and then a final panel.
11:51 Sen. Sessions: compliments Mr. Gray as a leader from the South. The both chuckle over the fact that each had dashed hopes of a judgeship.
Gray notes that he had a very different motivation for going to law school than Alito — implying that Gray wanted to challenge segregation, while Alito wanted to challenge liberal Supreme Court precedents.
Sessions points out that a lot of the progress Gray made was based on overruling Supreme Court precedent, so everyone’s insistence on the value of maintaining precedents should be seen in the light.
Gray also thanks Session for helping with funding for the Tuskegee Human and Civil Rights Center.
11:50 Sen. Hatch takes over. Says hello to everyone. That’s it.
11:46 Michelman is asked to speak generally on the effect of Alito’s confirmation on women generally.
She notes that the road to equality has been long and difficult, and has been both a political and legal struggle (notes she was not allowed to have a charge account in 1969 because she wasn’t married).
True equality depends on the ability of women to “control their lives” including chosing jobs and when or if to become mothers. It’s hard to explain how important that is.
11:45 Kennedy asks Flynn if Alito should have recused from Vanguard.
Surprisingly, Flynn (who made the motion for recusal) thinks he should have.
11:42 Sen. Kennedy asks Gray how important were those Warren Court decisions on reapportionment that Alito said he disagreed with in his job application?
A: Extremely important.
Ronald Sullivan says that Warren Court limited the scope of police power vis-a-vis average people. He thinks that Alito will weaken this protection. Will hurt the non-powerful in this country.
11:40 Anything in these hearings lead one to believe that Alito has changed is view on Roe since his job application stating that he thought Roe was wrong and was proud of his efforts to overturn it?
Michelman: No. Not only did his think Roe was wrong, he laid out at strategy at DOJ to turn Roe into a “shell.” The anti-choice community has been pursuing tis agenda in the states. I have no confidence at all that he will stand up for women’s right to chose.
11:35 Leahy takes over. Notes that Alito had private conversations with Scooter Libby, Karl Rove and the Vice President, to which the American people are not privy. So these hearings are important.
Notes that Alito objected to Baker v. Carr and admires the dissenteds in that case. How important was it that the majority of the Supreme Court disagreed?
Fred Gray: In 1957, there were no African Americans in state office. Now the legislature is reflective of the general population.
11:34 Specter wants to know whether they think Alito should be rejected on the basis of a single issue.
Michelman says that right to privacy is not a “single issue” and will have profound implications for everyone. It is so important, he should be rejected on that ground alone, although there are other reasons as well.
11:31 Specter notes that Kennedy and O’Connor were perceived as being anti-Roe when they were confirmed. Alito talked about precedents and the “living document” of the Constitution. If Alito is rejected, what is the likelihood of getting someone better?
Kate Michelman notes that Bush has the right to nominate whomever he wants and that he admired Scalia and Thomas, who are clearly anti-choice. We have to take the nominees one at a time and, if his or her record shows a danger to constitutional freedoms, each nominee should be rejected.
It is very clear, she says, that Alito will move Court in a bad direction for women’s rights.
11:30 Specter asks whether Alito’s statement that one-person-one-vote is “firmly embedded” gives them comfort?
Fred Gray says that the first time Alito has ever said such a thing was in this hearing. Gray is troubled that we have a nominee that even has to explain himself on this score.
11:25 Flynn moves on to a second point: he thinks that Alito’s answers on the Vanguard issue were not credible. Alito says that after reading the pleadings in the case, it didn’t occur to him that there was a recusal issue. But Vanguard was “written all over the case.”
Flynn has spent his career representing the little guy, which is what he was doing in the Vanguard case. Alito’s decision in the case was to “go out of his way on the most dubious of legal principles” to rule against his client.
He apologizes for getting a little emotional about the case.
11:19 Prof. John Flynn from Northwestern. Was counsel in Vangaurd case.
He thinks Alito should have recused in Vangaurd case. Frost talked about section (A) of recusal statute. Section (B)(4) is more specific, requiring recusal if judge has a financial interest in the case, which the statute makes clear applies even if financial interest in the case is very small.
Alito relied on an exception to that rule, which Flynn says is inapplicable (applied to insurance holdings, not mutual funds). There is another provision that talks specifically about mutual funds but — contrary to Sen. Hatch’s reading from earlier in the hearings — it makes clear that ownership in a mutual fund can count as a financial conflict.
11:16 She gives some examples, including Scalia’s duck hunting trip and Alito’s Vanguard decision.
She recognizes that there are difference of opinion on whether recusal should have happened, but they illustrate flaw in process of deciding how and when to recuse. The resolution of these controversies did not foster public confidence, in large part because they were decided by the Justices asked to be recused.
She recommends: (1) Judges should make info. relating to possible conflcits public; (2) Judges should be required to give explanations for recusal decisions, to create body of precedent; (3) Judges should at least consult colleagues on recusal questions, if not refer the question for their resolution.
11:12 Prof. Amanda Frost is up, from American University Law School.
She will talk about recusal issues generally and Alito’s decisions.
Federal law requires recusal if “impartially might reasonably be questioned”. This requires recusal even when possibility of actual conflict is slight.
Law is problematic because it doesn’t describe how recusal should work: who gets to decide, if they need to provide reasons, etc.
At SCt, the process is that the Justice asked to be recused makes own decision and usually gives no reason. No formal process for having Court as a whole decide the question.
11:00 Next is Prof. Ronald Sullivan, Clinical Prof. at Yale:
He’s going to talk about Alito’s 4th Amendment decisions. Clear pattern of siding with Gov’t: has only ever ruled to suppress evidence once in long career.
In more than 50 cases on Crim. Proc., Alito ruled in the gov’t’s favor 90 percent of the time, even though he write opinions that don’t sound radical.
His decisions: (1) give insufficient protection to invididual privacy and dignity concerns — see, e.g., case about strip search of a 10 year old girl compared to search of wealthy defendant in IRS case. Alito decision goes into much more detail about the indignities suffered by the defendant in the IRS case.
(2) Excuses Gov’t misbehavior — good faith exception/qualified immunity used to excuse fourth amendment violations in 25% of his decisions. Thus, even when Alito finds a violation, he excuses it.
(3) Is a Strict Constructionist only when it leads to favorable results for the Government. For example, in Sandoval v. Reno, Alito gives literal construction to statute to limit habeas rights for prisoner. But in Lake case, Alito relies on 9th Cir. ruling to hold that a car that was a block away from the defendant was in the “possession” of a criminal defenant.
Vigilance is required especially now to protect individuals from government intrusion unauthorized by the law. Alito doesn’t give sufficient value to the norms that underly these important protections.
