More Live Blogging

4:58: Senator Cornyn points out that Alito has disagreed with his colleagues before so there is no reason to think that their testimony today could lead to a conflict of interest. He points out that sitting judges providing testimony like this is not unprecedented.

4:55: Sessions points out that Congress messed up Rybar, not Alito. Laughter (agreement?) in the room. Sessions is asking whether or not throwing rocks at people is a federal crime. Lots of chuckling. Judge Lewis points out that rock throwing could be a civil rights violation.

4:53: Senator Sessions remarks that Alito’s civil rights opinions have almost always been unanimous.

4:53: Senator Durbin is up and agrees with Senator Leahy on the inappropriateness of questioning sitting judges. Senator DeWine has no questions for the panel.

4:50: Senator Kyl is asking for clarification on the 3rd Circuit’s policy of distributing 3-judge panel opinions to the whole court. Not every Circuit does this.

Judge Scirica is clarifying. They only circulate precedential opinions, or non-precedential opinions with a dissent. Therefore precedential opinions are sent to the court twice – before and after publication.

Kyl is asking what happens if a Judge disagrees on the initial circulation. The Judge can write to the opinion writer or the entire court expressing his/her disagreement.

4:47: Senator Leahy is up. Senator Leahy points out that Alito will have to rule on the decisions of some of the current judges on the panel. Rather than create a difficult for the judges if Alito is confirmed he is not going to avail himself of the chance to ask questions of the panel.

4:43: Senator Hatch asks Judge Becker, the “101st Senator,” about Judge Alito’s handling of the application of circuit precedents. It has been implied that Alito selectively applies precedents. Hatch is asking how Becker would categorize Alito’s approach to precedent.

Becker says Alito followed precedent unless a case was dicta or could be distinguished.

4:41: Senator Hatch is up. He cares for Judge Aldisert. He “got emotional.” With few exceptions Hatch loves the federal courts. Exceptions they could name. Afterall, says Hatch, Congress passes unconstitutional legislation all the time.

Senator Hatch is answering Senator Feinstein’s question. Saying that Alito said that Casey modified Roe and they are settled.

4:39: Senator Feinstein was puzzled when she read Roberts’ statement on Roe. Roberts said he felt that Roe was settled law. Feinstein asked Judge Alito if he agreed with Roberts and Roberts said it depends on what settled means. Senator Feinstein asks Judge Barry what that meant.

The Judges are declining to respond.

4:37: Judge Becker is responding. Asking Senator Feinstein to keep in mind that 80-85% of cases are affirmed. That evaluations might be skewed. He’s never seen any evidence that Alito is against the little guy – the big guy might have been winning in the district court.

Judge Aldisert is pointing out that the reversal rate is actually lower.

Judge Barry points out the constraints of various standards of review.

4:36: Senator Feinstein is thanking the panel. She is asking the panel how they look at the evaluations that have been done on Alito’s jurisprudence that show him against the “little man.”

4:33: Judge Aldisert is pointing out that Alito is of Italian origin and that such Americans faced discrimination until recently.

4:30: Lewis says that Alito would not be hostile to civil rights or he wouldnt be there supporting his nomination. The cases they heard together involved Title 7. Sometimes they disagreed, but Lewis never felt that Judge Alito was hostile to civil rights.

4:27: Specter asks Judge Barry how she would evaluate Alito on women’s issues. Barry says, that if she could edit her testimony, she would say more about how reasonable Alito was, and how he never indicated bias of any kind. She has never heard him say one thing that would give her reason to believe that he would give less than careful consideration to women’s issues.

Specter asks Lewis to elaborate on his evaluation with regard to civil rights, and the other judges on whether there is any tilt to Judge Alito’s approach to the powerful as opposed to the “little guy.”

4:26: Specter askes if Judge Garth has any insight on Alito/stare decisis and Roe. Garth says that when it comes to applying precedents Alito has always had good reason and principle. Garth believes Judge Alito when he described to the committmee how he would rule on a case.

4:25: Senator Specter asks Judge Becker if Alito’s personal views would influence his decisions as a Justice. Becker says no.

4:24: Senator Specter is acknowledging that the panel got extra time. He is giving himself 5 minutes for questions and urges sound clip answers (8-18 seconds!).

4:24: Lewis concludes his statement by saying that Alito is uniformly qualified for a position on the Supreme Court.

4:21: Judge Lewis is saying that Judge Alito did not come to conference with an ideological bent. Judge Lewis has no hesitation commending his commitment to principles.

Finally, when they did disagree, it was always respectful – Lewis think this is an important facet of appellate judging.

4:17: Judge Lewis begins his statement by discussing Justice Marshall’s decision to resign from the Court. Judge Rehnquist asked Justice Marshall to stay. Justice Marshall said Rehnquist was the best chief that Marshall had served under. Judge Lewis was stunned to learn this.

Judge Lewis acknowledges that he sits on the “far left” of the panel of judges this afternoon. He points out that there were times in which he did not agree – Lewis is unapologetically pro-choice, and a civil rights activist. He is involved in endeavors that would make one wonder his decision to testify. But having worked with Alito he respects his intellectual honesty.

4:16: Judge Lewis, the last but not least member of the panel, gets his turn.

4:15: Gibbons concludes his statement.

4:12: Gibbons is discussing Alito’s opinion with Rybar, pointing out the reasonable disagreement.

Gibbons emphasizes that he is not supporting Alito because of the current administration, in fact, his firm opposes the administration in some of the Guantanamo cases. Rather, he things Alito will give the detainee cases careful and thoughtful consideration, which is more than he can say for the Congress of the United States.

4:09: Gibbons brings up Casey and Alito’s dissent. Gibbons argues that Alito’s opponents say that this dissent puts him outside the judicial mainstream. Gibbons asks the Senate Committee to consider the fact that the Supreme Court had not yet decided what types of requirements a state could impose on abortion at that time. Gibbons points out that cert in the case was granted, highlighting that conscientious judges could disagree in Casey, when you look at the caselaw at the time.

4:07: Gibbons believes the Senate Judiciary Committee members should not look at what Alito did before he was a judge when casting their vote for or against his confirmation.

4:06: Gibbons is discussing the fact that being appointed to a Circuit Court is a transforming experience. A good judge puts aside interests of political organizations, even if they were instrumental in their appointment.

4:02: Judge Gibbons begins his statement. It was Judge Gibbons’ retirement that created the vacancy which Judge Alito filled on the Third Circuit.

Gibbons is discussing the Gibbons’ Fellowship program. He wants the committee to know that the Third Circuit is a centrist legal institution. One reason for this is the distribution of opinions to the full court.

4:02: Judge Garth finishes, Judge Gibbons is up.

4:00: Judge Garth is discussing Alito’s respect for stare decisis. Garth is convinced that if Judge Alito is confirmed he will continue to honor stare decisis. In Garth’s opinion Alito is as qualified as the Justices on the Supreme Court. Alito reserved, soft spoken and thoughtful, even self-effacing.

3:55: Judge Garth is telling us about Judge Alito’s special blend of coffee. Garth would rate Alito, without question, a 10+ on a scale of one to ten. He has more than lived up to this rating since becoming Garth’s colleague on the 3rd Circuit. They dont always agree on the outcome of cases. They disagreed on a recent ERISA case. But, even when they disagree Garth always respects Alito’s opinion, just as he did when Alito was a clerk. Judge Garth believes Alito is a sound jurist, respects the institution. Assures us that Judge Alito will always vote in accordance to the Constitution. He is not influenced by individual preferences.

3:50: Judge Garth is discussing Alito’s clerkship. Because of this relationship Garth has a unique perspective on Alito. Was selected from hundreds of applicants. Was fiercing intelligent, motivated and capable.

3:48: Judge Garth reminds us that Judge Aldisert is older but only by a few days. Judge Garth has known Alito longer than his colleagues – Alito clerked for Garth in 1976 and 1977, and has been his colleague since 1990. Between 1977 and 1990 they remained close.

3:47: Judge Garth is beginning his statement. He is being telecast.

3:46: Judge Aldisert has concluded his statement.

3:45: Aldisert is quoting Justice O’Connor when she said that the only way for judges to mediate conflicting impulses is to stay close to the record. Aldisert is struck by how accurately these words describe Alito’s work.

3:43: Judge Aldisert is saying that Judge Alito’s judicial record shows that Alito believes that legal outcomes will follow the law as dictated by the facts in any particular case.

Judge Aldisert campaigned with JFK in the presidential primary in West Virginia. The next year he ran for Judge and was on the Democratic ticket. Senator Joseph Clark was Aldisert’s sponsor when he was nominated to the Court of Appeals. Robert Kennedy was a supporter. Judge Aldisert’s point – political loyalties became irrelevant when he became a judge. The same can be said of Judge Alito. Judicial independence is incompatible with political loyalties and Aldisert believes that Judge Alito’s record bares witness to this. Aldisert can represent to the committee that Judge Alito is among the first rank of the 44 judges with whom Aldisert has served.

Judge Aldisert begins his statement by discussing the ages of Judges. Judge Aldisert swore in Senator Hatch as a lawyer 40 years ago and presided over the first jury trial Senator Hatch had, and won.

3:38: Senator Specter is introducing Judge Aldisert who begins his statement.

3:37: Judge Trump Barry has concluded her statement.

Trump Barry agrees with “every glowing statement” said about Alito. Emphasizes that Judge Alito reveres the rule of law and will serve as a marvelous Justice.

Trump Barry is testifying to Alito’s skill as an attorney in the US Attorney’s Office. She belives Alito set a level of excellence that was contagious in the office. Was fundamentally decent. The AUSA’s who worked for him were proud to do so.

3:32: Judge Trump Barry begins her statement. Judge Alito and Trump Barry have known each other since 1977. She was the chief of the appeals division when Alito joined the US Attorney’s Office.

3:31: Judge Alito is an admirable judge and person. Scirica concludes his statement.

3:30: Judge Scirica continues his statement.

uist