More Liveblogging

6:35 Specter deals with scheduling issues. Specter plans to reconvene at 9 am tomorrow. Specter praises Alito’s consistency and patience. Tomorrow, Biden, Feinstein, and Durbin will have more time. There will be a final round, limited to 25 minutes unless there are, in Leahy’s words, “extraordinary” circumstances arise. The committee breaks until tomorrow.

6:33 Coburn yields the rest of his time.

6:31 Coburn calls the policies in this area schizophrenic, and hopes that recognition of life will guide decisions and that courts in the future will have common sense. Thinks that in judicial confirmation, the legal mind is not the most important, but rather a nominee’s heart and soul.

6:29 Coburn reads statistics about the reasons women have abortions.

6:29 Alito reiterates that these decisions are made by different bodies.

6:28 But Coburn wants to know how to rationally square these two laws–if an alien came to this world and asked about it, how would Alito explain? Coburn can’t get his mind around it.

6:27 Alito says that the first scenario is a question of tort law, which depends on state legislatures or maybe common law. The second situation is based on interpretations of the 5th and 14th amendments, not legislative decisions on the state or federal levels.

6:25 Coburn: If I’m driving a car and hit a pregnant woman, killing the 37-week fetus, I can be held responsible for that death. Yet a woman can choose to take it voluntarily. How did this country arrive at this point?

6:24 Alito says that the Court should examine precedent. Courts in general should be receptive to any information that has a bearing on the question they are deciding. There is no such thing as bad knowledge.

6:21 Coburn notes he is a doctor, and says that his own grandmoether came into the world as a result of rape. Questions that anyone can know the impact of abortion on women’s health. Says that women who’ve had abortions are more likely to commit suicide, have an alcohol problem, and have premature delivery. Coburn says that advances in technology have made fetuses viable earlier in a pregnancy than was possible before. Coburn wants to know if Alito thinks science should play a role in Court decisions about abortion.

6:20 The charts appear. They feature a disclaimer from the CAP magazine to the effect that the opinion’s within the magazine are the authors’, not CAP’s.

6:19 Sen. Coburn is up, and he says he has charts.

6:18 Sen. Brownback’s turn. He says he is satisfied with Alito’s answers and will be supporting his confirmation. Brownback predicts Alito will be an outstanding justice and yields his time.

6:17 Durbin asks about government financial support to religious schools, where the money is used for religious education.

Alito notes the Supreme Court’s clear precedent that such use of government money is impermissible.

6:15 Durbin asks what bothered Alito about the Burger Court’s Establishment Clause jurisprudence.

Alito says he’s both troubled and fascinated by the area. Says that all these cases about the Establishment Clause turn on extremely fine factual distinctions. Alito is troubled by the absence of a theory that doesn’t turn on these fine lines.

6:13 Durbin wants to know whether Alito was overreaching when the opinion he joined in this case characterized the majority as “hostile toward religion.”

Alito doesn’t remember the phrase, but says he thinks the authoring judge probably meant that there wasn’t enough room being given to religious expression.

6:12 Alito defends his decision. Notes the pamphlet handed out that said the prayer was not endorsed by the school. Says the question was debatable, and notes the precedent since established by the Good News Club case.

6:07 Durbin wants to know if nonbelievers are protected by the Constitution.

Alito says they are–there is freedom to worship or not worship.

Durbin notes a case in which students had voted to have a prayer at a school event. Durbin asks whether Alito thinks this would have coerced nonbelieving students.

Alito goes through the history of Lee v. Weisman, the precedent that governed the case Durbin alluded to. Alito says in the latter case, they had to decide whether the student prayer was government speech or private speech. Alito governs the prayer-by-election as “collective student speech” and says that he and another judge on the panel decided it fell on the side of private, individual speech.

6:06 Durbin wants to know about Alito’s personal and religious beliefs.

Alito says there’s nothing in his beliefs, religious or moral, that prevents him from being an impartial judge.

6:04 Durbin wants to know where Alito comes down.

Alito says he has no grand unified theory about this. That wasn’t his job as a lower court judge. Agrees the Establishment Clause is important.

6:03 Durbin wants to know which, if any, theory of the Establishment Clause Alito ascribes to.

Alito says he doesn’t think the Court itself has decided between the Lemon test, the coercion test, or the endorsement test. Reviews that various tests.

6:02 Alito says that Thomas’s dissent in Hamdi, if it used the phrase “unitary executive,” was using it in a different sense than Alito has used it.

6:01 Alito says that the unitary executive theory and the scope of executive power and other presidential powers–such as the commander in chief–are entirely separate questions.

6:00 Alito notes there may be debate about the scope of the executive power, but no debate that the President should faithfully execute the law.

5:59 Durbin wants to address the unitary executive. He doesn’t know if it is always associated with the Federalist Society, but thinks it usually is. Durbin notes that this theory can give the President dangerous powers.

5:58 Durbin is up. He thanks Alito for his endurance.

5:56 Leahy notes that Alito has proven himself to have the stamina of Hercules.

5:55 The committee reconvenes.