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12:01 Feingold asks about Alito’s views on affirmative action and diversity in education. Alito says that when he has taught, diversity in the classroom enriched the experience, and that under existing precedent diversity it is a compelling government interest.

11:59 Feingold says assume all procedures are perfect – is there a contitutional right to not be executed if one is innocent? Alito again stresses the procedural protections in place to prevent this. Feingold says he’s ducking the question.

11:57 Feingold asks about a hypothetical case of a person convicted in a procedurally perfect trial and condemned to death but later shows evidence proving actual innocence. Does that person, absent any other complaint, have a constitutional right to not be executed based solely on actual innocence? Alito stresses that there are procedures for condemned inmates to follow in order to raise their complaints.

11:55 Feingold asks if it could ever be constitutional to admit evidence obtained by torture. Altio says in all the context’s he is familiar with this evidence could not be admitted.

11:53 Feingold says that we really need to hear more about Alito’s views on this, and Alito responds that this is a momentous constitutional question and it would be irresponsible to say more without know the speicific contours of the issue.

11:52 Feingold wants to return to questions about Presidential power, and asks if the President can violate a constitutional statute if in bans an inherent constitutional power of the President. Alito says that the constitution trumps a statute, but the situation that Feingold describes fits precisely into Jackson’s framework and is the area where the President’s powers are at their lowest ebb, and to decide if the President could violate the statute would require an examination of the specific facts.

11:47 Moving on to Senator Feingold.

11:46 Specter asks Grassley to tell Alito his Anita Hill story in order to give Alito a brief respite. Grassley says that during the Anita Hill hearings many people confused him with Specter and berated his questioning of Ms. Hill.

11:43 Grassley moves on the the Federal False Claims Act, which he apparently had to fight hard to pass, and the defense industry really doesn’t like. His only regret is all the personal injury lawyers out there getting rich off it. Grassley tells Alito that he has no question about this, but that he wants Alito to know that it is important, and he’d like Alito to look at carefully if he ever gets the chance.

11:39 Senator Grassley is using some of his reserve time. He says that, despite Alito’s personal political science theory of the proper form of government (Grassley says Alito may have some crazy theories), Alito seems to have the judicial temprement to keep his personal views out of his rulings. Alito agrees and says he would follow the law and adhere to precedent.

11:37 Feinstein asks about Alito’s views on federalism and how it would affect his rulings, and Alito responds that policy decisions should be left to Congress and he would not let his views on the proper policy of federalism affect his rulings.

11:34 Alito agress that both state and federal governments have a role in protecting the safety of citizens. As the federal government has expanded it has naturally assumed a bigger role.

11:33 Feinstein is moving on to questions about laws prohibiting odometer fraud in order to probe Alito’s views on the Commerce Clause.

11:31 Feinstein asks if the EPA should be accorded as much deference as all other federal agencies. Alito says yes.

11:30 Moving on to W.R. Grace v EPA, in which Alito overruled an EPA ruling and allowed a chemical company to continue to pollute a source of drinking water with ammonia.

11:28 Alito says that he can’t answer this question unless he were to adequately study the matter. He says that if the statute did control the behavior in question he would move on to determine if the statute was unconstitutional.

11:26 Feinstein stops him and says that it made sense in Hamdi because that involved detention, which more clearly fell under the AUMF. But wiretapping does not.

11:25 Alito says that an example of the interpretation of the AUMF is the Hamdi case.

11:24 Alito says this is a question of statutory interpretation of the AUMF, and if this came before him Alito would engage in such interpretation. Leglislative history can be appropriately consulted.

11:22 Feinstein wants to focus specifically on the eavesdropping situation. Two resolutions were passed that gave no indication of the authority to wiretap Americans, and yet the President did it. Was he within is plenary powers?

11:20 Alito says that the President is bound by statutes unless those statutes violate the Constitution. No question about that.

11:19 Feinstein asks about the President’s plenary authority to defend the U.S., and whether it is true that no Congressional law binds the President if he feels that it constrains this role. Question continues and moves on to asking about FISA and the Jackson concurrance in Youngstown Steel.

11:16 Feinstein is back, and has requested twenty minutes. She’s starting with Presidential authority in a time of crisis

11:13 Feinstein has not returned from the break, so we’re waiting right now.

11:12 The third round of questioning will resume with Senator
Kyl, who reserves his time. Next is Senator Feinstein.

11:10 Called back into session. Specter notes that this is the only time Alito enters a room and people don’t stand. Alito says that it actually happens all the time.

11:08 Schumer lists more reasons for concern: Alito has said in the past that he supports the unitary executive theory, that a woman’s right to choose is not in the Constitution, etc, and Alito has refused to distance himself from these comments in the hearings.

11:06 Schumer addresses the press, and says that since the extreme groups that “shot down” Harriett Miers support Alito we should be wary. Alito has not told us how he would reach legal conclusions and weigh the various factors involved.

11:04 Leahy is concerned about Alito’s views on the unitary executive, based on today’s answers and when Altio addressed the Federalist Society, which Leahy believes was the beginning of a “tryout” for the Supreme Court

11:01 The hearings will resume shortly. During the break Senator Leahy is giving an impromptu press conference. He’s expressing dismay that Alito would not answer the question about jurisdiction stripping.