More Liveblogging – 9AM Thursday

10:55 The committee breaks until 11:10.

10:54 Kohl asks whether it is likely that Alito will turn out to be in the center.

Alito says he’ll be the same sort of justice as he has been a judge. Looking to his record provides insight into how he goes about a judge’s work.

10:52 Kohl says O’Connor was in the center of the Court. Does Alito he himself fulfilling the same role O’Connor did?

Alito says every judge has to be him or herself, and all must use their own abilities and outlooks. We can look at past great jurists, and he would try to emulate O’Connor’s in the ways he’s described, the way in which he has conscientiously gone about her duties.

10:49 Kohl ask how will O’Connor be remembered, and how is Alito different than O’Connor?

Alito says O’Connor will be remembered with great admiration. Alito will try to emulate her dedicaiton, integrity, and here dedicaiton to the case-by-case adjudication process.

10:48 Kohl wants Alito do venture an opinion.

Alito: Can’t answer it beyond what he’s said.

10:46 Kohl moves on to the Kelo decision. What is Alito’s view?

Alito says that it is the precedent of the Court. He knows it touches a sensitive nerve. A home can mean more than dollars and cents, there’s emotional attachment.

10:44 Kohl doesn’t believe that Alito doesn’t have a thought on the matter.

Alito says that had he been a delegate in 1787 to the Constitutional Convention, he would narrow the range of options to either life tensure or a long term of years so the judiciary would be insulated from being swayed by popular opinion during a particular period.

10:42 Does Alito think the lack of term and age limits on judges is a good thing?

Alito: That issue is decided by the Constitution. You’d have to amend it to impose a term or age limit. Alito isn’t sure what his own position on the wisdom of it. He doesn’t see a problem in looking to other countries to see how they arrange their constitutional courts, and he thinks many other countries have limits. There are arguments on both sides.

10:39 Kohl: Yet the Rehnquist court has struck down more laws than any other. How do we reconcile this with your theory of the legislature being in control.

Alito: Acts of Congress are presumed to be constitutional, and that means a lot. Legislative findings of fact deserve a lots of deference. Basic policy decisions should be made by the legislative branch, which is in a better position to evaluate social and economics problems. I would approach legislation with a heavy presumption of constitutionality. Of course, Marbury v. Madison establishes that judges can strike down unconstitutional legislation.

10:36 Sen. Kohl is up. Once confirmed, judges are virtually unaccountable. Do judges need to take into account public opinion?

A,lito: If the founders had wanted judges to make decisions based on public opinion, they would have made them elected. But lots of decisions lie in the political branches so people can have control over their destinies. Soveriegnty lies in the people.

10:33 Biden points to Scalia’s scathing Morrison dissent, and how it varies from other justices’ view that only “unduly encroaching” on other branches’ powers. Which school of thought is Alito in? Does he think the FDA is constitutional?

Alito: Doesn’t want to pre-judge.

10:30 Overturning precedent, such as Roe, isn’t forbidden is it?

Alito: Not an inexorable command, but thinks you need a special reason to overrule and subvert reliance interests.

10:29 Biden says that stare decisis doesn’t bind Supreme Court justices though, does it?

Alito talks about both vertical stare decisis and horizontal stare decisis. The latter is not an absolute requirement to follow precedent, but it is a presumption that the highest court will follow its own precedent.

Biden: But it’s not absolute, is it? It’s within his power?

Alito: Not absolute, but important.

10:28 On to stare decisis. What does it mean to follow stare decisis as a power court judge?

Alito: Must follow Supreme Court decisions. One panel on a circuit may not overrule another, only a rehearing en banc can overrule a panel within a circuit.

10:25 Biden asks whether, as a citizen, Alito thinks the president can wage war and violate international law during war, as the current administration claims. Is the only authority Congress has is that to cut off funds? That’s useless, because once invaded, the Congress can’t be specific in cutting off their appropriations, they would have to cut off all military funds.

Alito: the first question he would ask in adjudicating a dispute would be the political question doctrine. If they got past that, he’s not sure what his opinion would be because he hasn’t studied it and there’s a big debate.

10:22 Biden wants to know if Alito thinks the president can initiate hostilities without any consultation with Congress, as Yoo claims.

Alito doesn’t want to give the impression of agreeing with Yoo. He hasn’t read anything Yoo has written.

10:17 Biden wants to talk about presidential power to use force. Current administration is making a not illegitimate claim to more power in time of war than constitutional scholarship has usually thought he had. Biden brings up Yoo’s book on presidential power, which argues that Congress’s war powers don’t constrain the president’s war powers. Does Alito think the president has the authority to invade Iran tomorrow without Congressional authorization, if there’s no showiung of exigent circumstances?

Alito: That’s the subject of a lot of debate. The Constitution divides war powers between COngress and the President. Congress has the power to declar war, which does mean something, and the power of the purse. In cases of emergency, the President does have the power to act.

10:16 Biden: Nominees answer controversial questions in the proportion that they think the public will agree with them.

10:15 Biden now has 20 minutes.

10:14 Hatch thinks that Alito has answered more questions than almost any other nominee. He thinks that the way Alito is being treated will make others not want to serve their country. These are phony issues.

10:12 Hatch brings up an issue during Breyer’s hearings, which Kennedy said wasn’t a problem. Hatch thinks what’s happening to Alito is a “bait-and-switch.” Neither Breyer nor Alito went into public service to make money. Alito’s opponents are beating a dead horse.

10:10 Hatch: You lived up to your word, haven’t you?

Alito: I have.

Hatch: The ABA has examined the issue and found nothing wrong.

10:08 Hatch is up. He believes that bringing up Vanguard or CAP is beyond the pale at this point. There was no law mandating Alito to recuse himself. Cites the law that exempts mutual funds from the type of financial interests requiring judges to recuse themselves. Alito didn’t aprticipate in the management of the fund, did he?

Alito: No.

10:06 Kennedy is using the rest of his time to list the reasons he won’t support Alito’s nomination, including Alito’s unitary executive, his stance on a woman’s right to choose, his support of the powerful, his inconsistent answers.

10:02 Kennedy says that Alito could have cleared this up at the beginning if Alito had just admitted he’d made a mistake.

9:58 Kennedy points to Alito’s promise to the committee in 1990 to recuse himself. Kennedy says the Senate has received different excuses as to why Alito hadn’t recused himself, and the varying excuses have left him confused. He thinks the omission of Vanguard is a matter of concern.

Alito breaks in to says that he has been trying to be as forthcoming as possible. He takes recusal very seriously. He has reviewed hundred of petitions for rehearing en banc every year, involving weighty issues. He’s said there was an oversight in omitting Vanguard, but when it came to his attention, he did all that was possible to make sure there was no ethical violations. He hasn’t given conflicting answers, he’s been asked differnet questions, and there were different steps taken.

9:56 Kennedy: But he had revisited his recusal list in 1994 to remove the US Attorney’s Office from his list, right?

Alito: Yes, recusing myself from all cases from the US Attorney was going above and beyond the need to recuse. If I omitted Vanguard from the initial case, that was an oversight. Conflicts rarely arise from mutual funds, that’s why judges invest in them.

9:55 Kenendy: do you remeber if at any time, Alito placed Vanguard on his recusal list?

Alito: Can’t recall what was on earlier lists.

9:51 Kennedy wants to move on to the Vanguard issue. Refers to Alito’s promise to recuse himself from cases involving the Vanguard company. What steps did Alito take to fulfill this promise in the initial years of his judgeship?

Alito does not have the initial list of recusal cases he submitted to the clerks office in 1990.

Kennedy comments on the amount Vanguard funds he had in 1991, and that he was getting regular updates from Vanguard about those funds. Kennedy says that in 1993-95, the recusal list the Senate has gotten does not include Vanguard. It includes cases involving his sister’s firm, but not Vanguard.

9:48 Kennedy is talking about the importance of separation of powers and Alito’s previous “taking issue with” Morrison.

Alito: It is permissible for Congress to put restrictions on the President’s ability to remove officers, as long as the limitations don’t interfere with the core executive power.

9:42 Kennedy’s turn. Wants to follow up on unitary executive. The administrative agencies are within the executive branch. Alito has pointed the Humphrey and Morrison cases as the leading cases on these issues. But hasn’t Alito outlined a legal strategy for getting around the Morrison precedent? Kennedy wants to know Alito’s view on Morrison, and Alito’s previosu statements about trying to implement presidential power over administrative agencies and policy-making.

Alito: “Administrative agency” is a broad term, and it includes non-independent agencies. The term isn’t necessarily coextensive with agencies like the FTC, in which there are limitations on removal and the President appoints an agency head for a term.

9:38 Specter is using some of his time to comment on Leahy’s question about Rehnquist’s testimony. Rehnquist had, early in his career, written an article arguing that Congress can’t take away the Court’s power over constitutional issue. Under questioning, Rehnquist said he had been wrong. Specter thinks that these proceedings subtly influence justices’ actions in the future, though not in the sense of a promise.

9:35 Leahy says that Alito has previously criticized upholding the independent counsel statute. Has his position changed?

Alito says that in that speech, he was focusing only on the President’s undeniable Constitutional ability to execute the laws, not the scope of the executive power. Alito was talking only about the importnace of maintianing the principle that the President should control the executive branch.

Leahy: but he criticized the independent counsel?

Alito: Morrison decision is an important 8-1 precedent. It was a resounding decision.

9:33 Are citizen suit provisions, as in environmental legislation, constitutional under the unitary executive theory?

Alito doesn’t see a connection between these issues. Courts often grapple with Congressional ambiguity about who can bring suit, but when Congress has been clear, that’s definitive, subject only to constitutional limitations.

9:32 Leahy continues to press (gently). Alito hasn’t studied the matter, notes the scholarly division on the matter, and won’t hazard a guess.

9:30 So Alito’s not willing to go as far as Rehnquist did?

Alito: Thinks such stripping would be awkward and undesirable. It would lead to conflicts among the circuits, with no way to resolve the issue. There are undesirable practical consequences of proceeding this way.

9:29 Alito sticks to his answer before: he hasn’t thought about that, there’s a debate.

9:28 During his hearings, Rehnquist said Congress cannot remove jurisdiction over First Amendment decisions. Does Alito agree?

9:27 Alito talks about the importance of Congress’s spending power.

9:24 Leahy: Asks about Congress refusing to fund consitutitonal decisions they disagree with.

Alito: that’s a provocative issue. He can’t think of a precedent on this point and doesn’t know the answer.

9:21 Leahy moves on to court-stripping bills. They’re not unprecedented, but he’s been part of efforts to talk down court-stripping bills. If in the early 1950s, Congress had enacted a bill purported to strip federal courts of jurisdiction over desegregation cases, would that have been consitutional?

Alito responds that there’s a debate among scholars about the Congress’s power to alter federal courts’ jurisdiction. Alito has not taken part in that debate.

Would he care to now?

(With a smile) Not at this time.

9:19 Leahy references the Houses’s actions in the Schiavo case. Could the Senate Judiciary Committee issue and enforce a subpoena to have a convicted defendant come testify before Congress, if they issued it an hour before execution?

Alito hasn’t thought about it, he’d have to consider arguments.

9:18 Does Alito believe that Congress has general oversight powers?

Alito: There’s no question about that.

9:17 Does Alito agree with the possibility of “do not resuscitate” orders?

Alito says yes. It is an extension of hte right he mentioned earlier.

9:13 Leahy moves on to physican-assisted suicide, endorsing Rehnquist’s opinion in Glucksberg. Criticizes the Congress’s actions in the Schiavo case. Asks if the wishes of an unconscious patient should be followed when it comes to life-sustaining care?

Alito: describes the Cruzan decision and the common law right to refuse medical treatment.

Leahy interrrupts to note that common law is foreign, it’s English, right?

Alito agrees, and notes that the common law right to maek decisions about medical treatment has been around a long time.

9:12 Leahy wants this part of the hearings to stay with Alito.

9:11 Leahy moves on to the Supreme Court’s “rule of four” by which a courtesy fifth vote joins to grant a stay that four justices want to grant. Would Alito follow this rule?

Alito hasn’t heard of this rule until the Roberts hearing, but he thinks it sounds like a sensible procedure.

9:09 Alito: That would be a tragedy, we should do all we can to prevent it, I’ve never seen a case like that. The first procedureal step would be to file a petition with the trial court, or you could file a second habeas petition in federal court and follow the procedures set out in the habeas statute.

Leahy: But you agree with Roberts that the Constitution does not countenance the execution of hte innocent?

Alito: The Constitution is designed to prevent that.

9:07 Leahy asks about a case where the process has been properly conducted but at the last moment, someone came forward with DNA evidence that could exonerate the condemned, or with a confession from someone else. Would it be unconstitutional to execute the condemned?

9:06 Alito: The whole procedureal framework is set up to prevent the imposition of punishment on an innocent person, or someone who is guilty, but not deserving of a particular punishment.

9:05 Leahy has 25 minutes. He starts out referencing the Roberts hearings–Leahy refers to his question to Roberts: “Does the Constitution permit the execution of an innocent person?”

9:04 Leahy comments on how critical these hearings are, given the recent efforts to expand presidential power.

9:00 Specter reconvenes the hearings. Specter reports that in going through boxes of CAP’s founder’s personal papers, no files, letters, or cancelled checks for Prospect magazine were found with Alito’s name on them. No meeting minutes from 1983-84 have Alito’s name. The CAP founder has no recollection of Samuel Alito and did not believe Alito was heavily involved in the organization, if at all.