More Liveblogging
on Jan 11, 2006 at 4:06 pm
4:57 Graham gets tricky — he asks Alito if he asked a colleague to write him a recommendation. Alito says he didn’t. Graham then reads the letter, which begins “Judge Alito did not ask me to write this letter…”
4:55 Graham tells Alito that he is going to get confirmed, but he is going to get fewer votes than Roberts because of his writings on abortion. Which Graham thinks is a shame. Republicans voted for Ginsburg even though she was clearly pro-Roe and was replacing Justice White who was anti-Roe.
4:52 Graham argues that Ginsburg’s writing on abortion issues before her confirmation show that she had taken a position about Roe as firmly as Alito ever did in his prior writings. He says that Ginsburg would not have been confirmed under the standards proposed by the opposition.
His question: should she recuse herself from abortion cases based on her prior writings?
Answer: No.
Graham: That’s right.
4:50 Speaking of which, Graham says he should have a cup of coffee with Justice Ginsburg at some point, given how often he brings her up. He notes in her job at the ACLU she represented some really distatesful causes. But he wouldn’t tar her for that association.
4:48 Graham notes that politicians are in a particularly poor position to make accusations of guilt by association, given that they often end up getting their pictures taken with people they later wish they hadn’t.
4:46 Now Graham gets nasty: “Are you a closet bigot?”
Alito: “I’m not any kind of bigot.”
Graham is satisfied.
4:43 Sen. Graham moves on to his years at Princeton. “The more I learn about Princeton… it’s an interesting place. What’s an eating club?”
Alito explains to the rednecks in the audience what a Princeton dining club.
Graham wants to know if Alito belong to a selective eating society (on in which the club selects its members).
Alito says he wasn’t.
Is it because he wasn’t well liked?
No, he just didn’t apply to any selective dining club. Just a regular old dining club
Graham reads a list of people (e.g., Donald Rumsfeld) who belonged to selective dining clubs at Princeton.
4:41 Sen. Graham takes over. Says he is “baffled” at the idea that Alito would have made a conscious decision to participate in the Vanguard case despite the conflict.
Alito agrees that there would have been no reason for him to do so. It would be preposterous to think that he would personally financially benefit from helping out the fund in a case involving a few thousand of its billions of dollars in investments.
4:40 Alito’s bottom line: It is important to recuse when recusal is required, and not to recuse when it isn’t.
4:36 Back to Vangaurd: Feingold wants to know whether the promise in the Senate questionnaire is limited to avoiding conflicts only during the “initial” period of the appointment.
Alito agrees that the obligation to recuse arises from the Judicial Code of Conduct that applies during the entire period of the judge’s service.
Feingold wants to know if Alito will recuse from cases involving Vangaurd if confirmed.
Alito says he’ll follow his ethical obligation, but notes that the recusal rules are different in the Supreme Court. He doesn’t think he is required to recuse from Vangaurd cases under those rules. He notes that given the small number of Justices on the Supreme Court, recusal creates much bigger problems than in a larger court of appeals.
4:33 Does Alito agree with Roper and Atkins (can’t execute retarded inmates or juveniles)?
Alito goes out on a limb and asserts that these are precedents of the Supreme Court that are entitled to respect.
4:30 Feingold raises a speech Justice Stevens gave questioning the fairness of the process by which the death penalty is administered, including jury selection, inadequate representation and elected judiciary that skew the system toward death
Alito says he shares the view that there should be a fair process for selecting juries. It’s up to state legislators to decide whether judges should be elected or appointed. He thinks that all the Supreme Courts in the 3d Cir., which includes both elected and unelected courts, are high quality.
Habeas is available to be a check on this process, but it is subject to control by Congress. In ADEPA, Congress limited it.
4:28 Feingold says that Alito uniformly supported the Gov’t in every capital case in which there was a dispute on the panel.
Alito notes that he hasn’t sat on very many death penalty case panels and that in a number of cases he ruled in favor of a capital defendant.
4:27 Feingold asks about Wiggins v. Smith, another ineffective assistance case, written by Justice O’Connor. Does Alito think it was rightly decided?
Alito — I don’t think it was wrong, but it wasn’t on-point in Rompila.
4:22 Feingold asks about a death penalty case (Rompila) in which the Supreme Court reversed Alito’s decision that a lawyer in a capital case had provided adequate assistance of counsel even though the lawyer failed to present any evidence at sentencing about the defendants horrible childhood. He wants to know if the Court’s recent cases on ineffective assistance are “headed in the right direction.”
Alito agrees that effective assistance of counsel is important, particularly so in capital cases. In Rompila, Alito notes, he was constrained by federal habeas law to overturn the state court’s judgment that the assistance was effective only if that determination was unreasonable.
He says that in Rompila, the lawyers were very experienced.
Feingold concludes that this meas Alito, as a Supreme Court Justices, would have voted the same way he did as a court of appeals judge.
Alito doesn’t really disagree, although he notes that in a future case, the Court’s decision in Rompila would be a precedent he would have to take into account.
4:21 Sen. Feingold starts by asking for a list of all the people who helped Alito prepare for the hearings. Alito agrees to provide one.
