Noon Liveblogging

12:57 Durbin quotes a recent opinion by Judge Posner criticizing the federal government’s handling of immigration cases under a program to clear a backlog of asylum applications.

Durbin asks about an asylum case Alito decided, involving a man whose wife was raped by police coming to look for him. Alito voted to send the man back anyway. Durbin says Alito ruled for Gov’t in 8 out of 9 split decisions, 7 of those in dissent. Durbin wants to know whether Alito agrees with Posner’s concerns about the handling of these cases and why he so often sides with the Govt.

Alito says he’s voted for asylum applicants in a number of cases. The way these cases are being handled “leaves an enormous amount to be desired” and he and his colleague has been very troubled by it. But Congress has given the courts a very limited role in reviewing the decisions of immigration judges. The facts Durbing described in the above cases were the allegations of the applicant, but they were rejected by the immigration judge and Alito thought he was compelled to accept the IJ’s view of the facts.

12:51 Durbin asks about two search cases he thinks Alito took inconsistent positions in, the latter of which involved the strip search of a ten-year-old girl based on a warrant that identified the person to be searched as “John Doe.”

Alito explains that the Doe v. Brudy case was about the interpretation of the scope of a warrant. Alito read the warrant to permit search of everyone on premises, even though the specific space on the warrant for “person to be serached” was “John Doe” because warrants have to be given a practical interpretation — you don’t read it like a bond instrument. Attached to a warrant was the officers’ affidavit that talked about the likelihood that the drugs could be in the possession of anyone on the premises.

12:49 Sen. Durbin starts with jurisdiction stripping in response to controversial court decisions. He doesn’t like the idea.

He wants to know if Alito was asked whether it would be a good idea to have sitting judges testify on his behalf.

Alito says he was not.

Durbin doesn’t seem to like that idea either.

12:48 Returning to the commerce clause questions, Sessions notes that in his experience as a U.S. Attorney, most criminal statutes have jurisdictional elements and it isn’t hard to prove.

He disagrees with Schumer’s comment that Alito has not been forthcoming.

12:47 Turning to the “unified executive” theory, Sessions asks a hard question: “There are only three branches, aren’t there?”

Alito: Last time I checked.

Sessions: “Doesn’t this mean that every agency has to fall within one of the branches?”

Alito: Sure, although that doesn’t necessarily answer questions about appointment, removal, etc.

12:43 Does Alito believe that the three branches of government owe it to the country to stay within their bounds and avoid a constitutional confrontation (by which he measn, Congress revoking the Supreme Court’s jurisdiction over particular kinds of cases Congress thinks it is wrongly deciding)?

Alito notes that he has given a speech saying it is bad policy for Congress to attempt such things, but hasn’t taken a position on the constitutional question. It would “raise some serious constitutional questions.”

Sessions says that hopefully it won’t come to that and that the Court will constrain itself.

12:41 Sessions notes that a lot of the questions Alito was asked — regarding Presidential powers, etc. — are issues that Congress has not yet itself reached a conclusion about. Not fair to expect Alito to either. These are hard questions, lots of relevant considerations.

Alito agrees.

12:40 Sessions takes over. Gives a shout out to Alito’s family. Notes that Alito’s sister is there and they were debate partners in school. Wants to know who was better.

Alito pleads the fifth.

12:37 Schumer sums up: he remains disturbed by Alitos record and judicial philosphy. The record seems to show a tendancy to side with executive power, those with economic power instead of the little guy, etc. And his answers were unilluminating and, therefore, he has to assume that Alito maintains these views. Makes it very hard to vote for him. But thanks for coming and answering the questions.

12:32 Noting that Alito was a US attorney, Schumer presumes that Alito presided over criminal prosecutions using statutes that expanded U.S. jurisdiction to new areas (carjacking, local corruption, wire fraud, odometer fraud). Wants to know whether Alito agrees that some of the federalism concerns expressed about these laws “make no sense” given our interconnected world. What is his view about the balance of state and federal law?

Alito: When at OLC he opposed a federal law on odometer fraud, implementing Administration federalism policy. When he enforced similar laws as US Attorney, he was doing his job — enforcing federal criminal law. He made a point of cooperating with local authority. He notes that he brought a Hobbs Act case that a district court threw out on Commerce Clause grounds.

12:30 Does Alito think that if the Court’s recent decision in Raich (the medical marijuana case) had been available, Alito would have decided the machine gun case differently.

Alito says he would have considered the question in light of Raich.

12:30 Schumer: does he think Congress has the power to regulate activity that has only a “substantial effect” on interstate commerce?

Alito: The court has held that it does, and reaffirmed that recently.

Schumer notes that Justice Thomas thinks otherwise.

12:28 Schumer: Has Court’s understanding of the Commerce Clause evolved?

Alito: Case law has developed. He doesn’t have any quarrel with the post-New Deal case law.

12:21 Schumer moves on to what it means to be a “strict constructionist.” Notes that there are easy textual constitutional questions (28 year old can’t be President). He reads the language of the Fourteenth Amendment about how people born in the U.S. are citizens. Any way to read that to permit a statute to strip people born in the US of citizenship if their parents are here illegally?

Alito says that there is pending legislation to that effect so it is not appropraite for him to comment on it.

Schumer persists: what imaginable argument could there be that such a statute would be constitutional?

Alito persists in saying it would be inappropriate.

Schumer says he can’t make an assessment on how to vote on Alito’s nomination if he can’t answer such a simple question.

Alito says even if it is a simple question, it is still inappropriate to opine on the question of the constitutionality of a pending bill.
12:12 Schumer asks about an Alito decision involving a mentally retarded plaintiff alleging sexual harrassment. Alito voted to prohibit the plaintiff to proceed on an argument his lawyer failed to raise in his brief in the district court.

Schumer then points to a habeas case in which the government failed to raise the claim in the district court and Alito voted to allow the government to nonetheless proceed with the claim on appeal.

Schumer doesn’t understand why the different parties were treated differently in the two cases.

Alito tries to explain, but Schumer isn’t done haranguing him about it yet.

When he gets a chance to finally respond, Alito says the difference is that the habeas case implicates principles of comity between the state and federal governments. Alito says that Congress required federal courts to inquire into exhaustion (apparently the issue the state failed to raise) even if the state doesn’t raise it.

Schumer says the majority of the panel didn’t agree with him. Moves on to another case involving private parties, a personal injury action between an individual and a company. The majority refused to allow the company to raise an issue it failed to preserve. Alito dissented, Schumer says, voting to make the plaintiff lose on a ground the company failed to raise below.

Alito doesn’t remember the exact details of the case. He agrees to get back to Schumer on that case.

12:08 Schumer takes over. Promises to ask new questions.

First, assuming President has constitutional power to engage in warrantless wiretaps of Americans. Does then compel the conclusion that he can search homes without a warrant?

Alito pauses to think about it. It would depend, he says, on why the Court held that he had the power to wiretap.

Schumer wants to know if the 4th Amendment treats wiretapes and home searches differently. Alito says that 4th Amendment could play out differently in the two contexts.

12:07 Would Alito have to recuse himself from any case coming from any of the judges appearing in support of his nomination?

Alito hasn’t thought about it, but will get Sen. Feingold an answer later.

12:05 In answer to questions, Alito says he can’t think of any reason Congress couldn’t prohibit discrimination on the basis of sexual orientation in employment, but he would have to hear all the arguments on each side before reaching a firm conclusion.

When asked whether Congress could prohibit such discrimination by schools that receive federal funding. Alito says Congress has broad power to attach conditions to federal funds.