Breaking News

Yet Further Liveblogging of Alito Hearings

4:05 Sen. Feinstein switches to the topic of electronic surveilance and FISA. She notes that he said this morning that “generally” a warrant is required before an electornic search. Feinstein says that FISA covers “all” electronic surveilance. Was he providing for an exception?

Alito says he was describing Fourth Amendment case law (e.g., exigent circumstances).

Feinstein asks if he agrees with the U.S. Steel scheme on Presidential power?

Alito says he does. The question, he says, is about the meaning of the FISA statute and the Authorization of Use of Military Force, before deciding which of Justice Jackson’s categories apply.

4:01 In explaining his Casey memo, Alito says that stare decisis is a concern for the judiciary, not so much for advocates.

4:00 Feinstein says that O’Connor required an exception for the health of the mother even post-viability. She wants to know if such an exception is required.

Alito says that protecting the life and health of mother is a “compelling interest” throughout the pregnancy (doesn’t really say, though, whether this means an exception is always required).

3:59 Alito agrees that a married woman is not in the same position as a teenage daughter for purposes of abortion notification.

3:56 Alito agrees that the 5th and 14th Amendment protection of liberty has a substantive component that includes aspects of privacy that is subject to constitutional protection.

3:55 Feinstein wants some examples as special justifications for overruling prior precedent. She says that in his private meeting with her, Alito had said that he didn’t think there had been a precedent more tested than Roe. She wants to know what sort of special circmstances might justify overruling a precedent.

Alito says when a rule has proven to be unworkable. He gives the example of National League of Cities v. San Antonio (case about whether Congress can use Commerce Clause Power to regulate state governments). Proved unworkable, so Court overruled it and left it to Congress to protect federalism interests.

Katz v. US is another example. Real world changes required changing the rule to deal with electronic surveilance.

3:47 Alito doesn’t want to make broad statements about the general viability of the Court’s older Commerce Clause cases, but he thinks that te older Commerce Clause cases “that come to mind” are settled precedent.

Alito further says that congressional findings are neither necessary nor conclusive.

3:41 The Senator is now describing Alito’s dissent in the machine gun case, in which he thought Lopez required invalidating federal statute limiting intrastate possession of machine guns. She notes he says the proper result might have been different if Congress had made findings connecting possession to interstate commerce.

Alito says Government, in defending the case, had pointed to factual support (even outside of congressional record) or if there had been a jurisdictional element, his view might have been different.

Feinstein thinks it is pretty obvious that a Chinese-made machine had travelled in interstate commerce.

3:37 Sen. Feinstein now take the stage and wants to know if he agrees with the Court’s approach in Lopez and Morrison (Commerce Clause cases). Alito doesn’t want to take a position on the correctness of those cases or how he would decide the next step. Acknowledges that Congress has broad Commerce Clause powers, but we still have a federal system.

3:35 DeWine explains how the cert. pool works and wants to know if Alito is going to participate. Alito hasn’t looked that far forward (would be a bit presumptuous).

3:34 DeWine is now objecting to the Court’s cases striking down Congress’s various attempt to regulate internet pornography. He thinks it is a lesser value of speech. Alito says this category of cases demonstrates difficulty of applying old constitutional principles to new technologies. Notes that First Amendment provides no protection to obscenity, but the cateogry is strictly limited. Court has held states can prevent sale of simple non-obscene pornography to minors. But it’s hard to do that on the internet. Can’t say much more than that.

3:30 Alito thinks this is a difficult question to answer from his position as an appeals’ court judge, not wanting to bad mouth his current bosses in the Supreme Court for not working hard enough. He is aware of the complaints. Certainly splits are “an undesireable thing” and resolving them is part of the Court’s job. But Court may have good reasons to delay resolving them, including letting issue percolate.

3:32 DeWine is citing authorities on how many circuit splits are left unaddressed by the Supreme Court. DeWine thinks this is a bad thing. Does Judge Alito agree?

3:21 DeWine moves on to Roe v. Wade and says that he doesn’t think it is “super-duper precedent.” It’s not even “super precedent.” In fact, DeWine thinks it’s a pretty lousy precedent. There is no question on Roe. We’re moving on.

3:20 Alito says that Congress has “broad power” under Spending Clause to attach conditions to federal funds, subject to constitutional constraints set forth in South Dakota v. Dole: the condition has to be clear and condition has to be “germane” to purposes of the funds.

3:17 DeWine wants to know if Congress can get around Garrett under the Spending Clause. What is the scope of the Spending Clause power?

3:15 Alito says that Congress’s findings are due “great respect.” Notes that Congress made no findings in the FMLA case he ruled on. Notes further than Congress has superior expertise to make “legislative findings” and that it also has a duty to respect the constitution.

3:13 DeWine is now describing Supreme Court cases he thinks represent the Court’s disregard for Congress’s prerogatives (Univ. of Ala. v. Garrett). He wants to know whether Alito will show appropriate deference to Congress’s findings in such cases.

3:09 It is unclear whether DeWine is ever actually going to ask a question.

3:07 Sen. DeWine is reading an article from Stuart Taylor making the point that some viewed Justice O’Connor as a radical right-wing pick for the Supreme Court in the same terms used to describe Alito. He then goes on to list cases in which Alito sided with civil rights plaintiffs.

3:03 Alito is asked whether the Court was correct to “interject” itself into the 2000 Presidential election. Alito acknowledges that the question is unlikely to come up again, but that he “really doesn’t know” whether the Court was correct in getting involved because he hasn’t studied the question. Alito says that his “honest answer” is that he hasn’t thought about it in a way that a judge would. Sen. Kohl is extremely skeptical that this is, in fact, an “honest answer.”

3:00 Alito explains that his much criticized decision on the Family Medical Leave Act was not, in fact, repudiated by the Supreme Court in Nevada v. Hibbs. His case, Alito explains, was reviewing a different portion of the FMLA, one dealing with leave for personal medical leave, whereas the Supreme Court was looking at the provision for medical leave to care for a family member. Judge Alito notes that every other court of appeals to have considered the personal medical leave provision has reached the same conclusion that Congress did not have an adequate basis for thinking that the legislation was needed to remedy a history of gender discrimination.