4:05 In recess until 4:20.
4:04 Sessions is getting letters from his constituents urging Congress to withdraw jurisdiction from the Supreme Court because of it’s overreaching. Congress has been showing restraint.
4:00 Sessions is now challenging the Supreme Court’s supremacy on constitutional questions, noting that nothing in the Constitution explicitly gives the courts the power of judicial review but that Article III explicitly allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction. Don’t those words have some meaning?
Alito: Yes, its’ undisputed that the words have some meaning.
Sessions: And Congress has the power to create inferior courts and impeach judges.
Alito: It is undisputed that the lower courts are dependant on Congress for their creation.
3:56 Sessions says the Court in Kelo just “changed the meaning of the words” of the Takings Clause.
On the Pledge of Allegiance case, the Court decided the case on standing grounds but now on remand Newdow got other plaintiffs and a court there has now prevented people in the 9th Cir. from saying the pledge of allegiance…. Acknowledges that it wouldn’t be appropriate for Alito to comment on any of this. So, he’ll move on…
3:52 Sessions notes that Court’s cases touch on issues of the deepest morality. Can he show that he is in touch with these concerns?
Alito: Yes. He recognizes, for example, that the Kelo decision touched a nerve (although he can’t comment on it or future cases that might relate to it). People’s homes have sentimental value, communities are important, and money can’t be a substitute for that.
3:52 On questions of Vangaurd and integrity, Sessions reads the ABA’s conclusion: they accepted Alito’s explanation and don’t think the case reflects any ethics problem and that everyone they talked to think he is a “straight shooter,” has “unquestionable integrity” etc. ABA concludes that he has “excellent integrity.”
3:47 Sessions informs Alito that his voting in immigration asylum cases (19% in favor of applicant) is more favorable toward applicants than the nationwide average (8%).
In civil rights cases, his panels were unanimous 90% of the time, 100% when the other members of his panel were Democratic appointees.
Ooo! A question: Doesn’t Alito agree that standing is an important question?
Answer: Yes!
Sessions points out that the environmental case Sen. Feinstein was complaining about was decided on standing grounds, not environmentalism grounds.
3:44 Sessions takes over. He notes how extensively Alito has been investigated by the FBI background check, the White House vetting, the ABA review, the interest groups, etc. He’s come through with very little mud on him. Sessions thinks that few congressmen and women would do so well…
3:41 What is the role of the courts in end of life issues?
Alito: There are constitutional, statutory, and jurisdictional issues. Congress can give courts a role, or leave it to the state courts, where issues in this area are usually adjudicated. If there’s a federal constitutional right involved, of course, federal courts are open.
Notes that the Court touched on the question in the Cruzan case and that this is a “tough issue for an awful lot of people.” Notes that in Cruzan, the Court “assumed” that there was a constitutional right to refuse medical treatment and that there is a common law right. And in Glucksburg, Court decided that there was no right to physician assisted suicide because there was no substantive due process right founded in long tradition, etc.
3:35 Moving on, she is worried that the Court’s current course on restricting Congress’s Commerce Clause powers threatens major federal legislation. She brings up a case on the Clean Water Act in which Alito voted that an environmental group had standing to bring a suit because they didn’t show that the river was harmed by the violations of the Act, even though they did show that they were injured because they could no longer use the river. She says that the Supreme Court overruled this reading in a subsequent case (Laidlaw). Does he agree with the Court’s decision.
Alito says Laidlaw is Supreme Court precedent.
He explains that in his case, the plaintiffs showed that the walked around the river, fished in it, etc., but didn’t show that discharges into a creek that fed the river actually hurt the river (and therefore didn’t injure the plaintiffs who only used the river, not the creek).
3:32 Feinstein wants to know whether he agrees that Roe is “well settled.” Alito will only say that he thinks it would be inappropriate to tell a future litigant that he won’t consider their claims, so if that is what “well settled” means, he can’t say that it is well settled.
He doesn’t want to say more because abortion issues will come before the Court.
Feinstein complains that he was willing to answer questions on “one person one vote” even though there are pending cases in the Supreme Court relating to that principle.
3:28 The Senator reads Alito part of Roberts’ testimony on Roe in a colloquoy with Sen. Specter in which Roberts said that there was nothing in her personal view that precludes him from following Roe and Casey. (This appears to be during Roberts’ hearings for the D.C. Cir.) She asks Alito to comment on the testimony and say if he disagrees.
Alito agrees that he has to set aside his personal views as a judge and that Roe and Casey are “precedent” and “entitled to respect” (although noting that to the extent older decisions have been modified, newer cases prevail). Also agrees that reaffirmance of a case strengthens it as precedent.
3:25 Sen. Feinstein wants to try “one more time” to get him to give her a satisfactory answer on Roe. She says that according to the Washington Post, yesterday Alito used a phrase to describe stare decisis — that precedent “is not an exorable command” — that the former Chief Justice used in a case in which he was arguing for overruling Wade. Did he mean to use it in the same way?
Alito and Feinstein discuss whether one should believe everything one reads in the Washington Post.
3:22 What is the difference between commercial and non-commercial speech?
Alito: There’s a debate about whether there should be a distinction. Court has viewed commercial speech “differently” and permits greater restriction under current case law. The idea is that commercial speech is more durable, given the economic incentives, so less likely to be squelched by limitations.
3:13 Alito is explaining his basic framework for analyzing First Amendment claims. He notes that in New Jersey, state courts consider some private places (like malls) to be a public forum.
Says that even in a limited public forum, the Gov’t can’t engage in viewpoint discrimination.
[Appologies — work intruded on my blogging duties. I think Alito was just explaining whether or not he would overrule Roe v. Wade and how he would rule on the President’s authority to engage in warrantless electronic surveilance. But I may be mistaken… back to live coverage]
[Sorry — off-line for a second. Kevin will pick up momentarily.]
2:23 Senator Kyl represents that he will return to substance re Alito’s tenure as a judge. Cites statistics indicating that Alito was more favorable to employment discrimination plaintiffs than all federal appellate judges. Alito explains that cases that reach courts of appeals are ones that district judges think should not go to trial.
2:21 Senator Kyl has returned to CAP, asks if Alito had joined because of ROTC issue. Alito says he doesn’t remember precisely. Senator Kyl references “scurrilous” material read by Kennedy; Alito says he had not heard before today and vehemently disagreed with it, disavowed it. Alito says he would not have been a member if he knew of such material.
2:18 Senator Durban gets two minutes. Says changing your mind isn’t a bad thing. Wants to read from Roberts transcripts but Specter doesn’t want to do so without Hatch. Specter says he has made inquiries about Rusher matter over lunch but doesn’t want to say anything without Ted Kennedy back yet.
2:14 Biden says he is perplexed about CAP because it doesn’t fit with Alito’s background. He’s puzzled because of the knowledge that Princeton was the last hold-out in fully admitting women and minorities. Biden is still confused. Did, when Alito listed CAP, was part of the rationale the hope that it would appeal to people looking at resume? Alito says he doesn’t remember having anything to do with CAP, but he must have been a member when he put it down in 84-85. Biden suggests that he put it down b/c he thought it would appeal to Reagan administration officials. Alito says that by the time he entered Princeton it had many minorities. Biden says thanks.
2:09 We have moved on to Family & Medical Leave Act and Alito’s comments yesterday. Alito describes Hibbs. Biden says FMLA was intended to protect (inter alia) pregnant women — e.g., women who have to go on bed rest. That shouldn’t count against her time. Biden wants to know if that ever came up; Alito says he is not aware of it and that judges can’t know everything about the real world. He doesn’t believe that argument was ever presented. Biden says that Alito should have consulted his wife about this?
2:04 Biden gives us his interpretation of Casey: O’Connor was especially disturbed by a doctor’s having to read language to patient about abortions. But she thought it was still okay. Biden says that Alito extended this language to Casey. Are there really comparable issues? Today Biden is perplexed; says there is overwhelming evidence that women are afraid to tell husbands even if no threat of physical abuse. Is that comparable to doctor informing patient of risks? Alito says informed consent was less difficult, but both involved undue burden standard. At the time there wasn’t a lot to go on. Biden says he isn’t questioning sincerity of Alito’s search; and of course it’s not that Alito doesn’t care about little guy, but Alito seems to be out of touch with the way things actually are.
2:02 Biden asks about Thornburgh, and specifically about O’Connor’s statement about undue burden standard. Alito says that there were several provisions of statute at issue. His recollection is that O’Connor was talking about undue burden standard itself.
2:00 Biden is asking Alito about Casey, and specifically asking him to rationalize yesterday’s statement and his dissent. Alito says look at the group that’s required to notify and then see how many people would be inhibited from having an abortion; you don’t look at either people who aren’t required to notify or just people who would be inhibited.
[It’s lunch time at the Senate. Back at two p.m.; apparently Senator Biden will be next.]
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