Liveblogging of Alito Hearings – 9AM Friday

11:00 Michelman continues. Alito shows no concern for the effect his rulings will have on regular people. His rulings on the Third Circuit concerning abortion show that he does not consider the real affect they will have on thousands of women. This is the most important nomination Michelman has had the opportunity to participate it, because Alito has such a different perspective on women’s privacy rights than Justice O’Connor.

10:58 Next is Kate Michelman, NARAL President for 18 years. She says that the lives of millions of women will be changed if Alito is confirmed. Relates her personal story of being abandoned by her husband while caring for their three children. Struggling to make ends meet, she discovered she was pregnant and after much soul-searching decided to terminate the pregnancy. This was pre-Roe, and she had to endure degrading questioning in front two different all-male panels, and once they approved she had to seek the approval of her husband. This experience awakened her to a lifetime of activism on behalf of women who may be similarly situated.

10:52 There were blatant reconfigurations of voting districts in Tuskegee, Alabama to diminish the voting power of the city’s African American community. Gray helped with the legal challenge that held the redistricting unconstitutional. It made an enormous difference in Tuskegee, as the reapportionment cases have done all over the country. We need a strong Supreme Court to uphold voting rights laws because there are still areas, primarily in the South, that if left unchecked would work to diminish the voting power of African Americans. Thus, Judge Alito’s views must be scrutinized because he has said that he disagrees with the apportionment cases and would like to turn back the clock.

10:46 The session has reconvened. The first panelist is Fred Gray, prominent Civil Rights Attorney and former attorney for Rosa Parks and Martin Luther King, Jr.. He begins be stating that he was involved in many, if not most, of the prominent civil rights cases during the Warren Court. He would like to focus on reapportionment cases. There is no more important body of case law than that of voting rights.

10:25 There will be a short break for the memorial service for New York Times reporter David Rosenbaum. After the recess the hearings will resume with a new panel.

10:22 Feinstein asks Fried if he would predict, as he did with Roberts, that Alito would never overrule Roe. Fried says that since Alito left the SG’s ofice he has spoken only about 15 words to him, but that yes, he would make that prediction.

10:21 Feinstein asks all panelists which current or former Justice Alito will be most like. Chemerinsky – Scalia. Kronman – Harlan. Nolan – Scalia. Fried – definitely not Scalia because Alito doesn’t share the Scalia theology, but it’s Jackson. Tribe – between Scalia and Thomas.

10:19 Fried says he can answer quickly because he “has a talent for making things brief.” Fried says that the discussion of the unitary executive theory has been misleading. The theory says nothing at all about whether the President can disobey the law, it simply addresses how much control the President has over the executive branch.

10:17 Sessions asks Nolan if there is constant tension between Congress and the President in a struggle for increased power. She says yes. No follow up question.

10:16 Sessions is next and asks Demleitner about an instance when she asked Alito to change his mind. She says that as a liberal she was very often sympathetic to defendants and was worried about that when she accepted her clerkship with Alito. But she says he was very clear that he wanted her to express and discuss disagreements she had with his rulings and reasoning. Demleitner said Alito always listened to her reservations about opinions.

10:10 Kennedy says Alito’s dissent in Morrison and other writings show that Alito wants to alter the balance of powers and tip them toward the executive. He asks Tribe to comment. Tribe says that when Alito made many of these comments on the unitary executive, including those to the Federalist Society, while he was a judge and not working for a government agency, and thus he was not simply parroting the government’s views.

10:06 Kennedy is next, and wants to return to the unitary executive theory.

10:04 Hatch is up, and asks Fried to explain the difference between settled law and settled precedent. Fried says that he is unable to distinguish between the two. Fried says that Alito’s answers on this were admirable, and what Alito was saying was that Roe is something that is well understood, and it would be disruptive to overrule it. Alito was very careful to avoid a formulation which was the equivalent of a commitment of how he would rule on Roe, which Fried says we can all agree is proper.

9:55 Leahy asks Nolan what she would have told the President if, when she was WH Counsel, he had told her he wanted to wiretap without going to the FISA court. She would have told the President he could not do that.

9:53 Leahy is up next. Asks Chemerinsky what are the implications if the views in Thomas’ Hamdi dissent prevail instead of the views in the O’Connor opinion. Chemerinsky says that the implications would be vast, and that the Thomas dissent embodies the views of the unitary executive theory.

9:51 Demleitner, as a clerk, never saw anything resembling an agenda and looked at each case individually. Kronman says Alito does not have a predisposition to favor the government.

9:48 Specter asks Chemerinsky if Alito will be a rubber stamp. Chemerinsky says that in light of Alito’s entire career, there is nothing to indicate that he will enforce checks and balances.

9:46 Moving on to questions by the Senators. Specter asks Fried how Alito will approach Roe if it comes before the court. Fried says that although he could be quite wrong, his belief is that Alito will not move towards a frontal overruling of Roe. Alito, if he does anything, will move in the reasonable tradition exemplified in the Casey opinion.

9:44 Tribe says that it is clear that Alito does not think that the Court has a role in protecting special intimate liberties. Moving on to executive powers. Alito was not forthcoming in his testimony to the committee when he discussed his views on the unitary executive, and Tribe agrees with the earlier comments of Beth Nolan.

9:41 Tribe guarantees that the reason Alito advised Fried to not argue to overturn Roe was not because Alito thought it shouldn’t be overturned but rather that a better strategy would be to try and overturn Roe piece by piece. Tribe moves on to Alito’s discussion of Casey during his testimony before the committee, and says that Alito was wrong when he said that the Casey analysis started and ended with precedent.

9:38 Next is Professor Laurence Tribe of Harvard. He is not here to endorse or oppose Alito. He aims to ensure that Senators do not vote with their “eyes wide shut.” He will focus on two things. First, will Alito narrow the scope of individual liberty, particularly for women. Second, will Alito broaden Presidential rights?

9:36 Alito is in the mainstream, although he is towards the right bank of the mainstream, as Breyer and Ginsburg were towards the left bank.

9:35 Fried says that among the lawyers in the SG office were liberals and conservatives, and that political affiliation did not matter because the lawyers were professional who understood their job. Alito did the opposite of what is alleged in the much-discussed abortion and AG immunity cases. Altio urged Fried as the SG to not attempt to overturn Roe in the Thornburgh case and to not argue that the AG should have immunity.

9:32 Professor Charles Fried of Harvard is next. He will shed light on Alito’s work as an Assistant Solicitor General, as Fried was the SG at the time.

9:30 Nolan wants to focus on Alito’s speech to the Federalist Society convention where he sanctioned the unitary executive theory. This theory says that the President has no limitations on his power except those explicitly stated in the Constitution, and Congress has essentially no power in foreign affairs, and thus in foreign affairs the President is above the law. Altio’s statement’s about the unitary executive should be explored further.

9:26 Next is Beth Nolan, a former White House Counsel in the Clinton Adminstration, who will discuss executive power. She understands that the President often fights with Congress over the reach of his power. She was involved in such struggles in the WH Counsel office, but the current administration has reached much too far, and this, coupled with Alito’s deference to the government, should be cause for concern.

9:23 Kronman says it was impossible to discern Alito’s political affiliation while at law school. Moving on to judicial temperament, Kronman says that from the Alito opinions he’s read Alito is a “judicious” judge, and will do a great job on the Court.

9:20 Professor Anthony Kronman of Yale is next. He was Alito’s classmate at Yale Law and worked with him closely throughout law school. Kronman says that as a student Alito was hard-working, a good listener, exceptionally bright, modest, and had faith in the law and the fairness of its processes.

9:17 Any police officer and any judge should know that it violates the Constitution to strip search a little ten year old girl who is accused of nothing.

9:16 Will Samuel Alito enforce checks and balances, or will he be a rubber stamp for the administration? Chemerinsky says Alito’s opinions show too much deference to executive power. Discusses the Attorney General immunity case, Alito’s belief in the unitary executive theory (people who believe in this theory aim to radically change the United States government), on the Third Circuit Alito nearly always sided with law enforcement.

9:13 Professor Erwin Chemerinsky of Duke is next, and begins by saying that he can’t overstate how important this hearing is for the future on Constitutional law because of how often O’Connor was a swing vote. The Bush administration has made unprecedented and very broad assertions of executive power, and the separation of powers will be an enormous issues for the next few years.

9:11 Alito’s record, including the Rybar machine gun case, indicates that he will follow the law carefully. His criminal law experience will be of great assistance on the Supreme Court bench.

9:08 Prof Demleitner establishes that she considers herself politically liberal, and wants to explain why she and other former Alito clerks who are more liberal then the Judge look up to him and support his confirmation.

9:06 Hearing has been reconvened. First panelist is Professor Nora Demleitner from Hofstra Univeristy law school, a former Altio clerk.

9:00 The hearings are about to get underway – Senators and witnesses are filing in and taking their seats.