Liveblogging of Final Alito Panel

1:00 Kennedy asks panel to comment on importance of diversity on the Supreme Court. (Each has 30 seconds to answer — can’t record them all):

Gonzales: would rather have a fair shake than an Hispanic (although would prefer to have both).

Schultz: Alito is replacing first woman.

Shaw: Agrees that substance is more important that the race or gender of the nominee.

12:55 Kennedy asks Shaw and Turner to comment on Riley v. Turner, which had to do with statistical evidence in jury bias cases.

Shaw: Jury selection bias is a hugely important issue to the Fund, which has been litigating such cases since its begining. Alito’s decision in that case trivialized the extent of the problem. Philadelphia has had recent severe problems in this area.

Turner: Justice O’Connor understands that race still matters in this country, particularly in courts and jury selection. Jury bias strikes at the heart of fundamental justice in our society. Alito minimizes, if not completely disregards, those principles.

12:53 Specter asks the clerks if Alito favors the powerful:

They say he doesn’t have any predisposition. He has ruled in favor of both the government and the little guy.

12:51 Specter asks Schultz whether if Alito is rejected, the replacement will be better in her view.

A: Americans have a right to expect that the President won’t nominate an extremist.

12:50 Specter asks Reginald Turner whether he is swayed by testimony of judge Lewis or Mr. White’s about Alito’s fairmindedness.

A: He recognizes that Alito has had collegial relationships. But Turner’s opposition is based on the record, that shows a tendancy of ruling against minorities and women and in favor of businesses and the government.

12:48 Specter asks Mr. White on his sense of Alito’s views on equality of opportunity for African Americans.

A: he worked on cases with Alito on a number of race-based civil rights cases. Alito came to the cases with an open mind and fairness.

12:38 The final witness of the panel and the hearings: Theodore Shaw, NAACP Legal Defense and Education Fund.

The Fund doesn’t relish opposing a nominee to the federal courts and usually doesn’t take a position on nominees.

He’s not here to attack Alito personally or to challenge his intelligence or integrity. He recognizes that people of good will can differ on the question of Alito’s nomination.

He notes that it is not unusual for clerks and colleagues to support a nominee. But collegiality is not what this is about.

The Fund, instead, opposes him on the basis of his record of judicial decisions (as detailed in a report that has been entered into the record). His record has been one of making it more difficult for civil rights victims to prevail in federal court.

Alito has voted in favor of an African American civil rights plaintiff on the merits only twice in his judicial career.

For example, Alito voted to preclude a jury from considering whether a defendant engaged in intentional discrimination when the defendant’s alleged reason for its actions was pretextual (he require the plaintiff to do more than show that the reason is a pretext in order to survive summary judgment).

Fund isn’t saying his is a racist. Whatever the reason for his rulings are, they are harmful to the cause of civil rights.

Alito’s views on apportionment and criminal judgment are troubling, too.

Ending on affirmative action: Alito has said that affirmative action is like moving the fence forward whenever Henry Aaron took the field. But real analogy is that affirmative action is necessary to allow people to get onto the field and play by the same rules as everyone else.

The Fund hopes they are wrong, but can’t base their position on hope.

12:29 Now, Reginald Turner on behalf of the National Bar Association, founded as a bar association for African American lawyers which has taken positions on only three of Bush’s nominees.

The Association focuses on nominees’ commitment to extending the blessings of liberty to all Americans.

Alito’s record shows a hostility toward doctrines and rights that promote this value. For example, opposition to one-person-one-vote precedents. In another, while working in the Reagan administration, Alito mischaracterized legitimate affirmative action programs as “quota” systems.

The views of “attorney Alito” carry over into the decisions of “judge Alito.” Particularly in the area of remedies for civil rights violations and in protecting the health and welfare of Americans. He has been the most frequent dissenter in the Third Circuit, 90% because the majority was not conservative enought. He opposed civil rights plaintiffs 85% of the time where the panel was divided.

The National Bar Association cannot support this nomination.

12:23 Next: Jack White, associate from Kirkland and Ellis, member of ACLU and NAACP, and a former Alito clerk.

White notes that his parents grew up as African Americans in the segregated south, and that he served in military.

Alito required thorough evauation of law, applied fairly and uniformly in each case, recognizing importance of every case to the particlar parties involved.

Alito had an abiding loyalty to a fair judicial process; he was non-ideological. There was a “conspicuous absence of ideological predilictions.”

White left his job not knowing Alito’s personal beliefs on the wide range of issues that came before the court, because it had no relevance to his decisionmaking.

Alito uniformly treated everyone — clerks, staff, parties, lawyers –with dignity and respect. When White’s parents came for a visit, Alito spent an hour with them even though oral arguments were coming up and the chambers had a lot of work to do. His parents came away thinking that their visit with him was the highlight of Alito’s day.

12:16 Congresswoman Schultz, Democrat from Florida:

Bottome line: you are considering a person who argued in favor of overruling Roe and who voted as a judge to require women to notify husband before obtaining an abortion.

She thinks Alito would have ruled wrongly if Terri Schiavo case had gotten to the Supreme Court.

In case about strip search of ten-year-old girl, Alito reportedly asked her lawyer at oral argument why he kept bringing up that the case involved the strip search of a young girl. Does anyone want him on the Court deciding cases about their children?

The Senate has steered the course of the Supreme Court throughout history. It has a responsibility here to zelously guard Congress’s legislative authority. Alito’s views on a “unitary executive” threaten Congress.

12:10 Next is Congressman Charles Gonzales, Democrat from Texas.

He is representing the Hispanic Caucus. The group is disappointed that a qualified Hispanic was not nominated.

Caucus evaluated Alito’s record as it relates to areas of their greatest concerns.

1. Alito would allow discrimination in jury selection based on language as pretext for national origin discrimination.

[He is talking so fast I can’t keep up]

4. Concerned about Commerce Clause power to enact civil rights law.

5. Also concerned about his positions on standards for race and gender discrimination cases.

Judicial branch is the great equalizer, balancing out the powerful’s power in the economy and politics.

He doesn’t think Alito shares the basic values needed on the Court. He will recommend that the Caucus oppose the nomination.

12:30 Specter introduces Kate Pringle, practitioner and former Alito clerk (93-94).

She explains job of law clerk: doing legal research, act as a “sounding board” for the judge. It’s a close working relationship.

She has always been a Democrat.

Alito works through cases from the “bottom up.” Comes to each case with an open mind, without a political agenda.

He was thorough: remembers him once physically acting out the events of a case in order to try to understand the facts.

He was interested in hearing a wide range of viewpoints: his clerks were politically diverse. He listened to everyone and was always respectful of counsel, other judges, his clerks.

Alito approaches his job with humility and respect for the institution of the courts. He knows his limited role in our sustem of government.