Still More Liveblogging of Alito Hearings
on Jan 10, 2006 at 11:10 am
12:53 Senator Kyl. Brings up unitary executive power issue. He thinks he understands it, but asks Alito to discuss again anyway. Alito discusses. I have to head to class, but Cody Harris will pick up in a few minutes.
12:50 Starts on Casey. Biden says he doesn’t care about Alito’s position on abortion, but just wants to talk about reasoning. Decides not to pursue Casey line because time almost up. He’s still puzzled; says that Alito seems to come down more often in favor of, and give benefit of doubt to discriminators. That would be a shift in the court, and he’s not comfortable with it. Ends without giving Alito chance to respond.
12:42 Biden moves to Sheridan case, in which woman alleged constructive discharge after she filed discrimination complaint; employer said it would hound her like a dog for filing complaint. You said that maybe employer just didn’t like her, which is okay. How do you tell the difference? Biden uses example that involves Dianne Feinstein’s glasses, although we don’t get to see what they look like. Alito says issue divided courts of appeals at the time. Warns that issue is technical but says he’ll try to put it into simple terms. O’Connor later agreed with my position on this legal issue in Reeves v. Sanderson Plumbing. Biden says that he read Reeves, but contends that O’Connor would have disagreed with Alito on this point. Acknowledges that O’Connor set out same test as Alito, but says he thinks that O’Connor more prepared to give benefit of doubt to employee than Alito is — i.e., would have reached a different result. Alito responds about what evidentiary points were considered. Biden says that Alito knows better than he does, but still thinks that O’Connor would have come out differently. But he’s not presuming to be as knowledgeable as Alito.
12:30 Biden reiterates the discrimination that O’Connor had experienced as a young female lawyer. She understood discrimination. Discrimination has become more subtle, which is why we enacted Title VII. Let’s talk about your antidiscrimination cases. Bray case — racial and gender discrimination. Indisputable that plaintiff was qualified and company didn’t follow its procedures, gave conflicting explanations. District court judge ruled for corporation. On appeal, two CA3 judges reversed, but you didn’t join them. They said your standard would eviscerate Title VII because it ignores the realities of racial animus. You said conflicting statements were just “loose language,” concerned that disgruntled employees would impose costs of a trial on employers. Can you tell me what the difference is between a business judgment as to who is most qualified and discrimination? Alito says this is a close case, which is the kind that the court gets because others settle. Says four federal judges looked at the case; two (including him) that evidence was insufficient, two thought that it was enough. Reasonable people disagree. There was no direct evidence of discrimination, although agrees that discrimination can be subtle and judges need to keep that in mind. Recounts facts of case. Biden apologizes for interrupting, but does so anyway. Reminds Alito that discrimination is subtle, companies will keep looking until they find someone else. Biden isn’t questioning commitment to civil rights, but wondering if you fully appreciate how discrimination works. Implication is that, unlike O’Connor, Alito doesn’t. Alito returns to the facts of the case, says no evidence of intent to discriminate. Biden recounts facts as well. Why wouldn’t you let jury decide? Alito says he had to look at what reasonable jury would do, says he thought reasonable jury couldn’t find discrimination. Contends that he thought evidence was closer than district judge did. Biden is “puzzled” again. Thinks its interesting that in very collegial court, panel said Alito position would eviscerate Title VII. But let’s move on.
12:28 Biden question continues. Turns to fact that whom someone is replacing is important. You are replacing the fulcrum on an otherwise evenly divided court. Says nice things about O’Connor’s “real world” experience and how she applied common sense. Point is that this isn’t just about you, but about the effect of your appointment on the court. So don’t take any of this personally. Biden is just “puzzled.”
12:23 Biden starts. No one thinks you lack integrity. But . . . people are puzzled about whether you think executive trumps other branches. Yes, 1985 was a long time, but . . . . Don’t take this personally. Recusal issue is puzzling because you said you would recuse yourself. Calls ethical inquiries malarkey, but indicates that he remains “puzzled” by ethics inquiries, CAP, etc. Were you aware of controversy about CAP? I remember it; Bill Bradley disassociating himself with the outfit. Alito says he doesn’t believe that he was aware of it. Biden says he believes him, although I knew about it as a University of Delaware grad. It was a big deal in our area. You also stated in your application that you were (present tense) a member. Biden reiterates that he was aware of it.
12:21 In the past few decades, court has become battlefield for warring interest groups. Impugns blogs. There are blogs going on about this hearing. (Hmmm.) What can be done to restore sense of constitutional balance? Alito says he thinks branches are co-equal. Says judiciary must always be mindful of its role. Doesn’t mention the blogosphere. Moving on to Senator Biden.
12:20 What is your position regarding results-oriented jurisprudence? Alito says it is never justified.
12:18 When there’s a bad law that might still be constitutional, what should court do? Is it ever justified in correcting? Alito says courts do not have authority to repeal or amend statutes. They just determine what statute means and enforce it. Sometimes statutory interpretation may produce an absurd result, in which case courts can then go back and look at what statute means.
12:17 Is there any scenario in which judges can be activist? Alito says judges should decide case before them. When you go beyond the case, you are more likely to get things wrong.
12:15 Grassley turns to what courts should do when Congress doesn’t act. Takes us back to Souter confirmation hearings. Do you believe that Supreme Court should fill in vacuums left by Congress, or is this a way for judges to take activist role? Alito says he doesn’t know what Souter was talking about. He thinks that his job is to interpret constitution and statutes.
12:14 Grassley wants to know if Alito thinks that judicial activism is ever justified? Alito says that more just society is produced when judges do their jobs. Constitution is designed to produce a more just society. Everyone has a different job to play; system won’t work if people don’t stick to their roles. If you stick to your roles, the whole system will work.
12:13 Grassley says that some constitutional provisions are so vague that some judges think they can do whatever they want; wants to know what Alito thinks of this approach. Alito rejects this approach. Says constitution contains general principles, but judiciary has to be very careful not to inject its own views.
12:12 Grassley wants to know how Alito will go about deciding whether something infringes on individual right. Alito says he would look at text of statute and precedent.
12:10 Grassley addresses what he describes as tension between majority rule and individual freedoms. I assume that you agree that there’s tension? Alito agrees.
[Sorry — had to take a phone call.]
12:05 Alito says that judiciary should not be reluctant to stand up for unpopular causes if need be.
12:04 Should justices consider political implications of a case? What is court’s role in highly charged cases?
12:03 He’s opposed.
12:03 What do you think about judges imposing their own values into interpretation of constitution?
12:02 Alito: our constitution sets up democratic system of government, establishes principles that can’t be violated, protects fundamental rights. Judiciary’s job is to enforce constitution and laws in accordance with their meaning.
12:01 Alito says no, he’ll judge the cases as they come up. He believes in judicial independence.
12:01 Do you believe president is above the law and constitution?
12:00 Alito says no.
12:00 Grassley wants to talk about executive power. Critics say you would just rubberstamp administration policy. Would you?
11:55 Grassley returns to ethics charges generated by “left-wing liberal” groups, says he thinks allegations are “absurd.” Everyone who knows you says you are ethical, experts say you acted properly. Lists ethics experts. Allegations just come from people intent on torpedoing the nomination.
11:53 Grassley joins Vanguard bandwagon. Reiterates that nothing to be gained, Alioto shouldn’t lose any sleep over it because senators couldn’t possibly keep every promise to constituents. Says nice things about Alito and his performance so far at the hearings. He doesn’t change his facial expression, but Alito nonetheless looks grateful for the respite.
11:52 Specter returns to Vanguard and issue of how much Alito gained during that time. Says he doesn’t like that Alito didn’t get a chance to answer. Alito says nothing to gain from the Vanguard decision.
11:50 Kennedy returns to McCain signing statement again, says it undermines what everyone agreed on. He’s very concerned about the undermining of the process.
11:48 Alito says unitary executive theory has been misunderstood, and discusses.
11:47 Kennedy questioning Alito on unitary executive theory. Again holds out Judges Chertoff and Rendell as appropriate models. Why should we believe that you will be an independent check on president?
11:44 Alito: I usually start and end with plain text of statute. Says memo came from working group meeting that he attended; Attorney General had already made a decision re signing statements and my task was just to summarize the meeting. Look at whole memo; it also indicates that there were theoretical problems.
11:40 Kennedy reminds Alito that Chertoff took exception, describes Chertoff’s dissent as eloquent. Describes various studies of Alito’s record, study indicating that Judge Alito rules against individuals 84% of the time. Returns to McCain anti-torture amendment, says nice things about McCain. Returns to Bush’s signing statement on law. You were among early advocates of use of signing statements to limit the scope of laws. Is Bush’s statement re president can order torture what you have in mind?
11:38 Alito: I wasn’t happy that a ten-year-old was searched. There shouldn’t be a Fourth Amendment rule that minors could never be searched. If we had that rule, drug dealers would hide their drugs on minors. Issue was very technical, about incorporation of affidavit. Continues to discuss technicalities.
11:38 Still the same question.
11:36 Kennedy: Let’s talk about the Doe case, with stripsearching of ten-year-old girl. Police were hoping to find contraband. Judge Chertoff (details his positions in judicial branch and Bush Administration) even said that it was too much. Can you go through your reasoning with us?
11;35 Alito: Supreme Court says judges should make that determination before it can go to the jury.
11:34 Kennedy: One judge called it “Gestapo-like”; shouldn’t jury decide whether it’s reasonable.
11:33 Judge Alito says that there were additional facts (not mentioned by the senator) that led the marshals to act as they did. He explains that it was a qualified immunity case, that’s the law. I didn’t make up the standard. He also points out that another judge in the majority saw it the same way.
11:30 Kennedy: Your record still shows excessive deference to executive branch. Let’s discuss your executive power opinions. First one is about U.S. Marshals forcibly evicting family of dairy farmers whose land was sold at a public auction (sorry, missed the name). Farmers had not committed a crime. Marshals entered house with loaded guns, family did not resist, but guns were pointed at heads, chest, and back. Wife was pushed twice. Trial judge held case should go to trial, but you “grabbed the case away from the jury” and substituted your own judgment for the jury. Why? Judge Rendell called the actions “Gestapo-like.”
11:30 Some discussion about the clock being used to time the senator. Senator Specter gives him two more minutes; there’s groaning.
11:26 Judge Alito: I used an inapt phrase in my 1985 memo; the branches of government are all equal. I haven’t changed my mind; it was just poorly worded.
11:25 Senator Kennedy has moved on to domestic spying and looking at library records. President accepted McCain amendment re torture but then as he signed it into law said he thought he could order torture whenever necessary. We need an independent and vigilant Supreme Court to blow whistle when president goes too far. Can you be a justice who understands how to strike balance between protecting liberty and security? Chief Justice Marshall was that kind of Justice. Chief Justice Warren Burger was that kind of justice when he told Nixon to turn over the tapes. I have serious doubts that you would be that kind of justice b/c the record has shown that you are overly deferential to executive power. Can the average citizen get a fair shake from you?
11:24 Senator Kennedy: THere had been a sizeable increase in value of Vanguard fund; if you had had a single share of IBM, you would have had to recuse. The point is that interested parties need to believe that they’re going to get a fair shake.
11:23 Judge Alito: 12 years had gone by, and the recusal issue had come up. Judges invest in mutual funds because they don’t want recusal problems, and the lights didn’t go off in this case. I had nothing to gain financially,
11:22 Senator Kennedy: People who spoke about your ethical behavior knew that you had pledged to committee that you would recuse yourself. You saw the name Vanguard on the briefs and opinions, but your testimony here is that it didn’t register that you had made the pledge regarding recusal.
11:21 Judge Alito says he doesn’t need to see the opinion. He regrets not having figured out the Vanguard issue.
11:20 Senator Kennedy is talking recusals, and Vanguard specifically. He’s asking the clerk to show the number of times that Vanguard appears on the opinion.
Sorry, everyone — I didn’t realize that I was signed in as Tom. So readers who may have been wondering why Tom’s commentary wasn’t very witty now understand why. I’ll continue to post when the committee resumes in a few minutes.
