More Liveblogging of Alito Hearings

2:57: Kohl moves on to the Family and Medical Leave Act. Kohl was disturbed to learn that Alito had denied a plaintiff the ability to sue for damages, a decision overruled in Hibbs. Alito’s view shows a lack of understanding for working Americans and women. Alito says there has been some confusion here. The issue in his case was not the one in Hibbs. Seven other circuits had gone the same way as Alito on that issue. Hibbs dealt with a provision requiring leave to take care of another family member. In Alito’s case, the provision was leave for personal illness.

2:54: Kohl moves on to reapportionment. What was Alito’s disagreement with Warren Court decisions on this point in 1985? Alito says he did not disagree with one-person-one-vote in 1985. He was talking about how he became interested in constitutional law back when he was in college. He was interested in how far the principle went when drawing legislative districts. If the districts had to be almost exactly equal based on a previous census, that would be problematic.

2:52: Kohl moves on to Casey. Alito had said that only a few women would be affected by spousal notification. Kohl asks is a constitutional right worth less because only a small number of people are affected? Alito says he was trying to apply the undue burden test, which was difficult. He wrestled with it. The law was not clear at the time. The undue burden standard had been articulated, but it was vague. Only a few hints about what it meant. It was not enough to show that regulation would inhibit some women from having abortions. So the question was how to apply that to the provisions before us? Plaintiffs said all of the provisions were undue burdens. Stevens agreed with that when the case made it to the Supreme Court. The majority on Alito’s panel found that most of the provisions were not undue burdens. They disagreed only on the spousal notificiation provision, and it had a safety valve. He wrestled with it given what he knew about the standard to be applied. That was the best he could do under the circusmstances.

2:50: Kohl quotes Alito’s 1985 job application again: Alito said that he believed that the government has a role in protecting traditional values. What traditional values, and decides what is a traditional value? Alito says this was 20 years ago…but the ability to live in peace and safety is a traditional value. The ability to raise a family in accordance with one’s own beliefs, the ability to raise children in a way where the children are spared physical and psychological threats. That’s the best Alito can reconstruct what he must have meant in 1985.

2:46: Kohl quotes Alito as saying that he disagreed with Warren Court decisions regarding reapportionment, criminal prcedure and establishment clause cases. Which ones? Alito says he wrote that statement 20 years ago. He was outlining the development of his thinking on con law. He mentioned some leading decisions of the Warren Court which stimulated his thinking in his college days. He became interested in constitutional theory, particularly Bickel. He was a proponent of judicial self restraint. Alito was never opposed to the one-person-one-vote concept. Bickel argued that the Court had taken one-person-one-vote too far. Alito remembers this argument.

2:45: Kohl pushes again on the quote in support of Bork. Alito states that he doesn’t agree with several of Bork’s opinions.

2:43: Alito says when he made that statement in 1988 he was an apointee in the Reagan administration and that he was a supporter. His statement should not be read any broader than that. Alito agrees with Bork on some issues, and he disagrees on others. He disagrees on Griswold and on reapportionment; one person-one vote is fundamental to our system of constitutional law.

2:41: Kohl quotes Alito: “Judge Bork was one of the outstanding nominees of this century.” Kohl says that many Americans consider Bork out of the mainstream. Bork called Roe unconstitutional and had a broad view of executive power. Can we assume that Alito agrees with these views?

2:40: Alito: It’s not an easy process. Once you have identified the principle, it’s not always easy to apply it. But the judge must be true to the constitutional principle. Sometimes this results in groundbreaking decisions. Sometimes a principle has long been neglected. This is true with regard to the equal protection clause; its true meaning was not recognized for a long while. The Court righted an incorrect interpretation.

2:39: Kohl: But didn’t these landmark decisions push our culture in a new direction?

2:37: The Constitution has some rules that are easy to apply, like age limits for office holders. But there are also some broad principles, like equal protection. It is the judicary’s job to take the principle and apply it in a neutral fashion. Judges must be wary about substituting their own preferences for what the constitution says. The judge should not inject his or her policy views into the decision making process.

2:36: Sen. Kohl (D-Wisc) says that laws and the constitution are often ambiguous. A judge’s philosphy matters. Would a neutral judge never have reached many decisions that have lead to some of the civil rights we now take for granted?

2:30: Kyl turns to Lopez v. U.S. Alito says his position in Rybar did not go to the question about whether Congress can regulate the possession of machine guns. The statute prohibited possession of firearms with no Congressional findings and no jurisdictional element. All that is necessary is to show that the firearm had passed through interstate commerce. This was how all federal firearms statutes had been framed. But in Lopez and Rybar, that jurisdictional element was missing. Alito says the Court said that possession of a firearm was not economic activity; there was no jurisdictional element; and there was no Congressional finding linking the firearm to interstate commerce. Alito applied these factors to the statute in Rybar. Moving on to Sen. Kohl.

2:24: Kyl asks how many cases Alito has participated in. Alito says well over 4000 on the merits. Kyl says there are proabably a few where he (Kyl) would disagree. But there are cases where Alito has found where the government has acted properly and some where the government has acted improperly. Alito agrees. Kyl turns to racial discrimination. Kyl mentions that O’Connor adopted Alito’s test for discrimination in the Reeves case. Alito agrees. Kyl asks if Alito has upheld discrimination claims by racial minorities. Alito says yes. Cites Smith v. Davis along with several others, including cases involving age and disability discrimination. Kyl mentions another case involving an African American woman, where Alito ruled that she was entitled to damages and fees. Kyl concludes there are a number of cases where Alito has ruled (or dissented) in favor of minority claimants. Alito agrees.

2:19: Kyl says that nearly half of the time, a different party nominates a justice to replace a departing justice. Ginsburg replaced Justice White, yet no one at that time worried about how Ginsburg might rule as opposed to White. That’s a results-oriented test and is inappropriate. Kyl now quotes Kennedy, who said Ailto has disregard of the impact of executive powers on individuals. Kyl asks for a response. Alito says that he tries to decide cases on their merits. Alito cites his opinion against racial profiling. Alito also cites a number of criminal cases where he sided with the individual, including reversals of the death penalty.

2:16: Alito says he doesn’t remember, must have been long after he left school. Kyl wants to put in a document showing that the ROTC issue was core to the purpose of CAP. Kyl moves on to the Ninth Circuit case removing “under God” from the pledge of allegience. Kyl says that it seems to him that the majority of the American people are having their freedoms restricted by such a ruling. Aren’t there often two freedoms involved? Alito says yes, there are often conflicting freedoms, which makes cases difficult.

2:15: Kyl wants to put 3 items into the record to deal with the CAP issue: 2 letters by Democratic attorneys that make it clear that Alito has advanced women and minorities. Also a Washington Post article stating that Alito diversified his office. Kyl asks Alito when he joined the CAP.

2:15: Sen. Specter calls the hearing to order. Sen. Kyl’s up again.

1:05: Specter recesses until 2:15, at which time Kyl will use the remaining 20 minutes of his time.

1:04: Kyl closes by talking about traits of character needed to serve on the court, including “dominating humility.” The bar association agrees Alito posesses these traits.

12:59: Kyl cites a response Alito gave on his questionnaire regarding judicial activism. Kyl asks how one determines when a constitutional violation is “deeply rooted” and when a court should be aggressive with its use of equitable powers. Alito says he was refering to efforts to implement Brown v. Board despite resistance. The courts did not sway with the wind. The lower federal courts enforced the decision of the Supreme Court. Kyl asks for other examples. Alito mentions Youngstown Steel. SCOTUS said this overstepped bounds of executive authority. Justices stood up for the law despite great pressure against them. It is the responsibility of the judiciary to hold fast.

12:58: Sen. Kyl asks when it is appropriate to focus on foreign law. Alito says it is not helpful to interpret the constitution. The structure of our government is unique to our country. As for the protection of individual rights, we should look to our own constitution and precedents. It is legitimate to look to foreign law in some situations, i.e. interpretation of a treaty. In such a case, foreign law would not be controlling, but could be “useful to look to.” Sometimes in private litigation, the rule of decision may be governed by foreign law. But generally, it is not helpful to interpret the constitution.