SCOTUSBlog is liveblogging the Alito hearings, which thus far, from what I’ve been able to catch of them, is simply a series of grandstanding, self-righteous Senatorial speeches designed to “warn” Alito that he need be specific in his answers (Joe Biden, for instance, couldn’t “fathom” how the Founding Fathers would’ve wanted potential SC Justices to decide cases right there in the hearing rooms, so that we could appoint judges confident we’d receive the legal outcomes we desired; and Chuck Schumer, while claiming he “hadn’t made up his mind,” essentially warned Alito that his conservatism was going to be a sticking point (why was Harriet Miers not given the same courtesies Alito was being given, he disingenuously wondered), just as Senator Feinstein reminded Alito that any decision he might make that would upset the “balance”created by Sandra Day O’Connor was simply beyond the pale, as if the Court was run on the model of UN consensus, not on deciding what is or isn’t lawful under the Constituion; that is, under such a description, the Court is not so much a deliberatively decision making body as it is a way to maintain the status quo while pretending that we are really considering the law).
So far, I’m dispirited by the opening statements of the committee (Lindsay Graham launched into his predictable smiling insistance that baby’s dying are bad—a fairly universal belief, but one that of course skirts important, debated, contested, and—most crucially—long decided (incorrectly, in my estimation, but the accrued power of stare decisis cannot be minimized) court precedent that redounds to privacy, “the living Constitution,” penumbras, emanations, and reasonable checks on broad and sweeping decisions.
(h/t Volokh)
Many others will be commenting during the day, and as they come to my attention, I’ll update the post.
My take is this: barring some colossal slip-up, Alito is confirmed without triggering a filibuster—and that will be, in large part, thanks to a point made by Lindsay Graham, who noted that to call Alito a conservative who is out of the mainstream is to imply that those who vote for him (as the majority of Republicans will) are likewise out of the conservative mainstream.
Which, while I have no doubt this is what most of today’s liberal Democrats believe, I don’t think they’d be so presumptuous as to want to put on record that their entire political opposition—and conservatism itself—is a political philosophy that is too radical to exist in a country wherein its representatives hold the White House and both Houses of Congress.
****
update: From NRO’s Bench Memos, Wendy Long notes that Ted Kennedy comes out waving the race card—the only real surprise being that he wasn’t wearing a fur-trimmed hat and plenty of bling:
Not only is [Huggy Ted] playing the race card, but he is misrepresenting Judge Alito’s record in doing so, claiming that Judge Alito has never once in 15 years ruled for a “person of color.†Oh? What about:
* In Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000), a race and sex discrimination case, Judge Alito reversed the district court’s decision to grant summary judgment to the defendant employer. The Third Circuit ruled that the plaintiff, a black woman, had introduced enough evidence to call into doubt the employer’s explanation for why she was given lower-quality assignments.
* In Smith v. Davis, 248 F.3d 249 (3d Cir. 2001), an African-American probation officer brought a claim of race and disability discrimination in violation of Title VII and the Americans with Disabilities Act. Judge Alito joined a unanimous decision to reverse the lower court’s grant of summary judgment for the defendant employer.
* In United States v. Kithcart, 134 F.3d 529 (3d Cir. 1998), Judge Alito overturned the defendant’s conviction for being a felon in possession of a firearm, concluding that police had no probable cause to stop and search him. Judge Alito wrote: “[A]rmed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier, Officer Nelson could not justifiably arrest any African-American man who happened to drive by in any type of black sports car.”
* In Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993), an African-American defendant was convicted in Pennsylvania court of robbery and criminal conspiracy; at trial, the prosecutor used peremptory challenges to exclude three African-Americans from the jury. Judge Alito joined a unanimous opinion holding that the prosecutor had discriminated against the potential jurors on the basis of race, and granting the defendant habeas relief.
* In Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005), an African-American defendant was convicted of first-degree murder in Pennsylvania court and sentenced to life in prison. The prosecutor had used 13 out of 14 peremptory challenges against African-American potential jurors, and Judge Alito held that this pattern raised an inference of discrimination.
Similarly, here’s Ed Whelan on the opening statements of Dick Durbin and Chuck Schumer. First, Durbin:
Virtually every sentence in Durbin’s statement contains what might charitably be called a serious misstatement. He doesn’t understand the “unitary executive”. He doesn’t understand that the plaintiff in Griswold had to work hard to get himself fined. He doesn’t understand that judicial expansion of “freedom” necessarily limits American citizens’ ability to define what genuine freedoms are. Now he’s linking Alito to the mine tragedy in West Virginia. It would take 25 pages to respond to all his distortions.
His insincere assertions of sincerity are stomach-churning.
On Schumer:
Schumer, too, is hiding behind the skirts of Harriet Miers and Justice O’Connor.
Thinks it’s the role of justices to “define our freedom”. So much for any role left to representative democracy.
Schumer says that Alito has a “triply high burden”. But given that he voted against Roberts and has repeatedly distorted Alito’s record, there’s no point in trying to clear the Schumer hurdle.
Precisely. Schumer, et al, make it a point of “honor” to assert that they haven’t yet made up their minds, even as the tenor of their questions, which work overtime to misstake the candidates’ positions and color the subsequent testimony, point them out for the frauds they are.
I feel saddened we’ve reached this point in SCOTUS confirmation hearings whereby they are mere show trials—opportunities for Senatorial grandstanding rather than hearings of substance.
****
update 2: Instapundit has a nice roundup of pre-hearing thoughts. And here’re some additional thoughts from Tom Elia.
****
update 3: Opposing thoughts from my pals at Feministe (who concern themselves almost exclusively with Roe v Wade and Griswald, which—let’s face it, are the only court decisions that matters in the slightest).
Personally, I’m interested to hear Alito’s legal thinking on Kelo and stare decisis (Roberts’, to be honest, scared me on these); interstate commerce, and “privacy rights” vs state power (or, to put it more conscientiously, legislative states rights when prompted by popular will on issues that aren’t prima facie unconstitutional).
****
More: Byron York on Kennedy’s opening statement. And the WaPo has posted the text of Alito’s opening statement.
I refuse to watch even a minute of them, for precisely that reason. I’m not even sure why they’re televised, frankly.
We’re going to see a filibuster come hell or high water, I’d bet, if only to reinforce the impression that Bush is a loose cannon who needs to be checked in this year’s elections.
Agreed. I figured out years ago that Senators are simpletons with the egos of oldtime movie-serial supervillains.
But maybe some people are still figuring that out, in which case, putting the Senators on TV may actually be a good thing.
TW: Yeah like that’ll “happen.”
At least his
nursehandler got him to wear pants.As someone mathematically inclined, I consider solving the following equation for X:
White + O’Connor = Ginsberg + X
Who would be conservative enough to solve the equation? Ann Coulter? Nah, too far left… Rush? Nah, still too far left…
Ok, a silly hobby, but it is amusing to imagine heads exploding over the possibilities!
Also, today Taranto threw down the gauntlet—can you match this for sheer brilliance Goldstein?
Um.
Why?
Schumer and Kennedy are so vile, they make me quote commies:
The basically tautological character of the spectacle flows from the simple fact that its means are simultaneously its ends. It is the sun which never sets over the empire of modern passivity. It covers the entire surface of the world and bathes endlessly in its own glory. â€â€Guy Debord
Anyone who’s been in one knows this: all trials are show trials. Especially these kinds of “hearings.”
(Have you seen Schumer in Waco: Rules of Engagement? The Nuremburg defendants were more reasonable, sympathetic human characters.)
Everyone knows that every single person from Alito to Feinstein is up there lying, acting, dissembling, smirkingâ€â€that none of this is honest, real.
Yet everyone, from Kos to Volokh, in analyzing this performance, is doing so as if it were true, as if there were an argument being had, something being weighed and decided.
There is not.
Government is the worst TV show ever.
tw “except”: Fineâ€â€except for The West Wing.
Uh, “Commander in Chief”, Boner.
At least Martin Sheen believes he is the President.
In this instance, they’re super, super, super precedent armed super staring divisive villains, yes?
That said, I like watching the damn things, have ever since the BorkJob way back when—don’t know why, but I can’t stop myself.
I realize that this job is only one of nine on the entire planet, but the tenor of these hearings makes one wonder about the intelligence of any one that would willfully expose oneself to them.
The Dems are acting out a play with their base being the audience. The reality is that there is no way in hell that Alito’s nomination will not be forwarded to the floor for a vote. Yet Kennedy, Boxer, Schumer, Durbin, et al pontificate as if their paltry minority votes are the difference between confirmation and rejection.
Score some points with the base, even if you have to try to destroy a decent human that has served the Judiciary well. Oh, and make sure you smile for the cameras while you stab him.
We had to wait until after the New year for this? What exactly did the Members of the World’s Greatest Deliberative Body (ha!)use all that time for?
Thanks for the link. After the nuclear option live thread I have learned to be suspicious of Kossacks’ stenography skills
Well, nothing happened today. Three Democrats mentioned the executive power issue. However, Alito did not answer any questions.
So we’ve got them monologing?
Did Sen. Gin and Tonic really reference youthful indiscretions in his statements today ?
I cannot imagine the self-discipline it must take to arrange one’s face into an appropriate expression while listening to those guys. And to not do that mocking talky-talky thing with your hand.
This is why I refuse to accept any nomination to the US Supreme Court.
No shoutouts to Otis?
Ted Kennedy. Now there’s a tasty animal.
Ted’s dog is named Splash. I’m surprised he didn’t just call it Mary Jo.
If he didn’t, who would?
Biden was a fool yesterday. He started out with a fawning tribute to “60 years of judicial consensus”, then intimated that Alito’s confirmation would harm this mythical consensus.
One question: What judicial “consensus?”
This is an Atlantis-like myth of glassy-smooth consensus that Biden is beating Alito over the head with.
What a farce – and did you catch Biden’s weaselly smile? Ugh!
-Steve “not a Democrat.”
– I for one, am thouroughly enjoying watching the Desperacrats throwing up their obligitory mis-characterizations and strawmen (All with have the made in Roe vs Wade stamp of paranoia},only to have them blown away, one after another, by the Reps.
– The Dembulbs remind me of a video of the tiny spec of a guy on a snowmobile looking up the mountain at the front face of a 50 foot wall of avalanching snow. Good luck.
– Lets see. Kennedy hires a report, using constituents money, and then refuses to post the results honestly, deciding instead to hide it in the most disengenuous terms possiblie. Kennedrunk should just end it. The only thing I think this senile old reprobate could possibly do to make his miserable existance have a single positive note, is to ask to be burried as far as possible from Chappaquidick when his liver finally gives out.
Biden really is the stupidest Senator in the US Senate today, not including those with obvious senility problems like Byrd. He has an engaging way of saying something that you don’t notice that what he has said is not merely vapid, but outstanding in its stupidity.
This is outside of my ideological disagreements with him, he could be a conservative and I’d have the same opinion of his IQ.