I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, January 10, 2006

The Alito hearings

My post at Crooks & Liars urging a filibuster of the Alito nomination is now posted here.

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Midway through Sen. Leahy’s questioning (I will update this post as the hearings proceed), I have the following observations (now updated through Sen. Kennedy's Sen. Biden's questioning):

(1) Alito is being rather candid and forthcoming in his answers, and is not simply providing answers which he doesn’t believe in order to tell the Senators what they want to hear to heighten the chances of his confirmation.

He is also erring on the side of answering questions and, with some notable exceptions, refusing to answer questions only when they really do require him to opine on matters which he is highly likely to have to decide (such as whether the President has authority to violate FISA).

All of this means it is much easier than it normally is to understand his judicial perspective and what he is likely to do in the cases that matter.

(2) Nobody should bother with the pretense that we don’t know if he will vote to overturn Roe. He will. He did not try to hide it. He admitted that he believed in 1985 that he believed that Roe was wrongly decided and that the Constitution does not provide the right to abortion.

While he paid lip service to precepts of stare decisis and to the notion that he would have an open mind if he had to re-consider Roe, it was only lip service that he paid. Admirably perhaps, he was careful not to get anyone’s hopes up that he has changed his mind because when he votes to overturn Roe, he does not want anyone to have a reasonable accusation that he misled the Senate on that question. Any honest or reasonable person would have to acknowledge that short of a pledge to do so, it’s as close to certain as it can get that he will overturn Roe.

(3) He considers the question of whether the President has the right to violate FISA and similar domestic laws to be vexing and difficult. His principles are not offended by what the Administration did. At best, he considers it an interesting intellectual enterprise to sort through the separation of powers issues presented by this question.

He even refused to opine on whether the President could direct subordinates to engage in torture in the face of a Congressional statute prohibiting it.

(4) He did not answer Specter’s question about whether he agrees with Griswold (holding that the right to privacy prevents the Government from regulating contraception). He answered that he agreed with Specter’s characterization of that case, but not whether he agrees with the case itself. Presumably, that question will arise again.

(5) Like most federal judges, Alito is not accustomed to being challenged or accused, let alone attacked. He appears uncomfortable and angry when questioning gets a little aggressive. After many hours under the lights, I think the prospect exists that he can have some outbursts and loss of control.

(6) Trying to justify his membership in the Concerned Alumni group by ranting about his anger over banning the military from campus was lame and won't get him anywhere. He was going for some sort of Oliver North moment and it fell horribly flat.

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(7) The Concerned Alumni group membership issue strikes me as a much more profitable path than the Vanguard recusal issue does. The "I don't recall" defense always raises suspicions in these cases, and associating onself with an odious group should have some cost to it if one can't later on offer some innocuous explanation.

(8) Alito's advocacy of the importance of Presidential signing statements -- based on his plainly anti-consitutional belief that the President's view of a law is of equal importance to the intent of the Congress in interpreting statutes (anti-constitutional because Article I vests all legislative power in the Congress and the Founders in the Federalist Papers emphasized the importance of that structure) -- is compelling, and disturbing, evidence of his excessive faith in Executive Power. This is underscored by various comments, including ones he recants, glorifying Executive Power.

This is the issue which Democrats need to emphasize most. It is the most substantive ground for opposition, and the most pressing.

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(9) In response to Biden's (endless, meandering) questions about the standards for dismissing claims of racial discrimination, Alito said about a case in which he ruled that the discrimination claims should be dismissed (but two judges ruled it should not be): "Reasonable people can disagree on the facts." But the whole point of the law is that discrimination cases should be dismissed before the trial stage only where reasonable people cannot disagree -- meaning that there is no evidence that could enable a reasonable person to find that there was discrimination. Where reasonable people can disagree, the claims should be given to a jury to decide -- not summarily dismissed by the court.

Alito's statement that "reasonable people could disagree about the evidence" -- along with his subsequent arguments about why he, Alito, did not see the evidence as constituting proof of discrimination -- show how inappropriate this case was for dismissal. As Biden pointed out, this is precisely when a jury should decide the issue. But Alito clearly looks at most cases he has with a presumption in favor of institutional authority - the Government, prosecutors, employers, etc. It's just his ingrained personality and his judicial approach.

That is a horrible, horrible attribute in a judge, and one can sense, intuitively, that Alito has it in abundance.

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