After the break, Ted Kennedy will begin questioning SCOTUS nominee Samuel Alito.
I can’t wait. Leahy laid the groundwork, Ted. Run with it…. FISA, FISA, FISA, all the way.
After the break, Ted Kennedy will begin questioning SCOTUS nominee Samuel Alito.
I can’t wait. Leahy laid the groundwork, Ted. Run with it…. FISA, FISA, FISA, all the way.
Jeffrey Toobin says that Leahy didn’t draw out Alito very effectively … I tend to agree … however, hopefully that was the groundwork (opening up the questions) … and then the “hammers” Ted Kennedy and Joey Biden can nail Alito?
I pray.
P.S. I really need a sub for a short while to take Darcy to work — she’s coming by at 8:30 or so PT — I have to take her because she has nowhere to park
HEARING RESUMING
VANGUARD:
“I would disqualify myself….” You remember that response?
Alito: If i had it to do over again, I’d handle it differenlty….
Kennedy: I’m sure you might have …
ask the clerk to show the JUDGE — to refresh you on the number of times the name VANGUARD appears on the breif and in the opinion, which i believe you offered ….
The individuals in this case, did they know that you had PLEDGED to this committee that you’d recuse yourself?
Did they know? “Well, in letters I think they did …”
He vaguely recalls that the professors addressed it in a couple letters …
“NO LIGHTS WENT OFF.”
… Kennedy pummeling him … asking about the pledge you’d made to this committee … “regardless of whether a light went off …”
(Then there was his lame excuse that judges often invest in mutual funds because it lessens the need for recusal.)
Alito: I did not focus on recusal because I was too stupid to realize that I should have. The light didn’t go on — I’m a dim bulb.
Kennedy: Didn’t your holdings in Vanguard increase during this time period. You idiot, the name “Vanguard” was all over all the court filings. Yet you didn’t remember that you promised to recuse yourself?
Mary, would you mind subbing for about 20 minutes when i take Darcy to work?
I can try — as long as no one walks into my office and needs real work!
JPOL just called me … he’s going to do it! THANKS, Jerry!
good!
Now Ted’s on eavesdropping … go get him.
Vanguard really didn’t ring any bells in my mind. I forgot about my promise to recuse, and nobody reminded me. Of course I didn’t benefit at all from it.
Kennedy moves on to george’s power grab.
QUOTES O’Connor: The state of war is NOT a blank check …
K: Your record indicates that even over the strong objectives of other judges, you bend over backwards to expand government powers.
You said “I believe very strongly in the supremacy of the executive.”
Oops, that was poorly phrased, certainly I didn’t mean it.
Kennedy’s hitting him on FISA. Accuses Alito of bending over (backwards) to executive power.
Can average citizen get a fair shake and will you stand up to the executive?
Alito: Didn’t mean what I wrote when I said the executive had priority.
Kennedy: You’ve changed your mind?
Alito: No, I was just an idiot when I wrote that.
Alito is flip-flopping all over the place. He would not say today what he said back then, but “I have’t changed my mind.”
Susan is taking a break
Executive power. You’ve showed a single minded deference to executive power.
Kennedy: Dairy Farmers of America pay attention — federal marshalls pointed loaded guns at their heads when they came in to evict a dairy farmer. Too much force used. Alito wouldn’t let it go to a jury and decided that the marshall’s conduct was “as a matter of law” objectively reasonable. Other judges called the conduct “gestapo like”. Why not let the jury decide.
Alito: The dairy farmers were scumbags. Marshalls shouldn’t be sued for civil damages by scumbags.
Alito: reasonable people would view these things differently.
Kennedy: then how could you decide “as a matter of law” don’t juries exist for the purpose of determining what is reasonable?
Alito: reasonabless isn’t a matter of fact to be resolved by the jury.
Talking about marshall’s brutalizing farmers in the course of eviction. Alito yanked the case from the jury and decided that the marshall’s conduct was reasoble. Other judges in the circuit called the marshall’s conduct was “Gestapo-like.”
Alito says there was evidence that the farmers were dangerous. Alito says a reasonable person would agree with this. Cases like this involve “difficult line drawings.
The farmers were terrorized and their homes ransacked.
Alito is completely dodging Kennedy’s question as to why Alito did not let the jury decide.
I missed all this because no local radio station carries the hearings so people can listen in their cars ….
Jerry, stunningly good description of a truly sickening case. That Alito can defend that tells me what — hell’s bells — it’s obvious: This guy is NOT a human being. He’s a sociopath just like George Bush.
K: US Marshals went to do an eviction (civil, not criminal)They confronted a family with guns. Alito supported the marshals as reasonable, stopped a jury from hearing a case.
A: These were very bad people. I heard they had weapons, etc.
K: Judge Rendell said the marshals were gestapo-like. Couldn’t a jury decide if their action was reasonable?
K: move on to the strip search of mother and ten-year-old. Chertoff said they went too far, you differed. Why are the cops right, and not the fourth amendment.
I wasn’t happy about the search, but it was done by a female. Drug dealers will hide their drugs anywhere.
We are on the strip-searchin g of a ten-year old. The wife and daughter were strip-searched in the hopes of finding contraband. Judge Chertoff (yes, that one) said the police went too far. Alito did not think so. This was a warantless search.
Alito’s body language suggests he is not having fun.
Alito simply accepted the police affidavit even though there was no warrant. Alito says he was not happy about a ten-year old was searched. It was not an abusive search. It should be okay to search ten-year olds because otherwise they could be used to hide drugs.
Alito said the “probably cause” nature of the warrant allowed anyone on the premises to be searched.
Kennedy is on the strip searching case now.
Kennedy: Affidavit represents police’s view of the matter, but the judge approves the search warrant. They are two different items. Why did you confuse them? That 10 year old will bear the scars of this for the rest of her life. 4th amendment is clear that the search warrant should be clear.
Alito: Not happy a 10 year old was searched. But the search was not abusive because it was done by a woman. [Ramble, ramble ramble. ] No dispute that the magistrate can incorporate the affidavit. Here the magistrate did incorporate it on the issue of probable cause and that MUST mean there was probable cause to search anyone on the premises.
Thanks for doing this, everybody.
Now Kennedy is on presidential “signing statements”.
Mr. Scalito, you were in favor of signing statements when you worked for Reagan. You wrote: the president’s understanding of the bill should be just as important as congress’s understanding.
Alito: Who cares what people think? Just read the statute — as a judge what I think rules! Oh yeah, I’ll look at legislative histories. That memo — I was just sucking up to the attorney general when I wrote it so I was just repeating what that idiot Ed Meese thought.
Kennedy sites quotes. Alito finds against individuals 87% of the time.
He is now on Alito’s feeling that the executive has unbridled power.
Asking about Bush’s claim that he is not bound by torture ban approved by the Senate 90 to 9. President says the Executive Branch has the right to approve torture ban without judicial review.
Alito pushed belief that the President’s understanding of a bill should be just as important as the Congress’s.
Alito says signing statutes like Bush made is basically unexplored law.
Alito says he was summarizing the WH working group’s consensus. I was a lawyer for the administration. (i.e. it wasn’t me)
Bush is concerned that judges are not buying into its unitary claims and want so appoint judges who do. Are you one of those judges? Why should we believe that you’ll act as an independent check on the president?
Alito: “The concept of unitary executive has to do with who in the executive branch controls the power.” A long non-answer. Unitary power says that things cannot be arranged that interfere with the president’s exercise of power in a functional approach… huh?
Kennedy — Bush is appointing judges that buy into its “unitary executive” theory. Mr. Scalito you referred to this theory as “the gospel”. Why should we believe you will act as an independent check on the executive branch.
Alito: Concept of unitary executive power is “who controls the exercise of executive power” He thinks it means the powers expressly set out in the constitution, not the so called inherint powers that are implied from the constitution. Things cannot be arranged in such a way to interfere with the President’s exercise of executive power.
This whole conversation is going to be over the heads of almost everybody watching.
Back to the torture issue and the signing document. The signing satatements are of “enormous concerns.
Kennedy is done. Spectre is giving Alito an opportunity to return to the Vanguard issue. He says that he had nothing to gain by ruling on the Vanguard issue (what a crock).
K: You said the theory of unitary executive is “gospel.” Prez says he can ignore the law and torture. Congress and courts can’t stop him.
A: It doesn’t mean that, what really counts is who is doing it. Things can’t be arranged in such a way to take away from the president’s power.
K: Congress makes the law, george signs – then says he won’t obey it.
Grassley: I love you, even if Ted doesn’t. You’re just perfect. Don’t worry about a thing, we’re all human.
Grassley — you did nothing wrong on Vanguard. Don’t worry about lying to our committee — we senators lie all the time to our constituents.
Grassley – extreme liberal groups have attacked your commitment to the law but you are setting the record straight. Now I’m going to talk for you and you don’t need to respond because you are such a dweeb that you would only hurt yourself.
Grassley is reading from the ABA report on Alito.
Grassley — liberals are mean.
Grassley up now. You did nothing wrong on the issue issue. “There is always shortness of memory.”
The grassley love fest. Dripping with glowing adjectives.
Unfortunate that some extreme liberal groups have attacked your honesty and integrity.
Allegations by left-wing liberal groups are absurd.
You are a man of honor, integrity and principle.
He is now citing an opinion saying it is not wrong to not recuse oneself when a mutual fund is involved. He is conveniently ignoring the fact that Alito promised in his earlier confirmation hearings that he would recuse himself in any case involving Vanguard.
Not a question yet.
This is a blatant effort to tar Judge Alito’s honorable record.
On Executive Power: Do you believe the Executive should have absolute power? Answer Absolutely not.
Do you believe the President is above the law and the constitution. Answer: no.
Alito says he understands the role of the judiciary.
Grassley – OK I’m finally going to ask you a question. they are all going to be leading questions to get you on the record the way we want.
Grassley: Do you believe the executive branch should have unchecked powers.
Grassley: Is the president above the law?
Grassley: do you understand the role of the judiciary in defending the constitution.
Alito: no, no, yes.
Alito: Role of judges is not to insert their own views. Congress has the lawmaking authority. Judiciary must carry out policy decisions.
Grassley: Should the supreme court look at political ramifications of cases.
Alito: Oh, I know this one! Lindsay Graham prepared me. Judges shouldn’t look at the way the wind is blowing.
Alito: The Constitution sets up a structure that the executive and legislative branches have to follow.
Judges have to be careful not to inject their own view into the interpretation of the constitution and statutes.
These are clearly highly rehearsed questions and answers. Softball after softball followed by platitude after platitude by Alito.
More sound-bites:
extreme liberals blah blah blah
ethics the best ethicists on earth say god bless Alito!
blatant attack on Mr. Integrity!
Do you believe the exec should have unchecked authority?
absolutely not, your grace!
here’s another softball, hit it out of the park! Grassley serves his party well. Sam recites his lessons brilliantly.
A: It’s the job of justices to carry out the will of Congress.
A: The framers want judges to serve for life, so they won’t respond to political winds.
Grassley bores me
…..later
Grassley: What about the amendments to the constitution that are written in vague way? If congress/executive do not act in a particular manner, does the supreme court have a license to take a role based on the broad wording of the constitutional — or do you believe in “constitutional restraint”
Alito — of course “constitutional restraint” because I know that’s what the wingnuts want to hear.
Grassley: What if congress hasn’t acted on a constitutional issue?
Alito: Judiciary should not perform the role of congress.
Alito: Constitution is vague for a reason — we need to “apply the principal” . 4th amendment search and seizure cases are now things that the framers could not have anticipated. So we need to apply the principal in the way we think (thereby completely contradicting my previous statement that the judge shouldn’t use his own opinion).
Alito: Judges need to exercise self-restraint and engage in a process of asking themselves if they are stepping over the line and pre-empting the power of Congress.
The Judiciary is not a law-making body.
4th Amendment. Searches cannot be carried out unless they are reasonable (but Alito always thinks it is reasonable). New technology was not foreseen when this was written.
Alito: In cases of first impression, Look to text of constitution, look to precedent. Most issues now come from areas of law that have already been addressed.
This entire thread is getting very repititious. I am waiting for something significant to be said.
Grassley: Majority rule vs. independent liberties.
Alito: Tension exists. System of government is fundamentally democratic. But judiciary has responsibility to exercise the power of judicial review blah blah blah
the point of this whole line of questioning is so Scalito can say the word “precedent” as many times as possible.
Alito: Judges don’t have the power to change the constitution.
Grassley/Alito: why wasn’t this entire exchange simply submitted to the record to begin with? Much time could’ve been spared.
(Noted: Senator, Alito is not being appointed to the Senate.)
Now we have a whole line of questioning in which Alito can assure eveyone that he isn’t an “activist judge”.
Everything Alito is saying about his philosophy flies directly in the face of his record. He wants us to believe he is the reincarnation of Thurgood Marshall.
Here goes Grassley on his pulpit again. Liberals are trying to re-make the court.
Alito says the branches are co-equql (but maybe the executive branch is just a little mor equal, huh?).
Grassley — Activists are spending millions of dollars on things like blogs! to influence the court. Booman — I had no idea.
Grassley is done. Thank God.
Biden is up.
Thank god Grassley is finished. How boring. Like it was scripted.
Imo, it was almost totally scripted to the letter, aside of the wiggle-room Alito (strictly a C student, imo) felt safe enough to improvise in.
Backroom Alito: ‘So what do I need to say to get this job?’
Backroom Graham et al: ‘Here, study this.. ‘
And thank god for your covering him – your version was MUCH better than having to watch the real thing, I’m utterly certain!
The judiciary has become a tool of political policy implementation because of interest groups & ‘website blogs’ (Grassley). The public is simply too interested in the SCOTUS.
Biden: We don’t question whether you are independent. But do you independently conclude that the executive trumps the other branches. Biden gives a little speech to make the Dem’s line of questioning look better in the public’s eyes. We’re not being mean to you — we have a high regard, but sometimes you have done things that are puzzling.
Biden reminds Alito that the issue on Vanguard is not whether he did something wrong, but rather why he promised to recuse himself and then didn’t.
Re:Concerned Alumni of Princeton. Were you aware of the controversies.
Alito says “I don’t believe that I was.”
Biden says it was a big deal. “I was aware of it.”
Biden is puzzled how Alito could be part of the group and not be aware of the controversy (very anti-women and womens’ rights).
Biden: How could you not remember what the point of that Princeton organization was? It was a pretty outrageous group — but of course I can believe you were unaware of it. Despite the fact that EVERYBODY in Delaware, New Jersey and Pennsylvania was aware of it. If I was aware of it and I didn’t even like Princeton — how could you not be aware of it. It’s puzzling.
Biden is pontificating too. What else is new?
Biden: You are replacing Sandra Day O’Connor so there is a higher standard than Roberts. She was the fulcrum on an evenly divided court, she was a woman, she viewed things from a real world perspective. So how can YOU be expected to replace her since you weren’t even aware of what people were saying about CAP (I inserted that last editorial comment).
Biden: O’Connor understood the real world of discrimination. (Of course, so do we, he says). The world has changed. Discrimination is no longer overt, its covert. “He just wouldn’t fit in …” It’s harder to make a case of discrimination even though there is no doubt it exists.
Now he goes into cases.
Go Joe! Can’t wait for this one. If he one time says “I really, really like you” I will swear big time!
Biden: The standard Alito set in Title VII cases would eviscerate Title VII because it ignores the realities of “racial animus”. Did you set the bar too high? Can you explain the difference between the business judgment as to “most qualified” and discrimination.
Alito: We get a lot of cases from cranks. All there was in this case was a lot of complaining from the plaintiff about really minor violations of the companies internal practices. Under the company’s policy, all they had to do was come up with some excuse about why they weren’t going to promote — and they did.
You’re doing beautifully here, maryb. Thank you.
Biden has used the word “puzzling” at least six times.
Now asking anti-discrimination questions.
Bray case. Qualified black woman was not promoted. She sued and lost and it went to the 3rd circuit. Alito applied a standard that his colleagues felt would eviscerate title 7. Alito said conflicting statements by the corporation were just loose words. It comes down to “subjective business judgment” wich should prevail unless the qualifications of the prospective employee are overwhelming.
Alito says he thought the evidence was not sufficient. It was a factual case on which reasonable people did not agree. It was not discrimination.
The pattern coming through is that Alito is defending his rulings based on nuance, suggesting that it was a fine line that he would have ruled the other way if the circumstances were just a little different.
Biden notes that the person who was leaving the job recommended Bray for the job and said she was extremely qualified.
This was another case where Alito did not allow the jury to decide. He seems to like doing that.
Biden says he is “puzzled” by Alito’s perspective that both candidates were equally qualified.
Biden: People always say that they are looking for someone “more qualified” . Do you UNDERSTAND (I mean fully appreciate) how discrimination works?
Alito: Of course I understand, and I buy into the practice as long as, like in this case, there is enough of a record to give the company cover.
Biden: If it was a close case — why not let the jury decide. Why do you decide?
Alito: I don’t trust juries to be reasonable in the way that I’m reasonable.
Showboat Biden: Whats the difference between business decision and discrimination?
A: Four judges (even one a woman) agreed with me. Reasonable people will disagree on whether a black woman was discriminated against in hiring. In this case, they didn’t gain a thing from not hiring her, so what’s the problem?
B: Not questioning your commitment to civil rights – just wondering whether you understand how the world works nowadays?
A: She already worked for them, so there was no discrimination when she didn’t get a promotion.
B: Why didn’t you let a jury decide? Well us judges disagreed, so why let a jury try to think about it?
Biden — even the other kooks in the third circuit think that your standard is over the top.
Biden just made fun of DiFi’s glasses.
Biden: You said that an employer may not wish to disclose his real reason for not hiring and he shouldn’t have to. The reason may be based on sheer personal antipathy and that’s OK. How do you differentiate this from discrimination?
Alito: Boy it sure was hard for me to justify this one but I found a way. And I found justification in some statements by Justice O’Connor.
Biden: You may have looked at O’Connor’s language but so did I and I don’t think O’Connor would have agreed with you. I know Justice O’Connor, she’s a friend fo mine and you are no Justice O’Connnor sir.
Sheridan case where a woman was hounded until she had to quit after filing a discrimination complaint. The jury sided with her as did ten of eleven of Alito’s colleagues. Alito sided with the employer.
Alito says his position was in the middle camp. In most cases pretext is sufficient. He claims O’Conner took the same position in the similar Reeve’s case. Biden disagrees with Alito’s conclusion about O’Connor’s position and says that her language in that case suggests that she would ruled with the employee in the Sheridan case. Again Alito voted against letting a jury decide. (He doesn’t seem to have much faith in juries, does he?)
then why didn’t it get nominated to the Supreme Court?”
B: You seem to come down on the side of the entity against which discrimination charges have been filed.
Biden: I want to talk about the Casey planned parenthood case but I’ve expended too much hot air and I’m running out of time. So I’m just going to ramble on for a little more until the clock runs out.
Biden decided not to get into the Casey case because his time is almost up. He notes that Alito leans to the state versus the individual in discrimination cases. He notes that some scholars believe that is okay, but that it would represent a change in direction for the court.
I want to know why they are not digging deeper on the issue of abortion? I am truly miffed with Biden’s questioning but I am just reading it not seeing it. Am I missing something here?
Kyle is up now. He just lobbed a soft ball about executive power (unitory executive). Alito says the President has the power to control the executive branch, not the other two branches. That flies in the face of his record.
Alito: our country has been a leader in protecting human rights.
Kyle: Are you planning on looking at laws of countries other than the good ol’ U.S.of A. in coming to decisions.
Alito: Foreign law is not helpful in interpreting the constitution. Individual rights are governed by our own constitution, Ammurica is great and we don’t need the opinions of no furreners.
Kyl is going off on how inappropriate it is for American courts to ever weigh laws of other lands.
Alito agrees. We should look to our own Constitution and our own precedents. We have our own laws, our own precedents, and I think we should look to those. Interpretation of treaties might be an exception. Contracts entered into in other countries might also be exceptions, “but I don’t think it is helpful in interpreting the constitution.”
This is very troubling in suggesting that International law does not apply to the U.S. That is the view of the Bush administration.
Alito: just so I don’t look crazy I would look to foreign law in interpreting treaties.
More ass-kissing on Alito’s integrity.
Recess. Time for a puke break.
Is it true that Grassley made use of a chart entitled ‘Alito, Man Of Integrity’? (No TV here.) If so, how incredibly tacky.
They are going to lunch and I am going to try to get some work done.
Thanks to you all for keeping us in officeland informed. I am Tivoing just in case something really outstanding happens. Doesn’t look that way right now. They are being way too easy on him or am I misreading here?
‘Tis hard to grab the fish in the water — ergo the current idea seems to be to float a few nets in hopes he’ll swim into one.
Excellent point!