Alito hearings

by Tim Grieve

On abortion, what's good for the goose is ... well, never mind

At Samuel Alito's hearing, Sen. Lindsey Graham just finished lecturing Democrats who, he says, are putting too much emphasis on abortion in considering the nomination of Judge Alito. "I know that abortion is important," Graham said. "It's important to me, and it's important to you. But we can't build a judiciary around that issue."

Fair enough -- single-issue voting leads to all sorts of problems -- but where was Graham when his Republican colleagues were torpedoing the nomination of Harriet Miers because her position against abortion wasn't clear enough for their tastes?

Alito makes the case against himself

We couldn't have said it better ourselves.

Defending his refusal to offer his current view on Roe v. Wade, Samuel Alito just said that litigants who bring the issue of abortion before the Supreme Court in the future have "a right" to have their case heard by justices with open minds, "and that means people who haven't announced in advance what they think about the issue."

The problem, of course, is that Alito has already "announced in advance" what he thinks about the issue. In his 1985 application for a political appointment in the Justice Department, Alito suggested that he "personally" believed "very strongly" in the positions he had advanced in the Solicitor General's Office -- in particular, the argument that the "Constitution does not protect a right to an abortion."

Alito won't say whether he still believes what he believed in 1985 because, he says, it would be the "antithesis" of a fair legal system if judges told litigants that they'd made up their minds before a case is even heard. But isn't it equally antithetical if the judge has already made up his mind but pretends that he hasn't?

Alito falters on CAP, and Specter and Kennedy explode

Ted Kennedy and Arlen Specter just came to blows, at least of the verbal kind, over Kennedy's attempt to obtain more information about Samuel Alito's involvement in the conservative group Concerned Alumni of Princeton.

In his 1985 application for a political appointment in Ronald Reagan's Justice Department, Alito called attention to his membership in the group as a way to bolster his conservative bona fides. "As a federal employee subject to the Hatch Act for nearly a decade, I have been unable to take a role in partisan politics," Alito wrote then. "However, I am a lifelong registered Republican and have made the sort of modest political contributions that a federal employee can afford to make to Republican candidates and conservative causes ... I am a member of the Federalist Society for Law and Public Policy and a member of the Concerned Alumni of Princeton University, a conservative alumni group."

In testimony before the Senate Judiciary Committee Tuesday, Alito said that he had "racked" his memory about CAP and has "no specific recollection of that organization." Kennedy served a reminder on Alito today, reading him excerpts from a CAP publication in which authors railed against minorities who demand to be hired simply because they're minorities and suggested that members of a gay-rights group at Princeton volunteer for scientific experiments that had been carried out on monkeys.

Alito said he wasn't familiar with such writings and didn't agree with the views expressed in them. So why did Alito join CAP, and why was he so proud of his membership that he listed it on his job application in 1985? Alito said Tuesday that he probably joined CAP "around" the time he completed his job application, and he probably did so out of concern over Princeton's decision to bar ROTC from its campus. But Kennedy pointed out that ROTC was back on campus at Princeton long before the mid-1980s -- and didn't seem to be much of an issue for CAP at that time.

Alito didn't have much in the way of answers to any of that, and Kennedy -- saying that Alito's testimony didn't "add up" -- suggested that the Judiciary Committee go into executive session to decide whether to subpoena documents about CAP. Specter responded with sudden anger, saying that Kennedy had never raised the issue with him before. Kennedy said that he sent Specter a letter on Dec. 22 in which he asked that the committee seek such documents. Specter suggested that he'd never received it.

Kennedy said he would appeal Specter's refusal to entertain a motion to subpoena the documents and would do so again and again and again until Specter acted. Specter shot back that he hadn't ruled against anything yet, then reminded Kennedy that he's not in charge. "I'm not going to have you run this committee," Specter said.

Specter eventually gaveled the conversation to a close, but Kennedy got the last word, for now: Just as the committee broke for lunch, he established that Specter's office had, in fact, received his request by introducing into the Congressional Record a copy of the letter it had sent in response.
At a press briefing a few minutes later, Kennedy made it clear that the letter from Specter's office had, in fact, rejected his request that the committee subpoena the CAP documents. He added: "It's extraordinary to me that this nominee can remember all 67 of his dissents in great, great detail, but he's still mystified about an organization that he used in his job application."

Update: The Specter-Kennedy dust-up ultimately seems to have been much ado about very little. In this afternoon's hearing session, Specter said his staff has followed up with the man who holds the records in question, and that he's happy to turn them over to the committee without the need for a subpoena.

Asked but not answered

Can Samuel Alito answer a question?

Of course he can. He can answer Republican Sen. Sam Brownback when he asks if the Constitution says that a retiring justice has to be replaced by a justice with a similar ideology. (It doesn't.) He can answer Republican Sen. Tom Coburn when he asks why he wants to be a Supreme Court justice. (It's a chance to serve his country.) And he can answer when Republican Sen. Jeff Sessions asks whether judges should make up their minds about cases before they hear oral argument. (They shouldn't.)

But when a Democrat puts a question to Alito about a matter of substance, the nominee seems to find himself constitutionally incapable of giving a direct answer. Consider the following exchange in which Vermont Sen. Patrick Leahy tried to get Alito to offer his opinion on Hamdi v. Rumsfeld, a case in which Sandra Day O'Connor and Clarence Thomas offered starkly different views of a president's authority during wartime. Leahy asked Alito, "Which one is right -- Justice O'Connor or Justice Thomas?" Alito responded by explaining, at length, that O'Connor wrote the opinion for the majority in the case. Yes, Leahy said, but which opinion "do you personally agree with"? Alito launched into an explanation of the way in which he believes the war power is divided between the executive branch and Congress. Leahy complained that Alito still wasn't saying which opinion he favored. "I'm trying to explain my understanding of the division of authority in this area," Alito said.

Leahy moved on to other areas, but Alito continued to dodge his inquires. Leahy asks Alito if the president is free to violate acts of Congress. Alito says that the president is obliged to comply with the dictates of the Constitution. Leahy asks if the president can take it upon himself to decide that an act of Congress is unconstitutional. Alito says that, if a legal case ultimately arises out of such a decision, a court would get the final say.

There are words there, but there are no answers. A skilled questioner might have pursued Alito further, pinning him into an ever smaller box until he had to answer the question or make it obvious to everyone present that he was dodging. Patrick Leahy said, "Thank you."

Alito goes Clintonian on Roe
As the third day of Samuel Alito's confirmation hearing began this morning, Illinois Sen. Dick Durbin asked the nominee if he considers Roe v. Wade to be "settled law." As he has on so many other things, Alito responded to the question without really answering it.

"If 'settled' means it can't be reexamined, that's one thing," Alito said. "If 'settled' means it is a precedent entitled to respect as stare decisis. . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way."

The structure of Alito's equivocation rang a bell with us, as it should have with Republicans who were once up in arms over a similar statement made by someone else. During Bill Clinton's grand jury testimony in 1998, the president said, famously and not unreasonably, "It depends on what the meaning of the word 'is' is." Then he added: "If 'is' means is and never has been, that is one thing. If it means there is none, that was a completely true statement."

That wasn't good enough for Republicans who pushed for Clinton's impeachment. Why should Alito's equivocation on Roe be good enough now?