The hearings starting now.
An Open Thread for the Alito Hearings.
Specer first. Specter begins with "is there a right to privacy?" question.
Alito's answer was weak and full of holes. Requires followup.
Now Roe and Casey.
Specter quotes from Casey
and queries on stare decisis
. Alito says stare decisis
a "very important doctrine." But it is "not an inexorable command." Avoids any specifics on Roe
Alito is much more evasive on Casey
than was Roberts. Roberts was just smoother. Alito says Court should not make decisions based on "public opinion." A nonsequitor to me.
Specter presses on the precedent point by referring to Rehnquist's upholding Miranda
on stare decisis
grounds. Alito does not say that he agrees with Rehnquist in Richardson
Specter then discusses the famous dissent by Justice Harlan in Poe v. Ullman
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
and asks Alito if he agrees with Justice Harlan. Alito evades the question.
Specter then asks about the concept of "superprecedent." Alito rejects the idea. But concedes the idea that reaffirming precedents has weight. But he stresses that "stare decisis
is not an inexorable command."
Specter asks about the 1985 memo where he stated that the favored the reversal of Roe
. Alito admits that is what he believed but that he would approach the issue with an open mind. He says that "now that he is a judge, he puts his personal feelings aside." Riiiight.
But this is important -- Alito believes Roe was wrongly decided and the only reason he would not overturn it is if stare decisis compels it
. Understand that point, Alito will overturn Roe
UNLESS he believes stare decisis
That is a critical admission by Alito.
Presidential Power. Specter cites Justice Jackson's concurrence in the Youngstown Steel Seizure
es and asks Alito if he agrees with it. Alito says it is a "useful guideline." Alito says he agrees with O'Connor's "war is not a blank check" line from Hamdi
. This is all meaningless when you consider his "unitary executive" theory. War need not be a blank check if you think the Constitution provides for unfettered Presidential power.
Specter now asks a complicated question about whether the AUMF amended FISA and how to determine that type argument.
Alito answers that he would start the inquiry with a review of the statutes and resolution, then he would apply Justice Jackson's framework. But then he refuses to answer the question saying it may arise in a case before him.
Specter finally asks him about Alito's errors in his memo regarding Presidential signing statements where Alito said that the Presidential power is equally important to that of the Congress in the area of lawmaking. Alito does not disavow it, but calls it a "rough first memo."
Leahy now up.
Alito remarkably will not let go of the idea that the President has a say in the drafting of legislation. He seems not to understand that the lawmaking power vests solely in the Congress. I am nonplussed. It is an indefensible position and wonder how he can continue to maintain it.
On the President's argument that he can "immunize" officials from following the law. As Leahy properly puts it, 'is Alito saying that the President can do this in some circumstances?' Alito's game of "following the Constitution." Indeed, Alito can not bring him self to say the President can not override the law. Remarkable.
So far, we can say one thing for sure - Alito is no John Roberts.
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