January 9, 2006

Day 1 of the Alito hearings.

I didn't have the chance to watch much of the Alito hearings today, but that's probably for the good. It was all the introductory statements of the Senators. Vanity day. Wheel-spinning day. Call it what you like.

And I'm not disparaging their role in the process or diminishing the issues they raise. It's just that I already know all that, and I know it will all be repeated when they are actually asking questions and only at that point will interesting discussion take place.

I did watch Alito's presentation. He begins with a tribute to Sandra Day O'Connor, quite appropriately. He talks at length about his parents and the values they taught him. Then he takes up the subject of his formative years in college, in the late 60s and early 70s (which is when I went to college too):
It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.
I doubt if he would have liked me or any of the people I hung around with. By the way, when I was going to art school at the University of Michigan, it was right next to the law school building. I used to look at that building and think everyone in there is either evil or a fool!

Alito goes on to speak of his career as a law clerk, a lawyer, and a judge:
When I became a judge, I stopped being a practicing attorney. And that was a big change in role.
This will be an important theory, which, we can anticipate, will be relied on in response to many questions in the coming days.
The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client.

The judge’s only obligation -- and it’s a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.
Nicely and simply put. Of course, all this is quite sound and everyone with any sense agrees.
Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered.

Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that’s made by an attorney who’s appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.
That's another theory that will be relied on repeatedly in the coming days. My refusal to answer questions about actual cases shows that I am a good judge. It's true!
And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.
No person is above the law, not even the President, but the real question is: What will he say the law is?

Maybe we'll find out a little something about that this week. I certainly hope so.

Oh, how did he look? How did he sound? Was he "ragged" and New Jerseyan? He seemed fine to me. We shall see if he frazzles under questioning. I doubt he will.

33 comments:

Pooh said...

If "I won't say anything about anything and you can't make me" (admittedly, an uncharitable intepretation of the Alito/Roberts hearing position) is really the rule, why bother?

Gerry said...

"I doubt if he would have liked me or any of the people I hung around with."

Passive aggressive phrasing! Despite the wording, the implied "I doubt I or any of the people I hung around with would have liked him" practically bursts out of the paragraph even more than the suggestion that he would not have liked you, due to your concluding "I used to look at that building and think everyone in there is either evil or a fool!"

The days of youthful partisan passions!

The job of Schumer and Feingold and the rest will be to convince the world that Alito retained his partisan fervor, rather than having experience and the wisdom of the years having tempered it.

brylin said...

"By the way, when I was going to art school at the University of Michigan, it was right next to the law school building. I used to look at that building and think everyone in there is either evil or a fool!"

Wow! I lived in the law quad (Rm. K-15) from '74 to '77. I think I just missed you, but I'm sure you weren't the only one to feel that way. I might have been a fool, but I don't think I was evil!

Icepick said...
This comment has been removed by a blog administrator.
Icepick said...

If "I won't say anything about anything and you can't make me" (admittedly, an uncharitable intepretation of the Alito/Roberts hearing position) is really the rule, why bother?

Pooh, are you kidding? Surely you don't expect a bunch of blow-dried, air-headed, blowhard Senators to pass up an opportunity to get on TV and show us how VITAL and IMPORTANT and SENATORIAL they are? It's a chance for them to get up and show us why we elected them in the first place. Mainly so that we could keep them out of polite society.

And before any of you get the bright idea to vote those jokers out, remember that when you do that they end up in actual positions of authority, like chairman of the board of a major entertainment conglomerate or Attorney General. Leave well enough alone!

AJD said...

Vanity Day.

You'd be an expert on that!

Pretty much every day is Vanity Day for you, isn't it?

I am still trying to figure out what is so "divine" about it.

Pooh said...

Pick, the accuracy of your statement is only outweighed by its amplifying effect on my world weariness. Thanks. Again.

Jacques Cuze said...

This proposition that judges must come saniwrapped is a most intellectually dishonest stance.

So judges are not to think of the issues before they come before them with an actual case and actual facts.

Does anyone think that can actually happen?

Judges aren't people. Judges don't put their socks on one at a time. Judges don't have family relatives that have had abortions, or been raped, or served in Iraq, and aren't gay, or aren't retarded, or aren't autistic, or don't attend bad schools, and aren't MDs. Judges don't read the papers and didn't when they were mere lawyers. Judges don't surf (even if Colonel Kilgore says it's safe to surf). Judges don't go out drinking with buddies, and when they do go out with buddies, they don't speak about abortion, or vouchers, or little Julie's new religious school. And the judges never did that when they were mere lawyers, or even before then, when they were just art students.

When Michael Dukakis had to answer what he would do if his wife was raped and murdered, our judges never stopped to think about what they might do. Even our judges that were prosecutors then never stopped to consider that.

Judges have never had their quantum state collapsed and never did when they were mere shysters. Judges have never been measured! Judges have more in common with Schroedinger's cat than with Schroedinger himself.

Judges are pure and mustn't think about things before they must think about things. Judges are all that is good and holy and to ask them about their beliefs is to taint them and how then, will they determine how many amendments can be thrown into the pen?

Judges have never been professors of law having to teach these cases to their students!

Judges are dainty and are homosapiens audio-hymenous, that is man that has a hymen in his ear.

Oh! To the virtuous, pure, judging machine!

vnjagvet said...

The QXer has now enlightened us.

But his straw essay has not layed a glove on the position that Justices Ginsburg and Roberts and now Judge Alito have taken before the Judiciary Committee.

Testifying that you will not prejudge a hypothetical case situation is not the same thing as being wrapped in plastic wrap and living in a vacuum. It is merely assuring future litigants that until you hear their arguments and consider their precise factual situation, you will not give them or their opponents short shrift by guessing what an outcome might be.

Not sinister, not naive, but merely wise.

Jim said...

I was a Liberal Republican from Southwestern Michigan who attended art school at the University of Michigan, in drawing and painting, from 1966 until late 1968, when I dropped out. My parents both worked for Nelson Rockefeller's campaign in 1968, although I had hoped to vote for Bobby Kennedy. Finally, in protest, I voted for Eldridge Cleaver (a goofy move). Looking back, I was a conservative anarchist, but hadn't really crystalized my political philosophy. I did know that I couldn't stand the Voice Political Party crowd and their like. The main thing I took out of that experience was getting married and having a son. We also saw the Grateful Dead in a free concert on the grass in an Ann Arbor park, with all the girls in Granny dresses, sandles, and long hair.

Jacques Cuze said...

Testifying that you will not prejudge a hypothetical case situation is not the same thing as being wrapped in plastic wrap and living in a vacuum. It is merely assuring future litigants that until you hear their arguments and consider their precise factual situation, you will not give them or their opponents short shrift by guessing what an outcome might be.

We agree completely. They have personal experiences and education and biases that will weigh heavily on the outcome. They will not tell people what side they favor, but that is not to say they haven't thought about it. Their assurance that they haven't prejudged is hollow, and directly contrary to every human experience. It is counter to Heisenburg, to H.S. Thompson, and to Dali. It is a relic of an age of classical mechanics.

They tell people that they are Schroedinger's cat. They are root(2)/2 dead and root(2)/2 alive.

But we know that the macro cat in the box is either alive or dead.

The rest is pretense and intellectually dishonest. "I will not tell you" IS NOT the same as "I haven't thought about it", or "I haven't made up my mind"

They proudly claim they have hymens in their ears, and so must put install one in their mouths as well.

Jacques Cuze said...

And to make it clear, I think Ginsburg was incorrect when she started this crap, and every nominee since then has been wrong to expand on that, and the Senators have been craven in allowing them to erode their job.

vnjagvet said...

QX:

Doesn't fifteen years of performance on the bench with participation in over a thousand cases involving federal questions indicate better than any two day hearing how this man judges cases and what his philosophical judicial predilections are?

Pooh said...

In the interests of facts-not-truthiness:

"[The right to an abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."

That's from Ginsburg's hearings. And she was nominated after Clinton consulted with Orinn Hatch. But other than that, yup these hearings will look just the same.

Will Alito give that direct an answer on A) Abortion; B) Executive power or C) One-Person one-vote? I doubt it, but I'm open to surprises.

Jacques Cuze said...

Doesn't fifteen years of performance on the bench with participation in over a thousand cases involving federal questions indicate better than any two day hearing how this man judges cases and what his philosophical judicial predilections are?

Yes, absolutely. Why bother having hearings? Why have the nominee come in at all? Just vote his record, his entire record.

And don't worry about a thing, the Constitution says, "Advise and consent", not "Advise and consent or dissent."

Pooh, thank you for the facts.

Aspasia M. said...

Looks like it's time to play "hide the salami."

What sort of music would best accompany the C-Span kabuki dance?

P. Froward said...

quxxo's view is exquisitely trite. Everybody's perfectly venal, so it's just a matter of picking somebody who's going to be venal in the service of one's own agenda.

It ought to be obvious that somebody's agenda can, to a greater or lesser degree, favor impartiality itself. That's called "principle". In the absence of any personal experience with such a thing, I suppose somebody without much imagination wouldn't even be able to conceive of it.

vnjagvet said...

QX, you sure have a way with sarcasm.

But you may have missed my point which was that far more information (and a more enlightening hearing) would be forthcoming if he good Senators would work with the thousand or so cases the Judge has already decided rather than trying to ask badly phrased hypothetical questions.

I was not suggesting that the hearings be done away with or that the Senate not advise or consent to the appointment after due consideration of whatever they deem material to their inquiry.

Jacques Cuze said...

Everybody's perfectly venal, so it's just a matter of picking somebody who's going to be venal in the service of one's own agenda.

I am absolutely not saying that everyone is perfectly venal. I am saying that no one can be, or can be asked to be perfectly objective. Everyone carries biases. If that is acknowledged, we can deal with it.

Members of the Supreme Court can carry biases and be perfectly reasonable and fantastic members of the Supreme Court. We deal with it by having hearings and discussing those biases and ensuring they are in the median range. We deal with it by having nine members of a court, and not just one all important Supreme Court Judge. We deal with it by asking the judges to write their opinions out in precise detail and to footnote their decisions. We deal with it through precedents and through the overturning at times of precendents.

We don't deal with it by playing hide the salami with the truth, or with the notion that judges are just people too.

We don't deal with it with intellectual dishonesty and observing honored nominees hide behind their skirts.

If Alito is everything Ann says he is, than he will have no problems with his confirmation hearing especially after he gives full and precise answers to the committee. And that is how the Senate can best implement Advise and Consent.

In the absence of any personal experience with such a thing, I suppose somebody without much imagination wouldn't even be able to conceive of it. Since one gratuitous insult deserves another, you can <OBSCENE_VERB_PHRASE> you sick dimwitted <PEJORATIVE_NOUN_PHRASE>.

Jacques Cuze said...

vnjagvet, I definitely agree the Senators could make better use of their time in this and other hearings, and without having heard their questions, I would use the questions from the Times this morning. Except for Yoo's that guy was and is a complete <PEJORATIVE_DESCRIPTION_FEMALE_HYGIENE_PRODUCT> And do let the policeman ask his questions. I'd vote that cop for mayor any day of the week.

Craig Ranapia said...

I'm only being partially facetious in saying this: If the Senate is really opposed to torture, perhaps the members of the Senate Judiciary Committee should resist the urge to fill their (over-generous) speaking slots with the kind of reeking flatulence that should be coming out the other end - and not in public.

And while I'm no law expert, I'd like Alito to finally have the guts to say, "No, I'm not going to answer a loaded hypothetical because I'm a Judge who deals with the specific circumstances of specific cases." I don't really see what's achieved by plaing ideological gotcha, except to guaratee the kind of ideological judiciary everyone claims not to want.

David53 said...

vnj....."Testifying that you will not prejudge a hypothetical case situation is not the same thing as being wrapped in plastic wrap and living in a vacuum. It is merely assuring future litigants that until you hear their arguments and consider their precise factual situation, you will not give them or their opponents short shrift by guessing what an outcome might be."

Well said.

Eli Blake said...

With all the emphasis on strict Constitutional constructionism among Conservatives, it has been a personal disappointment to me that there has not been more discussion of the IX amendment.

According to constructionists, any right not stated explicitly in the Constitution does not enjoy Constitutional protection. However, the Founding Fathers would not have written it if they didn't believe that there were rights which they had not thought of.

In particular, constitutional constructionists (whether elected or nominated) should be asked 1) what rights he believes that amendment covers, 2) if privacy is not mentioned, why it is not covered (especially since the Founding Fathers certainly lived in a society where privacy was much more easier to come by than it is today), and 3) whether the thrust of the IV amendment doesn't make it clear that there is an expectation of privacy anyway.

I don't know if anyone will ask judge Alito to explain what he believes that the IX amendment covers, but they should.

Eli Blake said...

Ouch. I hate to write a good comment and muff it with bad grammar. Oh, well.

I will learn a great deal more about the legal system than any of you will tomorrow. I have jury duty.

Leave some great comments, y'all. And I hope someone responds to me about the IX amendment.

jult52 said...

Am I the only one who's really tired of this non-stop bashing of New Jersey? New Jersey has either the highest or the 2nd-highest income level in the entire country, has plenty of sophistication (the food and cultural life are far superior to Connecticut, for contrast's sake) and has a much higher percentage of the population with college degrees than the nation as a whole. Yet somehow it has become synonymous with lack of sophistication. Damn you, Joey Soprano!

Goesh said...

- huffing and puffing Senators, we are used to it and I suppose expect a certain amount of that

reader_iam said...

jult52:

Me, I have no problem with New Jersey. Some of my best friends have come from New Jersey. I have worked at the shore and would live in that state (preferably the northern part).

But having lived in Delaware from 1971 to 1997, and attended the university there which tended to attract New Jerseyans, I can tell you that the stereotype has been alive and well for at least 35 years--far preceding Joey Soprano.

So, what exit?

brylin said...

Motto for New Jersey:
"New Jersey, Got A Problem With It?"

Jacques Cuze said...

I used to look at that building and think everyone in there is either evil or a fool!

Come on Ann, it's been over a day, and we are still waiting for your answer!

Ann Althouse said...

To what?

Jacques Cuze said...

So like are they fools or are they just evil? (Can't it be both?)

/just pulling your chain

Eli Blake said...

Ann,

It seems that no one else has taken me up on my post late last night about what the IX amendment is supposed to cover and whether it's inclusion in the Constitution threatens the premise of 'Constitutional constructionism.'

I'd love to hear what your keen legal mind has to say about it.

Georgina Black said...
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