By the numbers, Judge Alito's language was painfully cautious. He mentioned "stare decisis" -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times)."Humphrey's Executor" (whoever he is)... A thousand conlaw profs wring our hands. "Humphrey's Executor" (whoever he is)! As if that's just some obscurity Alito threw out to bamboozle us.
The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.
IN THE COMMENTS: Stiles defends Milbank:
For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community.John Althouse Cohen responds to Stiles:
Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson.I add:
They were too busy observing that it was all gobbledygook and that he wasn't saying anything to listen carefully enough to have a shot at understanding it. But yeah, it was quite comprehensible, even though... Senator Kennedy tried his best to fuzz it up because it had to do with the "unitary executive" issue that he was trying to alarm people about.I include a long passage from the Thursday transcript that shows how Alito explained the case and Kennedy tried to make Alito look extreme.
UPDATE: This post is getting enough attention -- here and here and elsewhere -- that I want to add that I think Milbank is surely capable of understanding Humphrey's Executor and writing about it if he felt like it, that there is a place for lightweight pieces like this one, that "whoever he is" is an amusing locution, and that the main observation in the article -- that Alito talked about law and the Senators talked about politics -- is sound and worth making. I do bemoan the fact that the reporters covering the hearing stand at some distance from the legal issues under discussion and mostly only observe the dynamic among the participants. In doing this, they can miss the content of the discussion. If I'm a little harsh on Milbank on this score, it's because I heard him say this on "Reliable Sources" on Sunday:
I had a discussion through the week with my editors. They said, "We want you to write about Alito. He's the nominee." I said, "That's great, but the senators are doing all the talking."So he's ignoring the substance and dumbing things down because that's what the people want. Sorry, but this bugs me a little. He feels free to opine that nothing was said, wielding his authority as the Washington Post reporter on the scene, but I'm not convinced he ever engaged enough to know. And now there's this meme: Alito said nothing. I don't think that's fair.
So, I mean, he wasn't the story in the sense that he didn't say anything particularly interesting. You know, the fact is these hearings are entirely theatrical. There is no substance conveyed...
[I]f the picture [on camera at the hearing] zoomed out a bit there and you saw what was going on at the table, first of all, you would see that three- quarters of the tables were empty after about two hours of this....
They left. They were reading a newspaper. There's computer solitaire going on.
Fortunately, we had some wi-fi there in the chamber. You would have seen me weeping. Forget about Mrs. Alito. It was dreadful....
[From the moderator, Howard KURTZ: But this is dereliction of duty. There was legal substance being discussed.]
There was legal substance, but, as a matter of fact, I'm sure you could actually draw up an equation, every time you mention "due process" on the air you lose 5,000 viewers. Every time you mention "unitary theory," the executive, 20,000 viewers click off. And the same thing with the newspapers. It's not something that people can appreciate.