January 14, 2006

Two years old today...

This blog is.

Newly perceived: just how incompetent the Miers nomination was.

My son John Althouse Cohen emails (from the other side of the dining table):
The fact that Alito is so sure to be confirmed gives us a new reason to criticize Bush for nominating Harriet Miers. Back then, it looked as if Bush had chosen an underqualified nominee because she was a woman and had no record of taking positions on issues. But we now know that a white, male conservative with a long paper trail did not run into any serious obstacles. So not only did Bush choose an unqualified nominee for political reasons; those political reasons didn't even apply. We already knew that the Miers nomination was incompetent, but it looks even more incompetent now that the Alito hearings have gone so smoothly.
Indeed. We shall see how this new knowledge affects future appointments. Don't you think it will embolden this President and future Presidents?

(John is home from law school -- Cornell -- for winter break, and, don't worry, we do talk. But sometimes I say, "Email me that," for blog purposes.)

"Nobody really cares what I think."

Did anyone still watch the Alito hearings yesterday? It seemed so over. Surely, we lawprofs ought to be interested in hearing what lawprofs have to say, you might think. But, no, actually, no. We're so used to what we think that we feel we already know what will be said.

Nevertheless, I'm a blogger lawprof, so I will scan the transcript as a service to you, the reader.
[Professor Laurence] TRIBE: I'm not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this committee on a Supreme Court nomination with Justice Kennedy.

I'm not here to oppose his nomination, as I did several months before that time with Robert Bork. And I'm not here to lecture the committee on its responsibilities or its role. I don't think that's my role.

[Criticisms of Alito omitted.]

SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation.
Everyone's always "troubled" these days. Come on, he's opposed to Alito, but the opposition works best if you can oppose from within the humble law professor character. Does anyone actually buy that?

Well, no one's watching on Day 5 anyway, so what they hell? It's an attractive pose, isn't it? And gems of frankness still pop out, like the one I've extracted for the title to this post.

The Senators rush the professors along and bear down on Tribe in particular for going over the time limit. Later, at the end of the day, Specter and Leahy luxuriate in unclocked minutes babbling to each other, somewhat charmingly:
SPECTER: [L]et me say that it has been a pleasure to work with Senator Leahy and I think our collegiality has been demonstrated in many ways, mostly by all of the pictures taken where we're huddled together so that our voices don't carry too far beyond, and also with a sense of humor.

In the bad old days when I had no hair, the only way that Senator Leahy and I could be told apart was by the color of our ties.

LEAHY: You're still wearing the red tie?

SPECTER: And I'm glad to have some hair....

There's a Latin maxim, "The exception proves the rule."

There might have been four minutes in the hearing when it wasn't dignified, but we worked through that as well.

About the only thing the respective parties have been able to agree to on this whole proceeding is that Senator Leahy and I have functioned collegially and have produced a full and fair and dignified hearing.
Ah, thank God, it's finally over! I waited so long for Supreme Court appointments, and I was so excited about finally getting to some hearings. But, wow, the drudgery of following these things!

Will there be another anytime soon? If so, how about not going on for 5 days? It's just crazy. The nominee and his family are subjected to a physical endurance test, and then -- it's not really that sad -- no one wants to listen to the lawprofs.

Setting up a million "bust" jokes.

Pamela Anderson has taken arms against a bust:
Television star Pamela Anderson is leading a campaign to have the bust of Kentucky Fried Chicken founder Harland Sanders removed from the Kentucky state capitol.

In a letter to Gov. Ernie Fletcher, the former Baywatch star says suppliers for the fast food chain, now called KFC, engage in cruel and unusual treatment of chickens, including tearing the heads off of live birds, spitting tobacco into their eyes and spray-painting their faces.

Anderson wrote the letter with the help of People for the Ethical Treatment of animals. In a statement issued by PETA, Anderson said, "The bust of Colonel Sanders stands as a monument to cruelty and has no place in the Kentucky state capitol."
I'm sure PETA has its choice of celebrities whenever it launches a campaign. It's not as if Anderson is from Kentucky -- or even the South. She's not just northern, she's Canadian! I've got to think they deliberately sought publicity but cuing up the easist possible jokes -- comedy for dummies. It's a challenge, a taunt: Leno, we dare you to keep your hands off this bust!

January 13, 2006

I'm actually, finally...

...going to see a movie! It's not that I never see a movie. More later.

UPDATE: Movie seen: "Capote." I expected to like it more than I did.

Part of my disappointment I attribute to the dim projection at the theater. The visual concept of the film is darkness -- lots of underlit, claustrophobic rooms and jail cells, many actors in black suits and black hats -- so cranking the light down a few notches drained the life out of the surface of the film. But the script was also weak, leaving the actors to carry the story with their faces -- aided by the conventional dramatic lighting that puts the same shadow-pattern curved around half of every face. And these faces all underacted, which is better than overacting, but fairly dull, especially when virtually the entire movie consists of closeups.

Yes, from time to time we see a bleak landscape (in case you've forgotten how all there is in Kansas is flat, empty land with the occasional dot of a farmhouse) or a crowd of people (congregated closely together in black suits and not making any noise or otherwise demonstrating that it comprises individuals). There's Catherine Keener, as Truman Capote's friend Harper Lee, but she's given almost nothing to do except stand about on the sidelines, looking crazily older and plainer than she's ever had to look in any other movie. (Is that good for an Oscar? Is it enough to count the way that gaining weight and looking bad routine worked for Charlize Theron in "Monster.")

But what bothered me the most about the movie is that it flattened the character of Capote himself. We seem him in the end devastated after the murderer he'd bonded with was hanged, and we're told that he never finished another book and that he died of the complications of alcoholism, with no sense at all that he went on to spend many years partying with socialites and being a lively raconteur on TV talk shows. I had to wonder if the filmmakers had meandered into some dopey Hollywood anti-death penalty message, which had nothing to do with what seemed to be the real story of the man. It seems they decided to drop the sexual attraction Capote was supposed to feel for the murderer. Capote's homosexuality had no energy to it, and Capote himself seemed to sleepwalk his way along a path he chose out of nothing more than writerly ambition. There was a deadness to the character as played by Phillip Seymour Hoffman, which is a character idea that could make sense at the center of the movie, but they dialed everything around him down, creating the contrast in the wrong direction. There was a bit of a good idea: that Capote was a damaged man and he saw himself in the other damaged man, the murderer. But there were simply not enough apt words in the screenplay for that idea to live.

"They often looked as though they had coordinated their ensembles in the manner of a family heading off to the Sears photo studio."

WaPo's Robin Givhan analyzes the Alitos from the fashion standpoint:
He and his wife of almost 21 years wore similar wire-rimmed glasses. His were only slightly more angular than hers. They both have short-cropped brown hair....On the first day of hearings, her red suit with its contrasting piping matched his red tie. On the second day, she echoed his pale blue shirt with her blue sweater, which fell discreetly to mid-thigh. On the fourth day, her white jacket over a red dress mirrored his white shirt and red tie.

Givhan skirts very close to sneering, but in the end, she seems rather admiring. Or is that patronizing?

"She says she definitely is not running. I'd love to see her run, she's terrific."

Ooh! Laura Bush said that about Condoleezza Rice. So, then, Condi's running! Right?

IN THE COMMENTS: A pseudonymous Condi hater makes a racist slur, and after I delete it, makes it again, in the middle of the night, so that I don't see it to delete it for a few hours. When I do delete it, I write:
I suspect Democrats who fear the strength of a Rice Presidency have a stake in making Republicans fear that racism will sink her. Who are these people who are willing to slink about and type racist slurs in the hope that conservatives will stay in touch with racist feelings some moronic liberals assume surely lurk in their hearts? Or is it just a relief to finally find a way to express their own racism? Be careful, Condi opponents, we will be closely monitoring your racism. Though possibly not in the middle of the night!

I note the possibility that the commenter in question is not a Condi hater but is only posing as one to make people who actually oppose her look bad.

"Condoleezza Rice is a very cruel, offended woman who lacks men's attention... Such women are very rough."

Russian politician Vladimir Zhirinovsky on Condoleezza Rice:
Speaking with Pravda this week, Zhirinovsky chastised Rice for calling on Russia to "act responsibly" in supplying natural gas to Ukraine.

The fascistic pol attributed that "coarse anti-Russian statement" to Rice being "a single woman who has no children."

"If she has no man by her side at her age, he will never appear," Zhirinovsky ranted on. "Condoleezza Rice needs a company of soldiers. She needs to be taken to barracks where she would be satisfied.

"Condoleezza Rice is a very cruel, offended woman who lacks men's attention," he added. "Such women are very rough. … They can be happy only when they are talked and written about everywhere: 'Oh, Condoleezza, what a remarkable woman, what a charming Afro-American lady! How well she can play the piano and speak Russian!'

"Complex-prone women are especially dangerous. They are like malicious mothers-in-law, women that evoke hatred and irritation with everyone. Everybody tries to part with such women as soon as possible. A mother-in-law is better than a single and childless political persona, though."
You can say he's simply crazy, but do you think there are not plenty of people in this country who think such things?

"We have to hit him harder."

Said a Democratic senator to E.J. Dionne during the afternoon break of the first day of questioning at the Alito hearings:
The senator was expressing frustration over a process that doesn't work.
Define "work." You mean, doesn't permit you to defeat the President's nominee as long as he is very well qualified and can give reasonably substantial answers to all the many lines of searching inquiry the opposition party has been able to develop?
It turns out that, especially when their party controls the process, Supreme Court nominees can avoid answering any question they don't want to answer. Senators make the process worse with meandering soliloquies. But when the questioning gets pointed, the opposition is immediately accused of scurrilous smears. The result: an exchange of tens of thousands of words signifying, in so many cases, nothing -- as long as the nominee has the discipline to say nothing, over and over and over.
Define "nothing." You mean everything that isn't a pledge to decide cases the way you'd like or to confess to bias and bigotry?
Democrats seem to be wary of mounting a filibuster. What they should insist upon, to use a euphemism Alito might appreciate, is an extended debate in which his evasions will be made perfectly clear to the public. If moderate senators want to vote for a justice highly likely to move the Supreme Court to the right, they can. But their electorates should know that's exactly what they're doing.
Oh yes, extended debate, for the benefit of the public. Because we haven't heard enough verbiage from the Democratic Senators yet.

"If they want to filibuster, frankly, bring it on."

Says Senator Orrin Hatch, reported in the Washington Post. Senator Ted Kennedy is saying "We've still got a ways to go to figure what the strategy is going to be." But the Democrats know they've lost the fight to stop Alito:
When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure.
So they tried to set up opportunities for gaffes and goad him into losing his composure. They succeeded in making his wife cry, which which only hurt their cause by making them look mean-spirited and callous and by overshadowing the message they hoped would capture the news reports.
When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides agreed he had done neither.
In fact, by the end of the first day of questioning (that is, the second day), the outcome seemed clear. Most Americans, I think, if they were tuned in at all, saw how things were going and tuned out. To stimulate their outrage and make defeating Alito a possibility, something very unusual would have had to break out of the tedium of the Senate and get people thinking that the nomination was still in play. But we watch politics selectively, and we're good at seeing which things are rolling toward predictable outcomes and which things deserve our attention.

I will be interested to see which Democratic Senators decide to vote against him. I'll invoke my favorite Hillary Clinton quote (spoken about the vote on John Roberts): "They will do what they think is in their interest, however they define it."

Will any of the 22 Senators who voted against Roberts turn around and vote for Alito? It's hard to see why. But will any of the 22 Democratic Senators who voted for Roberts see reason to vote against Alito? Perhaps they will.

In that group are my two Senators Russ Feingold and Herb Kohl. I am especially interested to see how Feingold will vote, because I assume he is running for President. Hillary Clinton has already voted against Roberts, so I expect her to vote against Alito. Feingold has already distinguished himself from her, and I'm sure if he wants, he can give excellent reasons for distinguishing Roberts from Alito, and a combination of yes and no votes might serve him well, making him seem to be evaluating the judges in a fair, nonideological manner. He could draw attention to the concerns about expansive executive power, which have grown in the time since the Roberts vote. The changed circumstances alone could justify a different vote on the two men.

Nevertheless, I think Alito deserves a yes vote. To vote no based on his performance at the hearings is to set the expectations too high for the next nominee. We need to worry that good people will decline to be nominated. And Democrats will some day have the power of appointment again. Their treatment of Alito will serve as an example to Republicans as to how far they can go in attacking that new nominee.

January 12, 2006

On making the nominee's wife cry.

There's lots of talk today about Alito's wife's succumbing to tears yesterday. It's interesting that she lost control when Senator Lindsey Graham was being supportive and sympathetic, chewing out the nasty Democrats who smeared her husband. But it isn't surprising. It's natural to maintain your steely surface during an attack, and then to collapse into the arms of the person who stretches out his arms to you with compassion. But the outstretched arms were only metaphorical. Senator Graham did not come down from behind his fortress of a table to comfort her, and her own husband could not turn around to soothe her. She was left exposed, on camera, and all she could do was run away.

The hearings do need to be tough. They don't need to be as obnoxious as they've been, but they should be vigorous and searching. The odd thing is that we expect a wife to sit behind her husband, unable to participate, just a backdrop of support. It's strange the way wives are used in politics to create an image for the man. In the business world, a man bringing his wife along to sit with him for a job interview would be out of his mind.

Of course, husbands sit with female nominees too. But we have yet to see a nasty hearing for a female Supreme Court nominee. Imagine if the Senators were saying awful things about a woman while her husband sat behind her. Would he glower just enough that the Senators wouldn't dare go too far? Would there come a point when this man would lose emotional control? Would he cry and run off? Would he step forward and say How dare you talk to my wife that way? That would be some new political theater.

ADDED COMMENTARY: Alito's wife's crying works to his advantage:

1. It lends credibility to the Republican's spin on the hearings that the Democrats went way out of line with their questions.

2. It gives the impression that the Democrats lack compassion and concern for women, which is exactly the opposite of what they've been trying to express through attacking Alito.

3. It humanizes Alito, as a man with a sensitive wife.

4. It made the best news story of the day, overshadowing whatever message the Democrats might have hoped would capture the public's attention, like Senator Kennedy bulging with concern about the Concerned Alumni for Princeton.

So are guys wearing shorts today in Madison?

Yes! You know that I think men should resist shorts to the last limit of their masculine strength. But here in Madison, manliness manifests itself in the wearing of the shorts if the winter eases up just a bit, and right now it's 49°, so the inadequate pants are everywhere. Lots of young women in sleeveless tops too. We are hardy folk up here in the north. Somewhat style-challenged, but still....

"They were boisterous, slapping high-fives, laughing and so forth."

CourtTV reports on the trial of the five Kerry campaign workers accused of slashing the tires on 30 vans that Republicans had rented to help get voters to the polls in Milwaukee in 2004.

And here's a more substantial report on the trial, which began on January 8th:
Based on testimony given last year in the preliminary hearing, there is no eyewitness who can identify the men as the vandals. There is a security guard who says he saw someone scurrying in the dark, acting drunk and urinating on a wall. There are police and the Firestone representative, who are to testify about the damage found and the repairs required.

Then there is the bulk of the alleged link between the defendants and the slashed tires: their purported statements in the weeks before the election about planning hijinks on GOP headquarters dubbed "Operation Elephant Takeover" and what they were heard saying after they returned to Democratic Party headquarters about the same time as the police say the tires were cut.

Four of the five men - all but Howell - are quoted by others in the criminal complaint as saying they took part.

Indigo children.

Here's an interesting article about "indigo" children:
Indigo children were first described in the 1970's by a San Diego parapsychologist, Nancy Ann Tappe, who noticed the emergence of children with an indigo aura, a vibrational color she had never seen before. This color, she reasoned, coincided with a new consciousness.

In "The Indigo Children," Mr. Carroll and Ms. Tober define the phenomenon. Indigos, they write, share traits like high I.Q., acute intuition, self-confidence, resistance to authority and disruptive tendencies, which are often diagnosed as attention-deficit disorder, known as A.D.D., or attention-deficit hyperactivity disorder, or A.D.H.D.

Offered as a guide for "the parents of unusually bright and active children," the book includes common criticisms of today's child rearing: that children are overmedicated; that schools are not creative environments, especially for bright students; and that children need more time and attention from their parents. But the book seeks answers to mainstream parental concerns in the paranormal.

"To me these children are the answers to the prayers we all have for peace," said Doreen Virtue, a former psychotherapist for adolescents who now writes books and lectures on indigo children. She calls the indigos a leap in human evolution. "They're vigilant about cleaning the earth of social ills and corruption, and increasing integrity," Ms. Virtue said. "Other generations tried, but then they became apathetic. This generation won't, unless we drug them into submission with Ritalin."
I don't like all the Ritalin, but this new age stuff is worse. And it's painful to see the pandering to parents who lack objectivity about the bratty dimension of their own children.
[D]isruptive behavior has a purpose, said Marjorie Jackson, a tai chi and yoga teacher in Altadena, Calif., who said that her son, Andrew, is an indigo....

"The purpose of the disruptive ones is to overload the system so the school will be inspired to change," Ms. Jackson said. "The kids may seem like they have A.D.D. or A.D.H.D. What that is, is that the stimulus given to them, their inner being is not interested in it. But if you give them something that harmonizes with the broad intention that their inner self has for them, they won't be disruptive."
I agree with this criticism of the schools, but this indigo business just makes the criticism seem like part of a big mass of self-delusion and nuttiness. Thanks a lot, new agers!

"Alito Says He'd Emulate O'Connor's Style."

So reads an AP headline, based on this statement: "I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication." Does that mean anything or is it just routine polite acknowledgment? It could be read as a rejection of decisionmaking in the form of stating crisp rules at a high level of generality: "She has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts." Does he plan to emulate that or can we perceive that he sees that as a problem he will solve?

UPDATE: The NYT has a quite different headline: "Alito Resists Making Comparisons to O'Connor."

The hearings as trench warfare.

That last post talks about the way the newspapers report on the tone of the Alito hearings as if it is weather. Former law dean Ron Cass sees the hearings as warfare -- futile warfare:
Where the Roberts hearings opened with a “history in the making” feel, the Alito hearings are the political equivalent of trench warfare. Battle lines are drawn. Troops are dug in. Both sides are willing to endure the fighting, even though there is little prospect of a change in positions.

The warfare taking place in the Hart Senate Hearing Room, like real trench war, is mostly a low-key, slow moving affair, punctuated by occasional bursts of bombast. It resembles trench warfare, too, in its air of embedded hostility and immovable forces lobbing cannonades at one another. The nominee is almost an afterthought.
Cass skewers the Democrats for misunderstanding (or deliberately distorting) the meaning of the concept of "unitary executive." Despite Alito's patient and accurate explanations of the term, they persist in acting as though it refers to the notion of an all-powerful President.
Perhaps when Senators stop making accusations and speeches, aimed more at interest groups and the media than the nominee himself, confirmations will return to hearings instead of battles.

Checking the tone of the hearings.

I've been slogging away at the TiVo'd C-Span coverage of the Alito hearings. I wonder how many people are really trying to listen to everything. Probably none. Personally, I speed through nearly all of the Republicans, who essentially provide Alito with a break -- a break where he doesn't get to leave the room.

But even the Democrats are too dull to take much of. With the multiple rounds of questioning, we're hearing more questions of the I'd-like-to-get-back-to-the-issue-of type. It's often painfully obvious that the Senators have nothing left to say.

This morning, I heard one of my Senators, Herb Kohl, going over and over whether Alito thought there should be term limits or age limits on judges, a question with almost no value in the first place, since the Constitution establishes life tenure for federal judges. There is utterly nothing for a Supreme Court justice to do on that subject. Alito was ploddingly patient with the Senator. Too bad he couldn't say: What possible relevance does my opinion on that subject have? After Alito explained why the Framers chose life tenure and why it makes sense for those who interpret constitutional law to serve for very long terms, Kohl ridiculously criticized him for giving "on the one hand, on the other hand" comments and nattered away about just being really interesting in knowing his opinion and how this may be the last time that the American people will get to hear his opinions. (Huh?)

I would have perked up if Kohl had asked questions like: "Judge, you know the Constitution gives federal judges life tenure, but don't you think they hold on to their jobs too long? Don't you think the judges have an ethical obligation to step down at a certain age or maybe after 20 years at the most? Would you reveal your thoughts on when you will retire and pledge to step down if you suffer a serious illness or reach the age of 80?"

For those who aren't subjecting themselves to this easily avoidable ordeal, there are the newspapers. Here we find the equivalent of weather reports: How was the atmosphere today? Yesterday, according to the WaPo, "The once-sluggish confirmation hearings for Supreme Court nominee Samuel A. Alito Jr. turned confrontational." Today, with the hearings just started, the NYT tells us, the tone has become "calmer." With a slight chance of storms?

I'm sorry, yesterday was sluggish. The fact that Kennedy blew a gasket at one point and that Mrs. Alito left the room at another was not enough to dilute the overwhelming tedium of the event. I mean, how tedious does something need to be that a woman walking out of room is a big to-do? And was this exciting (from the WaPo article):
Alito edged closer to suggesting that he might be willing to reconsider Roe if he is confirmed to the high court, refusing, under persistent questioning by Democrats, to say that he regards the 1973 decision as "settled law" that "can't be reexamined." In this way, his answers departed notably from those that Chief Justice John G. Roberts Jr. gave when asked similar questions during his confirmation hearings four months ago.

Yesterday, Alito said that Roe must be treated with respect because it has been reaffirmed by the high court several times in the past three decades.

But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."

During Roberts's confirmation hearings, he, too, was reluctant to disclose how he would vote if asked to overturn Roe . But during the 2003 hearing on his nomination to the Court of Appeals for the D.C. Circuit, he had said he viewed the ruling as settled law.
Oh, my Lord, he edged closer!

We have had separate (and multiple) lines of questions on the meaning of "stare decisis," "precedent," and "settled law." Who knows, maybe one of these terms has some special dimension that could bring new controversy to Alito's views on abortion rights, which were actually thoroughly spelled out in the very first set of questions he answered (at the beginning of Day 2).

January 11, 2006

I was so fresh and motivated...

... watching the hearings this morning. Then, after doing the "Midday" radio show, I ventured out into the real world. I knew the TiVo would save the afternoon session for me, but now, trying to watch it all, it seems so pointless and repetitive. Yes, I checked out the part where Lindsey Graham emoted and Mrs. Alito left the room. But is that anything? The imposition on the family of the nominee, forced to sit on camera all day, for days, is insane. Just about any damn thing these poor individuals do is justified, in my opinion. Frankly, I can't imagine what the loving spouse of the nominee would think of the Senators over the course of this ordeal. What is she thinking? Endure, endure, endure.

UPDATE, 10:40 pm: I'm slogging through the afternoon session on the TiVo. Boy, is it low energy -- just going through the motions. Alito seems to be grimly grinding through competent answers and the Senators seem to be just filling out their alotted time. We're laughing about how often Alito is just saying things are "crucially important," "critically important," "vitally important." We also laughed at Diane Feinstein saying: "You also said that precedent is not an exorable command..." Come on! If they're not even going to listen to themselves, why are we tuned in?

Downtown Madison.

I just adore a penthouse view:

Downtown Madison

Nice? It's the Loraine, here in Madison. From a more modest level (of the Loraine):

Downtown Madison

On the ground level, a fabulous café/wine bar called Barriques:

Downtown Madison

Here's the poster by our table:

Downtown Madison


I talked about the Alito hearings on the "Midday" show on Minnesota Public Radio, which you can listen to here (scroll down to the 12:00 hour). The recording begins with some NPR coverage, with Nina Totenberg and others. My show starts at about 18 minutes.

Kennedy's flare up.

Senator Kennedy just made a big scene about requesting some Library of Congress papers having to do with the activities of the Concerned Alumni of Princeton. Alito has been consistently downplaying the significance of that organization to him, even though we all know that he used it as a credential in applying for a job in the Reagan Administration back in 1985.

What is the relevance of these papers? They could provide some basis for making an inference about what Alito really knew about CAP, but it is rather marginal. Kennedy tried to bluster his way toward portraying the papers as a smoking gun that would prove Alito a racist, a sexist, and a liar. He seemed to want to trip up the hearings and grind them to a halt. He asked to take the committee into executive session to decide whether to issue a subpoena. Specter tried to quell him, but that just fired him up, so Specter locked into I'm-the-chairman mode, said he wouldn't rule, and when Kennedy said he appealed the ruling, said he hadn't ruled, banged the gavel, and set up the seemingly shaken Senator Grassley to return us to normal-style questioning.

Whew! That was ugly... but kind of funny too, especially the part where Kennedy said Specter received his notice that he was requesting the documents, and Specter got all huffy about how Kennedy was in no position to say what he (Specter) had received, and Kennedy countered with his authority to say what he (Kennedy) had sent.

UPDATE: Joe's Dartblog has the transcript and some choice words for Kennedy.

ANOTHER UPDATE: After the lunch break, the mood is quite different. Kennedy is whipped, looking down, speaking in a circumspect tone. Specter is smirking and quietly triumphant. Very amusing!

This class will take a close look at evolution as a theory..."

"...and will discuss the scientific, biological and biblical aspects that suggest why Darwin's philosophy is not rock solid," says a public high school's course description. Constitutional? This issue, raised in a new lawsuit, is very different from the recent case that dealt with teaching intelligent design alongside evolution in a biology class. It seems clear as a general matter that a high school can teach about religious ideas in history, literature, and philosophy courses. But if the whole purpose of the course is to teach religion under the cloak of a bogus label, it should be seen as a violation of the Establishment Clause. The question is: At what point does the school cross over the line?
Barry W. Lynn, executive director of Americans United, said, "This is apparently the next wave of efforts to bring creationism to schools, and that's why we want to dry it up immediately."

The school district, with 1,425 students, serves several towns in a mountain area where many students are home schooled. The special education teacher, who is married to the pastor of the local Assemblies of God church, amended her syllabus and the course title, from Philosophy of Intelligent Design to Philosophy of Design after parents complained.
These details about the purpose of the program are crucial.

UPDATE: Sorry I had the wrong link before.

Specter to Alito: "I'm starting to worry about you."

With the second round of questioning beginning, Senator Specter seems to be in good spirits. He gets an exchange going about whether members of Congress can reason as well as the judges:
SPECTER: I take it from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning.

ALITO: I think that Congress's ability to reason is fully equal to that of the judiciary.

SPECTER: And you think that even after appearing here for a day and a half?


ALITO, smiling: I have always thought that, and nothing has changed my mind about that.

SPECTER: I'm starting to worry about you.

One thing about this topic that might not be apparent to the layperson is that they are talking about whether the Court should defer to a congressional finding that the matter to be regulated has a "substantial effect on interstate commerce" (and thus fits the commerce power, as the doctrine sets the test). But the congressional findings behind a statute (like the Violence Against Women Act) will tend to stress the importance of a problem and the need for a solution, while the judicial reasoning will focus on whether the causal chain between the problem and the effect on commerce is too attenuated. Both institutions may reason perfectly cogently, but the Court is talking precisely about the legal standard, and Congress's reasoning may not be attuned to that. That's why one can fully acknowledge the equal reasoning powers and still be committed to the judicial enforcement of limits on congressional power. Alito's answer includes this point but doesn't belabor it, so you might not notice.

"The crushing hand of fate."

Senator Durbin just finished questioning Samuel Alito, in Day 3 of the hearings, and he referred more than once to "the crushing hand of fate" in Alito's decisions. According to Durbin, Alito has time and time again come down on the side of corporations and other big institutions.

Durbin accused of Alito of seeking out ways to decide cases against the little guy and even tried to connect a decision of Alito's to the recent mining disaster. Alito defended himself in his usual way: I decide cases according to the law. That case relating to mining was about the statutory definition of "mine," and the above-ground pile of coal at issue in the case did not fit the definition.

Durbin just repeated his accusation: There's a pattern, a pattern of decisions, you know, the crushing hand of fate. (Crushing miners underground?) Durbin sounds a litttle dimwitted saying this, but his point is one made by some of the smartest people in the legal academy: I don't care what your excuse is for any given case that you might want to explain. I will just retreat to my observation, based on every case you ever decided, that there is an overall pattern of siding with the big guy.

Alito's last response to Durbin, as the time is running out, is the assertion that there are many cases where he has sided with the little guy -- not enough to alter the pattern, the pattern, you know -- and a description of one case where his decision favored a schoolboy who had been bullied because of his perceived sexual orientation -- doesn't matter because there's still the pattern, the crushing-hand-of-fate pattern -- and I'm not sure if Alito is sounding sympathetic, whiny, or just naturally nasal, and then he clamps his lips shut with his jowls in the pulled-down position that makes me think he's pretty pissed off at Durbin.

Rude answers not given by Samuel Alito -- Part 1.

A passage from the Day 2 transcript:
FEINSTEIN: So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation. If Congress did make findings, would you have agreed that that statute would been constitutional?

ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case.

FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law.

ALITO: And I reiterate that...

FEINSTEIN: And I'm just asking you would you have sustained the law...

ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me.
Too bad Alito has to play nice and can't say Duh, Senator, don't you know what "hypothetical" means?

Alito bristles once, on questioning from Feingold.

In the WaPo, Charles Lane sees a "low-key performance," with Alito heating up only once, under questioning from Wisconsin Senator Russ Feingold who "asked if Bush administration officials had helped sculpt his answers about the White House's use of the National Security Agency to eavesdrop on some communications inside the United States."
"Nobody has told me what to say," Alito snapped.
Well, there's a difference between being "told what to say" and receiving help sculpting your answers. You can be your own man and still want to support the President's side. And who doesn't think Alito had help preparing? Let's look at the transcript:
FEINGOLD: As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions. Some have called them moot courts or murder boards. Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?

ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been. But what I can tell you...

FEINGOLD: You don't recall whether this issue...

ALITO: No, the issue of FISA certainly has been something that I have studied, and this is not -- FISA is not something that has come before me as a judge.

FEINGOLD: But you don't recall whether or not this was covered in the practice sessions?

ALITO: No, no, the specific question that you raised about the conflicts between the president's authority to say that a statute enacted by Congress should not be followed. But the general area of wiretapping and foreign intelligence surveillance, wiretapping...


FEINGOLD: ... the recent events that have led to this dispute...

ALITO: And the recent events.

FEINGOLD: ... and the possibility that it may come before you. Right, Judge?

ALITO: That's correct.

FEINGOLD: OK. Who was present at these practice sessions where these questions were discussed? And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?

ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.

FEINGOLD: I just asked -- were there no comments...

ALITO: The comments that I've received...

FEINGOLD: ... or no advice?

SPECTER: Let him answer the question, Senator Feingold.

ALITO: The advice that I've received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I've participated either as a judge or previously when I was arguing a legal issue as a lawyer.

But nobody has told me what to say. Everything that I've said is an expression of my own ideas.

FEINGOLD: And I don't question that, Judge. I asked you, though, whether anybody gave you any feedback or suggestions or made any comment whatsoever on the answers you gave in the practice sessions.

ALITO: In general? Yes, they've given me feedback, mostly about the form of the question, the form of the answers.

FEINGOLD: Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions?

ALITO: Not as to the substance of the question. No, Senator.

FEINGOLD: Only as to the style?

ALITO: That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time.

FEINGOLD: Again, I'm not suggesting that.

ALITO: I just want to make that clear

FEINGOLD: I asking whether or not somebody talked about the possible legal bases that the president might assert with regard to the ability to do this wiretapping outside of the FISA statute. Was that kind of a discussion held?

ALITO: Nobody actually told me the bases that the president was asserting. I found the letter that was released last week or the week before by an assistant attorney general setting out arguments relating to this on the Internet myself and printed it out.

And I studied it to get some idea of some of the issues that might be involved here. And I looked at some other materials that legal scholars have put out on this issue. But nobody in the administration actually has briefed me on what the administration's position is with respect to this issue.

FEINGOLD: Does it strike you as being inappropriate for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing?

ALITO: It would be very inappropriate for them to tell me what I should say. And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice.
Nice interchange. Feingold deserves a lot of credit for listening to the answers and following up aggressively, and Alito interacted with him well. Does this count as "bristling" as Lane has it, or is this just real debate, and it overexcites us because we don't get to see enough of it?

"The federalism revolution is on hold, at least for a few months."

Said Gene C. Schaerr, the lawyer who argued that for the states in United States v. Georgia. Linda Greenhouse reports on the brief, unanimous opinion that ducked the interesting federalism questions:
Justice Scalia said that at least to the extent that the inmate's claims indicated that prison officials had violated not only the statute but the Constitution itself, the suit could proceed. The inmate, Tony Goodman, says that prison officials have grossly neglected his needs for mobility and personal hygiene, and that his dependence on a wheelchair has left him excluded from the law library and recreational opportunities.

The decision left very significant questions unanswered, most notably the fate of a disability lawsuit that demonstrates violations of the statute but not of any constitutional provision....

Without doubt, the unanimity and brevity of Justice Scalia's opinion, at only eight pages, papered over deep divisions that have been apparent on the court during years of contention over the boundaries between federal authority and state prerogatives....

Mr. Schaerr suggested that the imminent departure of Justice Sandra Day O'Connor, who has been at the center of the federalism debates, might have prompted the court to decide the new case promptly, and therefore narrowly, and to defer the hard questions.
That sounds accurate. Does Congress have the power to abrogate state sovereign immunity for things other than constitutional violations, as it has tried to do with the Americans With Disabilities Act? That's is a tough question involving the analysis of whether the statute should count as remedies for constitutional violations (as opposed to mere statutory rights). The Supreme Court has been terribly divided over this area of complex doctrine, and it makes sense to put off dealing with it until the new Justice is confirmed.

(Note: I disapprove of the overheated term "federalism revolution." The Supreme Court has shown only a modest interest, in the last 20 years, in providing some judicial enforcement of federalism.)

Alito answers.

Let's take a look at the NYT coverage of Day 2 of the Alito hearings.

The two Adams -- Liptak and Nagourney -- have this to say:
If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.

Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito's default impulse frequently seemed to be to try to give a direct response to the senators' often rambling questions.
How disarming! I imagine they didn't expect that. Roberts's performance has become a myth of perfection, so it made sense to assume Alito would ape it, and the Democrats may very well have thought that the Roberts technique would seem less elegant in a New Jersey accent, and they'd get the advantage in a way they failed to do last September when they encountered the ultra-polished Roberts. But Alito found a different path, daring to behave in the Bork mode and actually debate about law. Were the Democratic Senators a bit surprised?
For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question.
Ha ha. So they were planning to run out their time insisting that he answer and lecturing him about why he must answer, and then -- damn! -- he answered. What's Plan B?
Asked by Senator Edward M. Kennedy of Massachusetts about an endorsement of "the supremacy of the elected branches of government" in the 1985 job application, Judge Alito simply disavowed it.

"It's an inapt phrase," he said, "and I certainly didn't mean that literally at the time, and I wouldn't say that today. The branches of government are equal."

Mr. Kennedy followed up. "So you've changed your mind?" he asked.

"No, I haven't changed my mind, senator," Judge Alito responded. "But the phrasing there is very misleading and incorrect."
I wonder where Kennedy meant to go with that -- into a demand that the courts defer to Congress even more than they already do? I wonder if those who are working on the Senators' questions are spending the time between Day 2 and Day 3 of the hearings furiously rewriting the script so there are paths to take when Alito answers.
To a large extent, Judge Alito's success at skating though a good deal of the day reflected the quality of the questioning. The senators frequently did not follow up on their own queries, and Mr. Biden in particular devoted most of his 30 minutes to talking, leaving little time for the nominee to speak.
Well, since he didn't go first, maybe Biden saw the potential for embarrassment if he got to an interchange with the nominee and decided to run out the clock with the prefatory blather. I guess that's what's going on in the photograph described in the previous post.
Mr. Schumer, whose questioning left Judge Alito looking wobbly and pale, was an exception, as was Senator Dianne Feinstein of California, who pressed him on his views about the Supreme Court's authority to overrule precedent.
I'll focus on those two when I get to my TiVo later this morning.
Judge Alito's command of the law was impressive, but it did not have Judge Roberts's effortless, Olympian quality.
As I said, Roberts has become a myth. The Adams note that Alito used the term "twilight zone" to refer to the wrong one of Justice Jackson's three categories for analyzing presidential power. They're right. That's a gaffe. The middle category is the "twilight zone," not the third category.

Enough of the Adams. Let's look at Elisabeth Bumiller's take:
The lure of 50 cameras and the captive audience in the Senate Hart Office Building appeared too much of a temptation for some of Capitol Hill's windiest lions, who began by promising not to run a marathon session of questions, then did so anyway.
Oh, the Senators preened?
At one point Senator Edward M. Kennedy, Democrat of Massachusetts, was even granted two extra minutes from the committee's chairman, Senator Arlen Specter, Republican of Pennsylvania - drawing groans from colleagues, among them Senator Charles E. Schumer, Democrat of New York.

"Be quiet over there," Mr. Kennedy admonished his fellow committee members, to laughter. "Scurrilous dogs."
Ha ha. They're sick of each other!
The highest ratio of words per panelist to words per nominee was that of Senator Joseph R. Biden Jr., Democrat of Delaware, who managed to ask five questions in his 30-minute time allotment.
Ha ha. I'm glad somebody's counting these things.
"I understand, Judge, I am the only one standing between you and lunch, so I'll try to make this painless," he began, with some promise.

Mr. Biden then dived into a soliloquy on Judge Alito's failure to recuse himself from cases involving the Vanguard mutual fund company, which managed the judge's investments. After 2 minutes 50 seconds - short for the senator - Mr. Biden did appear to veer toward a question, but abandoned it to cite Judge Alito's membership in a conservative Princeton alumni group. Mr. Biden discoursed on that for a moment, then interrupted himself with an aside about his son who "ended up going to that other university, the University of Pennsylvania."

Judge Alito, who had been sitting without expression through Mr. Biden's musings, interrupted the senator midword, got out three sentences, then settled in for nearly 26 minutes more of Mr. Biden, with the senator doing most of the talking. With less than a minute to spare, Mr. Biden concluded, thanked Judge Alito for "being responsive," then said to Mr. Specter that "I want to note that for maybe the first time in history, Biden is 40 seconds under his time."
How appalling! And complimenting himself, in the third person, in the end, as if he's being charmingly self-deprecating? If you think you can bore and exasperate everyone for half an hour and then pull that off, you're not self-deprecating, you're self-deluded.
While most of the senators were at least as verbose as they were at the September confirmation hearings of Chief Justice John G. Roberts Jr., the crispest was the chairman, Mr. Specter, who dispensed with an introduction on Tuesday and was immediately out of the gate with a question about abortion.

"Judge Alito, do you accept the legal principles articulated in Griswold vs. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?" Mr. Specter asked.

Judge Alito, as Chief Justice Roberts had before him, said that he did, indicating that he at least did not rule out the pivotal legal underpinning of Roe v. Wade, the 1973 Supreme Court case that legalized abortion.

Mr. Specter then moved into the same line of questioning he had used for the chief justice, even displaying the same chart that listed the 38 Supreme Court cases since Roe that affirmed the right to abortion.

Like almost everything else, the chart created an opportunity for more words from members of the committee. As an aide held the chart up behind Senator Orrin G. Hatch, Republican of Utah, who opposes abortion rights, Senator Patrick J. Leahy, Democrat of Vermont, who supports them, was moved to crack, "Just balance that on Orrin's head."

Mr. Specter, who also supports abortion rights, chimed in, "It's a good photo-op for Senator Hatch."

Mr. Hatch, grinning, would have none of it. "He wants that over by Leahy," he said.
Funny. I've read this part of the transcript, and I think Specter did an excellent job of managing the presentation of the abortion material. Clearly, this was designed very well to build a foundation for Alito's testimony and give him security on the most difficult issue.
The most indignant questioner was Mr. Leahy, who went on a ramble through his own Irish and Italian roots and compared the discrimination that his parents and grandparents faced with the hard-luck story of Judge Alito's father, who came to the United States from Italy as an infant, grew up in poverty and had a difficult time getting a teaching job.
Leahy's Italian? Interesting.
Given that history, Mr. Leahy said, he was particularly troubled that Judge Alito would have joined the conservative college group, Concerned Alumni of Princeton University, which resisted the admission of women and members of minorities.

"Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of C.A.P.?" Mr. Leahy asked.

Judge Alito, who acknowledged having listed the group on a 1985 job application, responded, "I have racked my memory about this issue, and I really have no specific recollection of that organization."
I would have followed up with a question about what he means by "specific recollection." Why add the modifier "specific" unless there is some recollection?
The judge's toughest questioner was Mr. Schumer, who late in the day bored in with follow-up after follow-up about whether Judge Alito thought that the Constitution protected the right to abortion. In 1985, Judge Alito - then applying for a position in the Justice Department - contended that the Constitution did not guarantee such a right.

But on Tuesday, Judge Alito repeatedly refused to say what he now thought of the issue, exasperating Mr. Schumer.

"I do have to tell you, Judge, your refusal I find troubling," he said, likening the side-stepping to the response that might have been given by a friend who had told him 20 years earlier, "You know, I really can't stand my mother-in-law.'

Mr. Schumer spun out the rest of the hypothetical: "And a few weeks ago, I saw him and I said, 'You still hate your mother-in-law?' He said, 'Well, I'm now married to her daughter for 21 years, not one year.' I said, 'No, no, no, do you still hate your mother-in-law?' And he said, 'Mmm, can't really comment.' "

Mr. Schumer paused. "What do you think I'd think?" he asked the nominee.

The barest of smiles crossed Judge Alito's face. "Senator, I think --"

Mr. Schumer, in the theme of the day, cut him off. "Let me just move on," he said. Mr. Schumer seemed to notice that Judge Alito's mother-in-law was in the hearing room.

"I have not changed my mother-in-law," Judge Alito offered.

As always, the senator had the last word. "I'm glad you haven't, because she seems nice," Mr. Schumer said.
That's what passes for tough questioning these days? Cornball humor? And by the way, Senator Schumer, hating one's mother-in-law was stock comic material back in the 1950s and 60s. Then, there was a little something called the Women's Movement, and after that, it became kind of uncool to just tap into that. I just love the irony that the Senator who is offering to be the champion of women's rights sounds like the old comics who used to piss me off 35 years ago.

Did the pompous politicians rattle the ragged New Jerseyan?

Having spent most of the last two days on planes and talking with people in the real world -- I gave a talk at George Mason School of Law -- I've got to put in a serious effort this morning to catch up with the details of the Alito hearings. While sitting by Gate 4 at Reagan National Airport yesterday at about 5 pm, I checked a cell phone message and blithely called back and agreed to do a radio call-in show about the hearings whenever the Senators decide to take their lunch break today. (I'll be on Gary Eichten's show "Midday," on Minnesota Public Radio.)

You said on your website you're following the hearings.

Uh, yes!

Well, I mean, I am following them at some distance, like, kind of two days behind, but I'm going to make it home by 11 and seriously engage with my TiVo, and, for speed, the transcripts.

Now, I have all morning to absorb Day 2 -- Day 1 was nothing -- and keep up with Day 3 as it unfolds. I think I'll start with the news reports, like this NYT right here.

Look at those front-page photographs. At the top are three of Alito looking perky -- with a cute kissy-face as the middle one. Under those is a bigger photograph with three Democratic Senators: Leahy, covering his eyes with his hand, and Kennedy and Biden. If Kennedy had his hands over his ears and Biden his hands over his mouth -- if only! -- we'd have a nice see-no-evil-hear-no-evil-speak-no-evil image, but Kennedy is just looking down morosely, and Biden is definitely speaking. Whatever he's saying, Leahy and Kennedy don't seem to be enjoying it.

Have the Democrats moved into resignation and futility mode yet? I get the sense they have, and if that's what I see in the morning papers today, then I will have missed all the wonderful suspense about whether the pompous politicians could rattle the ragged New Jerseyan.

Still, there are details to perceive and foibles to be mocked. And I will live up to my duties in that regard.

January 10, 2006

Hey, what's happening?

Sorry, I've been traveling. I need to catch up on the Alito hearings and whatever else may have happened today. Checking my phone messages in the airport, I got in invitation to do Minnesota Public Radio during the lunch break in the hearings tomorrow. I called back and agreed, but wondered if there was anything exciting today. I was told no, and then said, playfully but idiotically, "Well, maybe things will blow up tomorrow." Then, I looked around to see if anyone heard me, half expecting the airport police to descend and drag me into a small room for questioning.

Activists have tried to turn the confirmation hearings "into surrogate presidential campaigns"...

Writes Dan Balz in the WaPo, but it's hard to stir the public up these days about a Supreme Court nominee:
[A]ll the rhetoric has done little to polarize the public, even in an age in which sharp divisions are common. Not surprisingly, Republicans are generally united in favor of Alito's confirmation, according to a new Washington Post-ABC News poll. More notable, given the possibility of a near party-line vote in the Senate, is that rank-and-file Democrats are almost evenly divided. The poll found that 40 percent of Democrats said Alito should be confirmed, while 39 percent said he should not. Self-identified liberals were almost as divided, with 38 percent saying they favor his confirmation and 44 percent saying they do not, with the rest undecided.
I wonder what accounts for such placidity amoung Democrats. Are they tired of the usual rhetoric about how conservative judges mean to take away our rights? Do they buy the conservative presentation of the judges as humble interpreters of the law? Or are they just practical and resigned when they see that the President has the appointment power and a majority of the Senators?

Of course, some people -- not Democrats, generally -- did get stirred up about the Harriet Miers nomination but that wasn't at the confirmation hearings stage, and that involved the gaffe of picking someone who lacked qualifications.

"We were in discussions after we sold it as to whether to publish it as fiction or as nonfiction."

Oh, it's mostly just a matter of which best-seller list you think you can climb, isn't it? So call it a memoir. What the hell!

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.

30 questions for Alito.

The NYT op-ed page features six legal writers coming up with a total 30 questions for Samuel Alito.

Leonard A. Leo, the executive vice president of the Federalist Society, asks the one that Robert Bork gave his most damaging answer to: "why do you want to be on the Supreme Court?" (Bork said he thought it would be "an intellectual feast.")

Lawprof Stanley Fish has the most interesting questions, including: "Is the fictional world of Philip K. Dick's story "Minority Report"- in which people are arrested for crimes they have not yet committed - becoming a reality in the United States?" (He's concerned about the way we treat sex offenders who have already served their sentences.)

"Sam's got the intellect necessary to bring a lot of class to that court."

President Bush just said that. It sounds weird to me, but I'm guessing it sounds right to people who listen to sports commentary.

MORE: The word "that" is especially unfortunate. Other courts might have class without the infusion of Alitosity, but that court. (I hope it sounded better spoken than it reads.)

Where are the women lawprof bloggers?

Paul Caron outlines a panel on lawprof blogging from the American Association of Law Schools meeting. I found this interesting:
The last question came from a woman law prof who asked (1) why there were so few women law prof bloggers, (2) why there were no women on the panel, and (3) why no women had even asked a question of the panel despite the large number of women in the room. Much discussion ensued about the gender aspects of blogging.
I'll have to wait for the CALI podcasts to come out to hear what in all that "much discussion." Or maybe someone who was there can tell us more in the comments (or email me a description).

There was a time when a question like that would be not only anticipated, but feared, and an effort would be made to include a woman on the panel. But the heydey of feminism in the legal academy was about 15 years ago. Anyway, I think I can safely say that virtually no effort was made to include a woman on this panel.

UPDATE: Christine Hurt was there. (Via Instapundit.) She notes, quite correctly, that there are no barriers to starting a blog, once you decide you want one, and goes on to say:
I am beginning to think that the disparity may be due to something called a "preference."

Marketers make zillions of dollars a year recognizing that women like some movies, TV shows, books, magazines, and food items, and that men like others. There is some overlap, but generally there are preference differences between genders. Why is this hard to accept? I worked at Baskin-Robbins for a year, and every 16-year old BR employee can guess what kind of ice cream a 35-year woman is going to order. (In 1986, this was Pralines & Cream.) We didn't think too hard about why more women than men liked this flavor, and I never thought there was something insidious in the way women were socialized to believe that they like it. Maybe more men then women like to blog. What's so hard to understand about that?
I'll just say that back in the heyday of feminism, the "lack of interest" argument was a subject for vigorous, skeptical scrutiny. To be specific about blogging, most lawprofs, male and female, don't want to blog. We are talking about individuals. And the number of female lawprofs writing their own blogs and covering legal topics is absurdly low in proportion to the number of women law professors. And keep in mind that women law professors are already a group that is not as representative of women generally as the the group of male lawprofs is representative of men. Moreover, there is no reason to think that women aren't eager to express themselves in writing. Are women less verbal than men? I'm not an expert on the scientific research on gender difference, but I think the answer is clearly no. This is not a subject to be brushed off with an analogy to preferences for ice cream flavors!

"Let's pretend—for just a moment—that [the Senators] do care about the answers they receive."

Rachel Larimore and Dahlia Lithwick at Slate ask a few people -- including me -- how the Senators ought to ask questions of Samuel Alito if they actually want to get information from him. And it's not the usual bunch of lawprofs. They asked a 9-year-old boy ("One thing that works well is to act cute and charming"), a psychiatrist, a former customs official, a middle school teacher, and a police detective -- you know, folks who regularly extract information. There's only one lawprof aside from me, an "Ivy League law professor, who requests anonymity" -- which suggests a tagline for me: a state university law professor, who requests fame.

January 8, 2006

A very dismal January walk.

A dismal walk

A dismal walk

A dismal walk

A dismal walk

A dismal walk

Audible Althouse #31.

Today's podcast is about light things and enlightenment. There is talk of drugs and pop music and fashion. There is the moral problem of the beanbag chair, the philosophy "It's all good," and the pure joy of feeling anything at all, even the touch of a lizard on a windowpane. (Stream it here.)

"I had some leaves burning outside, so I threw it in the fire, and the mouse was on fire and ran back at the house."

Mouse gets back at man. The house is completely destroyed. The man sounds awfully sadistic, but perhaps you'll be less judgmental knowing that he's very old. (81.) The story is a lot like that one about the squirrel, you know, just about the funniest thing ever on "This American Life."

An old notebook.

Sometimes I run across an old notebook of mine and read something in it that makes me remember how bereft I was of blogging back before I realized I, too, could blog. Today, I ran across this, dated July 9, year unknown:
A man buys coffee and leaves before the barista devises the change. The barista hands the coins to me, and I say, "I'm sorry, I can't accept that."

An urn at the café is labeled "H2O (i.e. water)." Are there people who don't get "H2O" who understand "i.e."?

A man in an overcoat takes out a playing card and squeegees the sweat off his face with it.
There's also an entry for July 10th:
I got out volume 13 of the Encyclopedia Britannica (Accounting-Architecture) to find the name of a place in Antarctica (Adélie Coast) so I could finish today's crossword. Then, I started reading from the front of the book. "Aesthetics." Artistotle's answer to Plato, who thought the poets should be excluded from society because they excite dangerous emotions. A. said the experience is catharsis -- a purging -- whereby you experience but ultimately reject the dangerous feeling. No need to eject the poet when you can eject the feeling itself. It's better, really, because otherwise, those bad feelings might roil inside and destroy from within.

A few pages later, in "Alcohol and Drug Consumption," I read of the cult use of peyote, which also has a purging effect. I had wondered how one could feel spiritual toward an experience that entailed vomiting, but theory filled the gap there too: "Many psychedelic drugs produce nausea, and the consequent vomiting may be looked on as a purging of faults."

I picture Plato and Aristotle at a peyote ceremony, Plato taking the just-say-no position and Aristotle justifying his desire for visions (like his desire for emotion-stirring plays) with theorizing about its purging effects.

Perhaps the bulimics of the world need a theorist to counter their critics. Why not purge your way into a better life?
Maybe instead of blogging so much from the NYT, I should take up riffing on reference books.

Anyway, the same notebook had some sketches of people who were listening to a speech by Lawrence Walsh:



Just some miscellaneous things from the past.

"I'm good"/"It's all good."

William Safire's "On Language" column today is about the phrase "I'm good":
Early on, I'm good meant "I am without sin," but that is now seldom the meaning. In later centuries, good - followed by the preposition at - acquired a utilitarian sense, as in "I am good at whist, as well as at hand-held computer games." When followed by the preposition for (meaning "in place of" or "with the purpose of"), the adjective good became the hyphenated adjective and noun good-for-nothing. Recently, it acquired the phrasal meaning of "readiness," good to go.

The sense we examine today is a response to a question about capability or mood. "I'm good" means "I can handle it" or "It doesn't trouble me"; its implied ensuing preposition is with, as in "It's all right with me."
Why does this usage seem odd? We've been saying "I'm fine" this way for a long time, and "good" and "fine" are pretty damned similar. James Brown sang "I Feel Good," and the Beatles sang "I Feel Fine." They were talking about the same thing, though Brown seemed to be enjoying it a lot more.

I think "fine" is just a bit old-fashioned. As the stock answer to the question "How are you?" it's taken on a stodgy, phony attitude. "Good" seems more honest and friendly.

But have you noticed that people have taken to saying "It's all good"? Is there some character on a TV show I don't watch who's popularized that? The other day, I was being a little careless moving my shopping cart forward in line at the store, and it slightly touched the woman in front of me. I said "I'm sorry," and she said "It's all good." Man, what an optimist! I guess just the great joy of being alive is so incredibly cool that when someone bumps into you, she recognizes it as all part of the great gift of sensory awareness. It's all good.

The NYT editorial before the Alito hearings... and what to expect to read after the hearings.

Here's the NYT editorial about Samuel Alito, whose confirmation hearings begin tomorrow. It doesn't oppose him, but highlights areas of concern. Does that mean they won't oppose him, after the hearings are over, and it becomes possible to say, we said we were concerned about these areas, and his answers didn't satisfy us?

Let's remember what happened with John Roberts, whose performance at the confirmation hearings is now held up as a model of near-perfection. Here's the NYT editorial, "Too Much of a Mystery," that was written after the hearings:
John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week. But in many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach. That makes it difficult to decide whether he should be confirmed. Weighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval. But the unknowns about Mr. Roberts's views remain troubling, especially since he is being nominated not merely to the Supreme Court, but to be chief justice. That position is too important to entrust to an enigma, which is what Mr. Roberts remains....

If he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice. But it is a risk. We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.
I expect the editorial at the close of the Alito hearings to follow that pattern. Of course, there's this line about Roberts:
We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high.
But that's easily tweaked:
We might be reluctant to roll the dice even for other nominations to the Supreme Court, but for a nomination to replace Sandra Day O'Connor, whose centrist vote has held the Court in balance for many years, the stakes are simply too high.
But the Times is right to raise concerns about Alito:
Judge Alito's confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."

The White House has tried to create an air of inevitability around Judge Alito's confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.
Alito must know that he needs to endorse the precedential importance of the right of privacy (the way Roberts did), or all hell will break loose. I expect Senator Specter to assist him in laying in that cornerstone of confirmation as early as possible in the hearings. I expect the abortion issue to be packaged away neatly enough, though various Democrats will continue, ineffectually, to harp on it.

But there are plenty of other issues to raise, including many timely and important matters about the scope of executive power. We have every reason to think that Presidents pick nominees who put a high value on executive power, and this President is pushing the limits of executive power and is therefore especially motivated to find judges who will support him. The Senators really do need to defend the legislative branch with some tough questioning here. Listening to the debate this week will give us all a good opportunity to think about what the balance of power between the President and Congress should be.

UPDATE: Stephen Bainbridge goes through the editorial and refutes it point by point.

Wisconsin political bloggers.

The Wisconsin State Journal has an article on political bloggers in Wisconsin, with some material about me. The paper version has a photo of me, which you can see in this PDF tearsheet, and the caption on the photo refers to this post of mine, blogging about the photographer taking my picture, making this possibly the most self-referential post I've ever written.

So let's check out the other Wisconsin political bloggers cited in the article. I'm replacing the URLs with actual links to the blogs (which the WSJ fails to provide):
Boots and Sabers: Conservative bloggers Owen Robinson and Jed Dorman.

Fighting Bob: Former gubernatorial candidate Ed Garvey and a slate of liberal contributing writers.

Jessica McBride: Former Milwaukee Journal Sentinel reporter and wife of Waukesha County District Attorney Paul Bucher, a Republican candidate for attorney general.

Paul Soglin: Waxing America: By the former Madison mayor.

Sykes Writes: Conservative Milwaukee blogger and talk show host Charlie Sykes.

The Xoff Files: Liberal blogger Bill Christofferson, the chief campaign strategist for Gov. Jim Doyle's first gubernatorial campaign.

Dennis York: Conservative Madison blogger who writes under a pseudonym.
Waxing America? Is that anything like waxing wroth? (Or waxing Roth, for you Marx Brothers fans.)

Anyway, check them out, especially if you're interested in Wisconsin politics. I only occasionally write about Wisconsin politics. I follow the stories but, unlike these other bloggers, I only write about it occasionally.