January 12, 2006

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).


ALH ipinions said...


I agree with you that the Alito hearings have been exceedingly tedious.

But I think the exchange between Sen Graham and Alito - that evoked so much emotion in Mrs Alito that she was compelled to excuse herself - is, in fact, noteworthy. After all, that moment dramatised the crucible of human torture that it seems nominees and their families must now endure just to serve their country. And, if the senators who caused Mrs Alito this utterly unnecessary emotional pain have any capacity for empathy, or regard for professional comity, perhaps they'll think twice before treating another nominee the way they treated Alito.

Pogo said...

I have to agree with alh here. I found the moment an important one as well, and for the very same reasons.

What I still fail to understand is how it came to be that certain views in the US are felt to be simply impermissible to express ...in the MSM or (now) the Senate. The dislike of affirmative action, and favoring of single sex schools aren't ideas beyond the pale.

But Kennedy, Schumer, and Biden are attempting to act as if they've discovered an unclean thing in their midst.
Why won't they just stop and say: I disagree with everything you say, but support your right to say it. I cannot vote for you becasue of this difference, and leave it at that?

Dr. Miller said...

Call me crazy, but I watched or listened to most of the Alito hearing. I found Alito to be serious, thoughtful, and very clear about his role as a judge. If I had a legal problem, I would trust him to know the law and be fair in applying it. What else can you ask from a judge? Oh, one more thing; Kennedy made a fool of himself.

Barge 118 said...

These hearings may fall on the boring side (relative to Roberts), but imagine what they would have been like had Miers been the nominee. All the Democratic senators asking "trap" questions about arcane constitutional issues to see if they could trip her up. The preening and gloating from Schumer about how she wasn't sufficiently well versed. Kennedy (Kennedy!) going on about how her connections were what had gotten her all of her political jobs. Mier's mash notes to Bush being read over and over again from the committee.

Yes, Alito is a fine, competent, boring, ashen, New Jersey geek. Thank God!

madcat said...

I either watched it all or read the parts I missed in the transcripts. Like you, I skipped a lot of the self-promotional speeches by Repubs (and by some Dems), and read the actual Q&A, which I found pretty interesting.

What scares me, and what no one seems to be picking up on, is not just that Alito won't disavow his past statement that Roe should be overturned, but that he also set forth the blueprint for doing away with Roe without explicitly overturning it. In his answers to Biden, in quite the act of judicial activism, he stood by his previous Casey opinion and said he STILL believes that "undue burden" should be interpreted under a "more than some women." standard. According to him, any abortion law is ok, even if it creates severe harm to women, as long as it's just *some* women. As such, if he's confirmed and garners a majority of the Court to adopt his new "more than some women" standard, there's nothing to stop the Court from upholding abortion laws *with no health OR LIFE exceptions* as constitutional.

I'm disturbed that he clearly set forth such a dangerous new standard, that Biden didn't ask any follow-up on it, that the media.. and no one else seems to be picking up on it... and that confirmation seems inevitable.

Roe won't be explicitly overturned. Doesn't need to be. Just make even the minimal protections provided by Casey meaningless, and Alito's long-stated goal of chipping away at Roe until it becomes meaningless will be accomplished.