Has Alito Held His Own So Far??

[Bonnie]

Dems off to bad start at Alito hearings
I watched a bit this morning, and I must say so far he looks composed and in charge even with Kennedy's half drunken barrage of questions. It would seem that Alito is proving himself more mainstream than Democrats had hoped.


January 10, 2006

If the Democrats seriously wish to secure the rejection of Judge Samuel Alito's nomination to the U.S. Supreme Court, then they made a very bad start with Monday's hearings. Only by making Alito deeply unpopular with the American people will they get their own party and five or six Republicans to join together in filibustering the nomination. But the opening day of the hearings might almost have been designed to arouse popular sympathy for the nominee.

There sat Alito, quiet, composed and seemingly reasonable. Against this modest neatly dressed man, however, the senators preached, hectored and threatened in their most self-righteous manner. "Stealth" tactics are now the approved method for getting through the confirmation process. So we can expect the judge to smile pleasantly as he carefully avoids the rhetorical traps laid for him by judiciary committee aides and says nothing more controversial than "I'm afraid it would be improper for me to answer on a matter that might come before the court."

Alito has already survived the pre-hearings assault by television unimpaired. Democrats had postponed the hearings from early December precisely so that their ideological allies might undermine Alito with the public by uncovering and publishing damaging examples of "extreme" views from his past legal and political writings.

They found his 1985 statement that the Constitution contained no provision guaranteeing a constitutional right to an abortion. It seems, however, that the public does not agree that this is an "extreme" view. After one month of ads denouncing Alito for such abominations, a Washington Post poll showed public support for his nomination had risen from 49 percent to 54 percent.
Several Democrats Monday, including the reliable Sen. Edward Kennedy, seemed on the verge of making an even worse tactical error. They suggested that Alito's respect for executive branch prerogatives would make him too ready to approve wiretapping and other surveillance of terrorists. That shows a deep misreading of U.S. opinion.

Not only do most polls show that a small plurality of Americans favors wiretapping as a tool against terrorism, but even those against do not consider it a wildly extreme position. When the Democrats campaign against Alito on those grounds, they reinforce the public view of themselves as weak on national security.

Unfortunately for the Democrats, they cannot restrain their own partisanship. They know the stakes are high. If Alito is confirmed, the Democrats will finally lose their majority on the Supreme Court that for 50 years has allowed liberals to legislate from the bench on everything from racial preferences to the detention of terrorists.

Their desperation makes them imprudent. Instead of rooting their arguments in what the public believes, they base them on their own passionate political commitments. They consistently misread public opinion as a result. And they think they see in Alito their own worst nightmare: the election of a conservative judge who will legislate conservatism from the bench as their judicial nominees legislated liberalism.

As it happens, they are wrong. For practical purposes there are no conservative judges who believe that the Constitution is a "living document" that, when properly interpreted, can be made to yield uniformly conservative solutions to the problems of modern America. All conservative lawyers with realistic Supreme Court ambitions believe the role of a judge is to interpret the laws passed by the legislature rather than to make them. They all respect the written words of the Constitution and reject foreign precedents in constitutional cases. And none thinks his own policy preferences should determine his legal judgments.

Where conservative judges differ is in answer to the question put a few years ago by a distinguished Democrat -- the late Sen. Daniel Patrick Moynihan: "What if the Supreme Court makes a mistake?" And that is an important question when the Supreme Court has been making laws based on the liberal policy preferences.

Some conservatives -- William Rehnquist in later years -- are prepared to let bygones be bygones. They apply strict judicial construction to future cases, but they will respect the precedents of the last 50 years even when they believe those cases to have been wrongly decided. Others -- Justice Scalia springs to mind -- are prepared to overturn at least the more egregious judicial errors of recent years when either the Constitution or statute law points plainly to a different verdict.

In effect the first school, conservative in temperament, would entrench the established liberal gains since the Warren Court; the second school, conservative in philosophy, would overturn the judge-made successes of liberalism in the past as well as challenge those in the future. Democrats are hoping to demonstrate Alito belongs to the second and more disruptive school. They seek to defeat him on those grounds. But they -- or rather Kennedy -- scored yet another own goal Monday on this very point.

Kennedy produced a study by Chicago's Professor Cass Sunstein that purported to show that Alito had ruled against individual rights in 84 percent of the relevant cases before him. Now, Sunstein's study was so scrupulously hedged with qualifications that it was more or less worthless in proving the senator's intended point. It did, however, contain the following judgment:

"A preliminary analysis suggests two points. First, Judge Alito's opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law."

In other words, Alito is the kind of temperamental judicial conservative who is likely to be attentive to precedent and averse even to a counter-revolution from the bench. That is the best the Democrats can hope for in today's political world.

Whether or nor it is the best that the rest of us can hope for is another matter. Judicial errors should not be permanently protected by precedent against correction. Wherever possible, the Supreme Court should hand back such still controversial questions to the legislatures and the voters. Where not, they should sometimes reverse their initial mis- judgment. Then, both Democrats and Republicans would learn a valuable democratic lesson: If they want to change the world, they will have to run for Congress.

http://www.suntimes.com/output/osullivan/cst-edt-osul10.html

 

[archangel]

Dems off to bad start at Alito hearings
I watched a bit this morning, and I must say so far he looks composed and in charge even with Kennedy's half drunken barrage of questions. It would seem that Alito is proving himself more mainstream than Democrats had hoped.


January 10, 2006



http://www.suntimes.com/output/osullivan/cst-edt-osul10.html

Senator Kennedy and CNN the epitamy or is that epithalamium in honor of their original sin or is that ethics?...at any rate just their usual song and dance routine...

 

[archangel]

today during the hearings Senator Kennedy demanded the records of the National Review and CAP be sup'd.. Senator Specter told Sen Kennedy in no uncertain terms that Sen Kennedy was not the Chairman of the committee...and really chewed his butt!...Very funny...personally if I had been Senator Specter I would have said...ok we will sup the records along with your past DUI records... including the Chap incident... to see if you are fit to serve as a Senator! :shocked:

 

[Bonnie]

Judge Alito Proves a Powerful Match for Senate Questioners

By ADAM LIPTAK and ADAM NAGOURNEY
Published: January 11, 2006

WASHINGTON, Jan. 10 - 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.

Failing that, he offered what he presented as clarifications of earlier statements or writing, sanded of any rough edges, or said he simply could not recall details about some past chapter of his life that had raised concern among senators. Only in one exchange did he appear rattled, refusing to give a direct answer when Senator Charles E. Schumer of New York asked him if he still held a view, expressed in 1985, that there was no constitutional right to abortion.

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.

Judge Alito was not Judge Roberts, to be sure - far less personable, rarely smiling and struggling to draw even the occasional burst of laughter. But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.

Yes, he said, he once believed that there was no constitutional right to abortion, but at the time he was merely a "a line attorney in the Department of Justice in the Reagan administration," and he would keep an open mind should abortion come before him at the Supreme Court.

Not even a president is above the law, he said, though he added that he did not have enough information to say if he agreed that President Bush had broken the law by authorizing extensive domestic eavesdropping without warrants.

He claimed no memory of having been active in Concerned Alumni of Princeton, which opposed the university's affirmative action program for minorities, despite listing his affiliation with the group in a 1985 job application. That lack of memory "left some of us puzzled," said Senator Joseph R. Biden Jr. of Delaware.

Even when he was pressed to offer his opinion on the landmark Supreme Court decision that awarded the 2000 presidential election to Mr. Bush, Judge Alito said he had not given the case enough attention to offer an opinion, an assertion that left his questioner, Senator Herb Kohl, Democrat of Wisconsin, rolling his eyes.

But at other times, he silenced Democrats by the directness of his responses. 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."

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.

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. Early in the day, Judge Alito said there "needs to be a special justification for overruling a prior precedent."

Ms. Feinstein asked for an example of such a justification. It took four attempts, but Judge Alito finally listed some decisions in which such justifications figured.

Like Judge Roberts, Judge Alito declined to adopt the terminology of the Judiciary Committee chairman, Senator Arlen Specter of Pennsylvania, that the status of Roe v. Wade was "super precedent" or "super duper precedent," a reference to the fact that its core holding had been reaffirmed in later cases. "It sort of reminds me of the size of laundry detergent in the supermarket," Judge Alito said, in one

http://www.nytimes.com/2006/01/11/politics/politicsspecial1/11alito.html?th&emc=th