Alito Hearing Day 2

I listened to most of the Alito hearings on Tuesday. No conclusions yet but here are some early reactions. Alito was much more forthcoming than i expected. He rarely resorted to the "that may come before the court" and instead described how he would approach such questions if they did come before him. It was pretty effective.

Another thing that was clear was how each side distorts things. Spector opened the hearing saying that Alito's record is so extensive that you can pick a few cases and show him as either a flaming liberal or an arch conservative. Senators asked about several cases we expected to hear about. in general the Democrats attacked, usually with long drawn out questions and Republicans gave softballs and expounded how there was no issue there. The truth is that the devils in the details and they only slowly came out.

For example. He was questioned a lot about his not recusing himself from a case involving Vanguard Mutal Funds which he is an investor. Orrin Hatch (R-UT) started with this and after a long question let Alito explain it all at length. He did pretty well, saying he's always taken ethics issues very serious and strived for himself to stick to the spirit of the ethics codes and not merely the letter of them. But in this case, it was a pro se case meaning one party represented themselves instead of having a lawyer, and recusals didn't usually happen in these cases. Since it was a pro se case there wasn't a "clearance sheet" listing various interested parties that might spark recusals. Basically he just missed it. And after the fact he checked with the ABA and various ethics experts who all found he didn't do anything wrong. But he still vacated the decsion and allowed a second trial to go through which decided exactly the same way as he did. Finally he described the changes he put in place in his office to ensure such a mistake doesn't happen again so that he does recuse himself. A good answer. But then in Kennedy's questioning he says that Alito left something out of the story. In his confirmation hearing before this same committee he promised that he would recuse himself from any case involving Vanguard, so why did he break his promise to the committee. But Kennedy bloviated so much that he never really got the question out and Alito never directly answered it. Other republican senators continued to defend Alito on this point saying any suggestions that he wasn't ethical was absurd. Russ Feingold (D-WI) took issue with that and said asking questions and doing their duty wasn't absurd. He had Alito clarify that earlier suggestions that the failure to recuse himself was the result of a computer glitch were not true. So the end result is that it wasn't really an ethics issue as much as a why didn't he follow through on a promise to the committee? It turns out there are standing recusal lists showing reasons to recuse, but Vanguard wasn't on Alito's list. Alito gave no real explanation for this fact. So lots of making mountains of molehills but never dealing with the actual moles. What are we to make of this?

Similar things came up with his listing membership in a Princeton organation (CAP) that was opposed to minorities and women going to the school. There was a lot about executive powers due to all the Bush crap lately. Since it will all come down to specific arguments we're left with Alito saying obvious things like "no one, including the President, is above the law". How inciteful. It should come as no surprise to anyone that for all the cases that people have made a big deal about (spousal notifications for abortions, not banning machine gun sales, the strip search of a 10 year-old) the details show it not a clear cut this guy is a loon. All those cases were very specific narrow legal issues. Now still whether he's a nutcase on those or not, I'm not really sure. He offered what sounded like reasonable rationales for his decisions and the Democrats didn't describe any real challenges to those.

I will say I was very impressed with Arlen Specter (R-PA) who dove right into Roe v Wade and asked many short direct questions which Alito answered clearly. I also thought Joe Biden (D-DE) did a good job going into some depth on some Alito decisions on descrimination. This was the one place I heard someone challenge him on his specific rationale. Bidon started by saying that descrimination is often very subtle and Alito agreed. Alito described the case and in one part described how the company didn't follow one of their internal procedures and it wasn't a big deal. In this case an employee applied for a more senior position that had become available and was rejected. The procedure was the the employee should have been told she didn't get the job before they interviewed anyone else, but they had interviewed one other person before telling her. Doesn't sound like a big deal. But Bidon interrupted and said but the reason for that policy is that that is how descrimination is hidden today. Instead of having to say no even if they are qualified (and there was no question in this case the that employee was qualified) they keep interviewing others until they find someone that's more qualified. Alito said that's a fair point but no one presented it during the case. Bidon kept pressing on with similar things and Alito didn't have any good answers. At the end of this Alito said it went on to the Supreme Court in a similar case and O'Connor ruled as he did. Bidon said he went back and read O'Connors decision and didn't think she'd agree with Alito. But now we're in the realm of speculation. I wish more questioning was as effective as Bidon's.

Some dumb things. Both Spector and Grassley (R-IA) had staffers hold up card with small text on them. Apparently showing how they can produce cards with small text on them. Ridiculous. The funniest line of the day was probably from Lindsey Graham (R-SC). It was about 5pm and he commented on some detail from 15 years ago that Alito couldn't remember (maybe it was the lack of vanguard on his standing recusal list). Graham added "If any of us come before a court and can't remember Abramhoff you'll believe us." Funny if it weren't so serious.


We'll see more tomorrow.