Copyright © 2005, 2006 by Tim Horrigan
The full Senate began debating the Alito nomination Wednesday morning, January 25, 2006. The action (if you can call it that, since it consists of repetititive speeches punctuated by frequent quorum calls) can be viewed live on C-SPAN 2. The proceedings got off to an awkward start: the Majority Leader, Bill Frist, kicked things off with a opening address devoted more to bitching about the Democrats than to praising Alito. And then there was a long awkward silence, because no Republican wanted to be the first to come up to the podium to endorse Alito. Eventually, Specter & Leahy stepped into the breach and filled the silence by improvising a joint presentation about the work of the Judiciary Committee.
The Republicans' talking points are that Judge Alito is an honorable man who has been smeared by the Democrats and who does not legislate from the bench. The Democrats' talking points are that Alito has no respect for our Constitutional freedoms. A vote is expected sometime around Friday, January 27. No Republicans have crossed over to oppose Alito, though some have been rather lukewarm in their praise. A few Democrats have crossed over in the opposite direction, so the nomination appears to be a done deal.
Samuel J. Alito's confirmation hearings began at high noon, Monday, January 9, 2006. The Republican leadership was hoping to have a committee vote on Tuesday, January 17, 2006, followed by the the full Senate's “Up or Down” vote on his nomination on Friday, January 20. Although the hearings ended more or less on schedule, the committee vote was delayed a week. Senate Majority Leader Bill Frist (who went to college with Alito) denounced the delay of the vote as “partisan obstructionism”— and he vowed to begin full Senate proceedings the day after the committee vote. He will make a nonpartisan effort to get Alito confirmed as soon as possible. He and Lord Chamberlain Cheney (who also holds the offices of Vice President of the United States and President of the Senate) took the extraordinary step of canceling one of the Senate's scheduled vacation weeks. This will enable the Senate to give Alito his Up or Down (presumably “Up”) vote before Bush II's January 31, 2006 State of the Empire speech.
The Senate proceedings will be broadcast on many broadcast outlets, the most reliable of which will be:
C-SPAN
(Senate executive session proceedings will
be carried live on C-SPAN 2.)
Alito Hearings, January 9-24, 2006:
Outside Witness List:
January 12, 2006 (or later) Outside Witnesses (as released by the Senate Judiciary Committee on January 9)
Transcripts of Alito Hearings:
Day One: Monday, January 9, 2006. (Senators' & Judge Alito's opening statements)
Day Two: Tuesday, January 10, 2006. (1st day of questioning.)
Day Three: Wednesday, January 11, 2006. (2nd day of questioning.)
Day Four: Thursday, January 12, 2006. (3rd day of questioning, and some outside witnesses.)
Day Five: Friday, January 13, 2006. (More outside witnesses: last day of hearings before vote.)
Day Six: Tuesday, January 24, 2006. (The 10-8 party line vote.)
Day One: Monday, January 9, 2006, Part One. (Senators' opening statements)
Day One: Monday, January 9, 2006, Part Two. (Alito's introductory remarks)
Day Two: Tuesday, January 10, 2006. (First Round of questioning)
Day Two: Tuesday, January 10, 2006. (First Round of questioning, continued)
Day Three: Wednesday, January 11, 2006. (Second Round of questioning)
Day Three: Wednesday, January 11, 2006. (Second Round of questioning, continued)
Day Four: Thursday, January 12, 2006. (Last Round of questioning.)
Day Four: Thursday, January 12, 2006. (Outside witnesses.)
Day Five: Friday, January 13, 2006. (More outside witnesses.)
Day Six: Tuesday, January 24, 2006. (The 10-8 party line vote.)
Bush II went through his first term without a chance to appoint any Supreme Court Justices. Indeed, the same group of Justices had been together since Clinton's first term.
But then, in July 2005, Sandra Day O'Connor, the first female Justice, announced her retirement after 24 years on the bench. A relatively little-known appellate court judge named John Roberts was appointed to take her place. Just before Roberts's confirmation hearings, Chief Justice William H. Rehnquist died, during the darkest days of the Hurricane Katrina crisis.
Roberts's
nomination to O'Connor's Associate Justice seat was hastily withdrawn
and he was tabbed for the Chief Justice job instead. He attracted
some opposition from the left wing of the Democratic Party, and he
was subjected to some tough questioning during his hearings. His
answers were generally good-natured but evasive. He won by a 78-22
vote.
About a week after Roberts's victory, a second nominee for O'Connor's seat was introduced: White House Counsel Harriet E. Miers. This proved to be a fiasco. She was a well-liked White House aide whose resume was impressive but simply wasn't the resume of a Supreme Court Justice. Bush II's favorite explanation of why she was the best choice was not very convincing: “She's been consistently ranked as one of the top 50 women lawyers in the United States.” (In other words, she's good enough because she's one of the top 100 lawyers in the country.) And sometimes he would add the fact that she had never been a judge. (Presumably, Roberts got nominated because his other accomplishments were impressive enough to balance out the unfortunate fact that he was a judge.)
Miers faced some opposition from the left, but it was the rightwingers who did in her nomination. She had virtually no paper trail to document her views on Constitutional law. However, a few speeches and articles from her years as the head of the Texas Bar Association and as a Dallas City Councilor suggested (rather vaguely) that she was liberal on most social issues— notwithstanding her membership in a conservative Dallas evangelical church.
On October 18, she submitted her answers to a questionnaire from the Senate Judiciary Committee. The chairman and ranking minority leader immediately held a joint press conference where they responded that her answers were unacceptably incomplete— and she never actually submitted a complete set of answers.
On October 26 she withdrew her nomination, ostensibly because she and Emperor Bush did not want to release confidential documents related to her service in the White House. Ironically, because she never gave up her old gig as White House Counsel, she was in charge of vetting her own replacement.
A
few days later, first thing Halloween morning, Bush II announced the
nomination of Judge Samuel Alito. Unlike Miers, Alito is a male—
and a long time judge. Bush I appointed him as a Federal judge way
back in 1990. Alito's nickname is “Scalito” because he is
very much like a younger version of Antonin
Scalia. In other words, he is very
conservative. Even though the liberals in the Senate joined in the
unanimous vote for his previous nomination, they had compunctions
about turning around and opposing him this time, purely for
ideological and political grounds.
Emperor Bush asked for an up-or-down vote before the end of the year, but Senators Specter & Leahy obstinately delayed Judge Alito's hearings till after the new year, apparently to give the forces of the left more time to dig up dirt on him. The hearings were eventually scheduled to start on Tuesday, January 9, 2006.
Unlike the last two nominees, who spent many years in private practice, Alito has spent virtually his entire career in public service of one sort or another. This means that in theory his whole career is a matter of public record. He is a very conservative nominee with a much longer paper trail than either Miers or Roberts.
Alito grew up in Trenton, New Jersey, and did his undergraduate work at a small college in the next town over, Princeton University. He got his law degree at the Yale Law School. He was born in 1950, so he is of the Vietnam War generation. Like most of his neocon contemporaries, he stayed 10,000 miles away from ‘Nam. However, he actually did serve in the military (although his active-duty time was very brief.) As was mentioned many times during the hearings, he was in the Army ROTC while at Princeton. He was commissioned as a 2nd Lieutenant after graduating from Princeton in 1972. He held a student deferment for three years while going to law school, and then spent the fall of 1975 in basic training for the Signal Corps. (By then, peace had broken out.) Once he finished basic training, he was placed on inactive reserve status for five years.
He currently sits on the Court of Appeals for the 3rd Circuit, located in Philadelphia, the hometown of Senate Judiciary committee chairman Arlen Specter (although Alito prefers to work out of an office in Newark, New Jersey.)
He faced quite a bit of opposition from feminist critics, although his supporters mustered an army of female colleagues (including an old college friend of mine, Professor Paula Franzese of the Seton Hall Law School) to tell us what a swell guy he is. (And, by all accounts, it seems that he is personally a very gracious gentleman.) He appears to have very conservative ideas about families and the role of women in society. In addition to being anti-abortion, he has also been opposed to gay marriage or any other form of marriage aside from the traditional nuclear family.
Going back to his distant past, we see that he
got his start in politics back in the 1968-1972 period as part of a
conservative movement at Princeton, which was opposed to various
liberal changes taking place at the time, including the admission of
women to the university. (Ironically, his own presence was, as he
himself acknowledges, the result of an earlier wave of
liberalization: he was an Italian-American from a middle-class
background.) In an otherwise content-free opening
statement, Alito felt the need to explain how and why he became a
conservative activist during these years:
“Both
college and law school opened up new worlds of ideas. But this was
back in the late 1960s and early 1970s. 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.”
His past membership in a conservative alumni group called “Concerned Alumni of Princeton” (as first exposed by a November 18 article by Chanakya Sethi in the student-run Daily Princetonian) has caused a certain amount of controversy. Although none of the group's members will admit to this today, there are allegations that CAP was openly opposed to coeducation in the 1970s. A former student government Vice President, Marsha Levy-Warren (who was one of the first group of female graduates) stated flatly that “[CAP] stated explicitly that they were not in favor of coeducation and that they weren't in favor of affirmative action” and that Alito was actively involved with this group. For his part, in his November 30 Senate Judiciary questionnaire response, Alito states:
“A document I recently reviewed reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group.” Well, I guess that clears that up!
Liberals on the Judiciary Committee had no compunctions about asking him about this group's activities anyway, even though he has clearly and unequivocally stated that he has no recollection of any involvement with them. He knows about this connection only from a document (he doesn't specify which document in particular) which he just now happened to review while applying to be Supreme Court justice. (And, presumably, even if he was involved, there would of course be no evidence to support the scurrilous claim that he was opposed to coeducation anyway.) Some liberal spokespersons (e.g., Elliot Minceberg, the Legal Director of People for the American Way) have speculated that the document in question might be Alito's own 1985 job application for a political appointment in the Reagan Administration.
Another source of controversy will be the unfortunate fact, like Chief Justice Roberts, Alito recently wrote an opinion which condoned the mistreatment of an innocent little girl: his 2004 opinion in Doe v. Groody upheld the cops' right to stripsearch a ten-year-old girl who happened to be in a house which was the target of a drug raid.
Alito even managed to get mixed up in some controversies which had nothing specifically to do with his nomination. Emperor Bush got in trouble for condoning warrantless wiretaps of U.S. Citizens' international communications. When Alito was a political appointee during the Reagan Administration, he wrote memos expressing the opinion that such wiretaps were OK. Moreover, throughout his time in the Reagan Administration, he was an advocate of giving the Presidency unrestrained powers.
And,
his detractors uncovered a rather strained sports metaphor he made
two decades ago which now gets him mixed up (albeit peripherally) in
the controversy surrounding Barry
Bonds. Bonds is, as you doubtless already know, an incredibly
talented but not very popular slugger, who is on the verge of
surpassing Babe
Ruth's and Hank
Aaron's career
home-run totals— and who is also suspected of taking
steroids. One of the things which makes Bonds so controversial is
that he is chasing a record held by one of the most beloved players
in the game. Alito, as far as I know, has never said anything about
Bonds or steroids, but in the 1980s he did make a rather foolish
statement about affirmative action where he irrelevantly invoked
Aaron's name. This was his explanation of why minority school
teachers should not be favored when school districts decided which
teachers should be laid off:
“The most powerful role models are those who have succeeded without a hint of favoritism. For example, Henry Aaron would not be regarded as the all-time home run king, and he would not be a model for youth, if the fences had been moved in whenever he came to the plate.”
Even leaving aside from the fact that Aaron played in an era when many teams (including his own Atlanta Braves) played in multipurpose stadia with outfield fences which could be easily (and frequently were) moved— and also leaving aside the fact that Aaron also played in an era when for a variety of reasons (including distant outfield fences) home runs were hard to hit— this remark shows an amazing ignorance of Aaron's life story. Aaron began his professional career in the Negro Leagues, because when he was a young man organized baseball was still segregated. He was blessed to have a career long enough to eventually make him the last former Negro Leaguer still playing Major League Baseball. Even near the end of his career, even though he was one of the most gracious gentlemen to play the game, he received death threats from racists who resented the fact that a black man was about to break Babe Ruth's record.
(Digression within a digression: Conservatives frequently like to allude to the immutability of sports rules. Alito's outfield-fence analogy echoes the extended metaphor about the strike zone which was a lietmotif during Chief Justice Roberts's hearings and which also turned up in Alito's hearings. Roberts, as you may recall from his hearings, views himself as an umpire who objectively calls the balls and strikes according to whether or not the ball goes through the strike zone, and the strike zone was viewed as a rigidly fixed entity, defined once and for all in the rule book. However, in real life the strike zone does not conform strictly to the definition in the rule book. And the rule book in every sport changes every year. Sometimes rule books even change in the middle of the season: Nascar is especially fond of changing the rules in mid-season. The most beloved metaphor about the immutability of sports rules is the old “moving the goal posts” analogy. Moving the goal posts is viewed by politicians as an unthinkable abomination, but in fact football leagues have no compunctions about moving the goal posts. The dimensions of the goal posts have been adjusted many times over the years. In 1974, the NFL even moved the goal posts back ten yards from the goal line to the end line.)
November 4, 2005 Australian Financial Review article by Bryan Horrigan entitled “Bush needs Alito to help him home” (In PDF format.) The author is no relation to me (as far as I know.) He is a law professor at MacQuarie University in Sydney, Australia.
Click here to read the Washington Post “Campaign for the Court” blog.
Click here to read December 25, 2005 Washington Post article about liberal opposition to Alito's nomination. (Conservative groups are doubtless making similar efforts in favor of his nomination.)
Click here for the outside witness list (as originally scheduled for Thursday, January 12, 2006.)
JudgeAlito.com. (A pro-Alito site which was up and running within minutes of his nomnation. It is sponsored by a rightwing advocacy group rather ironically named Progress for America. PFA made up sites in advance for several possible nominees.)
Alito2Go!
Watch the latest pro-Alito TV PodCast on your
iPod, using iTunes! Guh-roo-veee, man!
(Podcasting. The next generation of radio at the iTunes Music Store.
)
Alliance for Justice Supreme Court Watch Podcast (anti-Alito audio PodCast & blog.)
SaveTheCourt.org: People for the American Way's comprehensive anti-Alito site.
Click here to read materials released by the Ronald Reagan Presidential Library.
Of particular interest are two job applications which he has filled out. In 1985, he applied to be an assistant to Reagan's Attorney General Ed Meese. His responses to questions about his ideology are those of a hardline Reaganist: he wrote that he was “I am and always have been a conservative” and that he was “particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed, and that the Constitution does not protect a right to an abortion.” (This application may or may not be the document which Alito was reviewing when he happened to discover— much to his surprise, since he had no recollection of this— that he had once been a member of Concerned Alumni at Princeton.)
And much more recently, in late November 2005, he filled out a questionnaire from the Senate Judiciary Committee.
November 30, 2005 response to Senate Judiciary Committee questionnaire.
November-December 1985 job application (as released by the Reagan Presidential Library.)
One of his most famous cases was ACLU v. Schundler. This case involved a lawsuit by the ACLU complaining that the Christmas decorations in a public park in Jersey City was in violation of the principle of the separation of Church and State. Alito ruled that the inclusion of secular symbols such as Frosty the Snowman alongside the religious symbols (a creche and a menorah) was enough to establish adequate separation of State from Church. It is interesting to note that, as in some of his other decisions, Alito actually does go well beyond merely interpreting the law. In fact, he does legislate from the bench— albeit, using a rightwing perspective. He even tries to create two new subcategories of religious expression, i.e., “demystified” as opposed (although he doesn't use this word explicitly) “mystified”— and he stipulates that it's OK for the government to engage in official religious display as long as it is demystified.
His most controversial opinion was his dissent to Planned Parenthood v. Casey, which came out in 1992 while he was still a rookie judge. He defended a highly unpopular Pennsylvania law which forced women to notify their husbands before having an abortion. This decision eventually landed him on the Roberts Court, where if all goes according to Cheney & Bush's plan, he will cast a fifth vote against Roe v. Wade.
Click below to read a few of Alito's many decisions:
Some other possibly useful links:
It is time to express your concerns about the upcoming nomination to your Senators, especially if one of your state's Senators happens to sit on the Senate Judiciary Committee. (If you happen to live in Wisconsin, both Senators sit on the committee.) Those Senators are:
|
Arlen
Specter |
|
|
Orrin
G. Hatch |
Patrick
J. Leahy |
|
Edward
M. Kennedy |
|
|
Jon
Kyl |
Joseph
R. Biden, Jr. |
|
Mike
DeWine |
Herbert
Kohl |
|
Jeff
Sessions |
Dianne
Feinstein |
|
Lindsey
Graham |
Russell
D. Feingold |
|
John
Cornyn |
Charles
E. Schumer |
|
Sam
Brownback |
Richard
J. Durbin |
|
Tom
Coburn |
|
Old Transcripts of past confirmation hearings:
John G. Roberts, 2005 (unofficial, on this web site)
John G. Roberts, 2005 (official)
Stephen Breyer, 1994 (official)
Ruth Bader Ginsberg, 1993 (official)
Clarence Thomas, 1991 (official):
S.Hrg. 102-1084, parts 1-4 (Some links in PDF format)
Part 1 (PDF), Sept. 10, 11, 12, 13, 16, 1991 (PDF)
Part 2, Sept. 17 and 19, 1991
Part 3, Sept. 20, 1991
Part 4 (PDF), Oct. 11, 12, 13, 1991
Part 4 Errata (PDF)
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