Wednesday, January 11, 2006

Alito Hearings

I have been able to listen to/watch a good portion of the Senate Judiciary committee hearings on the nomination of Judge Sam Alito to the Supreme Court. Here are a few of my quick hit thoughts/impressions:

1. These two days are pretty much a feast of law and politics for those of us interested in those things. One thing that strikes me is how much some of the questions/answers tracks a really basic Con Law class. I think that I was able to see in Alito occassionaly the fleeting thought - I'm so much smarter than you that this is a joke - while listening to a particular question of a Senator trying to sound smart. But being able to listen to a distinguished appeallate judge answer some of these questions is really exciting. In addition, I was able to see the Charlie Rose show last night where he had Charles Fried - solicitor general under Reagan and current Harvard professor, John Yoo - former executive branch attorney and now professor of law at Berkely, and Noah Feldman - professor of law at NYU discussing the hearings. For someone like me, it was an absolute field day. Boatloads of fun. Yes, I'm a geek. I'm fine with that. I love this stuff.

2. Even saying that, the hearings themselves could be much more interesting. First off, the "questions" coming from the Republican memebers of the panel are nothing more than a well organized defense of Judge Alito. Other than potentially Sen. Spector - and even then totally in defense - there is no probing of the judicial philosophy from the Republicans, it is simply tactical defenses to some of the more flashpoint issues facing Alito...which is essentially igorning vast areas of law which I think it would be interesting to go into. In addition, on both sides of the aisle, the "questions" sound much more like campaign speeches with an almost afterthought - "would you agree?" - stuck on the end. In particular, I was terribly frustrated by Sen. Lindsay Graham who simply would not let Judge Alito speak to answer his questions before jumping back in and answering his own question for himself, and diving into his next talking point. It was ridiculous. In addition, the long winding, politically slanted quesions allow Alito time to structure in his mind, carefully crafted answers which completely step away from the heart of the question being asked. Instead of direct questions calling for direct answers, they are winding questions so it becomes very easy to take one of the off-shoot bends off and spin it into an answer.

3. This "ethical issue" surrounding the Vanguard case is indeed a joke. The fact that the Democrats continue to press the issue demonstrates that for some of these senators, this is more about politics than the Supreme Court - and that makes me sad. The Dems have attempted to say its serious, and not a joke, and an issue that must be clarified...but in all reality it's a smoke screen - in many ways it really reminds me of President George Bush - there is no there, there.

4. And my final initial impression - movement conservatives have hit a home run. This guy is going to be an uber-activist-conservative Justice much more in the mold of Clarence Thomas than the Roberts/Rehnquist/O'Connor mold. ---Understand, a lot of legal scholars are saying the exact oppposite of what I'm saying, so take it with a grain of salt--- But what I'm hearing from this guy indicates that he will uphold essentially any executive action, will be oftentimes hostile to actions taken by the elected legislatures (what he's saying about the commerce clause this morning is highly worrisome to me), and will have ZERO qualms overturning precedent - along the lines of Thomas. He's much more (or less - depending on perspective) willing to resist making the basic vanilla, blanket statements, that Roberts was willing to make - to me this is his way of keeping the door open...not cracked but wide open.

My original impression was that Alito would be a very conservative justice, but more of a mainstream...what I'll refer to as a Roberts conservative (although I admit I don't know what that means just yet...it's more of an impression right now). After a day plus of hearings, I don't think so now. I think this guy will push Thomas for the right of the Court, and one day Scalia will shake his head at Alito's reasonings the way he does now with Thomas. This drags a very conservative court considerably further to the Radical Right.

It should come as no surprise that I would deeply disagree with that shifting of the Court. Having said that - Alito seems supremely qualified and seems to possess the requisite intellect and measure required of a Justice. By electing George Bush, the electorate should have known that this type of justice was a possibily - was what Bush promised.

Read also:
What the Alito Nomination Means for Constitutional Law...
Judicial restraint this nomination is not...
And Alito it is...
Rumors of the next nomination...

1 comment:

DanMan said...

"By electing George Bush, the electorate should have known that this type of justice was a possibily - was what Bush promised." That's why we reacted so violently to Miers...