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The LiberalOasis Blog
The daily view from the oasis

January 12, 2006 PERMALINK
What We Have Learned About Alito
(posted Jan. 12 4:20 PM ET)

LiberalOasis' sum-up of the week, over at The Huffington Post.

January 12, 2006 PERMALINK
Statement From Reid
(posted Jan. 12 4:10 PM ET)

Senate Minority Leader Harry Reid:

I have followed the Alito hearings closely. Democrats on the Committee did their jobs by asking tough questions about important issues: civil rights, privacy, environmental protections, the danger of unchecked presidential power and others.

Unfortunately, Judge Alito’s responses did little to address my serious concerns about his 15-year judicial record.

I have not forgotten that Judge Alito was only nominated after the radical right wing of the President's party forced Harriet Miers to withdraw.

The right wing insisted that Justice O'Connor be replaced with a sure vote for their extreme agenda.

Four days of hearings have shown that Judge Alito is no Sandra Day O'Connor.

Senate Democrats will meet next week to discuss the nomination.

January 12, 2006 PERMALINK
Senate Q&A of Alito Ends
(posted Jan. 12 2 PM ET)

The Senate Q&A of Alito is over. Later this afternoon the Senate will hear from witnesses.

Overall, the Dems fell short today. They let the fake outrage following the tears of Alito's wife deflate their momentum and water down their questions.

Having said that, the game is far from over.

Remember, insta-polls following the 2000 presidential debates showed people thought Gore beat Bush, but Bush's people won the post-debate spin and changed everyone's perception of what happened.

Now, it's post-hearing spin time.

It's time to amplify how Alito evaded questions on abortion and presidential power -- ideally, through TV ads that air the most damning clips.

It's time to stop treating Alito's evasions as signs of strength, when they are actually signs of weakness.

If Alito won't come clean with the public about his true views, he has not earned a lifetime appointment to the Supreme Court.

January 12, 2006 PERMALINK
Feingold Flags The Big Evasion
(posted Jan. 12 12:35 PM ET)

LiberalOasis wrote last night:

Also notable here is what he said to Sen. Orrin Hatch:

"[The President] has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution."

Again, innocuous sounding. But it leaves the door open to the President arbitrarily concluding checks on his power are unconstitutional, or a Supreme Court judge looking the other way and being a patsy for the president.

Sen. Feingold flagged the point:

The question is whether the presidents can claim inherent power under the Constitution that allow them in certain cases to violate criminal law.

And your formulation seems to leave open the possibility [presidents] can assert [such] inherent authority...


It leaves me troubled.

I’m concerned that [we’re not] getting a better sense of where you might you come down on these kind of matters. It really goes to the very heart of our system of government.

January 12, 2006 PERMALINK
Morning of Evasion
(posted Jan. 12 11:45 AM ET)

Dem Senators are focusing on presidential power, although they are generally not talking about hot topics like Bush's abitrary jailing of US citizens and ignoring of torture bans.

And while they are expressing some frustration with Alito's continued evasions, they are not dramatically pounding him on it, making it likely the media will just praise Alito for further evasion.

For your information, here's just a couple areas where Alito continues to dodge.

1. Can the Congress strip the Court's authority to rule on certain issues?

Here's the key exchange:

LEAHY: ...imagine that in the early 1950s, Congress had enacted a law that purported to strip all federal courts ... of jurisdiction to hear cases and appeals involving the segregation of public schools.

Would such a law have been constitutional?

ALITO: Well, there's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court.


LEAHY: Have you taken a position in that debate?

ALITO: I have not taken part in that.

LEAHY: Would you like to?

ALITO: Not at this time.

LEAHY: I don't know why that surprises me.

2. Can independent agencies like the FDA and EPA, agencies that the president does not have absolute control over, even exist under the unitary executive theory?

Sen. Joe Biden laid it out:

BIDEN: [Scalia] would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible...

...but the majority of the justices say that as long as the power that one branch is using does not unduly trench upon of the other branch ... then that's permissible.

Which school of thought do you fall into?

Alito would not say.

January 11, 2006 PERMALINK
Advice For Dems: Make Thursday Presidential Power Day
(posted Jan. 11 10:45 PM ET)

The “elevator pitch” argument against Alito is that:

1) You can’t take his word. He lied when he told the Senate he’d recuse himself from Vanguard cases, and his story about Concerned Alumni of Princeton doesn’t pass the smell test.

2) Therefore, you can’t take his word when he says he’ll have an open mind on abortion.

3) And you can’t take his word when he says he’ll provide a check on presidential power.

Today, Dems laid good groundwork on the first two of those legs, hammering Alito on Vanguard, CAP and abortion.

Tomorrow, Dems should keep the story moving, and drill the third: unchecked presidential power.

Not only is that good for Dem messaging, it will make it harder for the media to trivialize the hearings.

Sens. Leahy and Durbin took some passes on the issue today.

And Alito was far more deft in that area than abortion. So nothing obviously eye-popping seemed to be said.

However, a close reading of the transcript exposes vulnerable areas that Dems should hit.

When asked about his professed belief of the “unitary executive” theory by Leahy, Alito spoke in innocuous terms:

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has.

You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power.

Despite a few attempts by Leahy, Alito did not offer any definition of how much "inherent executive power" the president has.

Also notable here is what he said to Sen. Orrin Hatch:

[The President] has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution.

Again, innocuous sounding. But it leaves the door open to the President arbitrarily concluding checks on his power are unconstitutional, or a Supreme Court judge looking the other way and being a patsy for the president.

Let’s put a fine point on this.

Both Leahy and Durbin yesterday brought up the Hamdi case, where the Bush Administration jailed a US citizen without giving him any opportunity to contest in court.

The Court rebuffed Bush, with Justice Sandra Day O’Connor writing:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

Justice Clarence Thomas dissented, with a full-throated support of the president-as-king “unitary executive” theory:

This detention falls squarely within the Federal Government’s war powers, and we [the Supreme Court justices] lack the expertise and capacity to second-guess that decision...

...The plurality [in O’Connor’s written opinion] reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs...

...I do not think that the Federal Government’s war powers can be balanced away by this Court...

The Founders intended that the President have primary responsibility – along with the necessary power – to protect the national security and to conduct the Nation’s foreign relations.

They did so principally because the structural advantages of a unitary Executive are essential in these domains... is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.

Alito was asked by Durbin which of these views he agreed with – Thomas’ embrace of unchecked, unbalanced presidential power or O’Connor’s “no blank check” opinion.

Alito responded, “Well, I'm not coming down” on either side.

That is not acceptable. These are two starkly different views in a settled case, and Alito should say where he stands.

Does he think the Constitution allows the president to detain a US citizen without granting that person any ability to contest the jailing?

And in general, what does Alito believe the Constitution says about the scope of presidential power?

If he won’t tell us, that’s pretty telling in and of itself.

January 11, 2006 PERMALINK
Even Still More GOP "Help"
(posted Jan. 11 5:05 PM ET)

Sen. Lindsey Graham:

Let me tell you what [Ruth Bader Ginsburg] said at [her] hearing:

"You asked me about my thinking on equal protection versus individual autonomy.

"My answer is that both are implicated.

"The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity.

"It is a decision she must make for herself.

"When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices."


She gave an answer that was very honest and was very direct.

And pro-life Repubicans and pro-life Democrats never thought about disqualifying her.

She didn't go through what you went through.

Uh, maybe that's because Alito's responses have not been direct, and have not been honest.

And maybe it's because Ginsburg's constitutional view is widely accepted by the public.

And maybe if Alito did give honest, direct answers, the public would know that his constitutional views are not shared by the public.

January 11, 2006 PERMALINK
Alito Really *Hearts* Vanguard
(posted Jan. 11 4:45 PM ET)

In response to a question from Sen. Russ Feingold, Alito refused to promise he would recuse himself in Supreme Court cases involving Vanguard if he still has a financial stake in the mutual fund company.

January 11, 2006 PERMALINK
We Got Conflict
(posted Jan. 11 1:30 PM ET)

Sens. Kennedy and Specter went at it today, regarding a request to subpoena papers from a founder of the Concerned Alumni of Princeton.

(Transcript at the W. Post blog. Additional background at Daily Kos.)

As the media are typically attracted to conflict, or anything that's unexpected, this may bring additional attention to Alito's membership in the anti-woman, anti-minority CAP.

During the recess, Kennedy said:

It's extraordinary to me that this nominee can remember all 67 of his dissents in great detail ... and he still is mystified about his association [with] CAP.

(UPDATE 1:45 PM ET: More from Think Progress and Eschaton)

(UPDATE #2 3 PM ET -- Kennedy wins. Specter announces they will get the records.)

January 11, 2006 PERMALINK
Still More GOP "Help"
(posted Jan. 11 12:50 PM ET)

GOP Sen. Orrin Hatch just implicitly copped to whole right-wing strategy of using weasel words to avoid admitting they want to gut Roe.

In addressing Alito's refusal to tell Sen. Durbin that he believes Roe is settled law, Hatch said:

Senator Durbin claimed that [John Roberts] said that Roe was the settled law of the land.

In fact, that exchange ... was made during the confirmation process for Judge Roberts to the Circuit Court of Appeals ... where he would have to admit that that would be settled law for him, and that [lower] court...

...Roberts' testimony in his recent [Supreme Court] confirmation hearing, and your testimony today ... you've both been entirely consistent...

...there's a difference between a nominee for the Circuit Court ... saying that something is settled law that she or he has to be bound by, [and] a nominee for the Supreme Court.

Translation: Roberts suckered of all you, you sniveling majority of Americans that supports Roe. So you better let Alito do the same.

Some enterprising Dem may want engage Hatch, and ask why conservatives are playing word games with the public, instead of being candid about their true judicial philosophy.

January 11, 2006 PERMALINK
More GOP "Help"
(posted Jan. 11 11:30 AM ET)

GOP Sen. Tom Coburn today:

I'd like to put a few things in the record ... One is just a list of cases where Judge Alito ruled for "the little guy" ... Here's a list of nine cases...

Alito's been a judge for 15 years.

Surely it's reassuring to know that about once every two years, Alito finds it in his heart to rule for the little guy.

January 11, 2006 PERMALINK
(posted Jan. 11 11:20 AM ET)

Yesterday, the NY Times website reported that the GOP withdrew a planned hearing witness, Cathy Fleming -- an alleged Democrat who supports Alito -- because she's pres-elect of an organization that just deemed Alito "not qualified".

Apparently, no one told GOP Sen. Sam Brownback, who cited her "unqualified endorsement" of Alito in the hearings today.

January 11, 2006 PERMALINK
Durbin Pounds
(posted Jan. 11 10:40 AM ET)

The consensus seems to be that Sen. Schumer's grilling of Alito was the strongest Dem performance yesterday, but happened too late in the day to impact the news coverage.

Durbin sought to keep that performance from falling through the cracks, picking up where Schumer left off:

When Senator Schumer asked you repeatedly, do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision, you wouldn't answer. You wouldn't give a direct answer.


Do you believe [Roe] is the settled law of the land?

Again, Alito wouldn't answer directly:

Roe versus Wade is an important precedent...

It's been on the books for a long time...

The Supreme Court has reaffirmed the decision...

It is a precedent -- if settled means it can't be reexamined, then that is one thing. If settled means that it is a precedent that is entitled to respect ... then it is a precedent that it is protected and entitled to respect...

Like LiberalOasis said earlier, not a very good liar.

And Durbin wouldn't have it, saying he found it "troubling" the way Alito answered the question.

Durbin pounded him further, on his membership in Concerned Alumni of Princeton.

And he shredded his record as a judge, capping off with:

It's a recurring pattern [in your opinions], the crushing hand of fate here seems to always come down against the workers and the consumers and in favor of established institutions and corporations.

January 11, 2006 PERMALINK
Leahy Starts Off The Day Just Right
(posted Jan. 11 9:35 AM ET)

Sen. Pat Leahy, just now:

A number of us have been troubled by what we see as inconsistencies ... and we're going to want to go into those in some depth: on the issue of one person/one vote, Vanguard recusal, unitary theory of government, CAP...

January 10, 2006 PERMALINK
What We Learned Today
And Homework For Tomorrow
(posted Jan. 10 11 PM ET)

What did we learn today?

Alito can’t tell us the truth about why he joined Concerned Alumni of Princeton.

Alito can’t tell us the truth about why he didn’t recuse himself in cases where he had a conflict.

So why should we trust him when he claims he has an open mind on abortion, when he has written that the Constitution does not protect women who choose abortion?

And why should we trust him when he claims he will not allow the president to be above the law, when he has written the executive branch is superior to the judicial branch?

So, here’s your homework.

Contact your Senator.

Tell him or her that you don’t trust Alito and he must be stopped, by filibuster if necessary.

If your Senator is on the Judiciary Committee, tell them: don't let up with tough questions, and don’t take his words at face value.

Contact the media.

Specifically, contact CNN (feedback form) and MSNBC ( and tell them you want more substantive Alito coverage, not praise from pundits at how well Alito evades questions.

And contact the wire services – the AP ( and Reuters (feedback form) – and tell them to stop spitting out stories that only quote Alito, unchallenged and without context.

January 10, 2006 PERMALINK
AIito Tangled Up In Own Web of Lies
(posted Jan. 10 5 PM ET)

W. Post blogger Fred Barbash, perhaps without fully realizing, notes something telling:

What, exactly, [Alito] meant in his 1985 job application memo (saying he was inspired to enter the practice of law by wrong-headed Warren court decisions) remained a mystery.

In fact, he said he approved of most of the decisions he had appeared to disapprove in the memo.

This relates to what LiberalOasis noted below about Alito's comments on one person, one vote: that he started disengenuously distancing himself from Bork's view then subtly circled back towards it.

Simply put, he's having a hard time keeping his lies straight.

Or in other words, not only is he a liar, he's not a very good liar.

January 10, 2006 PERMALINK
Confirmation Conversion Alert II
(posted Jan. 10 3:30 PM ET)

Dem Sen. Herb Kohl brought up Alito's effusive praise -- "one of the most outstanding nominees of this century" -- of defeated right-wing Court nominee Robert Bork.

(transcript of Alito's 1988 remarks is here).

Alito relied on a similar excuse he used for his 1985 job application: just serving my right-wing masters in the Reagan White House:

...I was an appointee of the Reagan Administration. Judge Bork had been a nominee of the Administration, and I had been a supporter of the nomination.

And I don't think the statement goes beyond that.

Alito then went on to claim he disagrees with Bork on "a number" of issues, but always using weasel words.

For example:

On the issue of reapportionment [redrawing congressional districts to adhere to one person, one vote standards] -- as I sit here today in 2006, and I think that's what's most relevant -- I think that the principle of one person, one vote is a fundamental part of our constitutional law.

And, uh, I think it's, uh, it would be, uh, I don't see any reason why it should be reexamined.

Note he never says, "I agree with the reapportionment decisions," he simply says they are the law and doesn't plan to review them.

Translation: us right-wingers lost the battle to keep people disenfranchised, and I'm not so stupid to stand up for a lost cause.

That doesn't mean he rejects the judicial philosophy that tramples on the one person, one vote standard. Far from it.

(UPDATE 4 PM ET -- Alito was a little more revealing on reapportionment soon after, claiming that while "I don’t believe that I -- in fact, I’m quite sure I never was opposed to the one person, one vote concept," he favorably noted a critique that "the court had taken the one person, one vote principle too far."

Perhaps he circled himself back into Bork's good graces.)

January 10, 2006 PERMALINK
Confirmation Conversion Alert
(posted Jan. 10 11:45 AM ET)

SEN. KENNEDY: In 1985, in your job application to the Justice Department, you wrote, “I believe very strongly in the supremacy of ... the elected branches of government.” Those are your words, am I right?

ALITO: They are and that’s a very inapt phrase ... and I certainly didn’t mean that literally at the time, and I wouldn’t say that today. The branches of government are equal.

January 10, 2006 PERMALINK
More Holes In Alito's Stories
(posted Jan. 10 11:15 AM ET)

1. As if the ROTC story about his membership in Concerned Alumni of Princeton (see below) wasn't thin enough, turns out that ROTC had already been brought back to Princeton the same year Alito became an alumni.

2. On the Vanguard case, where Alito didn't recuse himself despite telling the Senate he would in cases involving the mutual fund company:

Alito said today, "I did recuse myself, and ... I asked that the original decision ... be vacated."

Not according to the Boston Globe:

After Alito ruled in Vanguard's favor in the Maharaj case, he complained about her efforts to vacate his decision and remove him from the case, writing to the chief administrative judge of the federal appeals court on which he sat in 2003: ''I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares."

(hat tips to reader ss)

January 10, 2006 PERMALINK
Leahy Hammers Alito on CAP
(posted Jan. 10 10:55 AM ET)

Sen. Leahy gave Alito a thorough scolding for joining the anti-coed Concerned Alumni of Princeton, which put out a magazine that wrote "the greatness of Princeton" could not be maintained "with an undergraduate student population of approximately 40% women and minorities".

Alito's original story, in a questionairre submitted to the Senate, was that he could not recall being a member.

Today, he changed his story, claiming somehow that while he still couldn't recall being a member, that he must have joined the anti-woman, anti-minority group because ROTC was banned from campus.

Alito is developing a pattern of changing his story when he gets in hot water.

January 10, 2006 PERMALINK
Abortion Snow Job Begins
(posted Jan. 10 10:25 AM ET)

During the Specter Q&A, Alito hit all the expected bogus points designed to dupe the public into thinking he'll uphold Roe, very similar to what John Roberts did.

He said he'd give stare decisis great weight (but conservative judges believe you can overturn Roe under stare decisis).

He said he believed in "a" right to privacy, but defined that right narrowly, just under the 4th Amendment's ban on unreasonable search on seizure. But he didn't embrace the broad right defined in the Griswold, Eisenstadt and Roe cases.

(UPDATE 7 PM ET -- Later Alito added that there are some rights to privacy under 1st, 5th and 14th Amendments in "certain circumstances," which still leaves him wide open to define the right very narrowly.)

Further, he only said he agreed with the "result" of Eisenstadt (single people can have contraception), which is a way to duck answering whether he agrees with the constitutional reasoning defining the privacy right.

He tried to claim his past anti-abortion comments aren't relevant now that he's a judge, despite there being no record that his constutitional views have changed.

And he played up the few cases where he followed precedent on the lower court bench, even though he had no choice but to follow precedent as a lower court judge.

Further info here, here and here

(UPDATE: Senate Judiciary Dems have more on Alito's true record here)

January 10, 2006 PERMALINK
Preparing For Abortion Distortions
(posted Jan. 10 1 AM ET)

GOP Sen. Arlen Specter has said he will kick off today’s Q&A with questions on abortion.

We already have clues on how Alito will handle such questioning.

One, we have Alito’s opening statement, where he not-so-subtly tried to distance himself from his 1985 statement that the Constitution does not protect abortion, by saying:

When I became a judge, I stopped being a practicing attorney. And that was a big change in role.

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way.

Here’s what the response to that should be:

“If your judicial philosophy on privacy rights has changed since 1985, what’s the evidence?

“Can you point to one ruling, one speech, one op-ed, one letter to the editor, where you have said, I now see that the Constitution allows a woman to make a private decision on when to become a mother?

“If you can’t, then why should we take your word today? Because you have misled this committee before.”

Two, we have comments from Alito’s conservative movement buddy Ted Olsen, made on MSNBC’s Hardball yesterday, where he argued Alito has a record of following precedent on abortion cases:

Judge Alito, in every case involving abortion and every case involving anything else, was very carefully trying to discern what the Supreme Court had already decided...

... his record shows that he follows precedent, he carefully analyzes the issues, and he carefully applies The Constitution, and he sets aside his personal views to apply The Constitution as it`s written and as it has been interpreted by The Supreme Court.

LiberalOasis has debunked this talking point before, noting that the few times where he applied Supreme Court precedent in abortion cases, it was because as a subservient lower court judge, he had no choice.

It says nothing as to what he would do while sitting on the Supreme Court, where he gets to set the precedents, where he gets to put his 1985 statement into law.

January 10, 2006 PERMALINK
GOP Distortions on Race Discrimination
(posted Jan. 10 12:45 AM ET)

On Monday, Sen. Ted Kennedy said:

Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job.

In fifteen years on the bench, not one.

Combined with Alito’s past membership in Concerned Alumni of Princeton, which tried to restrict admissions for women and minorities, that fact speaks to a deep hostility to equality.

Which is why the GOP is desperate to shoot it down. Both GOP Sens. Jeff Sessions and Sam Brownback departed from their prepared remarks to claim Kennedy was wrong.

Since Kennedy isn’t wrong, they had to pretend Kennedy said something else in order to shoot it down.

Sessions said, “Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination.”

But that’s not what Kennedy said. He made a narrower, though still damning charge, that Alito hasn’t 1) written an opinion, 2) on the merits, 3) of a case involving race discrimination on the job.

To back up their phony charge, Sessions and Brownback cherry-picked a few cases where 1) Alito voted with a majority, but didn’t write an opinion, 2) Alito made a ruling favorable to a person of color, but for technical reasons, not on the merits of the discrimination case, and 3) race discrimination on the job wasn’t even the issue.

And those few cases do not remotely characterize the entirity of Alito’s record on equality.

Check out this Knight-Ridder analysis and this W. Post database of Alito’s rulings for more.

The Senate Judiciary Dems offer some additional context here.

January 9, 2006 PERMALINK
Kohl's Statement Hopeful Sign For Dem Unity
Tracking the Alito Hearing As It Happens
(posted Jan. 9 3:40 PM ET)

The W. Post Supreme Court blog noted that Dem Sen. Herb Kohl delivered an opening statement that “was, for him, aggressive.” They don’t explain further. LiberalOasis will.

Kohl, a very low-profile Senator, is widely known in the Beltway as particularly deferential when it comes to nominees.

For example, he was one of the three Dems on the Judiciary Cmte who voted for John Roberts.

So for him to crisply and sharply summarize the case against Alito, and give short shrift to what his supporters say in response – even if he stopped short of explicitly siding with Alito’s opponents -- is quite notable.

It will likely require the Judiciary Cmte Dems standing together in opposition to Alito for the full Dem caucus to sign on to a filibuster.

Conversely, if there is just a little division on the Cmte, there will likely be a division in the full caucus. (And it won’t take much division to prevent Dems from mustering 41 votes for a filibuster.)

Kohl’s statement is a hopeful sign that we will see Dem unity, though the way to ensure it is to keep up grassroots pressure on all Senators, and to stoke public opposition by getting the facts out.

January 9, 2006 PERMALINK
Specter, DeWine: Weak Alito Supporters
Tracking the Alito Hearing As It Happens
(posted Jan. 9 2:50 PM ET)

Both GOP Sens. Arlen Specter (PA) and Mike DeWine (OH) subtly revealed a softness in their expected support for Alito.

Both complained about a right-wing court striking down key provisions of laws, passed by the democratically elected Congress, that protected women and minorities.

Specter cited the Violence Against Women Act and DeWine the Americans with Disabilities Act.

Neither of course, explicitly called the Court “right-wing,” but that’s the unspoken subtext.

Both also spoke highly of Alito. Neither should be considered likely No votes.

And don’t expect either to be helpful in the process of fighting Alito. They have couched their concerns in tepid language to avoid provoking the wrath of the conservative machine.

But know that they have revealed a hesitancy.

Dem Sen. Dianne Feinstein sought to exploit that hestinacy, citing the Alito opinion that shows he is league with conservative judicial activists that seek to hamstring our Congress:

I have very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution...

...This trend, I believe, if continued, would restrict and could even prevent the Congress from addressing major environmental and social issues of the future...

...certain of your decisions on the 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court’s limited view of congressional authority.

...let me give you one example here, and that’s the Rybar case.

Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.

You took this position, even though the Supreme Court had made clear in 1939, the Miller case, that Congress did have the authority to ban the possession and transfer of firearms and even though Congress had passed three federal statutes that extensively documented the impact that guns and gun violence has on interstate commerce.

I’m concerned that your Rybar opinion demonstrates a willingness to strike down laws with which you personally may disagree by employing a narrow reading of Congress’ constitutional authority to enact legislation.

Ohio and Pennsylvania readers should apply grassroots pressure, through phone calls and emails, and reinforce their concerns about right-wing judges denying our Congress the ability to pass laws that protect civil rights, clean our environment and promote public safety.

Just maybe, Specter and DeWine could be turned into No votes, or (just as good), become votes against using the illegal nuclear option to stop a filibuster.

January 9, 2006 PERMALINK
The Sunday Talkshow Breakdown
A weekly feature of LiberalOasis
(posted Jan. 9 1:45 AM ET)

All the Sunday shows featured debates between GOP and Dem Senators about Alito, solidifying the notion that the Alito nomination is controversial and the outcome is not predetermined.

In fact, the AP headline coming out the shows was, “Senators Talk Tough Ahead of Alito Hearing.”

That’s a far better lead-up than we had before the John Roberts hearings. The table is fairly well-set.

So what lies and distortions were GOPers using to deal with the heat?

On NBC’s Meet The Press, Sen. John Cornyn said:

Everything we know about Sam Alito is that he is not an ideologue.

Right. That must be why the corporate newspaper chain Knight-Ridder found: “Review of Cases Shows Alito to be Staunch Conservative”.

Over on CBS’ Face The Nation, Sen. Arlen Specter was covering for Alito on his support for unchecked, unbalanced presidential power:

He has had very little to say about those issues ... In his early college days, he had talked something about a unitary approach to the presidency, which really doesn't have any application on an issue of the president's authority to eavesdrop without a warrant.

Little to say? Talked about the “unitary” approach – which holds that the president holds some powers that are unchecked by the courts or Congress -- merely in college?

The Wall Street Journal begs to differ:

In November 2000 ... in a speech to the [right-wing] Federalist Society ... Alito was describing the theory of the "unitary executive," an expansive view of presidential powers that he and his colleagues set forth while working in the Office of Legal Counsel of the Reagan Justice Department.

Although the Supreme Court has not always agreed, he said in his speech, "I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

Furthermore, that has direct relevance to the warrantless wiretap program, because Bush has defended it by contending he has unitary powers under the Constitution to conduct the program.

What about abortion?

Interestingly, the GOP Senators lacked a coordinated message on that. They couldn’t decide if they should duck or be defiant.

Cornyn generally ducked, though he did offer the usual smokescreen:

I believe that Judge Alito — I don’t know exactly how he’ll handle this; this is really up to him — but I expect you’ll hear from him what you heard from Chief Justice John Roberts, and that is he respects the [Roe] decision under the principles of stare decisis.

As LiberalOasis noted when Roberts said as much in his hearings -- that he believes in stare decisis, giving great weight to Supreme Court precedents -- that’s a meaningless comment.

Because in the Bizarro Conservative World, you can use stare decisis to overturn Roe.

When Justices Rehnquist, Scalia and Thomas sought to overturn Roe, they wrote in their opinion:

We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.

Sen. Sam Brownback, on ABC’s This Week, went a step further with the smokescreen, and tried to suggest that Alito’s views had changed since he flatly said in 1985 that “the Constitution does not protect a right to an abortion.”

Things do change, and positions change. He’s advocating for a position in a conservative administration at that time.

[ed. Note – No he wasn’t. Alito was applying for a job and stating his judicial philosophy.]

Now he’s going on the Supreme Court of the United States if approved by the United States Senate.

And these are different jobs altogether, and they have different parameters with them all together.

And he’s not going to answer questions about how he’s going to rule on a Roe-type case, and he shouldn’t.

Of course, Brownback had a very different attitude when Harriet Miers was nominated for the Court, telling ABC that if she “implied” Roe was “settled law” that there was “a good chance” he would vote against her.

On Fox News Sunday, Sen. Lindsey Graham took the defiant route:

... we're not going to sit back and watch a double standard to be imposed here.

People who have come from Democratic nominees have openly embraced the idea that they believe there's a constitutional right to abortion. They were not disqualified.

If Judge Alito advocated that Roe v. Wade was wrongly decided, that's not a disqualifying event...

...the fact that he may disagree with somebody on a particular issue like abortion -- well, that happens all the time.

That happens when Clinton picked [Ruth Bader] Ginsberg and [Stephen] Breyer...

...I disagree with [Ginsburg] about everything she basically advocated. But I can understand why she was given 96 votes [in the Senate].

First off, if the Senate confirms a someone who recognizes that Constitution protects privacy rights, including abortion rights, and doesn’t confirm someone who refuses to recognize those rights, that’s not a double standard. It’s a single standard.

And it’s a standard supported by a clear majority of the country, consistently so for years.

Secondly, let’s get one thing straight about the Senate vote on Ginsburg’s nomination.

LiberalOasis has already discussed how Ginsburg won such wide support because she was recommended by GOP Sen. Orrin Hatch, expressly because she had not been an ideological judge during her long tenure on the lower court.

But put that aside for a moment.

Today’s Republican Senators just love talking about how they all voted for Ginsburg in 1993.

But do you know how many of today’s 55 Republican Senators actually voted for Ginsburg in 1993?

Just 18. (And one of them, Richard Shelby, was a Democrat at the time.) One-third of the current crop. The other 37 weren’t around.

GOP Senators were not as virulently right-wing back then. The few that were – like Jesse Helms – voted No on Ginsburg.

Brownback, Cornyn, Graham, Rick Santorum, Tom Coburn, Jim Inhofe, Jon Kyl, Jeff Sessions, John Thune – can you picture these Dobsonites voting for Ginsburg or Breyer?

Or did your head explode just trying to picture it?

The Blog Wire
Tracking the liberal blogosphere

Independent Court: Guess who else had a "open mind" on abortion? Clarence Thomas. That is, until he got confirmed.

Daily Kos: "Say Anything Sammy" tries to pretend he didn't know Bork's views when he called him " one of the most outstanding nominees of this century."

Culture Kitchen: Chuck Schumer "nailed him and he won't answer the [abortion] question."

Rude Pundit: "On the Third Circuit Court, [Alito] had no problem forcing [other] lower court judges off cases where there was an appearance of bias" but insisted on hearing cases where he had conflicts

Echidne of the Snakes: "I'm worried about Alito's bad memory. How can he keep large amounts of judicial information in his mind if he has trouble remembering the events of his own life?"

Daily Kos: What A "Unitary Executive" Means - President As King

firedoglake: "short summaries ... for those who don't have access to the hearings this morning ..."

Think Progress: Alito Hides His Plan To Push Executive Immunity In Wiretapping Alito on CAP: "Is this all they could come up with in Judge Alito's prep sessions at the White House?"

Lawyers, Guns and Money: 2 Ways To Skin A Precedent

AmericaBlog: Americans aren't sold on Alito

Daily Kos: GOP witness' organization gave Alito "not qualified" rating

Save The Court: More shifting stories from Alito, this time on his membership in the anti-coed Concerned Alumni of Princeton

Balkinization: The Basic Case Against Alito ... In two broad areas especially, Alito promises to be a dangerous servant of the [right-wing Republican] agenda ... Executive Power [and] Protections of the Vulnerable"

Media Matters has compiled the top myths and falsehoods advanced by conservatives and Alito supporters -- and often repeated in the mainstream media -- that effectively obscure his record and distort concerns and questions raised by his critics.

Micah L. Sifry: "Todd Purdum in the [NY Times] kicks off one of the press's favorite memes whenever ... corruption hits the front pages: 'But will things really change?' ... It's moments like these when you really see the corporate media reinforcing some very conservative assumptions about the role of government, and those of us who believe in government as a tool for good have to push back hard."

Nomination Watch: What to watch for in the Alito hearing next week


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