The Alito hearings, par for the course, are somewhat annoying. A typical criticism, one I share, is that senators do not really know how to question/grill nominees. Some really do not want to, using question time to make political statements or to grandstand (Sen. Biden truly loves to hear himself talk). I know many do not take these things seriously, but this does not have to be the case. Some members of Congress actually do a decent job, clarifying some issues, and maybe even getting the nominee on the record for good or ill.
This is quite possible. It is noted that nominees have something over the senators, since the nominees are professionals at what they are being nominated for (though some picks are not professional/experienced enough) while the senators are at best generalists or politicians. Surely, a long time judge (Alito) or judge/advocate (Roberts) can handle them. But, this is not quite true, is it? First, the senators have been doing this for years. Second, many have had significant time in the legal profession in various roles. Third, they can be prepped. Many have good staffs with some great minds. For instance, Justice Breyer was once on a senator's staff.
Thus, no, I do not accept that the often shoddy questioning has to be. Hearings might be of limited value, simple (to use a now common term) kabuki theater, but it need not be. In fact, even the hearings of Chief Justice Roberts were not useless. Surely, if they have the wherewithal and/or guts, a preview to a possible filibuster broadcast on various channels and reported in major media has some potential. And, I have not kept abreast to the gavel to gavel coverage. But, too much B.S. is going on.
A few major techniques are used by Alito ... and other nominees ... to avoid being fried in hearings. A major technique is to argue that much of their record is in the promotion of a client, here the Reagan Administration. Now, Alito has independent writings that can be used, but let us hit that claim. My basic belief, as was the case in the Roberts Nomination, was that overall these people did not just advocate, they believed what they advocated. They joined and were selected (and nominated to the bench, for that matter) not just because of a desire to serve in public service and their expertise. So, my question might be: was ideology an aspect of you joining the Reagan Administration, and either way, did you generally support the ideology that you promoted?
Another is dealing with generalities and arguing that specifics will have to wait until individual cases come to them while on the bench. Thus, Judge Alito can promote platitudes like "no one is above the law" or "the President has to follow the law and Constitution," without admitting this does not prove much. As Sen. Feingold brought out, sometimes government officials are immune from suit, and Alito if anything promoted more immunity than some others.* And, President Bush thinks Art. II constitutionally gives him independent power to avoid the limits of statutory law. Senators have to forcibly follow-up his platitudes by noting such things ... and if he still wants to avoid any specifics, at least it is clearly there.
A third technique is to claim that he will respect (as in giving it respectful concern) stare decisis, so do not worry about him shifting the Court to the Right. This is meaningless without more (and ignores how the Court develops over time via nominations from shifting majorities) ... and I am sure some discussion of the exact guidelines submitted in past cases (which he will respectively honor, I guess) was covered. Sen. Schumer challenged him on the point -- bringing up Roe, obviously -- noting Justice Thomas et. al. raised the issue as well, but over time has shown to be a fair weather friend to stare decisis.
[Sen. Durbin today managed to get Alito to resist saying Roe was "settled law." I would add that even settled law is open to much interpretation, thus Alito managed to slant it a certain way. Now, I felt his Casey dissent did so wrongly, but it was smart enough to look reasonable. CJ Rehnquist was a wiz at this sort of thing, though did so with less detail than Judge Alito now typically does.]
Schumer had a point, but did it in such a snotty (the guy is a sanctimonious jerk at times) and heavy-handed fashion that it turned me (who is sympathetic with his overall claims) off. Also, Schumer stupidly noted that Alito was willing to say he agreed that free speech precedents should be upheld, why not the right to privacy? As Alito noted, the latter is more indirect and requires more interpretation. Fine ... take some other fairly benign second level right (counsel on appeal, travel, whatever) and get him to agree that the law is clear. Again, you need to have some skill at cross examination here.
A final technique -- related to the first -- was to avoid his ideology. We have to take one case at a time ... not have a client ... we cannot have an agenda, etc. But, darn, conservatives support his nomination over some liberal with great qualifications, his opinions clearly lean a certain way, and the Supreme Court itself specifically picks and chooses cases, often to promote certain outcomes. Judge Alito did reference, in connection perhaps to his Concerned Alumni of Princeton (like those groups that claim to be concerned about families, the name is a red flag alone) membership, his conservative slant in college.
But, overall, let us cut the B.S. that judges are robots without any leanings. This also touches upon Alito's comments that he really did not want to go into his personal feelings about things ... that does not matter, right?** Oh please. Let us honestly face up to the fact ... as Sen. Graham noted ... many surely think it is perfectly fine for Bush to nominate conservative individuals. It is nothing new that the powers that be, especially this administration, promote fiction. Still, sometimes it is particularly galling ... like Bush saying he wants an "honest" debate in the upcoming election cycle. Guy should be on SNL.
[Update: Again, it should be noted that there was some useful questions. Sen. Kohl, which one place noted is a generally low key sort that does not make waves, did raise the studies of the conservative leanings of Alito's opinion. Alito did not directly address it though he did defend his overall philosophy a bit. A direct follow-up would have been helpful -- it was the last question in Kohl's round. Anyway, overall, hiding the truly conservative nature of their politics is a typical Bushie technique. The hesistance of Alito to face up to his support of Bork is but one example here.]
Many, such as the recently deceased constitutional scholar John Hart Ely Jr., are wary about the politicization of our judicial nomination process. But, I think the true problem is the bullshit nature of it all -- nominations always were somewhat political, more so now since the central government (including the courts) have a lot more power ... and this is in general a divisive time (no thanks to you know who). We need to accept the new state of affairs, the alternative is pretty Pollyanna-like, but can do some with some finesse. Sure it will be messy; it need not be shoddy though.
And, to be more partisan, this will also help the Democrats. Cries against corruption works best when you are out of power -- power corrupts, so the most powerful tend to be the most corrupt. Or, they seem to be -- Newt Gingrich knew this. Pushing for a more honest and equitable (oh, did I note that I find Sen. Orin Hatch also to be a sanctimonious ass? surely on the judicial nomination process ... but he is about as bad as Schumer in his questioning as well) nomination process, also one that pushes for the best nominees can help the Democrats as well. Some do not think they have the guts to really fight against Alito ... either way, I think they can fight against him better than they are now.
Perhaps, in some of the ways suggested above.
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* Helped by some Republican senators, Judge Alito promoted some B.S. on the infamous strip search case by noting that it was really a case dealing with a civil suit against an officer, not a Fourth Amendment claim. But, the whole point of the claim not only arose from Fourth Amendment privacy concerns, but dealt with the "reasonableness" of a search! Furthermore, why not rub it in his face that Judge Chertoff (yeah, the Homeland Security guy) rejected his interpretation? You know, to show how conservative he is.
** Alito did note that he did not think decisions of other nations were of much value, promoting the usual petty p.o.v. that even referencing them a few times somehow threatens our legitimacy. Somehow, other nations reference our decisions, many with various differences from our system, and they manage fine.
I would add that some note he is coming off stiff and a bit angry to be challenged. Is it just me, or do too many conservatives come off to be jerks? Seriously, it is like they are annoyed about being out of power for so long, especially since the libs are obviously wrong. [As shown by the party overall, the Democrats as a group are more wary about forthrightly saying they are right and others clearly wrong -- even if some do manage the trick.] I find this snotty nature showing up in various conservatives online, though sure it is not limited to them.
Still, it really rubs me the wrong way.