Alito's Opening Statement:
Good stuff, I thought. That's certainly who he is; although you figure that such statements are quite scripted, that was genuine Alito.
Steve P. (mail):
You can read a transcript of it here.

About 7/8ths down the page (the senators, true to form, tend to be long-winded), Alito will be sworn in and speak. Hopefully there will be a cleaner transcript up soon, for those of us at work without access to a television.
1.9.2006 4:16pm
countertop (mail):
CSpan is replaying it right now (it just started)
1.9.2006 4:43pm
Jason Fliegel (mail):
You don't need television -- my local NPR affiliate broadcast the hearing, and I bet lots of others did too. It's also streamed live over the internet at various sites.
1.9.2006 4:57pm
JR (mail) (www):
Does anyone know where I can download a video of Alito's speech?
1.9.2006 5:04pm
JR (mail) (www):
It looks like both CNN and have the video.
1.9.2006 5:17pm
Katherine (mail):
I'm an absolute sucker for the cliche about no man being above the law, and no man being beneath it. But as the question of whether there are men above and beneath the law is likely to come before him in more concrete terms very soon--I note carefully the "in this country", and wonder if he agrees with the administration about where the borders of the country are. And I also wonder if "the law" that no man is above includes the President's alleged authority as commander in chief to set aside any laws he doesn't like.

So, sucker that I am, he'll need more than cliches to convince me.
1.9.2006 5:29pm
Chris S. (mail):
well, i'd argue that all men are above unconstitutional laws...

figuring out which laws those are is the tricky business.
1.9.2006 5:38pm
Anderson (mail) (www):
Well, Alito comes out for "the rule of law." Isn't that special.

What else was he going to say? Something crazy like "the law is whatever the President says it is when he signs it"?

Oh wait, that was only in his advocacy role ....
1.9.2006 5:43pm
ThirdCircuitLawyer (mail):
Well put, Anderson. Remember, that's just what Breyer and Ginsburg said, too.
1.9.2006 5:56pm
toady (mail):
Come on, Alito is more than qualified. Elections matter.
1.9.2006 6:00pm
Anderson (mail) (www):
Toady (sic): Come on, Alito is more than qualified. Elections matter.

(1) Sure, he's qualified. That's a minimum, not a pass.

(2) Elections *do* matter. They affect which party's candidate gets to hominate the prospective justice, and which party's senators vote on the nomination. Just why elections should "matter" beyond those two facts, does not IMHO bear much analysis. If we're asked to accept a justice's reading of the Constitution, it's silly to pretend incuriosity as to what that reading is.

Or as it's been better stated, when the White House stops taking an interest in its nominees' views, the Senate should do likewise.

Given that we have a Court which is an equal player in the federal system, I think it's absurd to pretend that politics don't enter into the nomination &confirmation processes.

3d Cir.: Has Breyer really been such a disappointment?
1.9.2006 6:07pm
A. Friend:
So you're saying it's "genuine Alito" for Alito to read something that was written for him by OLC staff? I for one don't understand what's so genuine about this.
1.9.2006 6:37pm
ThirdCircuitLawyer (mail):

I never said Breyer was a disappointment, did I?

However, Breyer doesn't believe in the "rule of law," as he himself now acknowledges. As he put it in a recent talk about his "active liberty" book, he prizes himself on being an independent thinker. As he sees it, he is at the Supreme Court to be independent, and he believes he should feel free to make rules in an independent way. Hard to square that with the rule of law, I think; the rule of law is inherently dependent, on, well, law.
1.9.2006 6:57pm
Well, when you figure out which laws are unconstitutional, it helps to read Article I. I keep hoping someone will send OLC a copy, but so far....
1.9.2006 7:03pm
Wintermute (www):
"indeed, you served your entire adult life in public service." - Cornyn

Which is one thing that bothers me, sitting in the lap of federal power all that time....
1.9.2006 7:06pm
Just an Observer:
As a proponent of Alito's confirmation, I nevertheless am rooting for a more thorough discussion of substantive issues that we are likely to hear.

My own feeling about that matter of process is that there is an ethical line that should not be crossed: The nominee should not make comments that implicate how he would rule in a future case.

However, I think that that leaves room to discuss constitutional principles, judicial philosophy and the examples of past cases. In matters where the nominee has a record, such as Alito's prior writings, he is obliged to speak to that record up the the point where the above-mentioned ethical line would be crossed.
1.9.2006 7:16pm
Just an Observer:
Correction: ... than we are likely to hear.
1.9.2006 7:20pm
Anderson (mail) (www):
The nominee should not make comments that implicate how he would rule in a future case.

JoA, I hear ya, but that affects just about everything a nominee might say.

I think there should be a general caveat that "of course" nothing a nominee says should be construed as a pledge or promise, and with that, most questions beyond "would you rule X" should be asked and answered. For example, whether Roe was soundly reasoned, the apportionment of military authority between Congress and the President, etc., etc.

Beware buying a car from any place that won't let you kick the tires or look under the hood.
1.9.2006 7:48pm
Just an Observer:

Let me take the Roe issue as an example of where I think the lines can be drawn in this confirmation process.

Alito clearly articulated and personally held a legal opinion in 1985 that Roe v Wade was incorrectly decided as an original matter.

Today, I believe it is necessary and proper that Alito speak to that record. He can reaffirm that he did believe such a proposition -- hardly "out of the mainstream" -- in 1985. He can point to the same legal authorities he footnoted then to support the substance of that view.

Notably, such a forthright statement taking ownership of his own record would go beyond anything Alito has said through surrogates since the disclosure of the 1985 memos. I am hopeful that he will take the opportunity to do so tomorrow morning during his first exchange with Sen. Specter. If he continues to duck the issue as much as he has in the pre-hearing dance, I will be disappointed.

Alito also can descriptively flesh out the jurisprudential history of abortion since 1985, making the point that today the issues are framed differently.

Further, Alito is obliged to discuss in general terms how he views the doctrine of stare decisis as a matter of judicial philosophy. After such exposition, which I presume would be similar to what John Roberts said, it will be apparent that stare decisis is so squishy a concept that he is giving nothing away about a future case.
1.9.2006 8:56pm
Anderson (mail) (www):
I think you'll be disappointed, JaO, but maybe we'll be lucky. Oh, and maybe the hearings will be as you describe, also. ;)
1.9.2006 10:11pm
Just an Observer:

I reserve the right to be disappointed. :-)

I also am more than aware that not all proponents of Alito's confirmation share my views about the process. To the extent that such champions say Alito should stay quiet on controverial matters simply to avoid controversy, we disagree.
1.9.2006 10:39pm
Can anyone confirm what Senator Feingold said yesterday?

The fact the Alito said that he would recuse himself from certain opinions during his 3rd Circuit confimation hearings (Vanguard cases), and ruled on those cases anyway, is questionable.

If this is in fact true, his nomination should be thrown out. If he lied to Senate before he will lie again.

1.10.2006 8:05am
The Vanguard case is bunk. Alito told the Senate that he would recuse himself if the case was about his investments (he has a mutual fund with Vanguard). The case that he heard was about two parties that were fighting over ownership of shares in a Vanguard fund, not over something related to Vanguard itself.

Also, in at least one of these cases, it was a computer error. The 3rd Circuit has a computer system that screens these cases to look for conflicts and it missed the "conflict."
1.10.2006 4:30pm
The exact quote is:

I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings &Loan of Rochester, N.Y.

I don't see anything in that statment limiting him to his investments.

Additionally according to this Boston Globe article he agreed to do the same thing regarding any case his sisters law firm was involed in. Once again he ignored his stated word.

Walter, if you gave your word to the US Senate over some matter, would you consider it such a minor matter that you would let computers remind you of it?
1.11.2006 12:23am
Quiz. Guess who?

l. Stare Decisis trumps the Constitution.

2. Dissociates himself from himself by using the "that was then, this is now" approach.

3. Resorts to prepackaged jokes, to disguise innate lack of charm, and tries to sell the argument that although at 35 he writes on a resume that he is a member of a certain organization, he can no longer remember being a member of that organization.

4. "Handled" to the point of rigor mortis.

5. Has one candid moment when asked, apparently unexpectedly, what he discussed with his handlers. Copes by imitating a deer caught in the headlights. Recovers by imitating Pinocchio.

Does any of this matter? No, because every Republican morphs into a partisan laughingstock, delivering puff piece testimonials disguised as Xanax pills, and every Democrat keeps up the time honored Democratic tradition of reading his staffers' questions looking like he is going someplace, but when hearing the totally expected answer, is unable to follow through with even one original follow up question, thus having to resort to "Thank you very much for that answer. Let's move on."

Why is this happening to us, you ask? Because smart people don't go into politics. There's no money in it unless you get involved with crooked lobbyists or something like that......wait! Uh oh.

Is all lost? Fortunately, no, because we are lucky enough to live in the greatest country in the history of the world, based on laissez-faire capitalism, with a fantastic Constitution infused with the "life, liberty and the pursuit of happiness" spirit of the Declaration of Independence to protect our liberties.

Hopefully, we'll luck out, and enough people will keep on each doing their little bit to try to protect those values and together, despite all odds, we'll succeed.
1.11.2006 4:47am