Daily Kos Blog

I have a bad feeling about the GOP spinning themselves some brownie points for "lobbyist reforms". The problem with the Culture of Corruption isn't that no rules were broken, which of course is ludicrous. The rules weren't just broken, they were shredded, reshredded, then pissed on for good measure.

Let's clear out the criminals and unsavory elements from Congress first. And when we have true reformers in control we can look at legislation that goes even further than the current rules.

But for now, I'd rather we focus on clearing out those who have violated the existing rules.

No amount of "reform" will mean much to those who didn't care to follow the existing rules.

Leahy now up.

Starts with Hamdi. Asks Alito "who was right? O'Connor or Thomas?"

Durbin exposes Alito.

Durbin asks "John Roberts stated unequivocally that Roe v. Wade was the settled law of the land. Do you, Judge Alito, believe that Roe v. Wade is the settled law of the land?"

Unlike, John Roberts, Alito refuses to say that Roe is the settled law of the land.

It is very simple. Alito will vote to overturn Roe v. Wade and anyone who supports his confirmation; any SENATOR who votes for his confirmation, has no excuse -- they are voting for the overturn of Roe v. Wade.

Update [2006-1-11 9:38:43 by Armando]: Wolf Blitzer provides the typical ignorant take on what the hearings are about, remarking the "opportunity for gaffes remain." For crissakes, this is not a Presidential Debate (which, BTW should not be gaffe contests either) - the point is the substance of what Alito says, not a "gaffe" count. Also remember Kinsley's definition of a gaffe - inadvertently telling the truth.

Day 3 of the BorkAlito hearings start in a few minutes. Pay close attention early - Durbin and Schumer will be among the first Dem questioners.

Why BorkAlito?

As uncovered by The Washington Post, Alito, in 1988, did not just say that he supported Bork's nomination, but also made clear that Bork was his ideal for what a Supreme Court Justice ought to be:

Aron: Do you think Robert Bork should have been confirmed?

Alito: I certainly thought he should have been confirmed. I think he was one of the most outstanding nominees of this century.

Aron: Why? How?

Alito: He is a man of unequaled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society.

That is extraordinary praise for someone who was judged too radical to serve on the Supreme Court. And even more strikingly, when asked why he believed Bork was one of the greatest nominees, Alito cited exactly that which compelled the Senate and the country to reject Bork's nomination: specifically, Bork's "understanding of constitutional history" and his thoughts "about the Supreme Court and the role it ought to play in American society."

This leads to an obvious and overarching point: If Robert Bork was so far out of the mainstream in 1988 as to be unfit to serve on the Supreme Court, how can Sam Alito be in the mainstream in 2006? Since Alito has cited as his judicial hero someone whom the country overwhelmingly rejected as being too radical, shouldn't Alito and his allies bear the heavy burden of demonstrating in what material respects Alito differs from Bork?

From the GREAT STATE OF MAINE...

Carmel-covered late night snark...with nuts!

"The Supreme Court confirmation hearings are under way for Judge Sam Alito. Democrats want to know his position on privacy.  Republicans want to know his position on prison terms for bribery."
---Jay Leno

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"According to the Washington Post, Vice President Dick Cheney is limping today because he injured his foot.  Cheney said, 'If you think my foot looks bad, you should see the old lady I was kicking.'"
---Conan O'Brien

-

"You know how sometimes during war time, civil liberties can take a back seat to national security?  Well, I got good news and bad news.  The good news is this: no Japanese people are being sent to any camps.  The bad news is: that time you got hammered and drunk-dialed your ex-girlfriend who's studying abroad and sang her that WHAM! song that was 'your song?'  The government's got that on tape."
---Jon Stewart

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"Indicted congressman Tom Delay has announced he is resigning as House Majority Leader.  However, he's still going to run for re-election.  So apparently he feels he is too corrupt to be a leader but not too corrupt to be just a congressman."
---Jay Leno

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"Congressmen are actually now returning illegal gifts.  I called the weather bureau and, sure enough, hell has frozen over."
---David Letterman

Not in Maine---we're downright balmy this morning.  Cheers and Jeers slathers on the Coppertone in There's Moreville... [Swoosh!!]  RIGHTNOW!  [Gong!!]

Glenn Greenwald picks up on the big revelation of Judge Samuel Alito's unvarnished admiration for Judge Robert Bork and why that might be the most damning evidence of  the extremism of Alito's views:

One of the difficulties with judicial confirmation hearings is that there is no real standard to use for determining which nominees should be confirmed and what constitutes a disqualifying attribute.

But one of the few things that is settled in this process is that whatever else it means to be too radical to be confirmed to the Supreme Court, Robert Bork was too radical, which is why he was overwhelmingly rejected by the Senate and by Americans. Bork has come to set the standard for non-confirmability - he is now the embodiment, the measure, in this country of a nominee whose views are so radical that he is disqualified from serving on the Court.

For that reason, as Alito opponents are starting to highlight, the most significant fact revealed during Alito's confirmation hearings yesterday, by far, was the extreme praise which Alito heaped on Robert Bork when Alito was already the U.S. Attorney in New Jersey. As uncovered by The Washington Post, Alito, in 1988, did not just say that he supported Bork's nomination, but also made clear that Bork was his ideal for what a Supreme Court Justice ought to be:

Aron: Do you think Robert Bork should have been confirmed?

 Alito: I certainly thought he should have been confirmed. I think he was one of the most outstanding nominees of this century.

Aron: Why? How?

Alito: He is a man of unequaled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society.

That is extraordinary praise for someone who was judged too radical to serve on the Supreme Court. And even more strikingly, when asked why he believed Bork was one of the greatest nominees, Alito cited exactly that which compelled the Senate and the country to reject Bork's nomination: specifically, Bork's "understanding of constitutional history" and his thoughts "about the Supreme Court and the role it ought to play in American society."

This leads to an obvious and overarching point: If Robert Bork was so far out of the mainstream in 1988 as to be unfit to serve on the Supreme Court, how can Sam Alito be in the mainstream in 2006? Since Alito has cited as his judicial hero someone whom the country overwhelmingly rejected as being too radical, shouldn't Alito and his allies bear the heavy burden of demonstrating in what material respects Alito differs from Bork?

Glenn explores exactly why Bork was considered a radical extremist unfit for the Supreme Court. Alito's role model was the very definition of out of the mainstream. So is Sam Alito.

Well, it was a hugely busy news day. So here's the stuff I had saved for blogging but ran out of time and space to use.

• Tony Blankey admits that the Abramoff scandal is a Republican one.

• The National Reviews Rich Lowry says the same -- it's a Republican scandal. Although he's perplexed why Democrats didn't want to turn out Clinton because he got a blowjob. Well, because it was insignificant. And we can thank Bush for driving that point home.

• Lowry also urges Republicans to retake the mantle of "reformers" they wore in 1994. As Digby notes, that dog won't hunt.

• Tammy Duckworth in IL-06 just got the AFL-CIO endorsement.

• This, dealing with the No Child Left Behind test, would be funny if it wasn't so tragic.

• Patrick Fitzgerald thinks Russert is full of shit.

• Sam Brownback, humble servant of the people. Dances with angels.

• Dana Rohrbach is rushing to Abramoff's defense. Interesting strategy... Although to be honest, Rohrbach is showing more integrity standing by his sugar daddy friend than the legion of Republicans suddenly struck with amnesia about their dealings with Abramoff.

• Rasmussen polls the Texas governor's race, and it's a big free for all. Its poll of the Vermont governor's race gives Dems some bad news.

• NSA whistleblower tells ABC News that the NSA eavesdropped illegally on millions, and will share his knowledge with Congress. I don't know if the guy is credible, but Congress needs to give the guy a listen.

Two days ago the New York Times published an editorial that identified the following issues regarding Samuel Alito:

But now, the Senate has a duty to delve into the many areas in which Judge Alito's record suggests he is an extremist, including:

ABORTION Judge Alito has not only opposed Roe v. Wade, he has also worked to overturn it. When he applied for a promotion in the Reagan administration in 1985, he wrote that he was "particularly proud" of his legal arguments "that the Constitution does not protect a right to an abortion." In meetings with senators, Judge Alito has talked about his respect for Roe, but he has said nothing to discourage his supporters on the religious right who back him because they believe he will vote to overturn it. The American people have a right to know, unambiguously, where Judge Alito stands on Roe.

PRESIDENTIAL POWER The continuing domestic wiretapping scandal shows that the Bush administration has a dangerous view of its own powers, and the Supreme Court is the most important check on such excesses. But Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president's intent when he signed the law to be just as important as Congress's intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.

CONGRESSIONAL POWER While Judge Alito seems intent on expanding the president's power, he has called for sharply reducing the power of Congress. In United States v. Rybar, he wrote a now-infamous dissent arguing that Congress exceeded its power in passing a law that banned machine guns. As a Reagan administration lawyer, he argued that Congress did not have the power to pass the Truth in Mileage Act to protect consumers from odometer fraud.

. . . The Senate should also explore Judge Alito's honesty. According to a senator he met with, he tried to dismiss his statement about the Constitution's not protecting abortion as merely part of a job application, which suggests he will bend the truth when it suits his purposes. Judge Alito has said he does not recall being in an ultraconservative group called Concerned Alumni of Princeton, which opposed co-education and affirmative action. That is odd, since he boasted of his membership in that same 1985 job application. The tortuous history of his promise to Congress to recuse himself in cases involving the Vanguard companies, which he ultimately failed to do, should also be explored. . .

Tomorrow, the New York Times publishes three stories on the Alito hearings demonstrating that its incompetence in political reporting is now spreading to other parts of the newspaper. And indeed two of the stories are authored by the two worst reporters in the nation - Elizabeth Bumiller and Adam Nagourney. The results are not surprising - the utter lack of substance in these articles on the issues the New York Times editorialized required airing shows you that this once great paper is now not even mediocre.

I'll discuss the articles on the flip but first, a question - why in blazes did Linda Greenhouse not cover the hearings?  

Say Anything Sammy in his own words:

SEN. SCHUMER: Okay. Well, let's see who said that one. It was Robert Bork when he came before this committee to be nominated.

Now, here's what Justice -- Judge Bork wrote in the National Review Online just a few weeks ago. He wrote, quote:

Overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Many justices have made the point that what controls is the Constitution itself, not what the court has said about it in the past.

And even before his hearing, by the way -- he sort of cut back on what he said at the hearing, I guess -- it may have been in different context, but here is a quote that he'd said a few -- a year, I think, before he came before us. He said

I don't think that in the field of constitutional law, precedent is all that important.

He said, in effect, that a justice's view of the Constitution trumps stare decisis.

. . . And one of the things I'm concerned about here is that what you wrote about Judge Bork in 1988. And by the way, this was not when you were working for someone or applying for a job. As I understand it, you were the U.S. Attorney in New Jersey, well ensconced, very good U.S. Attorney, and it was with some New Jersey news outlet. I saw the site, but I didn't know what it was.

And you said about Justice Bork:

I think he was one of the most outstanding nominees of this century. He's a man of unequaled ability [and] understanding of constitutional history.

. . .

JUDGE ALITO: Well, I certainly was not aware of what he had said about stare decisis when I made those comments. I have explained those comments. They were made when I was a -- an appointee of President Reagan, and Judge Bork was --

SEN. SCHUMER: But you weren't -- excuse me. You weren't working in the White House. You were a U.S. attorney prosecuting cases. There was no obligation for you to say what you said, right?

JUDGE ALITO: No, but I had been in the Department of Justice at the time about --

SEN. SCHUMER: You know, but it was a voluntary interview with some New Jersey news outlet. Is that correct?

JUDGE ALITO: And I was asked the question about Judge Bork, and I had been in the department at the time of the nominee -- at the time of his nomination, and I was an appointee of President Reagan, and I was a supporter of the nomination.

Say Anything Sammy is saying 'Hey, I needed to kiss up to the boss. What do you want from me?'

In other words, the question for Say Anything Sammy is "were you lying then or are you lying now?"

Who is the jurist Alito admires most? Why Robert Bork:

Speaking on a New Jersey public affairs television program, [Alito] showcased the philosophy that had won the confidence of his Washington mentors.

Asked his opinion of President Ronald Reagan's nomination of Robert H. Bork to the Supreme Court, Alito gave a ringing defense of the conservative icon he said had been "unjustifiably rejected" by the Senate in one of the most ideologically polarizing nomination battles in decades.

"I think [Bork] was one of the most outstanding nominees of this century," Alito told Michael Aron of NJN News's "Front Page New Jersey" in a little-noticed 1988 interview. "He is a man of unequaled ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role it ought to play in American society."

In case you were wondering who Alito's judicial role model was.

I have teamed up with Majority Report Radio to feature a Fighting Dem every Tuesday. Today's edition features Bill Winter in Colorado's 6th Congressional District.

The concept of the "Fighting Dem" has really taken off as of late. The Atlantic Monthly is the latest to note this phenomenon:

The midterm elections this fall will be the first in which a sizable number of veterans from the wars in Afghanistan and Iraq run for Congress. At least fourteen have declared so far. But in an era when military and national-security issues have long been the province of the Republican Party--indeed, are thought to have strengthened the GOP's grip on the White House and Congress in the past two elections--the bigger surprise is under whose banner these veterans are choosing to run. Like Walz, nearly every one of them is a Democrat [...]

The subsequent group of veterans very much resembles Hackett: they are generally young (most in their thirties and forties), new to electoral politics, and, with varying degrees of intensity, critics of the administration. At a time when the public's opinion of lawmakers in both parties is abysmal, these veterans are running on the attractively civic-minded notion that service in Congress is a patriotic extension of service in the military. They are spread throughout the country but concentrated in military-heavy states like Pennsylvania, North Carolina, Virginia, Ohio, and Texas, where the war and its effects are most keenly felt.

Republicans are worried. As the NRCC's David Forti said, dismissing the pedigree of our Fighting Dems in an election where hardly any veterans are running as Republicans:

"These are Democrats who happen to be military veterans who are running for Congress," he said of Veterans for Security. "It's one résumé item."

Bill Winters is running against one of the House's most high-profile haters -- the xenophobic Tom Tancredo. Tancredo has led the GOP's fight to seal the borders against immigrants for some time, and is rumored to be considering a vanity presidential bid to promote his issue in 2008. Tancredo is virtually a one-note wonder, rarely straying from his seething outrage at the brown menace crossing our southern border and keynoted the kickoff meeting of the Minutemen -- those vigilante weirdos "patrolling" our border. He's also brought us such classics as bombing Mecca if terrorists nuked us.

As for Winters, a Colorado Statesman piece (reprinted at Winter's campapign site) summarizes his bio:

Bill Winter, a 41 year-old local attorney, recently declared his candidacy against incumbent Republican Rep. Tom Tancredo. And while the suburban district is still comprised mostly of Republicans and Unaffiliateds - with only 23.2 percent officially registered as Democrats as of last month - Winter is hoping his candidacy will catch fire.

"I want to reach out to everyone - Republicans and Unaffiliateds included, not just Democrats," Winter said this week. "I believe it is time that we all stopped saluting donkeys and elephants, and began to salute the American flag."

Tancredo, who was first elected as congressman in the district back in 1998, received 67 percent of the vote in 2004.

"I know the odds say we can't do it," Winter said about his ambitious plans for next year, "but I don't worry about the odds too much... you've got a mission, you go out and find a way to accomplish it."

If the rhetoric sounds a little military-like with its call for action, it might be because Winter is a veteran of the U.S. Marine Corps and the Navy.

In fact, Winter is one of 31 veterans nationwide who are running for Congress as Democrats against Republican incumbents [...]

Winter is the former president of Be the Change, USA, a grassroots organization that promotes progressive ideals. The organization evolved from Mike Miles' 2004 U.S. Senate campaign, and continues to support "progressive political issues and work to increase grassroots involvement and influence."

The Colorado 6th:

(Click image to enlarge)

This is a tough district, no doubt, but the kind of place we must challenge to take the battle to Republicans in every corner of our great nation.

More:

• My take on why the Fighting Dems matter.
  
• The Mother Jones article on Fighting Dems.
  
• Bill Winter's official campaign site.

The segment will run at around 9:20 p.m. ET, though your local Air America affiliates may have it at different times.

Previous Featured Fighting Dems:

• Tim Dunn (NC-08)
  
• Charles Brown (CA-04)
  
• Eric Massa (NY-29)
  
• Dave Harris (TX-06)
  
• Andrew Duck (MD-06)
  
• Patrick Murphy (PA-08)
  
• Paul Hackett (OH-Sen)
  
• Bryan Lentz (PA-07)
  
• David Ashe (VA-02)

You can get streams of these segments on Air America's Fighting Dems site. And there's a Fighting Dem ActBlue page, so show your support if you can.

In his answers to the questions of Senator Russ Feingold (D-WI) on Presidential power, it appeared to me that Samuel Alito tried to give the impression that he viewed the President as required to "faithfully execute the laws" and thus, Alito wishes us to think he believes, the President can not disregard duly enacted federal law. However, Alito was very careful to say that the President most importantly, must "follow the Constitution." Sounds good right? Well John Yoo said the same thing:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President.

See how that works? The President must "faithfully execute the law," but most importantly the Constitution. And no doubt most importantly, the Bush/Yoo/Alito view of a prohibition in Article II of the Constitution prohibiting Congressional regulation of the President as Commander in Chief.

Significantly, Alito said that the President must "faithfully execute the laws" except those he believes are unconstitutional! The President's judicial power? Who knew?

But you get it now. What Alito told Feingold could have been repeated, indeed no doubt was, verbatim by John Yoo. Cold comfort from Alito on the issue of the President as King.

Our unpopular president:

President George W. Bush denounced some critics of the Iraq war as irresponsible on Tuesday and called for an election-year debate that "brings credit to our democracy, not comfort to our adversaries."

In a speech to the Veterans of Foreign Wars, Bush made clear he was girding for battle with Democrats in the run-up to the mid-term congressional election in November, when he will try to keep the U.S. Congress in the hands of his Republican Party.

"There is a difference between responsible and irresponsible debate and it's even more important to conduct this debate responsibly when American troops are risking their lives overseas," Bush told the veterans organization.

So what is "responsible" debate according to Bush? Indeed, it's the pro-war side that has accused critics of being any of the following: traitors, terrorists, un-American, anti-American, and unpatriotic.

And wouldn't you know it, here's Bush's list of "irresponsible" critics:

Bush did not mention names, but aides said he was referring to Democratic Party chief Howard Dean, along with Senate Minority Leader Harry Reid, a Nevada Democrat, and Sen. Dick Durbin, an Illinois Democrat.

Reid's response:

Reid said it was outrageous that Bush was using U.S. troops as a shield from criticism in an address to veterans and also had refused to address a recent Pentagon report on the inadequacy of body armor for American soldiers in Iraq.

"Patriotic Americans will continue to ask the tough questions because our brave men and women in Iraq, their families and the American people deserve to know that their leaders are being held accountable," Reid said.

Bingo. They want an honest debate? They'll get an honest debate.

They can start explaining why things in Iraq continue to get worse? Remember, the war cheeerleaders couldn't believe that us critics weren't celebrating yet another meaningless election. And why would we?

This isn't a sign that things are improving.

So can we debate whether their lives were worth surrendering to Bush's misadventures? Can we debate whether the $1 trillion cost of the war could've been better spent elsewhere? Can we debate why the administration got us into a war without adequate planning? Can we debate what the parameters for "victory" might be?

Can we debate why we don't have an exit strategy?

Alito has center stage today, but here are some other things for those looking for a change of scenery.

• Sirota looks at the double standard for IRS privacy. Hint, it's different if you're a regular schmoe than if you are rich or a large corporation.

• Congressional leaders received this letter from 14 law professors and former government officials. It says that the NSA warantless spying violates the Constitution.

• NJ legislature halts executions, becoming the third death penalty state to do so. And the vote was bipartisan. The reason? It's too costly to administer.

• The public is Paying attention to the Republican corruption scandals. A USA Today/CNN/Gallup poll shows majorities who think Abramoff is a "major scandal" and 50 percent think Republican legislative priorities will move the country in the wrong direction. And then there's this bit of good news:

  For the first time since 1994, a plurality of Americans say most members of Congress don't deserve re-election. The 42% who say most members do deserve re-election is the same as in the first USA TODAY survey of 1994.

  We all remember what happened in 1994.

• The two frontrunners to replace DeLay -- Blunt and Boehner -- have extensive ties to K Street. Republicans are about to replace DeLay with DeLay-lite.

• Josh Marshall: Before we clean up the neighborhood (Congress) we need to sweep the criminals off the streeet. Good analogy.

• Apple just announced new Intel-powered Powerbooks MacBooks. I hate the new name, but I'm buying one. My current machine is in its last legs. I abuse these poor machines.

• Ed Gillespie pretends he doesn't know Jack Abramoff. But he does. All Republicans do.

• Meanwhile, Abramoff's lobbying firm shuts its doors. Don't worry. The principals (those not in jail) will reconstitute in a new firm. And it'll be business as usual.

• Many of the nation's top libraries have books bound in human skin. Apparently, human leather was a cheap alternative back in the late 1800s.

In light of Senator Kennedy's sharp questioning on Alito's zealous belief in the "unitary executive," it is important to understand what that means. In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure . . . ." "[T]he case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The Bybee Memo put it this way:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

Alito did NOT disavow this view of an unfettered Presidential power - of the President as King.

Kennedy is up. Hitting Alito on Vanguard.

After stating again this morning that he had no recollection of joining Concerned Alumni for Princeton, the racist and sexist organization that objected to women and minorities being admitted at Princeton, despite having included it in his job application to work for Ed Meese in 1985, Alito this morning now pretends to remember WHY he joined an organization he says he does not remember joining.

So Alito's story on CAP is that 'he didn't do it, and if he did do it, he doesn't remember, and if he did do it and does remember, then he had a good reason for doing it.'

My gawd, it takes some chutzpah to come up with that one.

The truth and Alito are finding it hard to stay in the same room right now.  

In his answers to Senator Arlen Specter's question, Judge Samuel Alito acknowledged that the 1985 memo where he stated that he supported the goal of overturning roe v. Wade expressed his personal views at the time.

He did not clarify whether he still believes it but implicitly seemed to accept that when he argued that as a judge he would put his personal feelings aside and determine whether the doctrine of stare decisis compelled upholding Roe.

This makes it clear, Alito would vote to overturn Roe UNLESS the doctrine of stare decisis compelled otherwise.

As for stare decisis, Alito stated repeatedly that it "is not an inexorable command."

It seems clear that Alito will likely vote to overturn Roe if he is confirmed to the Supreme Court.

Update [2006-1-10 11:40:11 by Armando]: People for American Way reminds us that: Judges are not computers; their values come into play, particularly in the disputed cases that reach the Supreme Court. Judge Richard Posner put it this way: "Constitutional cases in the open area are aptly regarded as "political" because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment..." That is why we can be certain that Alito would vote to oveturn Roe.

The hearings starting now.

An Open Thread for the Alito Hearings.

Specer first. Specter begins with "is there a right to privacy?" question. Alito's answer was weak and full of holes. Requires followup. Now Roe and Casey.

Specter quotes from Casey and queries on stare decisis. Alito says stare decisis a "very important doctrine." But it is "not an inexorable command." Avoids any specifics on Roe.

Alito is much more evasive on Casey than was Roberts. Roberts was just smoother. Alito says Court should not make decisions based on "public opinion." A nonsequitor to me.

Specter presses on the precedent point by referring to Rehnquist's upholding Miranda in Richardson on stare decisis grounds. Alito does not say that he agrees with Rehnquist in Richardson.

Specter then discusses the famous dissent by Justice Harlan in Poe v. Ullman:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. and asks Alito if he agrees with Justice Harlan. Alito evades the question.

Specter then asks about the concept of "superprecedent." Alito rejects the idea. But concedes the idea that reaffirming precedents has weight. But he stresses that "stare decisis is not an inexorable command."

Specter asks about the 1985 memo where he stated that the favored the reversal of Roe. Alito admits that is what he believed but that he would approach the issue with an open mind. He says that "now that he is a judge, he puts his personal feelings aside." Riiiight.

But this is important -- Alito believes Roe was wrongly decided and the only reason he would not overturn it is if stare decisis compells it. Understand that point, Alito will overturn Roe UNLESS he believes stare decisis prevents it.

That is a critical admission by Alito.

Presidential Power. Specter cites Justice Jackson's concurrence in the Youngstown Steel Seizure cas es and asks Alito if he agrees with it. Alito says it is a "useful guideline." Alito says he agrees with O'Connor's "war is not a blank check" line from Hamdi. This is all meaningless when you consider his "unitary executive" theory. War need not be a blank check if you think the Constitution provides for unfettered Presidential power.

Specter now asks a complicated question about whether the AUMF amended FISA and how to determine that type argument. Alito answers that he would start the inquiry with a review of the statutes and resolution, then he would apply Justice Jackson's framework. But then he refuses to answer the question saying it may arise in a case before him.

Specter finally asks him about Alito's errors in his memo regarding Presidential signing statements where Alito said that the Presidential power is equally important to that of the Congress in the area of lawmaking. Alito does not disavow it, but calls it a "rough first memo."

Leahy now up.

Alito remarkably will not let go of the idea that the President has a say in the drafting of legislation. He seems not to understand that the lawmaking power vests solely in the Congress. I am nonplussed. It is an indefensible position and wonder how he can continue to maintain it. On the President's argument that he can "immunize" officials from following the law. As Leahy properly puts it, 'is Alito saying that the President can do this in some circumstances?' Alito's game of "following the Constitution." Indeed, Alito can not bring him self to say the President can not override the law. Remarkable.

So far, we can say one thing for sure - Alito is no John Roberts.

From the GREAT STATE OF MAINE...

George W. Bush--April 20, 2004:  "Any time you hear the United States government talking about wiretap, it requires---a wiretap requires a court order.  Nothing has changed, by the way.  When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

-

George W. Bush, July 14, 2004:  "A couple of things that are very important for you to understand about the Patriot Act.  First of all, any action that takes place by law enforcement requires a court order.   In other words, the government can't move on wiretaps or roving wiretaps without getting a court order."

As the spying-on-our-own-citizens scandal unfolds, the favorite talking point of the right-wing pundits has been, "The president had to bypass the FISA law, because there simply wasn't enough time to get a warrant!"  Fortunately, people like Miami Herald columnist Leonard Pitts are part of the reality-based community:

We know now what he knew then: This was a lie.

Want to guess how long it takes to get a warrant to eavesdrop? ... In extraordinary circumstances, investigators can listen in for up to 72 hours without a warrant.   You know how many warrant requests were submitted to the Foreign Intelligence Court last year?  According to The [New York] Times, 1,754.  How many were rejected?  None.

And yet a sizable chunk of Americans sincerely but naively are willing to give up their freedom because they think "the president is just trying to protect us."  For them a couple reminders are in order.  The first by columnist Bob Herbert from yesterday's The New York Times:

For a president---any president---to O.K. eavesdropping on U.S. citizens on American soil without a warrant is an abomination.  First, it's illegal---and for very good reasons.  Spying on the populace is a giant step toward totalitarianism.  In the worst case scenario, it's the nightmare of Soviet-style surveillance.

Related to that is the all-important matter of the separation of powers, which is the absolutely crucial cornerstone of our form of government---our bulwark against tyranny. ... Get rid of the checks and balances and you've gotten rid of the United States as we've known it.

The second comes from Mr. Pitts:

...It's not hard to understand the urge to look the other way.  Because with all due respect to the threat terrorists pose, Franklin Roosevelt was right.  Fear itself is still the first enemy.  When people are scared, they don't think, they don't reason and they want nothing so desperately as to just stop being scared.  So often, they'll go along with anything that holds out that promise.  Even if it means allowing the rights our forebears won from Britain's King George III to be denuded by America's King George I.

Still, we should be ashamed.

Freedom deserves a better epitaph than fear.

The ultimate irony?  Even after four years of Bush's secret spying shenanigans and public pledges to "protect the homeland," the 9/11 commission says we're still not any safer.  Now that's something to be afraid of.

Cheers and Jeers cowers under the bed in There's Moreville... [Swoosh!!]  RIGHTNOW!  [Gong!!]