Alito to USSC

Off Topic Politics & World Issues
81

[quote]BostonBarrister wrote:

In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

…

In the letter, Sunstein began by saying that he had done the study not for reasons of academic curiosity but because Kennedy asked him to.

[/quote]

Sunstein is connected to the University of Chicago, the birthplace of American neoclassical-free market economics. As much as anyone would like to contend that it is not the case, there is a great deal of transference across the departments at a university. Does it then come as any surprise that he was particularly harsh on Alito’s rulings related to individual freedoms, as they constitute one of the rallying points of the economic ideology proffered by the University of Chicago.

Sunstein’s methodology was absolute crap too.

Additionally, most any research study cited by a polititian most often originated with a think tank, most of which are quite partisan by virtue of the composition of their funding. Similarly, research cited by polititians is often methodologically shaky or flawed, as is the case here. As is also the case here, much of the research cited by polititians is done at the request, with the funding, etc. of an individual or group linked to a particular party or cause

82

The Economist takes a look at the “grave concerns” of the honorable senior Senator from Massachusetts:

[i] TED KENNEDY is deeply troubled by the ethics of the Supreme Court nominee. Between 2001 and 2006, Samuel Alito, who is currently an appeals court judge, accepted $7,684,423 in ?donations? from special interests who perhaps wanted the law tweaked in their favour. That included $28,000 from defence contractors, $42,200 from drug firms and a whopping $745,373 from lawyers and law firms.

No, wait. Those are Senator Kennedy's conflicts of interest?or, rather, a brief excerpt from a long list compiled by the Centre for Responsive Politics. The lapse for which the senator berated Mr Alito was considerably less clear-cut.[/i]

Heh. To repeat what I said on another thread, getting lectured on ethics by Ted Kennedy is like getting lectured on parenting by Andrea Yates.

The article then takes a look at the Vanguard crap, and some of the other claims:

[i] To avoid conflicts of interest, Judge Alito invests most of his savings in mutual funds, rather than individual firms that might appear before him. He does it through an investment company called Vanguard. Though no rule required this, he promised, when nominated to the appeals court in 1990, that he would disqualify himself from cases involving Vanguard. Twelve years later, such a case came up, but he forgot to recuse himself. When he realised his mistake, he recused himself from a fresh appeal. No one claims that he stood to benefit from his judgment.

… one would expect senators to ask him tough questions. Instead, most chose to make speeches. On the second day of hearings, ten out of the first 12 senators spoke for longer than the nominee. Patrick Leahy of Vermont waxed thespian on the subject of strip-searching young girls, a practice of which he said Mr Alito was too tolerant. In one burst, he rolled the words “strip-search” around his mouth four times and “ten-year-old girl” five times.

Judge Alito, when he could get a word in edgeways, explained that in the case in question, police officers asked a magistrate for permission to search everyone in a suspected drug dealer's house, since they had cause to believe he hid his wares on other people. The officers got a warrant that they thought authorised this, but which lawyers subsequently argued didn't. The suspected dealer's wife and daughter were searched by a female officer. No drugs were found. The officers were sued. Judge Alito voted to dismiss the suit, arguing that the officers had reasonable grounds to think the search was warranted. [/i]

And, a nice summation:

Even a cursory look at his record shows that the sound-bite charges against Judge Alito?that he doesn’t think machineguns should be regulated, that he never sides with blacks alleging discrimination?are simply untrue. His record on the bench is one of cautious rulings and scrupulous deference to precedent.

83

[quote]BostonBarrister wrote:
The Economist takes a look at the “grave concerns” of the honorable senior Senator from Massachusetts:

[i] TED KENNEDY is deeply troubled by the ethics of the Supreme Court nominee. Between 2001 and 2006, Samuel Alito, who is currently an appeals court judge, accepted $7,684,423 in ?donations? from special interests who perhaps wanted the law tweaked in their favour. That included $28,000 from defence contractors, $42,200 from drug firms and a whopping $745,373 from lawyers and law firms.

No, wait. Those are Senator Kennedy's conflicts of interest?or, rather, a brief excerpt from a long list compiled by the Centre for Responsive Politics. The lapse for which the senator berated Mr Alito was considerably less clear-cut.[/i]

Heh. To repeat what I said on another thread, getting lectured on ethics by Ted Kennedy is like getting lectured on parenting by Andrea Yates.

The article then takes a look at the Vanguard crap, and some of the other claims:

[i] To avoid conflicts of interest, Judge Alito invests most of his savings in mutual funds, rather than individual firms that might appear before him. He does it through an investment company called Vanguard. Though no rule required this, he promised, when nominated to the appeals court in 1990, that he would disqualify himself from cases involving Vanguard. Twelve years later, such a case came up, but he forgot to recuse himself. When he realised his mistake, he recused himself from a fresh appeal. No one claims that he stood to benefit from his judgment.

… one would expect senators to ask him tough questions. Instead, most chose to make speeches. On the second day of hearings, ten out of the first 12 senators spoke for longer than the nominee. Patrick Leahy of Vermont waxed thespian on the subject of strip-searching young girls, a practice of which he said Mr Alito was too tolerant. In one burst, he rolled the words “strip-search” around his mouth four times and “ten-year-old girl” five times.

Judge Alito, when he could get a word in edgeways, explained that in the case in question, police officers asked a magistrate for permission to search everyone in a suspected drug dealer's house, since they had cause to believe he hid his wares on other people. The officers got a warrant that they thought authorised this, but which lawyers subsequently argued didn't. The suspected dealer's wife and daughter were searched by a female officer. No drugs were found. The officers were sued. Judge Alito voted to dismiss the suit, arguing that the officers had reasonable grounds to think the search was warranted. [/i]

And, a nice summation:

Even a cursory look at his record shows that the sound-bite charges against Judge Alito?that he doesn’t think machineguns should be regulated, that he never sides with blacks alleging discrimination?are simply untrue. His record on the bench is one of cautious rulings and scrupulous deference to precedent.[/quote]

Well we can only hope to God he doesn’t get voted in. (Please filibuster)
An activist to the right of activists Thomas and Scalia? Yikes!
As for Vangaurd. He lied. He flat out lied. With mulitple excuses. And it’s not about “machine guns” it’s about the commerce clause and Alito’s view of it (He’s nuts if you check his dissent–IMHO, or he loves machine guns.)

84

I don’t think Sam is that bad at all.

85

I’m so sick of hearing about Roe and the whole abortion thing from both the right and the left. The bullshit from both sides on this matter is so transparent that it’s astounding. Seeing people with signs cheering him explicitly for his expected opposition as well as their counterparts just turns my stomach as does all this ridiculous pageantry from these senators. With Dems like Teddy boy trying to spin political straw into gold and the Republicans giving ten minute long speeches which one would expect to lead into them felating him, where is the actual debate?

My main questions about him regard his views on executive and law enforcement powers. With the smokescreen provided by the abortion “debate” I haven’t seen too much substantitive discussion.

86

I think if the left was serious about not getting Alito confirmed, they would have shut up their grandstanding and made him talk more than they did. But Biden, Kennedy and the rest of the left-wing idiots are like drunks at a karaoke bar - they can’t pass up the opportunity to hear themselves over the loudspeaker.

They also should have talked about something besides R. v. Wade. They only made cursory attempts at anything else.

I pray for a fillibuster and one gang of 14 to cross the picket line.

If Ginsberg can wear the robe - Alito should be a slam dunk.

87

[quote]rainjack wrote:
I think if the left was serious about not getting Alito confirmed, they would have shut up their grandstanding and made him talk more than they did. But Biden, Kennedy and the rest of the left-wing idiots are like drunks at a karaoke bar - they can’t pass up the opportunity to hear themselves over the loudspeaker.

They also should have talked about something besides R. v. Wade. They only made cursory attempts at anything else.

I pray for a fillibuster and one gang of 14 to cross the picket line.

If Ginsberg can wear the robe - Alito should be a slam dunk. [/quote]

Ginsberg could (proudly)stand by her record.
Were you director of the ACLU womens’ rights project? Yep.

Alito had to lie/evade/dismiss his.
Were you a member of CAP? I don’t know.

88

[quote]100meters wrote:

Alito had to lie/evade/dismiss his.
Were you a member of CAP? I don’t know.[/quote]

If Alito can’t stand behind his record, why are 3rd Circuit judges who don’t share his politics standing up for him?

89

[quote]100meters wrote:
Ginsberg could (proudly)stand by her record.
Were you director of the ACLU womens’ rights project? Yep.

Alito had to lie/evade/dismiss his.
Were you a member of CAP? I don’t know.
[/quote]

Ginsberg is the definition of partisan hack, and the poster child for legislating from the bench. Working for the ACLU should automatically bar you from ever sitting on a bench at any level.

Just because Alito didn’t answer the questions the way you wanted him to does not make him a liar. I can’t even tell you the names of clubs I went to for one meeting.

Besides - are you equating a college club with the ACLU? Please. Desperation is oozing all over your post.

90

[quote]thunderbolt23 wrote:
100meters wrote:

Alito had to lie/evade/dismiss his.
Were you a member of CAP? I don’t know.

If Alito can’t stand behind his record, why are 3rd Circuit judges who don’t share his politics standing up for him?[/quote]

That has what to do with his evasion/lies?

91

[quote]rainjack wrote:
100meters wrote:
Ginsberg could (proudly)stand by her record.
Were you director of the ACLU womens’ rights project? Yep.

Alito had to lie/evade/dismiss his.
Were you a member of CAP? I don’t know.

Ginsberg is the definition of partisan hack, and the poster child for legislating from the bench. Working for the ACLU should automatically bar you from ever sitting on a bench at any level.

Just because Alito didn’t answer the questions the way you wanted him to does not make him a liar. I can’t even tell you the names of clubs I went to for one meeting.

Besides - are you equating a college club with the ACLU? Please. Desperation is oozing all over your post.
[/quote]

A smart man forgetting CAP on resume. LIE.

A smart man with multiple reason for not recusing himself from vangaurd cases. LYING.

No there is no comparison between a racist group, and a group protecting constitutional rights.

92

[quote]100meters wrote:

A smart man forgetting CAP on resume. LIE.[/quote]

This is crap. I’ll bet if you looked at my college application (the closest corrolary I could come up with for myself to a 20-year-old resume), I listed on it some clubs that I could barely remember at all, let alone remember being a member of.

[quote]100meters wrote:

A smart man with multiple reason for not recusing himself from vangaurd cases. LYING.[/quote]

Please explain this one to me. There was no ethical rule requiring Alito to step down related to Vanguard. Apparently he made a statement during his confirmation hearings for the 3rd Circuit, which, like this one, were long on bloviating Senatorial comments, to the effect that he would recuse himself w/r/t Vanguard. And he forgot. But when it was pointed out, he fixed it.

Plus, have you even looked at this case? What kind of financial impact do you think this would have on a share of the Vanguard S&P 500 tracking mutual fund. These are precisely the type of investments we encourage judges to make, so they can avoid conflicts of interest.

Now, if you want to consider conflicts of interest that might actually affect the outcome of a case, you may want to consider Justice Breyer, who did not recuse himself from a case involving sentencing guidelines:

http://bench.nationalreview.com/archives/087010.asp

[i]More on Conflicts, Kennedy, Breyer and Vanguard
[Andrew C. McCarthy 01/12 02:13 PM]

Justice Breyer has been called ?one of the ‘parents’ of the federal sentencing guidelines? by one commentator. In 1984, as chief counsel to the Senate Judiciary Committee, he was deeply involved in crafting the Sentencing Reform Act that gave birth to them. Later, as a Circuit Court judge, he was a member of the first Sentencing Commission which promulgated the guidelines and gave them their structure. In 2004, with Breyer now an Associate Justice, cases squarely challenging the constitutionality of those guidelines were accepted by the Supreme Court for review. Justice Breyer not only declined to recuse himself; last term, he wrote the 5-4 majority opinion in the portion of the Booker and Fanfan cases that preserved the guidelines from what would otherwise have been complete oblivion.

I am not saying that Justice Breyer violated judicial ethics by sitting on a case involving a subject in which he was deeply invested ? albeit professionally, not financially. He obviously considered the potential conflict and the appearance-of-impropriety standard, and sat on the case because he believed he could be fair and impartial. I have no doubt Justice Breyer made that decision honorably.

But I do think it?s fair to consider: Ted Kennedy is desperately spinning a conflict of interest out of Vanguard despite the fact that Judge Alito was apparently unaware of a Vanguard connection in the case, recused himself upon learning of it, and had the case reconsidered by a new panel to insure there was not even an appearance of impropriety. How does that stack up against Justice Breyer?s quite conscious decision to both participate and be the difference-maker in the case examining the validity of guidelines he helped write?[/i]

Or, perhaps, Justice Ginsberg:

http://levin.nationalreview.com/archives/086968.asp

[i]Mutual Concerns

Ethics expert Ted Kennedy is offended by Judge Alito’s participation in a case involving the Vanguard mutual fund, in which Alito has been invested. When he became aware of Vanguard?s connection in the case, Alito immediately recused himself despite the fact he was under no legal obligation to do so and neither Vanguard nor he benefited from his ruling. After he informed the other judges on his court, a new panel reheard the case and issued the same ruling. Now, if this is a basis for denying Alito a seat on the Supreme Court, then I would think if a Supreme Court justice ruled in cases involving companies in which her husband was invested, that would be grounds for impeachment then, no? That?s exactly what happened with Associate Justice Ruth Bader Ginsburg. As reported by the New York Times (“The Husband Of A Justice Sells His Stock After Scrutiny,” July 11, 1997):

"The husband of Justice Ruth Bader Ginsburg said today that he had ordered his broker to sell all the stocks in an individual retirement account after a news magazine reported that Justice Ginsburg had failed to disqualify herself from more than 20 cases involving companies his account held. Insight magazine ? said in its July 28 issue that Justice Ginsburg might have violated Federal law as well as professional codes of ethics by participating in cases since 1995 in which her husband, Martin D. Ginsburg, had a financial stake. The magazine said it was not clear, however, that her involvement affected the outcome of the cases, most of which it said were procedural rulings in which the Court formally decides whether to take a case." ?

Mr. Ginsburg issued the following statement in response to the report:

"I had not appreciated that stocks held in an I.R.A. account managed by a third party professional raised the concern Insight has highlighted. After reading the article, I promptly instructed Smith Barney to sell all stocks in the I.R.A. account and to invest in mutual funds."

The reason Mr. Ginsburg had his investments transferred from an I.R.A. to a mutual fund is because mutual funds are exempted from conflict-of-interest implications because investors have no control over the companies mutual funds invest in. However, when you own an I.R.A., you can direct your investments. Justice Ginsburg?s oversight raised far more serious ethical issues than Judge Alito?s mutual-fund investment. According to the Washington Times, Mr. Ginsburg?s I.R.A. investments included stocks in such companies as Exxon, General Electric, AT&T, and Proctor & Gamble ? all of which were involved in cases that Justice Ginsburg participated in. Somebody wake-up the new ethics watchdog on the Senate Judiciary Committee and ask him to square his criticism of Alito with his silence on Ginsburg. [/i]

[quote]100meters wrote:

No there is no comparison between a racist group, and a group protecting constitutional rights.[/quote]

There’s no need to compare them, because it’s irrelevant. What would be relevant would be how many positions Ginsberg advocated on behalf of the ACLU that were directly related to cases in which she sat in judgment.

93

[quote]rainjack wrote:
I think if the left was serious about not getting Alito confirmed, they would have shut up their grandstanding and made him talk more than they did. But Biden, Kennedy and the rest of the left-wing idiots are like drunks at a karaoke bar - they can’t pass up the opportunity to hear themselves over the loudspeaker.
[/quote]

Blowhards though they are, they have no power to make Alito speak. Only the Republicans can do that and we know how likely that is to happen.

94

[quote]
rainjack wrote:
I think if the left was serious about not getting Alito confirmed, they would have shut up their grandstanding and made him talk more than they did. But Biden, Kennedy and the rest of the left-wing idiots are like drunks at a karaoke bar - they can’t pass up the opportunity to hear themselves over the loudspeaker.

etaco wrote:

Blowhards though they are, they have no power to make Alito speak. Only the Republicans can do that and we know how likely that is to happen.[/quote]

I wonder if perhaps they should stop televising these things.

In an amazing coicidence, these sorts of hearings are a modern development, which came about roughly the same time as television. Prior to that time, nominees didn’t appear before the Senate for interrogation.

Does anyone really think any Senators decide how they are going to vote on a nominee based on these hearings?

95

[quote]etaco wrote:
I’m so sick of hearing about Roe and the whole abortion thing from both the right and the left. The bullshit from both sides on this matter is so transparent that it’s astounding. Seeing people with signs cheering him explicitly for his expected opposition as well as their counterparts just turns my stomach as does all this ridiculous pageantry from these senators. With Dems like Teddy boy trying to spin political straw into gold and the Republicans giving ten minute long speeches which one would expect to lead into them felating him, where is the actual debate?

My main questions about him regard his views on executive and law enforcement powers. With the smokescreen provided by the abortion “debate” I haven’t seen too much substantitive discussion.[/quote]

This post from Ann Althouse should interest you:

“Legal gobbledygook.”

After counting the minutes to get to the end of the Alito hearings last week, you might want to start off this week by counting words in the transcripts. Dana Milbank has this ( http://www.washingtonpost.com/wp-dyn/content/article/2006/01/15/AR2006011500966.html ):

[i]By the numbers, Judge Alito's language was painfully cautious. He mentioned "stare decisis" -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times).

The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.[/i]

“Humphrey’s Executor” (whoever he is)… A thousand conlaw profs wring our hands. “Humphrey’s Executor” (whoever he is)! As if that’s just some obscurity Alito threw out to bamboozle us.

IN THE COMMENTS: Stiles defends Milbank:

[i]For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community.[/i]

John Althouse Cohen responds to Stiles:

[i]Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson.[/i]

I [Note: This, and the subsequent “I”, are Professor Althouse] add:

[i]They were too busy observing that it was all gobbledygook and that he wasn't saying anything to listen carefully enough to have a shot at understanding it. But yeah, it was quite comprehensible, even though... Senator Kennedy tried his best to fuzz it up because it had to do with the "unitary executive" issue that he was trying to alarm people about.[/i]

I include a long passage from the Thursday transcript ( http://www.washingtonpost.com/wp-dyn/content/article/2006/01/12/AR2006011201031.html ) that shows how Alito explained the case and Kennedy tried to make Alito look extreme.

[i]SENATOR EDWARD KENNEDY (DEMOCRAT

Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I, I’ve asked you questions about this earlier in the week and my colleagues have. I’m not going to get back into the speech that you gave at the Federalist Society. One aspect, well, I’ll mention just the one part of it that is of concern: 'If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches, legislative, executive, judicial, and the logical candidate is the executive branch."

SENATOR EDWARD KENNEDY (DEMOCRAT

'And the president," it continues, 'the president has the power and the duty to supervise the way in which the, to which the board and the executive branch officials exercise the president’s power, carrying federal law into execution." So we, we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I’m trying to get through some material.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

It was that, yes. It was the leading case. It was followed up by Morrison cases.

SENATOR EDWARD KENNEDY (DEMOCRAT

Followed up by the Morrison case as the controlling case on these administrative agencies. But what you haven’t mentioned to date is that the theory, what you, you haven’t mentioned to date is your dissent from the Morrison case. We’ve been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative, and judicial, and now we have this unitary presidency which many people don’t really kind of understand and it sounds a little bizarre.

SENATOR EDWARD KENNEDY (DEMOCRAT

We want to know about, you’ve indicated support for it. You’ve commented back and forth about it. You’ve indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority. This in the Morrison, at, at, your comments about the Morrison, you say, you then proceed to outline a legal strategy for getting around Morrison. This is what you said: 'Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned, at least the objectives for setting up a unitary executive.

SENATOR EDWARD KENNEDY (DEMOCRAT

'That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making." Our questions in this hearing is: What is your view of the unitary presidency? You’ve responded in a number of our people, but we were interested in your view and your, your comments on the, on the Morrison case, which you say is the controlling, but we want to know your view.

SENATOR EDWARD KENNEDY (DEMOCRAT

And it includes these words: 'That could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making." Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

I don’t think that it would, Senator. The administrative agencies, the term administrative agencies is a broad term, and it includes…

SENATOR EDWARD KENNEDY (DEMOCRAT

The Federal Reserve?

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

It, it includes agencies that are, that are not regarded as so-called independent agencies. The agencies, it includes agencies that are within, that are squarely within the executive branch under anybody’s understanding of the term, agencies where, that are headed by a presidential appointee whose term of office is at the pleasure of the president.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

And that’s principally what I’m talking about there, the ability of the president to control the structure of the executive branch, not agencies, the term administrative agencies is not synonymous with agencies like the FTC, which was involved in the, the Humphrey’s Executor case where the agency is headed by a commission and the commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency, of, of the commissioners.

SENATOR EDWARD KENNEDY (DEMOCRAT

Well, the, the point, Judge, the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, 'The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate. You’re admitting now that it has to do with the administrative agencies and this would have a dramatic and important reconsideration of the balance between the executive and the Congress.

SENATOR EDWARD KENNEDY (DEMOCRAT

I haven’t got the, the time to go through. But we’re talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

Senator, as to the, the agencies that are headed by commissions, the members of, of which are appointed for terms, and there are limitations placed on removal, the precedents, the, the, the leading precedent is Humphrey’s Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison, which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the, the, the enforcement of the law, taking care that the laws are faithfully executed.

SENATOR EDWARD KENNEDY (DEMOCRAT

But the, the point here is you take exception to Morrison. You’re very clear about, we’re interested in your views. We understand the Humphrey’s and Morrison are the guiding laws. But we’ve talked about stare decisis and other precedents. But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do, as well, with the balance between the executive and the Congress in a very important way, in terms of the use of administrative agencies.

SENATOR EDWARD KENNEDY (DEMOCRAT

I haven’t got the time to go over through. But we did have, but we did have some discussion about those agencies and how it would alter, how it would alter the balance of authority and power between the Congress and the executive. That’s very important. I mean, I, I don’t, it’s a, it’s enormously interesting. We’ve had Professor Calabresi from Harvard University spelled this out in great detail now.

SENATOR EDWARD KENNEDY (DEMOCRAT

And I know you’ve separated yourself a bit from his thinking, to the extent that he would go in terms of administrative agencies. The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that, that’s really the point. I want to…

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

Well, Senator Kennedy, what I’ve, what, what I’ve, I’ve tried to say is that, that I, I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who’s carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president’s authority. And they found no interference with that authority there.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

And that’s a, and that, that is a, that is a, an expression of the Supreme Court’s view in, in, on an issue that’s, where the, where the claim for, where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey’s Executor.

SENATOR EDWARD KENNEDY (DEMOCRAT

Well, the, the point is that you’ve differed with the Morrison and outlined a different kind of a strategy. I want to move on.[/i]

96

Mark Steyn had a good take on the hearings:

http://www.suntimes.com/output/steyn/cst-edt-steyn15.html

Key graphs:

[i] The media did their best to neutralize the impact of this pitiful spectacle, with expert commentators on hand to assure us that smart fellows like Chuck Schumer and Joe Biden were only going through the motions for the sake of all that MoveOn.org fund-raising gravy. Don’t worry, Ted and Chuck and Pat are way too savvy to believe this junk. Thus democratic politics reaches a new level of circular hell: The spin is that it’s only spin.

As I understand it, with the Jack Abramoff dirty-money stuff, lobby groups give big bucks to politicians to advocate various things which, pre-check-cashing, the politicians may or may not have believed in. But this last week of Senate hearings has been so absurd it may bring the whole system into disrepute: Big-time Democrats are out there dancing for dollars in a cause so obviously non-viable that their media buddies feel obliged to signal that it's merely a charade. Does that satisfy anybody?[/i]
97

[quote]BostonBarrister wrote:
I wonder if perhaps they should stop televising these things.

In an amazing coicidence, these sorts of hearings are a modern development, which came about roughly the same time as television. Prior to that time, nominees didn’t appear before the Senate for interrogation.

Does anyone really think any Senators decide how they are going to vote on a nominee based on these hearings?[/quote]

My first recollections of televised committee hearings, or anything like that, was the Watergate hearings. They screwed up what seemed like an entire school year of after-school cartoons with that crap (or that was my first impression of it as a 9 year-old kid).

Now we are in the age of the instant news cycle, and have no choice but to endure that mind numbingly idiotic ramblings from both sides. Neither side is innocent of the grandstanding that takes place whenever the red light is blinking on the committee television cameras.

If this is going to be the SOP for any length of time to come - maybe the committee members remarks could be reduced to 60 seconds before they must respectfully shut the hell up and let the nominee get a word in edgewise.

98

[quote]BostonBarrister wrote:
100meters wrote:

A smart man forgetting CAP on resume. LIE.

This is crap. I’ll bet if you looked at my college application (the closest corrolary I could come up with for myself to a 20-year-old resume), I listed on it some clubs that I could barely remember at all, let alone remember being a member of.

100meters wrote:

A smart man with multiple reason for not recusing himself from vangaurd cases. LYING.

Please explain this one to me. There was no ethical rule requiring Alito to step down related to Vanguard. Apparently he made a statement during his confirmation hearings for the 3rd Circuit, which, like this one, were long on bloviating Senatorial comments, to the effect that he would recuse himself w/r/t Vanguard. And he forgot. But when it was pointed out, he fixed it.

Plus, have you even looked at this case? What kind of financial impact do you think this would have on a share of the Vanguard S&P 500 tracking mutual fund. These are precisely the type of investments we encourage judges to make, so they can avoid conflicts of interest.

Now, if you want to consider conflicts of interest that might actually affect the outcome of a case, you may want to consider Justice Breyer, who did not recuse himself from a case involving sentencing guidelines:

http://bench.nationalreview.com/archives/087010.asp

[i]More on Conflicts, Kennedy, Breyer and Vanguard
[Andrew C. McCarthy 01/12 02:13 PM]

Justice Breyer has been called ?one of the ‘parents’ of the federal sentencing guidelines? by one commentator. In 1984, as chief counsel to the Senate Judiciary Committee, he was deeply involved in crafting the Sentencing Reform Act that gave birth to them. Later, as a Circuit Court judge, he was a member of the first Sentencing Commission which promulgated the guidelines and gave them their structure. In 2004, with Breyer now an Associate Justice, cases squarely challenging the constitutionality of those guidelines were accepted by the Supreme Court for review. Justice Breyer not only declined to recuse himself; last term, he wrote the 5-4 majority opinion in the portion of the Booker and Fanfan cases that preserved the guidelines from what would otherwise have been complete oblivion.

I am not saying that Justice Breyer violated judicial ethics by sitting on a case involving a subject in which he was deeply invested ? albeit professionally, not financially. He obviously considered the potential conflict and the appearance-of-impropriety standard, and sat on the case because he believed he could be fair and impartial. I have no doubt Justice Breyer made that decision honorably.

But I do think it?s fair to consider: Ted Kennedy is desperately spinning a conflict of interest out of Vanguard despite the fact that Judge Alito was apparently unaware of a Vanguard connection in the case, recused himself upon learning of it, and had the case reconsidered by a new panel to insure there was not even an appearance of impropriety. How does that stack up against Justice Breyer?s quite conscious decision to both participate and be the difference-maker in the case examining the validity of guidelines he helped write?[/i]

Or, perhaps, Justice Ginsberg:

http://levin.nationalreview.com/archives/086968.asp

[i]Mutual Concerns

Ethics expert Ted Kennedy is offended by Judge Alito’s participation in a case involving the Vanguard mutual fund, in which Alito has been invested. When he became aware of Vanguard?s connection in the case, Alito immediately recused himself despite the fact he was under no legal obligation to do so and neither Vanguard nor he benefited from his ruling. After he informed the other judges on his court, a new panel reheard the case and issued the same ruling. Now, if this is a basis for denying Alito a seat on the Supreme Court, then I would think if a Supreme Court justice ruled in cases involving companies in which her husband was invested, that would be grounds for impeachment then, no? That?s exactly what happened with Associate Justice Ruth Bader Ginsburg. As reported by the New York Times (“The Husband Of A Justice Sells His Stock After Scrutiny,” July 11, 1997):

"The husband of Justice Ruth Bader Ginsburg said today that he had ordered his broker to sell all the stocks in an individual retirement account after a news magazine reported that Justice Ginsburg had failed to disqualify herself from more than 20 cases involving companies his account held. Insight magazine ? said in its July 28 issue that Justice Ginsburg might have violated Federal law as well as professional codes of ethics by participating in cases since 1995 in which her husband, Martin D. Ginsburg, had a financial stake. The magazine said it was not clear, however, that her involvement affected the outcome of the cases, most of which it said were procedural rulings in which the Court formally decides whether to take a case." ?

Mr. Ginsburg issued the following statement in response to the report:

"I had not appreciated that stocks held in an I.R.A. account managed by a third party professional raised the concern Insight has highlighted. After reading the article, I promptly instructed Smith Barney to sell all stocks in the I.R.A. account and to invest in mutual funds."

The reason Mr. Ginsburg had his investments transferred from an I.R.A. to a mutual fund is because mutual funds are exempted from conflict-of-interest implications because investors have no control over the companies mutual funds invest in. However, when you own an I.R.A., you can direct your investments. Justice Ginsburg?s oversight raised far more serious ethical issues than Judge Alito?s mutual-fund investment. According to the Washington Times, Mr. Ginsburg?s I.R.A. investments included stocks in such companies as Exxon, General Electric, AT&T, and Proctor & Gamble ? all of which were involved in cases that Justice Ginsburg participated in. Somebody wake-up the new ethics watchdog on the Senate Judiciary Committee and ask him to square his criticism of Alito with his silence on Ginsburg. [/i]

100meters wrote:

No there is no comparison between a racist group, and a group protecting constitutional rights.

There’s no need to compare them, because it’s irrelevant. What would be relevant would be how many positions Ginsberg advocated on behalf of the ACLU that were directly related to cases in which she sat in judgment.[/quote]

Ok, more simply—there is no question at all that Alito knows exactly why CAP is on his resume. Pretend all you want. He is lying about it. (With good reason–he absolutely has to.) I mean he lists 2 memberships in the relevant passage on his resume, the Federalist Society (yikes) and CAP(yikes) before mentioning submitting articles to american spectator and national review (translation: total hack).
http://www.reagan.utexas.edu/alito/8105.pdf
pg 16

If you look at the context of the paragraph its clear he’s establishing his “conservative” values. CAP is not there by accident.

99

[quote]

100meters wrote:

Ok, more simply—there is no question at all that Alito knows exactly why CAP is on his resume. Pretend all you want. He is lying about it. (With good reason–he absolutely has to.) I mean he lists 2 memberships in the relevant passage on his resume, the Federalist Society (yikes) and CAP(yikes) before mentioning submitting articles to american spectator and national review (translation: total hack).
http://www.reagan.utexas.edu/alito/8105.pdf
pg 16

If you look at the context of the paragraph its clear he’s establishing his “conservative” values. CAP is not there by accident.[/quote]

I’m not pretending. You’re either missing or mischaracterizing my answer. I’m not saying that I disagree with you as to the reason he put it there. Per my example, I had a reason to list all those clubs on my college application as well. The issue is whether, 20 years later, I could recall them or give bona fides on any position taken on any issue by any of their members. The same holds for Alito and CAP.

BTW, what’s wrong with the Federalist Society? I was VP of my chapter at Vanderbilt when I was a 2L. It’s not some secret cabal, and it’s not some “extremist” organization. It’s a legal organization formed to promote debate, and the membership tends to be either libertarian, conservative, or both.

100

[quote]BostonBarrister wrote:
I’m not pretending. You’re either missing or mischaracterizing my answer. I’m not saying that I disagree with you as to the reason he put it there. Per my example, I had a reason to list all those clubs on my college application as well. The issue is whether, 20 years later, I could recall them or give bona fides on any position taken on any issue by any of their members. The same holds for Alito and CAP.

BTW, what’s wrong with the Federalist Society? I was VP of my chapter at Vanderbilt when I was a 2L. It’s not some secret cabal, and it’s not some “extremist” organization. It’s a legal organization formed to promote debate, and the membership tends to be either libertarian, conservative, or both.
[/quote]

The pretending is your comparison. It’s not a list of clubs, it’s 2 organizations. And Alito was able to remember for 13 years that he was a member. Anyway its a moot point. He’ll get the job. (Cue sound of Founders rolling in graves)