Re: Alito Will Not Answer Fundamental Questions

January 11, 2006, 1:45 p.m.

Re: Alito Will Not Answer Fundamental Questions.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Up until 12:30 p.m. Wednesday, I watched much, though not all, of the Alito hearings, especially because I was to (and did) appear on a program discussing them on Tuesday evening. One has many impressions of both the Senators and Alito, in both cases some impressions being very favorable, some being very unfavorable, and some in the middle. To discuss all of them would take extensive time and space. One lacks the time, at least currently.

But there is one point that should be made immediately, in the (no doubt forlorn) hope that it could conceivably have some impact, especially because there are elements of the news media too that have recognized it. The point is that, for the most part -- not entirely, not always, but most of the time -- Alito will not answer fundamental questions. He tells you what principles are involved in a matter and what questions would (he says) have to be asked, and he keeps saying he would have to see the facts and the arguments, blah, blah, blah. But he will not answer the fundamental questions, he refuses to answer them, even though those questions are of vital current and future importance and even though he often does give the impression of seeking to flee from his past views without actually coming out and saying he now rejects them. Most crucially, he will not say whether he will vote to overrule Roe, or whether the President’s constitutional power as commander-in-chief allows him to engage in domestic eavesdropping. These fundamental issues and others are, in consequence, utterly up for grabs in regard to Samuel Alito, notwithstanding that, as said, he seeks to give the impression that he is fleeing from prior views. People who care about these and other issues from the liberal side should vote against Alito because, based on his past comments, there certainly is a possibility, isn’t there, that he will vote to overturn Roe and in favor of unchecked presidential power?

Alito seeks to give the impression that he will support abortion rights and that the rule of law constrains the President, but he won’t say it, and he won’t say it even though his statement could not be legally binding on him if, in a later case, somebody comes up with persuasive points to the contrary. If he won’t say it, as he in fact won’t, then he is more likely not to support abortion and not to check the President in later cases.

Of course, Alito and the Republicans and others claim that he cannot speak on issues that could come before him. That is the current conventional wisdom, stemming, I gather, from the Scalia (I think) and Ginsberg hearings. Like most conventional wisdom, it is hogwash. Appended below is the portion of a prior blog which discusses why this position is hogwashian. If Democratic Senators and one or two Republican Senators whom I can think of are truly serious about crucial matters like abortion and overbroad presidential power, they should vote against Alito in committee and should filibuster his nomination on the floor if he continues, as he has until now, to refuse to answer deeply fundamental questions and instead continues his windbagging filibuster against answering them.

What’s more, if there are media in this country, including important ones, that have a sincere view about these matters from what I call the liberal standpoint, they should write and speak about this.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.


Appended Portion Of Prior Blog

So there are lots of areas in which the Senate should learn Sam Alito’s views before approving him as a Justice. From abortion, to Congressional power, to torture and secrecy his views may, and in some cases, like abortion, almost certainly will have dispositive effect on the Supreme Court.

But, it is objected, Senators cannot question a nominee about his political views, cannot ask him what he would do in specific cases, cannot do anything other than determine his legal competence and his integrity. This, however, is so much bushwa, and only bushwa. It is a recent invention, made as a result of the failure of the Bork nomination, to try to avoid the failure of conservative to reactionary Republican nominees (and Democratic ones too?) by preventing the Senate and the country from learning of possible right wing, sometimes nutbag views. What better way to avoid defeat due to right wing nut job views than to ordain that the views cannot be plumbed. And this latter day innovation designed to place conservatives and/or reactionaries like Thomas and Roberts on the Supreme Court, and to avoid the defeat that would befall them if their views were plumbed, has previously been readily accepted by Democrats, who have meekly fallen into line.

Let there be no mistake about it. Defeat and rejection of Supreme Court nominees because of the Senate’s disagreement with their views is as old as the Republic, going back to its earliest days. This is plumbed in chapter five of Laurence Tribe’s 1985 book called God Save This Honorable Court. (Yes, that book, the one in which Tribe, or more likely student ghostwriters, plagiarized from Henry Abraham’s prior work. Of course, plagiarism is not the same as incorrect.) Chapter five makes clear that on many occasions the Senate has forced the withdrawal of or has rejected a candidate because of his views. Bork -- rejected after and some think in major part because of, Tribe’s book -- was only the latest in a long line.

This, of course, raises the question of what questions Senators can ask a nominee in order to determine his or her views. As near as I can tell, Tribe’s book does not bear on what questions have been asked in the past, although he seems to make clear in chapter six that he would ask broadly searching ones. And it would seem to me -- I know of no reason not to think -- that any questions bearing on reasons, theories and facts relating to a subject are fair game to be asked in order to find out a nominee’s views. This is no less true when the potential stakes are as high as with Alito’s nomination. It is also no less true when one realizes that, despite all the cant about the impropriety of asking about cases, nominees, as Roberts did, seem not to stickle about discussing specific cases, at least not prior specific cases, when they think this is to their advantage.

You know, the fact that a nominee has to get down to cases (to make a pun) does not mean that he will be obligated to adhere to what he tells Congress when an actual case comes along. If a litigant can persuade him to a different view, he will be free to adopt it. Indeed, the nominee’s statements to the Senate will aid a future litigant because he will know what he has to face and overcome. If judges are as open to logic and reason which undermine their prior views as they and their supporting lawyers like to claim -- and if they are not open to contrary logic and reasons, then the judicial system is pretending falsely -- then the argument that answering specific questions in a hearing constitutes prejudgment of future cases is in major part baloney. If the claim of being open to reason has truth, then to answer Senators’ questions is no more a prejudgment of future cases than rendering a decision on an issue in one case is prejudgment of the next case on the issue. Indeed it is less of a prejudgment than is an opinion, because a statement to the Senate need not be followed if the judge becomes persuaded to a different view in a future actual case, whereas a statement in and governing a judicial opinion is binding in the next case as a matter of precedent. Statements to the Senate will simply mean that a future litigant won’t be blindsided, will know what he or she needs to respond to.

Asking judicial nominees questions about present and potential future cases is, moreover, something that has been done. Thus, it has recently been reported that in private meetings Senator Durbin asked Alito about a previous abortion case that Alito participated in and Senator Cornyn asked Alito about a prior church-state case that Cornyn himself had argued and lost in the Supreme Court. So Senators may be doing privately what publicly has been pretended to be impermissible.

I also note that, in a recent discussion on the subject of asking questions of Supreme Court nominees at the Boston Inn of Court, one of the scores of persons in attendance said from the floor that panels of lawyers that assess nominees for local state court judgeships often ask them about specific "hypos", i.e., about specific hypothetical cases that are put to them. To the extent that this is done in Massachusetts and elsewhere, it is further support for the idea of asking Supreme Court nominees to likewise answer specific questions.

Perhaps most importantly of all, in a recent (October 24th) letter to Harriet Miers while she was still a nominee, Senator Specter told her she would be asked to answer very searching, very specific questions about executive power, questions which he then set forth. As readers of this blog may remember, my respect for Specter is not unlimited. But in the October 24th letter he and his staff did a capital job (to make a bad pun (or perhaps a pun about badness).) The questions they put were terrific, and included ones relating to the length of time detainees can be held, the power to detain them on foreign soil as contrasted with the power of habeas corpus and with the jurisdiction of federal courts in such instances, whether Congress unconstitutionally delegated its war-deciding power to the President when it authorized the use of force in Iraq, whether the President as commander-in-chief has the constitutional authority to take us to war, whether the Korean and Viet Nam wars required a congressional declaration of war, and when an international agreement requires the consent of the Senate under the treaty clause. The questions Specter told Miers he wanted her to answer are so specific and detailed, and such an excellent example of the kinds of questions that Senators should ask a Supreme Court nominee, that his letter of October 24th is appended below to this blog.