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Notes on the Alito Hearings:
Stephen Bainbridge offers his take on the Alito hearings:
After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it's the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin's opening remarks.)
  Heh. Seriously, though, I've caught about two hours of the testimony today, and based on what I heard I think Alito is doing very well. His delivery style is a bit nervous, and he lacks the Roberts instinct to say soothing things to address a questioner's concerns. But on the substance, Alito seems to be significantly more forthcoming than Roberts, and he is offering solid defenses of his prior decisions. Further, he has distanced himself from the Article II authority claims that the Senators are worried about in light of the NSA's domestic surveillance program. As Kevin Drum notes, these kinds of answers "[don't] give liberals much of a purchase to lead a battle against his nomination."
Anderson (mail) (www):
What I don't understand is why anyone takes the nominee's statements seriously. I don't just mean Alito.

Why should we assume that whoever's nominated is telling the truth or being forthcoming? Am I just too cynical?

I've seen it argued at this blog that the Senate should defer to the President's choice. Suppose a nominee thinks that, and thinks it's illegitimate for the Senate to make any merits-based decision on his appointment? Is he justified in "selective omissions" or "white lies"?

Once the guy's on the bench, whatever he said at the hearings is worth the proverbial bucket of warm spit, at most. So I don't understand why we'd go "ooh look, he says he doesn't buy these sweeping Article II powers." If he *did* say he bought into them---if he held up John Yoo's book and said, "This I believe"---then he wouldn't get appointed. So why would he say that?
1.10.2006 5:34pm
Karl Lembke (mail) (www):
So far, the consensus seems to be that Judge Alito is very able and extremely well qualified, but then he wiped out the Jedi academy and fell in that volcano...
1.10.2006 5:41pm
Anderson (mail) (www):
Oh, &btw, Prof. Kerr was reading John Yoo's book, right?

We Want a Post on That!

(Surely "we" is correct ... ladies &gentlemen?)
1.10.2006 5:51pm
Michael B (mail):
"As Kevin Drum notes, these kinds of answers '[don't] give liberals much of a purchase to lead a battle against his nomination.'"

Over-generous; overly kind.

These kinds of answers don't give Leftists and pseudo-liberals much of a purchase to lead a battle against this nominee. By contrast, these kinds of answers positively do give classical liberals or substantive liberals a great deal of purchase to lead the battle for this nominee.
1.10.2006 5:55pm
Preferred Customer:
Frankly, these hearings are a joke. They are pure political theater--how well can a nominee deflect, dissemble, and avoid questions until all of the Senators have bloviated themselves into submission?

I don't think that the ability to dance around the Senate's questions is a relevant job criterion for a Supreme Court nominee.

I would much prefer a set of hearings where the nominees actually answered the questions put to them, consequences be damned. If we can't have that, why bother with any of this nonsense?
1.10.2006 6:08pm
John Jenkins (mail):
I just made the mistake of delving into the comments over there and am glad I'm a Volokh reader rather than a Drum reader. Occasionally we get stuff like Michael B, above (and a few others whose names I won't invoke for fear of attracting them; maybe I need a pentagram around my computer or something) that's just pure vitriol without any substance, but what I saw over there was pure unhinged babble.

One person thought the Democrats should concentrate on winning the Senate and Presidency so they could get judges they want (what a thought). Sadly, that voice of reason was ignored in favor of histrionics and stupidity. Three cheers for Volokh Conspiracy commentors!
1.10.2006 6:09pm
Anthony Leonson (mail):
I'm almost wondering if there is a contradiction is his testimony regarding the 'living' constitution (Needing to be interpreted to fit today's circumstances)

"I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things.

It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up. ..."

and stare decisis:

"I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents."

If the Constitution is something that can be interpreted depending on each generation, should not the same be true for legal precedent? Especially in the Supreme Court, where decisions are based upon the same "living" Constitution? Couldn't examining the Constitution lead you to a completely different opinion two or three generations removed from the original, under that logic?
1.10.2006 6:36pm
John Jenkins (mail):
Anthony, caselaw precendent tends to be much more specific than the Constitution (compare the Fourth Amendment to Katz). The principle of what is unreasonable could be applied differently (and has been) to different things like physical searches, pen registers, and heat scans of a house. The application in the caselaw is situationally different, but the overall principle remains the same. The point is well taken, however, that when our rights are determined by judges without reference to the documents (as in the "living Constitution") then there are no rights because they can be taken away the same way.
1.10.2006 6:45pm
Wince and Nod (mail) (www):
Yeah, the comments here are the best. The comments at Dean's World and The Queen of All Evil are second best.

Drum's comment section is awful. Even the Democrats on Rosemary's site don't like it.

Yours,
Wince
1.10.2006 6:56pm
M.A. (mail):
I don't really see why a "classical liberal" would support Alito, who seems to be a pro-government type. Anyways....

The abortion issue (which of course dominates) is maddening, because everyone is required to dance around the obvious. But I agree with Scott Lemieux at Lawyers, Guns and Money that there is little functional difference between overturning Roe and what is more likely, gutting it so that it is functionally useless.

Lemieux also brings up a point he makes often, which is that in practice, any abortion restriction applies mostly to poor women (affluent women always have, and always have had, abortion on demand under any regime), which makes me wonder why some Senate questioner doesn't bring this up as a hypothetical (i.e. in upholding an abortion restriction, would you want to make sure that it is equally applied). Certainly one of the best arguments for Roe is that since abortion laws were never equally applied, the clear conclusion is that abortion laws are more about controlling the choices of women and not about protecting fetal life.
1.10.2006 7:00pm
Michael B (mail):
Oh dear, charged with a low crime - but a poorly aimed and inadequately wielded ad hominem bludgeon is not a rapier Mr. Jenkins. What was said is sufficiently true. And I very much doubt you could withstand a substantive debate on the topic.
1.10.2006 7:11pm
Wince and Nod (mail) (www):
The abortion issue is also maddening because it appears that abortion is the only absolute right. Not even reasonable and popular regulations like spousal and parental notification are allowed. The courts have accepted restrictions on every other right we possess, but not on abortion. Why is it so special?

Yours,
Wince
1.10.2006 7:27pm
Tiger8 (mail):
Alito: "I don't agree that the Constitution always trumps stare decisis..."

Music to Professor Barnett's ears, I'm sure.
1.10.2006 7:34pm
M.A. (mail):
The abortion issue is also maddening because it appears that abortion is the only absolute right. Not even reasonable and popular regulations like spousal and parental notification are allowed. The courts have accepted restrictions on every other right we possess, but not on abortion. Why is it so special?

Well, I might turn it around and ask why abortion is considered so special among medical procedures, that people advocate placing restrictions on it that are not placed on other medical procedures. (You wouldn't ask a woman to notify her husband before getting an appendectomy, after all.) The pro-life answer to that is that abortion involves another life and is therefore worth restricting, but then we get into the question of whether abortion restrictions really aim to protect fetal life (and, being unequally and arbitrarily applied, they clearly do not), so all in all it's better to treat abortion as a medical procedure that the state has no business interfering with.

The other point is that many people who are not as pro-choice as me may still have legitimate reason to fear that "reasonable restrictions" will in practice lead to unreasonable restrictions. These restrictions, after all, are generally being pushed by people who want to ban abortion outright. Even under the Roe regime there are many areas and even whole states where abortion is in practice unavailable to all but the richest women. So people who might otherwise support certain restrictions on abortion might still support Roe just because it is better to have unrestricted abortion than to invite the possibility of unreasonable restrictions. (I don't think forcing a woman to tell her husband is a reasonable restriction, given that it in practice guarantees that women in bad or abusive marriages will have a harder time getting an abortion; but that's been talked of enough in Alito discussioneering.)
1.10.2006 8:07pm
Just an Observer:
With regard to the juxtaposition of Alito's hearing and the controversy over NSA surveillance and executive power, I have two observations:

First there is the question of how this controversy affects his confirmation.

On that matter, Alito's opposition seemed to make no headway in associating him with the spectre of aggrandized presidential power, or to portray him as biased in favor of the executive. The arguments that his record implies such a tilt are rather tendentious, and today's testimony did not give them any new support

Second, there is the issue of what light Alito's comments shed on the legal merits of the controversy.

On that matter, although the nominee avoided any conclusions, the analytical framework he laid out was essentially the same that administration critics adopt: First analyze the statutory interpretation of FISA and AUMF, and let that interpretation determine how to analyze the constitutional posture within Justice Jackson's Youngstown framework. The administration's analytical framework is nuanced in reverse, starting with its Article II authority and working top-down toward its statutory claims.

The former framework is really the way most judges would approach the analysis, I think, and shows just how critical the statutory issue is to the overall outcome. The administration case there is weak.

For myself -- speaking as someone who is both an Alito supporter and a critic of the administration case -- I had a positive reaction to the day's events. I never have bought into the argument that Samuel Alito (and John Roberts) are predisposed to favor the expansion of executive power.

I would be happy to have the NSA surveillance controversy, as it has been framed in public, end up being decided by a Supreme Court with both jurists on board. Based on what we know today, I think the administration would lose in a lopsided vote.
1.10.2006 8:10pm
Hank:
Here is Daily Kos on Alito on the President's Article II authority:

The President's Judicial Power?
by Armando
Tue Jan 10, 2006 at 04:20:57 PM PDT
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.
1.10.2006 8:11pm
elliottg (mail):
I found his answers regarding the CAP issue and the Vanguard recusal to be obvious lies of the kind that one schooled in avoiding perjury would use. Whether that is disqualifying is debatable. It is possible to argue that dissembling can sometimes serve a greater good. After all, would anyone really want a President or a spouse who was unable to lie when the occasion warranted it.

I found his discomfort with trying to discern the gist of his supporters arguments without correcting them to be funny at times. The exchange between him and Graham regarding Quirin, Johnson v. Eisentrager, and Hamdi (with a bit of the 4th's Padilla thrown in) were humorous in an awkward way.
1.10.2006 8:18pm
Kate1999 (mail):
Elliottg,

Can you explain why you thought Alito's answers on these questions were "obvious lies"?

And if they were obviously schooled lies, why woudn't he be schooled into less obvious lies?
1.10.2006 8:48pm
jdw (mail):
Abortion is about immigration, who has political power, and lots of other things. Over 20 million home grow were not produced. Over 10 million were imported. US would be a different country if it were otherwise. All kinds of beliefs and consequencies flow from this.
1.10.2006 8:51pm
frankcross (mail):
Armando may overstate the case, but that was my worry about the testimony that I heard. It contained an implicit suggestion that congressional restraint on torture, surveillance, etc. might be an unconstitutional encroachment on the commander in chief power. I didn't year anything he said that was wrong or necessarily objectionable, but his choice of words made me a little uncomfortable.
1.10.2006 8:55pm
M.A. (mail):
I don't know about the Vanguard recusal, but on the CAP issue, the obviousness of the lie was that he was repeating something (the ROTC point) that recently became a conservative/Republican talking point and that he did not, to my knowledge, bring up before. Also, as Jane Hamsher's correspondent points out, the mission of CAP had little or no connection to the ROTC issue.

On the other hand, Alito pretty much answered the question of why he joined CAP in his opening statement: he felt people were behaving "irresponsibly" at Princeton (being dirty hippies). CAP was an organization devoted to nipping that in the bud. I doubt Alito joined specifically to keep women or minorities off campus; probably more because he saw CAP as a bulwark against the late '60s Cultural Agenda (tm).

I have to admit I winced at his "behaving irresponsibly" comments, because I'm frankly tired of conservatives who were in college at that time and decided that the protestor/feminist/hippie types were being irresponsible. (Society is better today -- for all of us -- because of the "irresponsible" types; feminism, for example, has made life better for even anti-feminist women and men in ways they now take for granted.) But I understand his need to dodge the CAP issue, and I don't think that in itself is enough to keep him off the court.
1.10.2006 8:58pm
John Lederer (mail):
M.A.
I am sure Robert Fassnacht's widow has a different perspective.
1.10.2006 9:05pm
magoo (mail):
"Why should we assume that whoever's nominated is telling the truth or being forthcoming?"

He's under oath. Some people find that to be constraining.

"I'm frankly tired of conservatives who were in college at that time and decided that the protestor/feminist/hippie types were being irresponsible. (Society is better today -- for all of us -- because of the "irresponsible" types;"

Presumably, you're not referring to those who bombed ROTC buildings, which was the focus of Alito's outrage at some of his fellow students.
1.10.2006 9:09pm
M.A. (mail):
The thing I should also add is that the Democrats are in a tough position for two reasons:

a) The Alito nomination was essentially a slap in the face to them;
b) They'll need the help of Republicans when the NSA hearings start.

To take a), both Roberts and Miers were nominated after at least some consultation with Democrats in the Senate (Harry Reid recommended Miers, you'll recall). Because Alito was basically picked for Bush by the right wing, he was picked with literally no consultation with Senate Democrats, which is the sort of thing NRO types love (don't talk to those evil horrible Dems!) but is frankly a crummy thing to do, and contrasts poorly with Clinton, who picked two justices (Ginsburg and Breyer) who were recommended by Orrin Hatch. Harry Reid tends to like to demonstrate that the Democrats, even though they're a minority, won't just roll over for the Republicans, and I think on that basis an attempted filibuster might be worthwhile just to slap back at Bush for trying to ram through a nominee who's completely unacceptable to Democrats (who, after all, represent half the population even though they represent less than half the Senate).

On the other hand, the Judiciary Committee has three Republicans who have expressed a desire to look into Bush's FISA violations -- Specter, Graham, Brownback -- and a Democratic filibuster of Alito might wreck their chances of getting any bipartisan opposition to Bush's lawbreaking (and might even derail the hearings altogether).

I don't know the answer to this, but it's not as simple as the Democrats being either "obstructionist" (right-wingers would say) or fraidy-cats (left-wingers would say). The problem is that Alito has clearly been nominated because he, unlike Miers, represents views that are acceptable to conservatives. The problem is that this is a 50/50 or 51/49 country where views that are acceptable to one half are totally unacceptable to the other, and vice-versa. Though the Democrats are out of power, they represent -- and owe a duty to -- a huge number of people, practically half the country. The Republican strategy, as shaped by Karl Rove and Bush and others, has been to basically pretend that the views of the other half of the country have no value whatsoever and that only the Republican/conservative half should ever be made happy. The Democrats need to fight that, but I'm not sure how.

Perhaps it would be best for them to try to filibuster; even if the nuclear option gets triggered, it would at least emphasize the fact that Alito is the exact opposite of what 49% of the country voted for, and that the Republicans are deliberately trying to marginalize and disempower anyone who didn't vote for them.
1.10.2006 9:10pm
Defending the Indefensible:
I'm concerned that Alito seems to exhibit a certain amount of "magical" thinking. Let me explain my concern and you can tell me if I'm misapprehending what he meant.

In regard to Rybar, Alito indicated that his reasons for holding it unconstitutional was a lack of congressional findings and a jurisdictional statement.

So if the statute contained those elements, even if it were substantively the same legislation, it might pass muster.

A jurisdictional statement, he explained, would simply have to be a declaration to the effect that a firearm had, at some point in the past, traveled in interstate commerce. Whether the act criminalized something having any present connection to commerce seemed to be of little jurisprudential significance. It also seems to me that all goods and services have productive inputs that might have traveled in interstate commerce. Additionally, congress can include findings to the effect that such-and-such has an impact on interstate commerce.

If congress uses the right magic incantations and incorporates a jurisdictional statement and findings as part of their statute, should it give congress authority to legislate on all activities?
1.10.2006 9:40pm
Hoosier:
M.A.
You said: Well, I might turn it around and ask why abortion is considered so special among medical procedures, that people advocate placing restrictions on it that are not placed on other medical procedures. (You wouldn't ask a woman to notify her husband before getting an appendectomy, after all.)

Do you think that any doctor would perform an "appendectomy" on a fifteen-year old without parental consent? If your standard is the one you suggest, viz., Is this a regulation common to other medical procedures?, then abortion right now is far beyond the norm of de-regulation in many, many states.

As to "it's better to treat abortion as a medical procedure that the state has no business interfering with": What medical procedures other than abortion does the state have "no business interfering with"? Isn't medicine one of the most highly-regulated industries in America? Why the exception, then, for abortion?
1.10.2006 9:49pm
Bob Loblaw (www):

The abortion issue is also maddening because it appears that abortion is the only absolute right. Not even reasonable and popular regulations like spousal and parental notification are allowed. The courts have accepted restrictions on every other right we possess, but not on abortion. Why is it so special?
This might be compelling if it were true. Depending on the state, there are constitutional informed consent laws, parental notification/consent laws, and post-viability restrictions (in each case as long as there are adequate health exceptions and other safeguards, such as judicial bypass, etc.).
1.10.2006 9:51pm
magoo (mail):
Defending the Ind --

The magical incantations come not from Alito, but from Lopez. Lopez strongly suggests that an otherwise deficient statute might be rescued thru findings or jurisdictional statements. To this extent, it's more form than substance, a shot across the bow asking COngress not to be so sloppy, to cross its i's and dot its t's, which it failed to do after 50 years of blank-check jurisprudence. I'm not defending the incantations, but I wouldn't fault Alito for them. It's a fair reading of Lopez.
1.10.2006 9:54pm
Rami (mail):
Anyone have an idea of how many minutes Alito himself spoke versus how many minutes were spent hearing a bunch of Senators play law professor? This is all pretty silly kabuki theater. Unless Alito forgets his lines, I can't imagine how these hearing will affect any Senator's vote.
1.10.2006 10:07pm
Hoosier:
Boblaw-

You're right in saying that it is not treated, as a matter of law, as absolute in quite a number of jurisdictions.

Rhetorically, however, the pro-choice camp tends to argue as if /any/ restriction is a violation of a sacrosanct right; it's all simply the thin end of the wedge. NARAL is no less absolutist on the right to privacy than is the NRA on Amend II. As a dad, I neither want my sons playing with assault rifles, nor my young daughter having a significant medical procedure without my permission. Does the NRA insist that a minor can claim Second Amendment rights as against a parent?
1.10.2006 10:11pm
mls (mail):
I'd say that Alito's most obvious dissembling was about whether his murder boards mooted him on answers to NSA spying/presidential war powers hypotheticals. To say that he couldn't recall, they covered lots of topics, just doesn't cut it. It would have been negligence of the silliest sort for the murder boards NOT to cover that issue! It might not have been a material lie, but it surely was a stupid one.

I would have felt better if he had simply said, "Senator, in order to allow murder boards in the future to cover whatever they like,which an assurance of confidentiality would enable, I'll pass on that one."
1.10.2006 10:14pm
Hoosier:
Yeah, but then the big words would have confused the senators.
1.10.2006 10:16pm
SimonD (www):
the pit of Carkoon, the nesting place of the all-powerful Sarlaac
That's not a nice way to refer to the snr. Senator from New York.
1.10.2006 10:21pm
Rodger Lodger (mail):
Today I attacked the question of why these confirmation hearings remind me of meetings conducted by high school student government, you know, by reasonably bright people -- at the high school level, that is. I figured it out: the moronic repetition of the names Roberts and O'Connor. The senators live in a univese where it's a given each nominee has to resemble the last one confirmed plus the one he's replacing. Makes sense, right? Think of Justice Brennan, for instance. Senators are not stupid, they're just kinda dumb.
1.10.2006 10:22pm
Katherine:
Why isn't Judge Alito sure whether they anti-torture statute is constitutional? Three separate times, with Leahy, Feingold, and Graham, he basically said "no comment/it depends."

They need to press him on this. If he won't give anything resembling a straight answer upon more careful questioning, I would vote to filibuster.
1.10.2006 10:32pm
SimonD (www):
Wince-
The abortion issue is also maddening because it appears that abortion is the only absolute right. Not even reasonable and popular regulations like spousal and parental notification are allowed.
Could I possibly prevail on you to explain to the Senate Democratic Caucus that it is spousal notification that was issue in Casey, rather than spousal consent? And that there is, in fact, a difference? Because the Committee dems seemed to be having real difficulty understanding the difference, and it seems to me to be an important difference.

The sad thing is that we can only conclude that they are being deliberately misleading (which means that some of the most powerful men and women in America are duplicitous) or that they genuinely don't realize the difference (which means that some of the most powerful men and women in America are morons); neither possibility bodes well for the Republic.
1.10.2006 10:37pm
M.A. (mail):
Could I possibly prevail on you to explain to the Senate Democratic Caucus that it is spousal notification that was issue in Casey, rather than spousal consent? And that there is, in fact, a difference?


In theory, or in practice? In practice, the women who would have trouble getting consent from their husbands would often, perhaps usually, be afraid even to notify them. The outcome is the same: women with abusive or otherwise bad husbands will not be able to get abortions.

Which is the objection of the pro-choicer to most abortion regulations: they are hideously unequal in their application, and conservative judges don't seem to care about these real-world consequences.
1.10.2006 10:41pm
SimonD (www):
Why isn't Judge Alito sure whether they anti-torture statute is constitutional? Three separate times, with Leahy, Feingold, and Graham, he basically said "no comment/it depends." They need to press him on this.
I agree with Kathryn (at least, ast far as the text quoted above is concerned). The McCain amendment is explicitly contemplated by the Constitution in at least two ways in Art. I §8, viz., the grants of power to Congress "[t]o declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water" and ""[t]o make rules for the government and regulation of the land and naval forces." I must have dozed off it Alito was asked about this (there were some occaisions during Biden, Sessions, deWine and Feinstein's times when I just couldn't take it any more, and had to change the channel).
1.10.2006 10:43pm
Defending the Indefensible:
Magoo,

I think Alito seemed to be saying in response to questioning, not that he was merely applying Lopez, but that he actually felt strongly that findings were entitled to great respect and deference by the court. But Congress can just invent findings out of whole cloth, unlike a court which has expert testimony and cross-examination from both sides of a case. I don't think that excess verbiage should ever be construed to excuse what would otherwise be a constitutional violation. Moreover it seemed to me that he was saying that as long as congress makes the right recitations, he sees no limit to its commerce power. This is not a conservative perspective as it vitiates federalism.
1.10.2006 10:44pm
byomtov (mail):
Why isn't Judge Alito sure whether they anti-torture statute is constitutional? Three separate times, with Leahy, Feingold, and Graham, he basically said "no comment/it depends."

He is sure. He won't answer for the very simplest of reasons. He thinks it's unconstitutional, but if he says so he won't be confirmed.

What could be plainer?
1.10.2006 10:49pm
SimonD (www):
In theory, or in practice? In practice, the women who would have trouble getting consent from their husbands would often, perhaps usually, be afraid even to notify them.
In both. If your husband is going to inflict physical violence on you in retribution, the least of your problems is getting an abortion; what you need is a divorce, no "ifs," no "buts," the marriage is over, you can't work it out, leave now.

In all other cases (which I suspect covers the overwhelming majority), I think it should not be forgotten that even if one takes the view that a woman has the right to end her pregnancy, come what may to the child, she is preganant with two people's child: hers and the father's. Even if fatherhood does not grant a man the power to force his wife to carry the child to term, at the very least it entitles him to know.

Consent = consent. Notification = notification. Children should be required to obtain consent before any medical procedure, period (notification won't suffice), but even if one buys into abortion rights, notification is hardly too much to ask.
1.10.2006 10:50pm
Katherine:
byomtov--I'm hoping for "he thinks it is constitutional but won't publicly embarrass the administration that just nominated him to the Supreme Court". But if he won't give a straight answer on this I say filibuster.

That's assuming the Dems are clued in enough to ask sustained questions. Check out Joe Biden's hard hitting questions.

OTOH, Durbin hasn't gone yet, and Feingold &Leahy have a few more rounds.
1.10.2006 10:55pm
Katherine:
SimonD: also to "define and punish offenses against the law of nations."

Someone needs to ask him about those clauses &the anti-torture statute tomorrow.
1.10.2006 10:57pm
mls (mail):
In defense of spousal notification, SimonD notes: "she is preganant with two people's child: hers and the father's."

Yes, but what happens when the father isn't her spouse?
1.10.2006 10:57pm
Katherine:
And here are some of the relevant parts of the transcript.

First, with Senator Leahy:

"LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an _expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue."

Then, with Senator Feingold:

"FEINGOLD: Well, we now know of course that it wasn't a hypothetical situation at all. When the attorney general said he categorically rejected the torture memo, including the section regarding the commander in chief's authority to ignore criminal statutes, he was also not being straight with this committee.
So I'd like you to try to answer this question: Can the president violate or direct or authorize others to violate the criminal laws of the United States?
ALITO: The president has the obligation under Article II of the Constitution to take care that the laws are faithfully executed.
And the laws mean, first and foremost, the Constitution of the United States. That applies to everybody. It applies to the president. And the president, no less than anybody else, has to abide by the Constitution.
And it also means that the president must take care that the statutes of the United States that are consistent with the Constitution are complied with.
And the president has an obligation to follow those statutes as well.
Those are the important general principles. And the application of them in a particular case depends on the facts of the case and the arguments. And a judge needs to know the arguments that are being made on both sides before addressing -- before reaching a conclusion about the result.
Those are the overriding considerations."

And finally, Senator Graham:

"GRAHAM: Do you believe that any president, because we're at war, could say, the statute on torture gets in the way of my ability to defend the United States; therefore I don't have to comply with it?
ALITO: The president has to comply with the Constitution and the laws of the United States that are enacted consistent with the Constitution. That is the principle.
The president is not above the Constitution and the laws. Now, there are issues about the interpretation of the laws and the interpretation of the Constitution."
1.10.2006 10:58pm
SimonD (www):
Katherine,
That's assuming the Dems are clued in enough to ask sustained questions. Check out Joe Biden's hard hitting questions.
I think the problem you're encountering is that you're treating Biden's remarks as if he were participating in a confirmation hearing for a Justice of the Supreme Court of the United States. Nothing could be further from the truth; rather, Senators Biden and Schumer are basking in the warm glow of free television airtime in the first act of their 2008 primary campaigns. Once one grasps this, it doesn't get any easier to watch, but it does at least make a little more sense.
1.10.2006 10:59pm
Stuart (mail):
DTI: Welcome to the irrationality of the current commerce clause. Alito didn't create the doctrine, but as Circuit Judge he was stuck with Supreme Court doctrine and had to apply it.
1.10.2006 10:59pm
M.A. (mail):
In all other cases (which I suspect covers the overwhelming majority)


But that's the thing -- the difficulty with laws like these is not the overwhelming majority, but the exceptions, the hard cases, the cases that get these things dragged into court. The fact that a law doesn't hurt most people doesn't give it an excuse for its adverse or unfair effect on a minority of people. Judges who uphold abortion restrictions often justify them by pointing out that only a small number of women are adversely affected, when, really, that's the problem with abortion restrictions, that they can be ignored or dealt with by most women while hurting a subset of women.

I think it should not be forgotten that even if one takes the view that a woman has the right to end her pregnancy, come what may to the child, she is preganant with two people's child: hers and the father's. Even if fatherhood does not grant a man the power to force his wife to carry the child to term, at the very least it entitles him to know.


I'm not really sure why that is. The man may have fathered the child, but due to biological reality, he will have no part in the actual pregnancy. If the woman has the right to end her pregnancy, then she has the right, period; if she has to notify the husband, beforehand, it implies that he should have a chance to stop her. It implies an attempt to restrict the right without openly restricting it -- a weaselly way to restrict rights, in other words, as most abortion restrictions are ways of gutting abortion rights without actually disturbing the affluent soccer moms.

The only spousal-notification law I could see as not restricting a woman's rights is a law that said she must notify the husband either before or after the abortion. That would imply that the husband has a right to know, but he doesn't have the right to stop her.
1.10.2006 11:03pm
SimonD (www):
SimonD: also to "define and punish offenses against the law of nations."
I think that one is stretching it a little, but that, too, could be implicated. Since I've complained in the past about the indeterminacy of cases which suggest that a law violates some, unspecified, constitutional provision, lest I be accused of inconsistency, I think it's possible for a law to simultaneously violate (or be supported by) more than one constitutional provision.
In defense of spousal notification, SimonD notes: "she is preganant with two people's child: hers and the father's." Yes, but what happens when the father isn't her spouse?
Then one makes a good faith effort at notification. IIRC, some states require a person diagnosed with AIDS to make good faith efforts to inform their previous partners, and this is (after a fashion) no different.
1.10.2006 11:05pm
Francesco:
I'm so relieved to hear that Senator Leahy wants the nominee to reflect the face of America!
1.10.2006 11:10pm
SimonD (www):
Katherine,
I don't think any of those three transcript excerpts suggests that Alito thinks the McCain amendment is unconstitutional; having agreed with you that I don't know how Alito could say it was, it now seems to me that he didn't. Indeed, such a conclusion (that Alito thinks the amendment unconstitutional) is so non-obvious that I'm not sure how you're squeezing that interpretation from the transcript? Is there more?
1.10.2006 11:10pm
SimonD (www):
Judges who uphold abortion restrictions often justify them by pointing out that only a small number of women are adversely affected, when, really, that's the problem with abortion restrictions, that they can be ignored or dealt with by most women while hurting a subset of women.
When you have competing interests at stake, one must make a balance. If that balance trades an inconvenience for some in exchange for lessening even slightly the daily slaughter of several thousand children every day, that is a price worth paying, in my view.
1.10.2006 11:12pm
Katherine:
No, I didn't say he thinks it's unconstitutional. I meant to say: he wouldn't say it's constitutional. He implies it's an open question.

Like I said above, I think the most likely explanation is simply that he won't publicly embarrass the administration when he doesn't have to. But this is not a question I'm willing to countenance "wiggle room". I don't expect him to come out and say "the McCain amendment is constitutional" but I want something a lot closer to a real answer.
1.10.2006 11:17pm
SimonD (www):
If the woman has the right to end her pregnancy, then she has the right, period; if she has to notify the husband, beforehand, it implies that he should have a chance to stop her.
I don't think that follows at all. Every morning I notify my son that we are leaving at a quarter to eight, but that notification does not imply that the matter is open to debate. I notified my wife earlier that I was going to take a shower, but I did not ask her permission. I suppose your statement isn't wholly unreasonable, but "not unreasonable" isn't the threshold here; the statement doesn't logically follow, and thus, even if we buy into the "substantial burden" test (which, to be clear, I do not, since there is no constitutional right to an abortion, and Judge Alito should have said as much instead of evading the question and very likely outright perjuring himself, depending on his exact words), notification is not a substantial burden. Consent would be. Notification is not.
1.10.2006 11:18pm
M.A. (mail):
When you have competing interests at stake, one must make a balance. If that balance trades an inconvenience for some in exchange for lessening even slightly the daily slaughter of several thousand children every day, that is a price worth paying, in my view.


But since no abortion restriction actually treats fetuses as children -- the penalties are low, the enforcement is haphazard and arbitrary, none of which would be true if fetuses were considered children -- the balancing interest is obviously different than it would be if the laws actually had anything to do with lessening the slaughter of children.

The practical reality of abortion restrictions is that they do not lessen the number of abortions (look at the Latin American countries that have banned abortion: their abortion rates are huge), and they are mostly applied in such a way as to create abortion on demand for affluent women and limited/restricted access for poor women. If abortion restrictions actually had anything to do, in practice, with protecting fetuses as though they were children, then that might be considered a legitimate state interest. In practice, though abortion restrictions are entirely about limiting the choices of women, in which there is no legitimate state interest whatsoever.
1.10.2006 11:19pm
Frank Drackmann (mail):
I'd love to see Alito just walk over and Bitch Slap Senator Schumer back to New York.
1.10.2006 11:22pm
SimonD (www):
Katherine,
In fairness, he has broadly declined to answer any questions more specifically than that. During his hearings, then-Judge Scalia refused to comment on whether any case from Marbury v. Madison upward was correctly decided; he has shown little inclination to overrule Marbury. I would prefer Alito answer positively and affirmatively the questions put to him, about torture, and about Roe (adequately put, "just say it, man! say it! Roe was wrongly decided! Stop tiptoeing around the issue; say what everyone in that room and who's watching at home already knows: you think it was wrongly decided. Tell us that, and explain to America WHY. If we wanted a nominee ashamed of conservative jurisprudence, we wouldn't have opposed Miers!"), but that does not appear to be the way of these things.

As with the Roberts hearings, the Alito hearings are providing an eloquent argument in favor of repealing the 17th amendment (or at least, keeping video cameras out of the committee room).
1.10.2006 11:24pm
SimonD (www):
But since no abortion restriction actually treats fetuses as children -- the penalties are low, the enforcement is haphazard and arbitrary, none of which would be true if fetuses were considered children -- the balancing interest is obviously different than it would be if the laws actually had anything to do with lessening the slaughter of children.
Any abortion restriction that actually treated fœtuses as children would be struck down by the Supeme Court, n'est çe pas?
1.10.2006 11:28pm
SimonD (www):
In practice, though abortion restrictions are entirely about limiting the choices of women, in which there is no legitimate state interest whatsoever.
If it were just about limiting the choices of women, I would entirely agree with you that restricting abortion was unconscionable. Indeed, as I noted recently at Prawfsblawg, I don't accept as legitimate any rationale for being anti-abortion other than because one believes abortion to be murder, since the imposition of so draconian a law, which disproportionately burdens women, can only be legitimated by an absolutely compelling interest. The only interest that will suffice, in my view, is the life of the child. More tersely put, it abortion is not murder, it should be legal, and if it isn't, it shouldn't. I think it is, thus I must conclude it should be illegal.

However, I must add that I do not agree with the false conflation of overturning Roe with the banning of abortion; it seems to me that even if one is pro-choice one can (and indeed should) be anti-Roe.
1.10.2006 11:34pm
Katherine:
he talked a fair bit about stuff directly related to Hamdan, Al Odah, etc., with Graham. That's much more likely to come before the court. For example, he strongly implied that Rasul had narrowed if not overturned Eisentrager. If he can comment about those precedents why not about the Article I, Section 8 powers in relation to something that's not actually likely to come before the S. Ct? (Since presumably the issue would arise in the context of a prosecution, and we're not going to see any prosecutions under this administration).

Anyway
1.10.2006 11:44pm
Paulg (mail):

The abortion issue is also maddening because it appears that abortion is the only absolute right. Not even reasonable and popular regulations like spousal and parental notification are allowed. The courts have accepted restrictions on every other right we possess, but not on abortion. Why is it so special?


Isn't the problem that there is no constitutional right to an abortion?
As I understand Roe -v- Wade, the implied right to privacy is taken to mean that it is generally unconstitutional to enforce anti-abortion laws, which is very different from say the right to bear arms which is clearly and plainly enunciated.

If the Democrats fearlessly believe that there should be a constitutional right to abortion why don't they get a plainly worded amendment to the constitution to that effect up for a referendum. That way we'd end all of these tea-leaf reading that goes on over judicial nominations
1.10.2006 11:50pm
K Parker (mail):
Hoosier,

I understand why an advocate might wish there were a moral equivalence between NARAL and the NRA, but in order to claim this you must either (a) know nothing much about the actual NRA, or (b) put out something you know doesn't actually comport with the facts. Granted, there definitely are pro-gun organizations out there as absolutist* as NARAL; it's just that the NRA is not one of them.

Also, your rhetorical question is more than a bit hoplophobic:

As a dad, I neither want my sons playing with assault rifles


Once we dispense with the misleading word playing (no one rightly plays with a real firearm of any kind!) there's nothing at all objectionable in your scenario, depending on the age and maturity of the child. Anything shooting the .223 cartridge (used by America's primary battle rifle) is fairly low-recoiling, and thus quite suitable for use even by pre-growth-spurt adolescents.

And no, unless the parent is also somehow a government, the 2nd amendment is inapplicable to the situation of a parent resticting a minor child's access to firearms.

------------
*Ok, just to preempt misunderstanding in case someone is using a novel definition of 'absolutist': I mean that the NRA is quite willing to accept reasonable restrictions of the right: they don't oppose restrictions on felons or the insane possessing arms, or restrictions on crew-served weapons, or even the all-but-ban via oppressive taxation on simple fully-automatic individual weapons like the M-16. (If the standard infantry rifle of the US Army isn't exactly the sort of thing the 2nd amendment is trying to protect access to, what is?) Nor do they have any campaigns trying to repeal state bans on standard military rifles (as, for example, we have here in WA.)
1.11.2006 12:03am
SimonD (www):
PaulG hits the nail on the head. The most sickening part of the nominations hearings - with Roberts and with Alito - is litening to Senators discussing things that are not in the Constitution as if they are not one of that incredibly select group of 535 Americans who can actually personally initiate the amendment process. If Senator Feinstein does not like the fact that the commerce clause does not empower the Congress to regulate the ownership of a firearm, she can introduce a Constitutional amendment to change that.

Paul also implies, of course, the real reason for the shadow-dancing: the Democrats could no more pass a Constitutional amendment creating a Constitutional right to an abortion today than they could in 1973, which is of course precisely why Roe was decided and why it continues to be defended. The majoritarian rhetoric is fatally undercut by their reliance on an explicitly countermajoritarian artifice to keep their policy preference in place.
1.11.2006 12:04am
Cato the Younger:
In practice, the women who would have trouble getting consent from their husbands would often, perhaps usually, be afraid even to notify them. The outcome is the same: women with abusive or otherwise bad husbands will not be able to get abortions.

....

Yes, but what happens when the father isn't her spouse?


Perhaps some people should go back and actually read Casey, rather than just opining on it:


"A woman is not required to notify her husband if (1) her husband is not the father, (2) her husband, after diligent effort, cannot be located, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury upon her by him or by another individual. In addition, a woman is exempted from the notification requirement in the case of a medical emergency. 18 Pa.Cons.Stat. 3209 (1990)."


505 U.S. at 971.
1.11.2006 12:12am
M.A. (mail):
Paul also implies, of course, the real reason for the shadow-dancing: the Democrats could no more pass a Constitutional amendment creating a Constitutional right to an abortion today than they could in 1973, which is of course precisely why Roe was decided and why it continues to be defended. The majoritarian rhetoric is fatally undercut by their reliance on an explicitly countermajoritarian artifice to keep their policy preference in place.


I'm not sure that majoritarianism has much to do with it. Roe is popular with the public, rightly or wrongly (which is why Alito found it necessary to mention that a judge shouldn't be influenced by public opinion). A whole generation has grown up assuming that there is a right to an abortion. After 34 years, maybe the burden should be on the people who don't think the Constitution protects abortion to specifically write that into the Constitution (it doesn't have to be a ban, just something that says that the states have the right to legislate on this issue). In other words, it seems to me that it's the anti-Roe-ers who are trying to get the court to enshrine their policy preferences without having to go to the trouble of legislating on the issue.

I don't know that Democrats are particularly anti-majoritarian, as I said. Of course overturning or gutting Roe would not automatically make abortion illegal, but it would remove the one obstacle states have in making abortion effectively illegal: the courts. Even as it is, states like Mississippi have effectively made abortion unavailable to all but the richest, whitest women; without Roe, more states -- and perhaps even the federal government -- would pass all kinds of "reasonable restrictions" that would stop short of a ban but in practice would make it impossible to get an abortion if you don't have a lot of money to pay for one. The idea that overturning Roe would let the issue be decided at the ballot box is basically silly. Legislatures have found all kinds of ways of gutting abortion rights (thus pleasing the embryo-firsters) while never having to explicitly admit that that's what they're doing (and therefore facing no consequences at the ballot box). Wanting to uphold Roe is not so much anti-majority as a shield against the exploitation of the legislative process by a determined, well-funded minority.

As to "not in the constitution," the point of Roe was that the existing abortion laws violated constitutional rights. Since every abortion law ever passed is a farrago of unequal treatment, privacy invasion and repression of consensual sexual relations (by making an exception for rape or incest, an abortion ban is effectively admitting that it is about punishing consensual sex, not protecting life), it is hardly a stretch to say that they are unconstitutional even if the word "abortion" does not appear in the Constitution.

Off-topic a little, but Scott Lemieux has one of the better defences I've seen of Roe: Part 1, Part 2, Part 3.
1.11.2006 12:24am
byomtov (mail):
notification is not a substantial burden. Consent would be. Notification is not.

I think it is. I think it is often a very substantial burden on those women who would otherwise not notify the father, and that is exactly who the law constrains. That is where the constraint binds.

I think it is reasonable to assume that usually a woman planning an abortion will notify the father, and that not doing so represents a conscious decision on her part. This decision ought to be respected. In fact, the reason for this decision will often be exactly what you deny to be true: that notification is a substantial burden, or worse.

Is it for the legislature, or Alito, to override her judgment? On what basis? You speak of competing interests, but if abortion is legal the competing interest being defended by notification laws is very small indeed, once we remember that the only beneficiaries are fathers who would not otherwise be notified.
1.11.2006 12:35am
Defending the Indefensible:
Why is there so much focus on abortion, and not on general principles of federalism? Whatever you may feel personally about abortion and whether Roe was rightly or wrongly decided, would you trade all other considerations to overturn this single decision?

Suppose it could be known with certainty that Alito will vote to overturn Roe, and that his vote would be the one which swings the court. Suppose also that Alito would accept as constitutional a statute which banned private possession of all firearms on the basis of congressional findings that the purpose of the second amendment was only to arm the militia (being now subsumed into the national guards) and a jurisdictional statement that referenced interstate commerce at any point in the production, sale or ultimate disposition of the firearms, or a substantial effect upon equivalent marketable alternatives.

Each time I've raised this before in this thread, someone shrugs it off as just modern commerce clause jurisprudence. Well, yes, it is, but isn't that something we should be concerned with? Isn't it more important as a point of conservative philosophy than a single outcome? Is it just that you don't think it's something that the court can address? Did Raich stop federalism in its tracks?
1.11.2006 1:00am
Cato the Younger:
The "issue" that you raise is just about as (1) inconsistent and (2) unlikely as any scenario I can imagine. Why should anyone assume that your hypothetical Justice Alito, who would provide a great victory to federalism by overturning Roe and giving power back to the states, would also strike a death blow to federalism by permitting a federal firearms ban which (in addition to violating the Second Amendment) would greatly expand federal authority?

Unless your hypothetical Justice also has a split personality, your question makes no sense.
1.11.2006 3:07am
Cato the Younger:
By the way, Congressional findings on "the purpose of the Second Amendment" sound much more like legal findings (which are the province of the courts) than like the factual findings Congress actually makes.
1.11.2006 3:10am
Paulg (mail):

As to "not in the constitution," the point of Roe was that the existing abortion laws violated constitutional rights.


M.A.

The point I was trying to get at is that the rhetoric that pro-abortion groups use is they assert that there is a constitutional right to an abortion, which is not the case. As you correctly describe the situation anti-abortion laws are viewed as violating other rights, the most important of which (privacy) is implied. This means that Roe is capable of being overturned by a court in the future. If the pro-abortion side wants to enshrine a carved in stone "right to abortion" or at the very least "right to privacy", the way to do it is to amend the constitution.

Also as you say the anti-abortion crowd could amend the constitution to specifically allow states to legislate in the area.

I really don't care which side does it, but one side or the other really should get their constitional amendment up so we don't spend the next 34 years still arguing Roe. I think both sides realise the difficulty of drafting, let alone passing, such a provision which is why they'd rather play Judge Wars than get a clear fix.
1.11.2006 4:10am
therut (mail):
I did notice something he said that was not true. He said he thought that a majority of States ban possession of machine guns. NOT TRUE. Only 12 do. Someone needs to take him to one on the machine gun shoots that are held in this great country of ours or at least let him know the facts.
1.11.2006 4:13am
Jimbeaux (mail):

Even as it is, states like Mississippi have effectively made abortion unavailable to all but the richest, whitest women; without Roe, more states

What does this mean, exactly? Does Mississippi have a $1000 "abortion tax" or something? I'm serious, I really don't know.
1.11.2006 5:34am
Frank Drackmann (mail):
If abortin had been easily available in 1969, Mary jo Kopechne might still be alive.
1.11.2006 6:51am
ericvfsu (mail):
Did anyone notice that at least one senator seemed to insinuate that Judge Alito's decision in the warrant/search of 10-year-old girl case (sorry, I don't have the cite) caused the search to happen? The comment was something like - You made this decision and a 10-year-old girl was strip searched.
1.11.2006 7:44am
Defending the Indefensible:
Cato,

See his discussion of Rybar, discussed above.
1.11.2006 8:10am
ericvfsu (mail):
To add the specifics to my earlier post:

Regarding Doe v. Groody, Sen. Kennedy said

"Why did you feel that, under these circumstances -- under these circumstances -- that that affidavit should be included, the result of which we have the strip-searching of a 10-year-old -- a 10-year-old that will bear the scars of that kind of activity probably for the rest of her life?"

I would say that many people's memory of the emotional appeal above would be that Alito's actions resulted in the strip-searching of a 10-year-old girl. That would not be a strictly logical understanding, but emotional oratory is not evaluated by most people on the strictly logical plane. I would suggest that Sen. Kennedy had every intention to suggest that Alito caused the strip-searching of a 10-year-old girl.

Because of fundamentally dishonest tactics like these on the part of some Democrats and the embarrassing fawning and slobbering of some Republicans, there are precious few Senators who are doing an honest, responsible job of interviewing this nominee for us (the American people).

Unfortunate.
1.11.2006 8:23am
SimonD (www):
I'm not sure that majoritarianism has much to do with it. Roe is popular with the public, rightly or wrongly
It's not a question of majoritarianism, it's a question of formalism. The majoritarian aspect only comes into play, because in order to amend the Constitution, an idea must command considerable majoritarian support.

An appropriate analogy, I think, are term limits for Congress. Term limits are popular with the public, rightly or wrongly (I think rightly), but none-the-less, sufficient support cannot be mustered for the Constitutional amendment which would be required. That being the case, I doubt anyone who was not (or intended to be) a member of Congress would lose too much sleep if a Judge ruled that members of Congress can only serve for x years. Perhaps substantive due process protects a right to new representation every x years, or perhaps an equal protection thing, where to give candidates in elections equal protection, incumbents must be discriminated against; don't laugh, they've made worse decisions than this on more spurious grounds than these. But anyway, it's besides the point how they make the decision (as, indeed, it was in Roe, by that opinion's own admission), the point is that it might well be very popular, but it is none-the-less an illegitimate usurpation of the judicial role.

I hate to bring up the obvious analogy, if only because it's so trite, but you would surely not have told the LDF a few decades ago that a whole generation has grown up assuming that there is a right to segregate the races, that after 34 years of Plessy, maybe the burden should be on the people who don't think the Constitution abhors "separate but equal" to specifically write that into the Constitution? Why is that different?
1.11.2006 9:24am
SimonD (www):
I think [notification is a substantial burden]. I think it is often a very substantial burden on those women who would otherwise not notify the father, and that is exactly who the law constrains. I think it is reasonable to assume that usually a woman planning an abortion will notify the father, and that not doing so represents a conscious decision on her part. This decision ought to be respected.
Well, two obvious points to make. Firstly, practically all legislation imposes some kind of burden, some kind of incumbency on someone. Merely requiring something of a person is inadequate to claim a law is unconstitutional.

Second, what is your understanding of the difference between a substantial burden and the common or garden-variety burden? I don't doubt that notification is the latter, because practically all legislation is burdonsome; the income tax is burdonsome, but it is not unconstitutional. Can you explain what the difference between these two standards is, or perhaps give some examples of regulations that would be a burden, but which would not be a substantial burden?
1.11.2006 9:29am
SimonD (www):
As to "not in the constitution," the point of Roe was that the existing abortion laws violated constitutional rights.
Well, it pretty much goes without saying that I don't agree. To be sure, my preference would not be to turn the clock back to the legal environment immediately post-Roe; as you'll have gathered from my posts above, my concern is to ensure adequate consideration of the life of the child, not subjugation of women. But you are completely wrong to say that "the point of Roe was that the existing abortion laws violated constitutional rights" - quite the contrary, if the laws struck down in Roe had implicated any actual Constitutional rights, the opinion would have invalidated the laws on the basis of the provisions actually implicated. The Court does not make a habit of making rulings and then discussing completely unrelated issues in its opinions; Lopez did not spend twenty pages rambling about the impeachments clause and then at the end declare its result as to the extent of the commerce clause power in a terse three sentences. The court set out, in Roe, to legalize abortion, period. There is no longer any scope for doubt; we know that this was the goal, Blackmun has admitted it, and the theme is made clear in The Bretheren. Blackmun set out to legalize abortion, and to do so, he had to write an opinion that showed which (if any) Constitutional rights were violated by the abortion laws. The fact that he did not do so, to me, very strongly suggests that he could not do so; the fact that he had to make up a right that isn't in the document very strongly repudiates your notion that "the existing abortion laws violated constitutional rights" which do exist.

Griswold, Roe, and all their progeny must go the way of Lochner, and the sooner the better. It is regrettable that Alito is unwilling to say as much, and even more regrettable that the GOP's confirmation strategy is such as it is. But if that is what it takes, at this moment in time, to get this business done, I can live with that.
1.11.2006 9:58am
Hoosier:
ericv-

Great post. What more is there to say than that the hearings of the last two SCOTUS nominees have been depressing? I struggle sometimes to convince my students not to be cynical about politics and public affairs. Too many college kids these days, as in my day, use the old "they're all a bunch of liars" chestnut in order to justify intellectual laziness. Following the news, let alone analyzing it, is hard work, after all.

Yet SJC hearings always leave me cynical in a way that, say, SFRC hearings don't. (Yes, I'm a C-SPAN junkie. I have insomnia, so it's either congressional TV or adds for 'Girls Gone Wild' at 2 AM. And I've seen all the GGW adds already . . .) The Democrats have been more annoying this time around, since they are on the attack. John Kyl's softballs and Orin Hatch's fawning avoid the ring of actual stupidity. But I'm sure if Grassley was on the attack, he'd do no better on the Hoosier-Perceived-Senatorial-IQ-Test than do Kohl and Kennedy.

I don't think Schumer, Leahy, Feinstein, or Durbin are actually stupid. But the approach to this nomination that they've chosen to take has placed them in a tight box. Biden, Kohl, and Kennedy are not up to the intellectual demands of evaluating the jurisprudential thought of a bran muffin.

And yet--we have a rather capable set of Supremes. The new Chief Justice of the US is remarkably qualified. And Alito is quite patently an honest and capable jurist. How to avoid cynicism? I suppose by looking at what Fred Greenstein has called, in a different context, "Bad Process, Good Result." Maybe God does have a special providence for the US.
1.11.2006 10:27am
jabster:
Rami, you ask:


Anyone have an idea of how many minutes Alito himself spoke versus how many minutes were spent hearing a bunch of Senators play law professor? This is all pretty silly kabuki theater. Unless Alito forgets his lines, I can't imagine how these hearing will affect any Senator's vote.


Elizabeth Bumiller has a wonderful article , analyzing this on the front page of today's New York Times, complete with a chart comparing the number of words each Senator said with the number of words Judge Alito said. To no one's surporise, Biden won the Bloviation Prize yesterday, managing to ask just 5 questions in 30 minutes. Indeed, I think one of Alito's most admirable qualities on display at the hearing is his ability to listen to halfwits on both sides of the aisle give meaningless speeches instead of pressing him with intelligent, focused questions. One thing is clear -- none of these Senators is remotely qualified to sit on any court.
1.11.2006 10:54am
jabster:
The NY Times article comparing the volume of words of the Senators vs. Alito can be found here.
1.11.2006 10:58am
mls (mail):
Cato suggests that those of us discussion spousal notification read Casey, since the statute at issue in that case had exceptions for spousal violence and for situations in which the father is not the spouse.

But we weren't discussing the spousal notification statute in Casey. Just because the Pennsylvania statute had those exceptions doesn't mean that any future (after Casey is overruled) statutes would have those exceptions.

Believe it or not, the policy issues about abortion and spousal notification exist outside of supreme court decisions touching upon the issues.

SimonD suggests that in situations in which the father and the spouse are not the same, we should require, like in public health cases involving AIDS, that the woman make efforts to identify and notify the father. Problem here is that such attempts are likely to destroy any hope of privacy for the abortion decision. And we aren't faced with potential harm or death to a legally-recognized person, like we would with the AIDS hypo.

And, the law has made a distinction between the rights of wedded fathers and unwedded fathers with regard to children (and perhaps in a post-Roe world to potential children). Look at the court's termination and adoption cases (Caban v. Mohammed, Lehr v. Robertson), where fathers NOT married to the mother have no rights unless they have formed a relationship with the child in an existing family-like unit.
1.11.2006 12:14pm
SimonD (www):
MLS,
I think it should be clear that, in my view, we are very much cafed with "potential harm or death" to a person, legally recognized at this time or not. I am not simply suggesting overruling Roe, I'm talking about changing the law in the post-Roe hinterland. As you correctly point out in your rejoinder to Cato, there is to be contemplated both the normative question of what abortion law should be, and the jurisprudential question of whether the Constitution has anything to say about it (and therefore, whether the Supreme Court can ban abortion, as opposed to the legislatures of the various states).

I reason I think Casey was wrongly decided, not only because it failed to overrule Roe, but even taken on its own terms, none of the statutory provisions at issue in that case, in my view, present a substantial or undue burden, given the serious and irreversible of the consequences of the undertaking. I think the provisions adopted by Pennsylvania are not quite those which I would consider to be ideal (as noted above, I would have included an explicit good faith exception to §3209), as a normative question, but they are certainly constitutional, and the Court should have so ruled.

However, one thing I would add, to perhaps bridge the difference between our positions, I do think that, under the Casey precedent, a spousal consent regulation would present an undue burden, and I would probably be interested in hearing an argument that even after Roe/Casey are overruled, such a regulation might raise Constitutional issues.
1.11.2006 1:27pm
byomtov (mail):
what is your understanding of the difference between a substantial burden and the common or garden-variety burden? I don't doubt that notification is the latter, because practically all legislation is burdonsome; the income tax is burdonsome, but it is not unconstitutional. Can you explain what the difference between these two standards is, or perhaps give some examples of regulations that would be a burden, but which would not be a substantial burden?

I wrote nothing about income taxes, or constitutional tests. I wrote that the notification requirement is a substantial burden, disagreeing with your assertion that it is not. My point was that a broad requirement, such as notification, may be burdensome for some people but not for others. In particular, when the requirement is to do something that most people would do in the ordinary course of events it makes sense to consider only the impact on those who would not. It is reasonable to presume that many in that group do not do whatever is being discussed precisely because for them it would constitute a substantial burden.


In the case of abortion notification, for example, the most obvious burden is the risk of harm - physical or other - by the father or his friends and family. Another is the simple emotional cost of having one's privacy invaded with regard to a difficult and personal matter. Why must the woman be coerced into informing someone she would rather not inform?

Fundamentally what I am saying is that the "substantiality" of the burden varies from case to case. In many instances it is zero. But when someone does not wish to notify the father it can be inferred from this very fact that the burden is likley to be substantial.
1.11.2006 2:02pm
Cato the Younger:
But we weren't discussing the spousal notification statute in Casey.... Believe it or not, the policy issues about abortion and spousal notification exist outside of supreme court decisions touching upon the issues.


No, MLS, you were responding to (and quoted) a response from SimonD, who in turn had responded to (and quoted) a post from M.A. that was specifically about the "spousal notification that was [at] issue in Casey." Next time you want to be snarky, please check your facts first.
1.11.2006 6:53pm