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Alito Hearing: Gender Discrimination

Everyone is blogging the Alito hearings. I'm not going to do a play-by-play, I only got to watch bits and pieces and here's the transcript from this morning.

Of particular interest, Sen. Leahy questioned Judge Alito on his membership in Concerned Alumni of Princeton, a group that advocated against having women at Princeton. While at Princeton, Judge Alito was a member of this group. He listed it on a job application for the Reagan Administration. Today, while not denying he was a member, he says he has searched his memory and doesn't recall it, and therefore, he must not have been an active member.

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Alito Confirmation Hearings to Begin

Supreme Court confirmation hearings for Judge Sam Alito begin tomorrow. According to Bloomberg News, Sens. Schumer and Kennedy have not ruled out a filibuster.

This New York Times editorial succinctly describes the hot-button issues:

He has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."

The Times also points out that Alito's confirmation is not a done deal in the eyes of the public.

In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.

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Time: White House to Welcome Alito Diversion

Time Magazine reports the White House intends to play up the debate over Judge Sam Alito's nomination to the Supreme Court -- hoping it will distract us from the Washington scandals of Tom DeLay and Jack Abramoff.

Republican officials say they are so worried about the Abramoff problem that they are now inclined to stoke a fight with Democrats over the confirmation of Samuel Alito to the Supreme Court in an effort to turn the page from the lobbying investigation. Outside groups plan to spend heavily, and the White House will engage in some tit for tat with Democrats as the hearings heat up.

Fat chance. We'll be reporting on both all week, and encourage everyone else not to let up on the scandal news while they cover the Alito hearings.

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Alito's Threat to the Balance of Power

The New York Times opines that Judge Sam Alito has an excessive zeal for presidential power.

[His] memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.

The Times urges Senators to ensure that Alito is on the side of the Constitution, not the President. Senator Leahy issued this statement Friday alerting Judge Alito that he would be questioned closely on his views about presidential power and checks and balances.

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Alito Advocated Overturning Roe v. Wade in '85 Memo

The National Archives today released additional memos written by Judge Sam Alito, including one in 1985 that advocated overturning Roe v. Wade.

Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January's confirmation hearings. In a recommendation to the solicitor general on filing a friend-of- court brief, Alito said that the government "should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."

In another memo, he supported the ability of government officials to order domestic wiretaps:

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Blogger Conference Call on Sam Alito Now

American Progress is hosting a blogger conference call on Judge Sam Alito at 3pm ET. If you'd like to participate, here are the details:

The regular call-in line is (888) 665-1701, and the conference ID number is 3461465.

Speakers include Paul Begala, Judd Legum , David Halperin and me. You will be able to ask questions.

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Right Wing Ads Try to Justify Alito Strip-Search Opinion

How typical of conservatives. When you don't have a legal or rational leg to stand on, attack those pointing out the error of your ways. The New York Times reports that as part of "law enforcement week," conservatives have launched an internet ad campaign supporting Judge Sam Alito's dissent in the 2004 case of Doe v. Groody (pdf), in which Alito argued it was okay for police to strip search a ten year old when the warrant only named her father. I kept reading the article, thinking I would learn the legal theory the ad relied as support for Alito's belief that the police action was justified. Instead, I found this:

The conservative advertisement attacks the "left-wing extremists" who oppose Judge Alito, saying they "may have found new allies, drug dealers who hide their drugs on children."

Judge Alito's actual dissent in the case reads like a prosecutor's brief rather than a judicial opinion: The search was good, and even if it wasn't, a reasonable officer might have believed it was good -- and it's a fact that drug dealers use their kids to carry out their business and avoid prosecution.

The majority opinion, by the way, with which Alito disagreed, was written by that uber-liberal (sarcasm) former Judge and now Homeland Security Chief Michael Chertoff.

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Alito and the Death Penalty

by TChris

Two law professors, Goodwin Liu and Lynsay Skiba, have authored a white paper (pdf) for the indispensable American Constitution Society, exploring Judge Alito�s approach to death penalty reviews during his tenure on the Court of Appeals. Here�s a synopsis (received via email):

In their paper, "Judge Alito and the Death Penalty," Liu and Skiba examine in detail the five capital cases in which Judge Alito disagreed with his colleagues during his tenure on the U.S. Court of Appeals for the Third Circuit. Liu and Skiba note that Judge Alito has voted to uphold a death sentence in each of these five capital cases. They conclude that, in doing so, Judge Alito "dilute[ed] norms of basic fairness" by taking controversial positions outside-the- mainstream of judicial thought. After noting the implications of both Judge Alito's judicial methodology and his ideology for his jurisprudence relating to the death penalty and the War on Terror, Liu and Skiba propose a series of specific questions that they suggest Senators on the Judiciary Committee pose to the nominee during the upcoming hearings on his nomination.

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Say Hello: Alito's America

Say hello to Alito's America, a youth-oriented campaign to stop the nomination of Sam Alito. It's a project of Campus Progress and Center for American Progress. Sample Messages:

President Bush has nominated Samuel Alito, a judge with a long record of judicial extremism, to replace Sandra Day O'Connor, who has been the crucial moderate voice and swing vote on the Supreme Court. If Judge Alito is confirmed, his extreme right-wing ideology would endanger our basic freedoms.

and a sample letter to send to your Senators:

Samuel Alito's America is not my America. I'm opposed to the confirmation of Judge Alito to the Supreme Court. I believe that President Bush should appoint a mainstream judge in the mold of Sandra Day O'Connor.

Watch the video.

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Was Bush Wrong About Alito's Father?

When announcing Judge Sam Alito's nomination to the Supreme Court, President Bush said:

I'm sure, as well, that Judge Alito is thinking of his mom, Rose, who will be 91 in December. And I know he's thinking about his late father. Samuel Alito Sr. came to this country as a immigrant from Italy in 1914. And his fine family has realized the great promise of our country.

London Yank at Daily Kos checked out the elder Alito's military records (available online) for WWII.

Samuel Alito of Mercer, New Jersey was born in 1914 in New Jersey. There are codes on the data set for "Nativity" as well as "Citizenship" so there is no possibility of error here - unless Sam Sr. lied when he enlisted in 1938 to serve his country.

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Alito Opined that Deadly Force Against Unarmed Teenager Was Reasonable

by TChris

If a police officer doesn’t know why a suspect is fleeing, it’s reasonable for the officer to shoot the suspect to death and ask questions later. As you pause to consider the absurdity of that proposition, ask yourself why a government lawyer would consider it reasonable for an officer to shoot and kill an unarmed teenager who had just stolen $10 in a burglary. And then ask whether a lawyer who expressed that belief should serve on the Supreme Court.

As an assistant to the Solicitor General, Judge Alito weighed in on a case involving an officer who was investigating a possible burglary. The officer heard a door slam, then went to the backyard where he “shined his flashlight on a youth who appeared to be unarmed and who was trying to climb a six-foot-high chain link fence to escape.” The officer “seized” the kid by shooting him in the head.

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Specter's Sudden Silence

by TChris

Before and during the Roberts nomination to the Supreme Court, Arlen Specter seemed quite concerned about the limits of judicial power. In particular, he thought the Court had overreached in limiting or striking down legislation enacted by Congress, including the Court's decision declaring unconstitutional a portion of the Americans With Disabilities Act that prohibited state governments from discriminating in employment on the basis of disabilities.

Sen. Specter seems to be satisfied with Judge Alito’s views on abortion after quizzing him today. But why isn’t Specter asking Alito the very question that consumed him earlier this year -- whether Alito respects the authority of Congress to legislate?

Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary.

Will Specter ask Alito why he voted to strike down the Family and Medical Leave Act as it applies to state governments -- a position that was too extreme even for former Chief Justice Rehnquist? Is Specter still interested in ferreting out adherents of the Constitution in Exile movement, who believe courts should strike down a variety of health, labor and environmental laws as beyond the scope of congressional power? Why is Specter suddenly silent on these issues? (More on Alito’s record of judicial activism here and here.)

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Judge Alito Sued Over Wife's Traffic Accident

What do we make of the news today that Judge Alito was once a defendant in a civil suit for damages resulting from a traffic accident in which his wife was the driver and which was settled for an undisclosed sum?

When it comes to personal injury lawsuits, you can't really judge a lawsuit by its pleadings. The plaintiff will put his injuries in the most severe light while the defendant will say it wasn't his fault and the plaintiff wasn't really hurt that bad. Still, the disparity between the plaintiff's complaint and Judge Alito's explanation warrants further examination.

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Former Third Circuit Clerk Criticizes Alito

We've all read the glowing recommendations of former law clerks of Judge Alito. Here's a non-glowing report from a former Third Circuit clerk who worked not for Alito, but for another judge.

From 1996 to 1997, I was privileged to clerk for a judge on the U.S. Court of Appeals for the Third Circuit. Over the course of that year, my judge sat on a number of cases with Judge Samuel A. Alito, Jr. One of these cases stands out in my memory and gives me pause when it comes to Judge Alito’s commitment to judicial restraint.

One of those cases involved the murder conviction of Clifford Smith. The clerk, Michael J. Zydney Mannheimer, who is now Assistant Professor of Law at Salmon P. Chase College of Law, Northern Kentucky University, relates events establishing Judge Alito's determination to uphold the conviction. He concludes with this important observation:

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Alito Supported Expansion of Police Powers

The Justice Department released 470 pages of documents about Judge Sam Alito to reporters Monday on highly techical legal issues -- and gave them three hours to read them

Despite the lack of time to fully digest them, as the New York Times reports, at least one thing was abundantly clear:

In several of the memorandums, however, Mr. Alito makes a series of arguments espousing a broad view of law enforcement authority and a skeptical view of proposals to protect individuals from legal investigations.

The Washington Post reports the memos show Alito was hostile to foreigner's rights:

As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

Abortion is not the critical issue in Alito's nomination. Freedom and the right to life for the already born is more important.

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