Alitorama IV: Beyond Capitoldome!
Let's finish up the Alitorama.
Today, some senators get some extra time -- 25 minutes each -- because they asked nicely. Unfortunately, it's more than just the three we knew about yesterday. Everyone wants a second helping of Alito. They promise to make today's questions "about the nominee," which would be a welcome change, but is of course a lie.
First, though, it's time to settle scores. Specter now has all the documents that Kennedy wanted to subpoena about Alito and this Princeton CAP group. Surprise surprise, none of the documents -- minutes, letters, subscription lists, membership lists, cancelled dues checks, or indeed anything at all -- mention Alito. Sorry, Kennedy; raving psychosis and public drunkenness do not substitute for actual facts.
Leahy: Is it constitutional to execute the innocent?
Alito: I'm not sure that question is well-framed: the Constitution dictates frameworks and procedures for defendants, not results. But basically, no. Of course not. Don't be silly.
Leahy: So, executing the innocent under color of law...
Alito: Bad. Probably unconstitutional in all cases.
Leahy: I'm not getting this. By "bad" do you mean "good"?
Alito: No.
Leahy: Now I will throw in some really gratifying digs against Coburn's silly "stare decisis is foreign law" argument.
Alito: Thanks, man. I really wanted to do that.
Leahy: Now I will throw in some even more gratifying digs against Brownback's silly jurisdiction-stripping argument.
Alito: I am not free to comment on how gratifying I find that.
Leahy: Does "unitary executive" theory allow blah blah wibble?
Alito: No. It is completely unrelated to that.
Leahy: Do you hate independent counsels?
Alito: Once, before I was a judge, I thought they were big ol' separation-of-powers issues. Then I became a judge, read the relevant 8-1 decisions, and realized that I was wrong.
Kennedy: Someone has given me time again. Oh boy will they regret it.
Kennedy: Since my whole rave-about-documents CAP theme hasn't quite caught on as the new hot dance move of the decade, I will instead start raving about the unitary executive and how you want to let the president run the universe.
Alito: You are totally wrong.
Kennedy: There you go again lying to the committee. You are an executive tool! Admit it!
Kennedy: I am now, yet again, going to go back to Vanguard.
Kennedy: I am now going to speak for 15 minutes about Vanguard.
Kennedy: You could have avoided all of this by just saying it was all a mistake.
Alito: WHAT DO YOU THINK I HAVE BEEN SAYING FOR THREE STRAIGHT DAYS YOU GANGRENOUS WINDBAG?
Kennedy: But you refuse -- refuse! -- to admit error. And that is terrible. Terrible.
Kennedy: I will filibuster you! I, personally, will filibuster you. You are evil, evil, evil.
Hatch: Vanguard. I will talk on and on about your immaculately pure treatment of Vanguard. Even though you yourself have said that the initial decision was a mistake, and that you regret it, I am going to praise it anyway.
Hatch: Because even when you think you have broken ethical rules, you were still oh so ethical.
Hatch: How dare those mean Kennedy people say you did something wrong? How dare they? Don't they know that you are a pure and immaculate soul? Sinless! Stainless! Pure! Angelic!
Alito: --
Hatch: No no, no need to defend yourself; I will defend you from them! Never trouble yourself, sweet Alito, to respond to their sneaky and pointed questions; we will save you.
Alito: [hides behind water glass]
Specter: Hatch, if you don't have any questions to ask, I'm just going to cut you off and take away your remaining time. Biden, you're up. Take all the time Hatch has left over, too. If he speaks out of turn, let me know and I'll gavel the creepy old bastard.
Biden: Thank you Mr. Chairman. On behalf of everyone who still has any of their breakfast left to vomit up, thank you. I just came here from a hearing on Darfur, and frankly listening to Sen. Hatch is worse.
Biden: What's the deal with war powers?
Alito: [sixth-grade civics lesson]
Biden: There is this Yoo fellow who thinks differently. He thinks the president can do whatever he wants. I think you and Yoo are best-buddies.
Alito: I have never even read anything by Yoo. I do not have any sort of agreeing-type views of Yoo, because I do not have any views of him whatsoever.
Biden: Drat! You have cleverly evaded my line of questioning! How is it that Alito always escapes my snares?
Alito: Because I'm not as dumb as a sack of bricks.
Biden: Then why did you mix up "horizontal" and "vertical" stare decisis in a previous answer?
Alito: Because at this point in the hearings my brain is dripping out through my ears.
Biden: Tell us all about the unitary executive.
Alito: Good grief. Okay. I'll use small words this time. When an executive branch position is created by Congress with particular requirements and conditions on it, Congress and indeed in some cases private individuals can get all up in the executive's face if he tries to screw with it. But when an executive branch position is created by the executive, delegating only executive powers, to make his executiving easier, it's not any of Congress's business. So the executive power is still the same executive power, with the limitations imposed by the constitution and valid statutes; nobody gets any more or less power. It's just a question of who administers the powers already give to the executive.
Biden: I didn't undestand a word of that. Somebody with a brain should ask this question again.
Kohl: Judges aren't elected, so they can't be voted out of office. This makes them independent of two-bit charlatans and hucksters like me and my colleagues here, which scares me.
Alito: And that is exactly why the founders made it that way: To scare you. Had this not occurred to you?
Kohl: Tell us all about Sandra Day O'Connor.
Alito: She is totally hot.
Kohl: You will follow in her footsteps?
Alito: I will totally follow in her footsteps, because who wouldn't like looking at her ass? Hey Sandra baby, I hate to see you go, but I _love_ to watch you leave.
[There is now a break, in which Leahy and Schumer give press conferences (how tacky is that, giving press conferences in the middle of someone else's hearing). Leahy believes that Alito is secretly going to sell all our souls to the executive branch. Schumer is concerned that Alito won't tell him how he intends to rule on particular upcoming cases. Things are delayed because the next three people on the agenda haven't actually shown up yet today.]
Feinstein: Do you believe that the executive has absolute authority to ignore the law in times of crisis.
Alito: No. Unless the law is unconstitutional.
Feinstein: So you think our laws are unconstitutional?
Alito: I have no idea.
Feinstein: I am going to talk about a bunch of EPA cases. Do you believe that the EPA is a congressionally created agency to be judged under the same standards as other congressionally created agencies?
Alito: Yes.
Feinstein: Drat. I was hoping to catch you on that. What about odometer fraud? What about the Commerce Clause
Alito: Um, what about odometer fraud? I'm against it. And, if you think really carefully about this, you will notice that odometers have a strong tendency to be interstate. Just sayin'.
Grassley: I think that you are an unbalanced raving lunatic. But I like you, and think that you can put aside your unbalanced raving lunacy and be a good judge. I have an extremely complicated and verbose question about the False Claims Act (which I wrote), which will serve mainly as a platform to granstand about what a cool law that is.
Specter: I have this really great joke about the False Claims Act. See, this Cabinet secretary walks into a bar... [the joke relies on people mistaking Specter for Grassley, which let me tell you would not be easy]
Grassley: Oh, you totally got me there!
Specter: Hey, Chuck, tell your Anita Hill joke!
Grassley: Well, this judiciary committee witness walks into a bar... [the joke relies on people mistaking Grassley for Specter, which again would not be easy]
Specter: Oh, gosh. We sure are full of levity!
Hatch: Thank goodness nobody watches C-SPAN. They might think that we're a bunch of half-witted old coots laughing at unfunny jokes.
Alito: Uh, guys? I'm still here.
Feingold: I am concerned that you are going to let the executive get away with everything it tries, because you keep citing the Youngstown decision which says the president can't get away with everything he tries.
Alito: Clearly this is a very important issue. Perhaps I can offer a helpful citation, such as the Youngstown decision.
Feingold: Is evidence obtained by torture admissable in court?
Alito: No. Never. Under no circumstances. Absolutely never never never. That was the entire original point of the Fifth Amendment.
Feingold: That was an awfully vague answer. You are up to something evil.
Feingold: I want to go back to yesterday's question about executing innocent people.
Alito: I will explain all of the various mechanisms we have in this "legal system" thingy to prevent executing the innocent.
Feingold: But, what about executing innocent people?
Alito: Argh.
Feingold: What do you think of diversity?
Alito: I'm for it.
Feingold: Even if it means an interracial military?
Alito: Huh?
Feingold: What do you think of restrictions on First Amendment protected speech via anti-harassment speech codes in schools.
Alito: Totally not okay. Even in schools. Tinker v. Des Moines. Good God, man. It's just the only interesting and relevant case covered in any middle school civics class. Remember? With the arm bands?
Feingold: Wrong answer. I hate you. Now I am going to get into a weird separation-of-powers ethics issues regarding recusals of cases involving hearings witnesses.
Alito: I have absolutely no idea what I think of this question. Actually, this is the only genuinely hard question I've been asked so far. In fact, as I ponder it, I think it has a lot of really cool implications. I will write up a scholarly article on it for you. Is tomorrow okay?
Specter: Schumer, you're up, but only if you can find some _new_ questions to ask. No repeating your same three questions again and again.
Schumer: But my three old questions were important! Repeating them a thousand times is important!
Specter: I have a gavel.
Schumer: I'll be good.
Schumer: Are wiretaps and searches different?
Alito: Yes, for a number of --
Schumer: What are the standards of review for new arguments introduced on appeal?
Alito: In general, appellate jurisdiction exten --
Schumer: Under what circumstances are these standards different in habeas cases?
Alito: Because there are issues of comity --
Schumer: See? You hate mentally retarded victims of sexual abuse, you evil evil man.
Schumer: Is this bill that I oppose unconstitutional?
Alito: That bill, if it passes, will be before the Supreme Court in about an eighth of a second. I totally can't answer that.
Schumer: Answer or I won't vote for you.
Alito: You weren't going to vote for me anyway.
Sessions: In high school, were you a better debater than your sister?
Alito: I must decline to answer that questions.
Sessions: Well shucks, there goes my chance to compete in the unfunniness race with Specter and Grassley by making a "master debater" joke.
Sessions: Awfully nice Supreme Court you have there. Shame if something were to happen to it.
Alito: Excuse me?
Sessions: See, the People of the United States here, they sometimes, you know, _break_ things. Little accidents. Shame if something like that were to happen to your nice new Court.
Alito: I don't like where this is going.
Sessions: See, there are only three branches of government, right?
Alito: Yeah...
Sessions: And see, the judicial branch is only one of them, right?
Alito: Yeah...
Sessions: So it's like, you're all alone out there, constitutionally. Something could happen to your branch of government, and nobody would even know. Whereas me and my guys, we're two branches of government, see. Now, me and my guys, we can maybe protect your nice new Court. 'Cause we're friendly like that. We're friendly to people who are friendly to us, see -- a big, happy family. And your Court doesn't have an accident, and everyone is happy, right?
Durbin: Sessions seems to have been threatening you. Are you okay with that?
Alito: I didn't hear nothin'.
Durbin: May be. May be.
Durbin: I don't like the way you decided an immigration case with a really horribly nasty set of facts.
Alito: Your immigration statutes forbade me to take those facts into account.
Durbin: Oh. Well, I think you should ignore Congressional immigration statutes, because they are broken and stupid.
Alito: Well, at least we agree on the "broken and stupid" thing.
Specter: I have a long list of people who still claim to have time left on their clocks. I don't think they really have anything useful to say.
Graham, Cornyn, Kyl: Well, actually...
Specter: Gavel.
Graham, Cornyn, Kyl: ...actually we were just agreeing we were finished.
And that's that for the interesting part of the hearings. The rest will be testimony, executive sessions, and silly posturing. Alito will be voted to the Senate floor with a recommendation to confirm. Kennedy will try to find the votes for a filibuster, but I suspect that he will fail. And that, ladies and gentlemen, is where Supreme Court justices come from.
Today, some senators get some extra time -- 25 minutes each -- because they asked nicely. Unfortunately, it's more than just the three we knew about yesterday. Everyone wants a second helping of Alito. They promise to make today's questions "about the nominee," which would be a welcome change, but is of course a lie.
First, though, it's time to settle scores. Specter now has all the documents that Kennedy wanted to subpoena about Alito and this Princeton CAP group. Surprise surprise, none of the documents -- minutes, letters, subscription lists, membership lists, cancelled dues checks, or indeed anything at all -- mention Alito. Sorry, Kennedy; raving psychosis and public drunkenness do not substitute for actual facts.
Leahy: Is it constitutional to execute the innocent?
Alito: I'm not sure that question is well-framed: the Constitution dictates frameworks and procedures for defendants, not results. But basically, no. Of course not. Don't be silly.
Leahy: So, executing the innocent under color of law...
Alito: Bad. Probably unconstitutional in all cases.
Leahy: I'm not getting this. By "bad" do you mean "good"?
Alito: No.
Leahy: Now I will throw in some really gratifying digs against Coburn's silly "stare decisis is foreign law" argument.
Alito: Thanks, man. I really wanted to do that.
Leahy: Now I will throw in some even more gratifying digs against Brownback's silly jurisdiction-stripping argument.
Alito: I am not free to comment on how gratifying I find that.
Leahy: Does "unitary executive" theory allow blah blah wibble?
Alito: No. It is completely unrelated to that.
Leahy: Do you hate independent counsels?
Alito: Once, before I was a judge, I thought they were big ol' separation-of-powers issues. Then I became a judge, read the relevant 8-1 decisions, and realized that I was wrong.
Kennedy: Someone has given me time again. Oh boy will they regret it.
Kennedy: Since my whole rave-about-documents CAP theme hasn't quite caught on as the new hot dance move of the decade, I will instead start raving about the unitary executive and how you want to let the president run the universe.
Alito: You are totally wrong.
Kennedy: There you go again lying to the committee. You are an executive tool! Admit it!
Kennedy: I am now, yet again, going to go back to Vanguard.
Kennedy: I am now going to speak for 15 minutes about Vanguard.
Kennedy: You could have avoided all of this by just saying it was all a mistake.
Alito: WHAT DO YOU THINK I HAVE BEEN SAYING FOR THREE STRAIGHT DAYS YOU GANGRENOUS WINDBAG?
Kennedy: But you refuse -- refuse! -- to admit error. And that is terrible. Terrible.
Kennedy: I will filibuster you! I, personally, will filibuster you. You are evil, evil, evil.
Hatch: Vanguard. I will talk on and on about your immaculately pure treatment of Vanguard. Even though you yourself have said that the initial decision was a mistake, and that you regret it, I am going to praise it anyway.
Hatch: Because even when you think you have broken ethical rules, you were still oh so ethical.
Hatch: How dare those mean Kennedy people say you did something wrong? How dare they? Don't they know that you are a pure and immaculate soul? Sinless! Stainless! Pure! Angelic!
Alito: --
Hatch: No no, no need to defend yourself; I will defend you from them! Never trouble yourself, sweet Alito, to respond to their sneaky and pointed questions; we will save you.
Alito: [hides behind water glass]
Specter: Hatch, if you don't have any questions to ask, I'm just going to cut you off and take away your remaining time. Biden, you're up. Take all the time Hatch has left over, too. If he speaks out of turn, let me know and I'll gavel the creepy old bastard.
Biden: Thank you Mr. Chairman. On behalf of everyone who still has any of their breakfast left to vomit up, thank you. I just came here from a hearing on Darfur, and frankly listening to Sen. Hatch is worse.
Biden: What's the deal with war powers?
Alito: [sixth-grade civics lesson]
Biden: There is this Yoo fellow who thinks differently. He thinks the president can do whatever he wants. I think you and Yoo are best-buddies.
Alito: I have never even read anything by Yoo. I do not have any sort of agreeing-type views of Yoo, because I do not have any views of him whatsoever.
Biden: Drat! You have cleverly evaded my line of questioning! How is it that Alito always escapes my snares?
Alito: Because I'm not as dumb as a sack of bricks.
Biden: Then why did you mix up "horizontal" and "vertical" stare decisis in a previous answer?
Alito: Because at this point in the hearings my brain is dripping out through my ears.
Biden: Tell us all about the unitary executive.
Alito: Good grief. Okay. I'll use small words this time. When an executive branch position is created by Congress with particular requirements and conditions on it, Congress and indeed in some cases private individuals can get all up in the executive's face if he tries to screw with it. But when an executive branch position is created by the executive, delegating only executive powers, to make his executiving easier, it's not any of Congress's business. So the executive power is still the same executive power, with the limitations imposed by the constitution and valid statutes; nobody gets any more or less power. It's just a question of who administers the powers already give to the executive.
Biden: I didn't undestand a word of that. Somebody with a brain should ask this question again.
Kohl: Judges aren't elected, so they can't be voted out of office. This makes them independent of two-bit charlatans and hucksters like me and my colleagues here, which scares me.
Alito: And that is exactly why the founders made it that way: To scare you. Had this not occurred to you?
Kohl: Tell us all about Sandra Day O'Connor.
Alito: She is totally hot.
Kohl: You will follow in her footsteps?
Alito: I will totally follow in her footsteps, because who wouldn't like looking at her ass? Hey Sandra baby, I hate to see you go, but I _love_ to watch you leave.
[There is now a break, in which Leahy and Schumer give press conferences (how tacky is that, giving press conferences in the middle of someone else's hearing). Leahy believes that Alito is secretly going to sell all our souls to the executive branch. Schumer is concerned that Alito won't tell him how he intends to rule on particular upcoming cases. Things are delayed because the next three people on the agenda haven't actually shown up yet today.]
Feinstein: Do you believe that the executive has absolute authority to ignore the law in times of crisis.
Alito: No. Unless the law is unconstitutional.
Feinstein: So you think our laws are unconstitutional?
Alito: I have no idea.
Feinstein: I am going to talk about a bunch of EPA cases. Do you believe that the EPA is a congressionally created agency to be judged under the same standards as other congressionally created agencies?
Alito: Yes.
Feinstein: Drat. I was hoping to catch you on that. What about odometer fraud? What about the Commerce Clause
Alito: Um, what about odometer fraud? I'm against it. And, if you think really carefully about this, you will notice that odometers have a strong tendency to be interstate. Just sayin'.
Grassley: I think that you are an unbalanced raving lunatic. But I like you, and think that you can put aside your unbalanced raving lunacy and be a good judge. I have an extremely complicated and verbose question about the False Claims Act (which I wrote), which will serve mainly as a platform to granstand about what a cool law that is.
Specter: I have this really great joke about the False Claims Act. See, this Cabinet secretary walks into a bar... [the joke relies on people mistaking Specter for Grassley, which let me tell you would not be easy]
Grassley: Oh, you totally got me there!
Specter: Hey, Chuck, tell your Anita Hill joke!
Grassley: Well, this judiciary committee witness walks into a bar... [the joke relies on people mistaking Grassley for Specter, which again would not be easy]
Specter: Oh, gosh. We sure are full of levity!
Hatch: Thank goodness nobody watches C-SPAN. They might think that we're a bunch of half-witted old coots laughing at unfunny jokes.
Alito: Uh, guys? I'm still here.
Feingold: I am concerned that you are going to let the executive get away with everything it tries, because you keep citing the Youngstown decision which says the president can't get away with everything he tries.
Alito: Clearly this is a very important issue. Perhaps I can offer a helpful citation, such as the Youngstown decision.
Feingold: Is evidence obtained by torture admissable in court?
Alito: No. Never. Under no circumstances. Absolutely never never never. That was the entire original point of the Fifth Amendment.
Feingold: That was an awfully vague answer. You are up to something evil.
Feingold: I want to go back to yesterday's question about executing innocent people.
Alito: I will explain all of the various mechanisms we have in this "legal system" thingy to prevent executing the innocent.
Feingold: But, what about executing innocent people?
Alito: Argh.
Feingold: What do you think of diversity?
Alito: I'm for it.
Feingold: Even if it means an interracial military?
Alito: Huh?
Feingold: What do you think of restrictions on First Amendment protected speech via anti-harassment speech codes in schools.
Alito: Totally not okay. Even in schools. Tinker v. Des Moines. Good God, man. It's just the only interesting and relevant case covered in any middle school civics class. Remember? With the arm bands?
Feingold: Wrong answer. I hate you. Now I am going to get into a weird separation-of-powers ethics issues regarding recusals of cases involving hearings witnesses.
Alito: I have absolutely no idea what I think of this question. Actually, this is the only genuinely hard question I've been asked so far. In fact, as I ponder it, I think it has a lot of really cool implications. I will write up a scholarly article on it for you. Is tomorrow okay?
Specter: Schumer, you're up, but only if you can find some _new_ questions to ask. No repeating your same three questions again and again.
Schumer: But my three old questions were important! Repeating them a thousand times is important!
Specter: I have a gavel.
Schumer: I'll be good.
Schumer: Are wiretaps and searches different?
Alito: Yes, for a number of --
Schumer: What are the standards of review for new arguments introduced on appeal?
Alito: In general, appellate jurisdiction exten --
Schumer: Under what circumstances are these standards different in habeas cases?
Alito: Because there are issues of comity --
Schumer: See? You hate mentally retarded victims of sexual abuse, you evil evil man.
Schumer: Is this bill that I oppose unconstitutional?
Alito: That bill, if it passes, will be before the Supreme Court in about an eighth of a second. I totally can't answer that.
Schumer: Answer or I won't vote for you.
Alito: You weren't going to vote for me anyway.
Sessions: In high school, were you a better debater than your sister?
Alito: I must decline to answer that questions.
Sessions: Well shucks, there goes my chance to compete in the unfunniness race with Specter and Grassley by making a "master debater" joke.
Sessions: Awfully nice Supreme Court you have there. Shame if something were to happen to it.
Alito: Excuse me?
Sessions: See, the People of the United States here, they sometimes, you know, _break_ things. Little accidents. Shame if something like that were to happen to your nice new Court.
Alito: I don't like where this is going.
Sessions: See, there are only three branches of government, right?
Alito: Yeah...
Sessions: And see, the judicial branch is only one of them, right?
Alito: Yeah...
Sessions: So it's like, you're all alone out there, constitutionally. Something could happen to your branch of government, and nobody would even know. Whereas me and my guys, we're two branches of government, see. Now, me and my guys, we can maybe protect your nice new Court. 'Cause we're friendly like that. We're friendly to people who are friendly to us, see -- a big, happy family. And your Court doesn't have an accident, and everyone is happy, right?
Durbin: Sessions seems to have been threatening you. Are you okay with that?
Alito: I didn't hear nothin'.
Durbin: May be. May be.
Durbin: I don't like the way you decided an immigration case with a really horribly nasty set of facts.
Alito: Your immigration statutes forbade me to take those facts into account.
Durbin: Oh. Well, I think you should ignore Congressional immigration statutes, because they are broken and stupid.
Alito: Well, at least we agree on the "broken and stupid" thing.
Specter: I have a long list of people who still claim to have time left on their clocks. I don't think they really have anything useful to say.
Graham, Cornyn, Kyl: Well, actually...
Specter: Gavel.
Graham, Cornyn, Kyl: ...actually we were just agreeing we were finished.
And that's that for the interesting part of the hearings. The rest will be testimony, executive sessions, and silly posturing. Alito will be voted to the Senate floor with a recommendation to confirm. Kennedy will try to find the votes for a filibuster, but I suspect that he will fail. And that, ladies and gentlemen, is where Supreme Court justices come from.