Slate's Jurisprudence: Alito on Stage

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MADELEINE BRAND, host:

And joining us now to discuss the confirmation hearings is Dahlia Lithwick. She analyzes legal matters for the online magazine Slate and for us here at DAY TO DAY.

And, Dahlia, we just heard about a few of the big themes from today's hearings, abortion rights, stare decisis, executive power. Should we expect to hear a lot more about those issues?

DAHLIA LITHWICK (Slate): I think so, Madeleine. I think those are going to be--certainly abortion and executive powers are the big two. The other thing we've heard a lot this morning and it's a sort of different iteration of the questions of executive power, Alito's being questioned very closely on the numerous cases in which he sided with the police against a criminal suspect and in the numerous cases in which he sided with business against, in this case, plaintiffs who are complaining of racial and gender discrimination. So we're seeing, you know, as part of the larger question about `Do you always defer to the government?' we're hearing about specific cases where he deferred not to the executive but to either the police or prosecutors.

The other thing that we've heard a lot this morning and I suspect we're going to hear a lot more about are the questions about Alito's so-called ethical problem. One involves a group he was involved with and says he was involved with, Concerned Alumni of Princeton, which is a group that was dedicated to keeping women and minorities out of Princeton University. He's been questioned closely on that several times this morning.

And another is his involvement in a case that he heard while he was on the 3rd Circuit involving Vanguard. He has investments in Vanguard. He should have recused himself and didn't. Again, more sharp questioning this morning on the appropriateness of him not recusing himself.

BRAND: And you listened to his opening statement. Did Judge Alito say anything there that surprised you?

LITHWICK: You know, not really. He made the important point that, `Look, when I went from being a lawyer for the executive branch to being a judge, my job changed. I have no agenda. Judges can't have a political agenda.' What he didn't do, which was almost more surprising, he didn't offer a really good metaphor. John Roberts offered the wonderful metaphor, you'll remember, of--in his opening statement, you know, `Justices are not anything but umpires. We call balls and strikes. We don't make the law, we just sort of say are you in the strike zone.'

Alito didn't have something that was sort of that neat and that clever. It was somewhat rambling discussion of his sort of childhood and, you know, the life of a blue-collar kid in New Jersey. As a consequence in some ways it seems like this whole hearing is still looking for that metaphor, that wonderful umpire metaphor that John Roberts served up so beautifully last time.

BRAND: Mm-hmm. And let's turn to the senators and their performance today. Who has been the most aggressive in questioning Judge Alito?

LITHWICK: That would probably be Pat Leahy from Vermont who was very, very tough this morning on the question of executive power. Asked some very awkward and hard questions, again, about Alito's involvement in CAP, Concerned Alumni of Princeton. And then Ted Kennedy, I thought, was very, very aggressive, again on the question of executive power, on his questions of, you know, what are the boundaries to what the president can allow himself to do. And Ted Kennedy was also very, very concerned about a case in which Alito had, you know, after the fact signed off on a strip search of a 10-year-old. Questioned him very sharply about, you know, how could anyone--anyone--think that was appropriate. So I think those were the two this morning that were the toughest questioners.

BRAND: And are these senators lining up in predictably partisan ways? Are Democrats asking tough questions and Republicans soft ones?

LITHWICK: Pretty much. With the exception, I think, of Arlen Specter this morning who really did ask some tough questions about Alito's views on privacy, coded abortion. For the most part what you're seeing more and more is both sides digging in. That is to say, Republicans on the committee elevate him higher and higher in their book of saints and Democrats on the committee sort of tend more and more to say, `Man, you are just reckless and impossible when it comes to thinking about the little guy.'

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate.

Thanks a lot, Dahlia.

LITHWICK: My pleasure, Madeleine.

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