"A Wretched Hive Of Scum And Villainy": Part Four--I Agree; Send Lillies

Thomas is correct. Send lillies everyone. It might be the final wake-up call given to the liberals before their live implosion. There is no way that the liberals will win this fight. They brought a knife to a gunfight.

KENNEDY: There was one interesting omission between the exchange of yourself and Senator Hatch on the whole Vanguard issue in question, and that was the promise and pledge that you gave to this committee when you were up for the circuit court. I have it right here.

It said, "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings Loan of Rochester, New York."

You remember that response. That was a pledge and promise to the committee that you would recuse yourself. Did you not?

ALITO: Yes, it was, Senator.

And as I said in answering Senator Hatch's question, if I had it to do over again, I would have handled this case differently. There were some oversights.

KENNEDY: I'm sure you might have. We've had a number of different explanations for this.

I'd like to ask the clerk if they would take down and show the judge, if you'd like to be refreshed about the number of times the name "Vanguard" appears on the brief and the number of times "Vanguard" appears on the opinion, which I believe you authored.

Would you like to -- if I could get a clerk to show those two documents.

ALITO: Senator, I am familiar with that. I do not really need to see the document.

KENNEDY: OK.

Kennedy is such an arrogant ass. I'd like to ask the senator a questio, if I may. Who's the one with notes in front of him, and who isn't? I would think that many judges can recall the cases they've dealt with, and the briefs they've read. To assume that Alito needs some sort of "help" in recalling them is a level of arrogance I never expected out of a sitting US senator.

ALITO: Senator, the name "Vanguard" certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney's office.

I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn't give me the opportunity to apply my personal policy of going beyond what the code requires.

KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself?

ALITO: I believe that they did. I believe that some of them at least addressed that specifically in...

KENNEDY: Do you know specifically whether they did or not?

ALITO: I believe they addressed it in their letters, so they must have been aware of it.

KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases?

ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire.

KENNEDY: And the final answer -- we'll move on -- is that you saw the name "Vanguard" on the briefs and you obviously saw them on the opinion. You're the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself?

ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.

And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don't present recusal problems.

Whoops. Somebody forgot to give Sen. Kennedy a refresher course regarding certain financial things, such as mutual funds in relation to jurists, and past pledges. But the fun isn't over. Sen. Kennedy is just getting warmed up.

Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home.

KENNEDY: And they've seen an intense public debate over when the FBI can look at their library records.

And they've heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president's decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight.

So, Judge, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life.

We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far.

Congress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so.

But we need justices who can examine this issue objectively, independently and fairly. And that's what our founders intended and what the American people deserve.

So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far.

Chief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution.

Justice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills.

Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.

So I have serious doubts that you'd be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials.

And your record shows that, even over the strong objections of other federal judges -- other federal judges -- you bend over backward to find even the most aggressive exercise of executive power reasonable.

But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens.

And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president -- any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far.

Now, in 1985, in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words, am I right?

ALITO: They are and that's a very inapt phrase.

KENNEDY: Excuse me?

That's funny. I guess someone forgot the refresher course in vocabulary, too.

ALITO: It's an inapt phrase, and I certainly didn't mean that literally at the time, and I wouldn't say that today.
The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches.

KENNEDY: So you've changed your mind?

ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.

What I was getting at is the fact that our Constitution gives the judiciary a particular role and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country.

That is what the Constitution states. We have elected branches of government, and under the Constitution it is up to them to set the policy for the nation--both the legislative and the executive. But, here comes Biden who is, to say the least, "puzzled."

Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent.

I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches.

They wonder, when you -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as absolute immunity but, for tactical reasons," et cetera.

So people are puzzled -- at least some are puzzled. And so I don't want you to read any of this as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy.

BIDEN: I mean, what people are puzzled about with the recusal issue was, under oath you said, "I will recuse myself on anything relating to...," and then a case comes up. So they're looking for an explanation.

So it's not about whether you are profiting or whether you are, you know, all of this malarkey about whether you broke judicial ethics. It's, you know, a simple kind of thing. You under oath said: I promise if this ever comes up, I'll recuse myself. And then you gave an explanation. It slipped, you forgot, it had been years earlier, et cetera.

So don't read it as this is one of these things where we know where you are. The people I've spoken to on your court -- and it's my circuit -- have a very high regard for you. And I think you're a man of integrity. The question is, sometimes some of the things you have said and done puzzle -- at least, puzzle me.

And one of the things -- this is not part of a line of questioning I wanted to ask -- but I did ask you when you were kind enough to come to my office about the Concerned Alumni of Princeton. Were you aware of some of the other things they were saying that had nothing to do with ROTC? Because there was a great deal of controversy.

I mean, I can remember -- I can remember this. My son was -- well, anyway, he ended up going to that other university, University of Pennsylvania.

But I remember at Princeton, I had spoken on campus in the early '70s. This was a big thing up at Princeton at the Woodrow Wilson School. And I remember -- I didn't remember Bill Frist, but I remember that there was this disavowing, that Bill Bradley, this great basketball star, and now United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine.

And all I want to ask you is: Were you aware of the other things that this outfit was talking about? Were you aware of this controversy going on in...

Thank GOD! The many FINALLY got to a question. I remember this part clearly while watching this today. I was mesmerized by how utterly incompetent this man sounded. He literally rambled on, and on, and on about NOTHING! I think senility has finally set in for Sen. Biden. But, all of that was for seven simple words.

ALITO: Senator, I don't believe that I was.

ALITO: And when it was mentioned that Senator Bradley had withdrawn from the magazine, that didn't ring any bells for me. I did not recall anything like that.

BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well.

And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.

But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...

(LAUGHTER)

I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.

I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.

But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.

OK, so now we've established in these important proceedings that Joe Biden really isn't a fan of Princeton. The people's tax dollars at work, ladies and gentlemen, I give you Joe Biden. But wait, we're not done just yet. For our final act tonight, we give you Sen. Chuckie "Schmuckie" Schumer, and his question regarding abortion. To quote Thomas, and Hugh Hewitt, Alito "Beat him like a bongo drum."

Judge Alito, in 1985, you wrote that the Constitution -- these are your words -- does not protect a right to an abortion. You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time.

Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it?

It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view.

ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985.

And I made it from my vantage point as an attorney in the Solicitor General's Office, but it was an expression of what I thought at that time.

If the issue were to come before me as a judge, if I'm confirmed and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I've discussed earlier and it's a very important doctrine. And that was the starting point and the ending point of the joint opinion in Casey.

And then if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SCHUMER: But, sir, I am not asking you about stare decisis. I'm not asking you about cases.

I'm asking you about this: the United States Constitution. As far as I know, it's the same as it was in 1985 with the exception of the 27th Amendment, which has nothing to do with what we're talking about.

Regardless of case law, in 1985, you stated -- you stated it proudly, unequivocally, without exception -- that the Constitution does not protect a right to an abortion.

Do you believe that now?

ALITO: Senator...

SCHUMER: I'm not asking about case law. I'm not asking about stare decisis. I'm asking your view about this document and whether what you stated in 1985 you believe today; you changed your view; you've distanced your view?

You can give me a direct answer. It doesn't matter which way you answer, but I think it's important that you answer that question.

ALITO: Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it.

ALITO: That's the only way I can answer that question.

SCHUMER: Sir, I'm not asking for the process. Obviously, you'd use a judicial mindframe. You've been a judge for 15 years.

I'm asking you -- you stated what you believe the Constitution contained. You didn't say the Constitution as interpreted by this or that. You didn't say the constitution with this exception or that exception.

It was a statement you made directly. You made it proudly. You said you're particularly proud of that personal belief that you had. You still believe it.

ALITO: And, Senator, I would make up my mind on that question if I got to it, if I got past the issue of stare decisis after going through the whole process that I have described.

I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.

SCHUMER: But, sir, I'm not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution.

I'm asking you -- and not about the process you've used -- I'm asking you about your view of the Constitution because, as we all know, and we're going to talk about stare decisis in a few minutes, that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are and there's precedent on the books for decades, it's still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in this same memo -- I can't remember who asked the question -- but you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn't know that there was a word that was inapt.

But you said that it was inapt to have written that the elected branches are supreme. So, you discussed your view on that issue without reference to case law because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this.

Can you tell us your view just one more time, your view about the Constitution not protecting the right to an abortion, which you have talked about before? And you said you personally, proudly held that view. Can you?

ALITO: The question about the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country.

And so certainly that's a subject that it is proper for me to talk about.

ALITO: But the only way you are asking me how I would decide an issue...

SCHUMER: No, I'm not. I'm asking you what you believes in the Constitution.

ALITO: Well, you're asking me my view of a question that...

SCHUMER: I'm not asking about a question. I'm asking about the Constitution, in all due respect, and something you wrote about...

ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That's in the First Amendment.

SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you're refusal I find troubling.

And I find it troubling that a man who has had a law degree since 1974, and is a professional attorney doesn't understand the very basics of Constitutional Law, especailly regarding Roe which at the time of his graduation had been the law of the land for a short time, and was easily prevelant in legal debates at the time. NOTHING specifically states "ABORTION" in the Constitution as Freedom of Speech is clearly stated in the First Amendment. Again, a nice try by the Democrats, but a failure--and a miserable one at that--for Day One of questioning.

Mistress Pundit