Bench Memos

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Adverse Witnesses


I was unable to follow the hearing live during the last panel of witnesses yesterday, and a transcript of that panel session does not yet appear to be available. So I’ve taken an admittedly quick look at the statements that the adverse witnesses submitted and have a few comments:

Michael Gerhardt of UNC Law School for some reason decides to discredit his own judgment with the assertion that the “present hearings … have, at least to date, been exemplary in their tone, civility, decorum, and focus.” In what I think is his only reference to one of Alito’s judicial rulings, Gerhardt misstates the relationship between Alito’s ruling in Chittister on one provision of the Family and Medical Leave Act and the Supreme Court’s ruling in Hibbs on another provision of that Act. (Legal research appears not to be an activity that many law professors engage in. How much easier it must be to spin one’s own theories.)

Goodwin Liu of UC Berkeley’s Boalt Hall does present a lengthy discussion of Alito’s record on criminal-procedure issues. I have not done a side-by-side comparison of Liu’s comments and Alito’s cases, so it may well be that Liu’s analysis falls largely within the broad range of responsible commentary. On the two points I did check, though, he failed: First, his description of the issue at stake in Doe v. Groody (the immunity case involving the search of a 10-year-old) is tendentious to the point of being misleading: He claims that Alito “all but ignored” a “rule” whose application Alito openly contested. (An interview that Liu gave on Pacifica radio regarding the case was even worse. He had a screwball theory that even if Alito were correct to read the warrant to incorporate the affidavit, that wouldn’t have justified the search. Liu concealed from his listeners the unhelpful fact that the affidavit requested a search of “all occupants” of the residence and instead argued that the stated reasons for the search wouldn’t have extended to the 10-year-old.) Second, while invoking O’Connor when she helps him, Liu, in criticizing Alito’s 1984 DOJ memo on the “fleeing felon” rule, does not see fit to point out that O’Connor, in her dissent in Tennessee v. Garner, adopted the same position as Alito.

Liu’s concluding remarks are patently demagogic and assume a constitutional scheme in which judges, and only judges, make policy on everything: Liu states that “Alito’s record envisions an America” where police “may” do all sorts of things that Liu (in some instances reasonably, in others less evidently so) doesn’t like. What Liu obscures is that Alito’s approach would enable the political processes to establish reasonable policies on all these matters.


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