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Bench Memos

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Feingold’s Round 3



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Feingold tries to link Alito’s prep sessions to NSA surveillance issue because some folks involved in the former also have some connection with the latter. (It should hardly be a surprise (and cannot invite any insidious inferences) that folks in the White House Counsel’s office would deal with both.)

Feingold seems to find it surprising and troubling that a statute might violate the Constitution’s conferral of powers on the President. Feingold thinks it’s a problem that such issues might not be justiciable. (Zero understanding that political processes can sort this out. Not every issue needs to be decided in court, and it’s often best that some issues not be decided in court.)

Feingold asks (as Leahy did) about whether factually innocent person who has been fairly convicted has constitutional right not to be executed. (Is there a governor in the country who would not grant clemency in such a case?)

“Affirmative action”. Alito discusses own experience of value of diversity in educational context.

F: Does Congress have power to enact law preventing discrimination against gays in employment? A: I don’t see why not.

Feingold raises Saxe case involving anti-harassment policy. A: Very broad policy presented 1st Amendment overbreadth problems.

Feingold raises ethics issue about Third Circuit judges testifying at his hearing. Will A have to recuse himself from cases involving them?



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