Bench Memos

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Durbin’s Questions


Durbin starts with Griswold and right of privacy. Confuses 11th Amendment with 14th. Raises Brown, which Alito calls one of greatest moments in Supreme Court’s history. Durbin says both Griswold and Brown aren’t rooted in text of Constitution, asks why Alito won’t address Roe. Faults Alito for not distancing himself from 1985 memo (whereas Dems had before the hearing faulted him for supposedly distancing himself from it). Durbin very “troubled”.

Alito: Brown is based squarely on equal-protection clause of 14th Amendment. Griswold concerned marital right to privacy, was based on emanations and penumbras. But has been understood as based on Due Process Clause of 14th Amendment. Issue in Griswold is not likely to come before courts. Therefore can comment on it. On Roe, a great deal has happened in case law since 1985 essay. Stare decisis analysis would have to take account of that, before even getting to merits of Roe.

Durbin: Troubled that you don’t see Roe as natural extension of Griswold. (Neither did Justice Harlan, as I may spell out later. What does marital privacy have to do with killing the unborn?) Claims that Roberts said that Roe is “settled law of the land.” (What Roberts said, as I recall off the cuff, was that Roe is settled, which in his phrasing meant nothing more than that is precedent to which stare decisis principles can be applied.) Can you agree that Roe is settled law of the land?

Alito: Depends what “settled” means. Agrees that Roe is precedent entitled to respect under stare decisis principles. Involved in ongoing litigation.

Durbin: I’m concerned that you could be the deciding vote against Roe. (Try counting to five, Dick.)

Concerned Alumni of Princeton: Durbin: I didn’t understand your answer. ROTC had been restored by 1985. A former female colleague of yours was flabbergasted by your membership in CAP. Why did you include this organization in your 1985 essay?

Alito: I’ve said what I can recall about the group, which is virtually nothing. If I had been involved in any substantial way, I’m sure that I would remember it. My hiring practices as US Attorney show my attitude towards equality. Princeton’s attitude towards ROTC bothered me over a period of time. Controversy continued even after it was restored.

Durbin: Raises Bruce Springsteen and the “crushing hand of fate” as entree to murder case involving peremptory challenges (Riley v. Taylor). You dismissed statistical evidence of all-white juries. I find your analogy to left-handed Presidents troubling.

Alito: The analogy went to the use and misuse of statistics. Confusing cause and chance. Riley was a very difficult case. Nothing is a greater poison for law enforcement than even the slightest hint of unfairness. Case involved habeas corpus statute, which set high hurdle for overturning state judgment. PA Supreme Court was unanimous on issue. Question before us was whether state judges were unreasonable.

Durbin: Raises Pirolli sexual-assault case, where Alito in dissent voted to affirm district court’s grant of summary judgment. You held Pirolli responsible for lawyer’s deficiencies.

Alito: District court’s grant of summary judgment says something about merits of case. Judicial restraint at the appellate level requires that in civil cases, absent extraordinary circumstances, issues be raised in trial court.

Durbin: Raises case about mine safety. Why would you so narrowly construe a statute when safety is at stake?

Alito: The case involved a pile of coal, not a mine in ordinary parlance. The issue was whether it was a mine under federal mining laws. If not, it’s still subject to other safety regulations.

Durbin: You were in dissent from opinion by two Reagan colleagues, who sided with miners. You construed statute narrowly to take company’s position. Part of a pattern.

Alito: There are many cases when I’ve come out for the little guy. Cites as just one example a case involving bullying.

Durbin is the only Dem to show that he knows how to ask questions. But Alito handled his questions adeptly.


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