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Bench Memos

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Re: Damage Assessment



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Thanks, Ramesh. I’m glad to see that we have no real difference on substance. On the question of political points, I’m not going to maintain that I have any particular confidence in my ability to critique the performance art of politics, but will just say that I didn’t think any points were scored there either.

A non-exhaustive response to some of your observations:

I was surprised that Hatch jumped in on Vanguard after Feingold’s questioning. My own read, as a former Hatch staffer, is that Hatch’s strong instinct is to jump in to support a nominee when he can, whether or not it’s needed. In this case, I thought it was unnecessary and perhaps even a bit counterproductive. Biden has accurately declared the whole issue “malarkey”. What more is needed?

On the right to free speech vs. the right to abortion: I agree that Alito’s answer could have been more clear, but I think that you and he are saying essentially the same thing. There’s an express “freedom of speech” in the Constitution. The scope of that freedom is a more difficult question – and one that Alito wouldn’t address on issues likely to come before the Court.

On Third Circuit precedent: The way Schumer was interrupting Alito, I doubt that he could have provided the extended answer you suggest. I thought that he effectively conveyed the same points by stating that you have to study the opinions to see who had the better argument on precedent and by using his example of a case in which there had been intervening Supreme Court precedent and in which Alito was in the majority.

For what it’s worth, the grim faces around the hearing room were those of Alito’s opponents.



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