Bench Memos

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Schumer Questions


1985 job essay on abortion: Alito repeats that it was an accurate statement of his views at the time. Schumer pesters in obnoxious way (surprise). Nothing matters more to Schumer than preserving the unlawful power grab on abortion. But he’s showing the same ineptness in questioning that he demonstrated with Roberts. Schumer keeps interrupting, wants Alito to express his current view on abortion.

The fact that confirmation hearings degenerate into this nonsense is yet another compelling reason why Roe ought to be buried. How much more distortion of our political processes should the American people tolerate?

Stare decisis: Schumer still interrupting Alito, badgering. What is he trying to establish? That Alito might vote to overrule some precedents? Alito has made clear that stare decisis is not an “inexorable command,” so what more is Schumer seeking? Seems to be attacking Justice Thomas and Judge Bork more than anything else. Now ineptly tries to use Alito’s 1988 statement about Bork against him.

Turns to how Alito has treated Third Circuit precedents. Schumer quotes other judges disputing Alito’s reading of Third Circuit precedents. Gee, it’s a real surprise that judges on opposite sides of decisions are going to have different readings of circuit precedent. To cite the disagreement has no bearing on which side was right. Will he let Alito even respond?

At last: Alito says that you need to examine each case. Points out as example one case in which intervening Supreme Court precedent overrode, in his view, earlier Third Circuit precedent. Schumer’s only response is to quote the disagreeing judge. Turns out that Alito was in the majority — a fact shameless Schumer saw fit to omit.

Schumer now has to tell us what his questions were supposed to establish. “We can only conclude that . . . it is very likely that you would vote to overrule Roe v. Wade.” (Well, let’s hope: Any good justice faithful to his oath of office ought to do so.)

Schumer scores no points.


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