Bench Memos

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Feingold’s Questions


Feingold explores presidential powers. Too bad there’s nothing in Alito’s record that has any particular bearing on this issue. Alito’s favorable remarks about Justice Jackson’s concurrence in the Steel Seizure case and his unsurprising embrace of O’Connor’s statement that the President does not have a blank check in wartime blunt any Dem attack.

Feingold seems more interested in attacking the Administration. Says AG Gonzales “was not straight with this committee” and, in a non sequitur, says that it’s therefore important that Alito address NSA surveillance. Feingold follows up on Alito’s earlier comment that some of these issues are nonjusticiable. Leads to another impressive discussion by Alito.

I’m betting that Feingold, who voted for Roberts, will vote against Alito, but he sure isn’t making any case for such a vote.

Feingold is now exploring whether this issue was discussed in Alito’s practice sessions and who was present. Seems to me that Alito ought to make clear, in a nice way, that he’s not going to discuss anything about the practice sessions. I don’t think practice sessions have ever been probed before in a confirmation hearing. Alito says all the advice he’s received has been about form or style, not the substance of answers.

Wiretap immunity (Mitchell v. Forsyth memo from 1984): Feingold asks whether Court’s ruling still has relevance. (Boy, these guys have no clue how to ask questions.) Feingold then asks why Alito didn’t question position in favor of absolute immunity. Alito explains that he was recommending that argument not be made and that DOJ had long been committed to position of absolute immunity. Feingold again tries to tie 1984 memo to attack on Bush Administration.

Feingold raises Fourth Circuit’s recent order in the Padilla case. What’s role of judiciary in assessing facts presented by executive branch? Alito: It’s a lot easier to frame the Q than to answer it. Refers to constitutional tragedy of Korematsu case. Problem of judicial factfinding.

Vanguard: Even Biden called the whole issue “malarkey”. Why is a bright guy like Feingold (at least I thought he was bright) wasting his time on this? Is he really going to hide behind this in voting against Alito? At least it’s a good way to bore the viewing public, which must have figured out by now that Dems have no case against Alito. Silly hectoring questions. Feingold keeps interrupting Alito and speaking a mile a minute. Impressive answers in substance and tone.


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