Bench Memos

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Feinstein’s Questions


Feinstein starts with Court’s Commerce Clause rulings in Morrison and Lopez (in both of which, as she notes, O’Connor was part of the 5-justice majority). Says that she read the Third Circuit’s long opinion in Rybar “over the noon break”. (Nice job preparing for the hearing, senator.) Poses a hypothetical Q and then says that it’s “not hypothetical.” Asks Alito about federalism and Steve Calabresi article describing Lopez as revolutionary. Alito says Lopez was a startling development for a lot of people.

I have no clue where Feinstein is headed, and I don’t think she does either.

Now for “a woman’s right to choose”. Asks for examples of “special justifications” in stare decisis calculus that would warrant overruling. Alito lists factors. Feinstein seems to think that her question is probing, but I have no idea at this point what she’s asking. More discussion of factors by Alito, and cases in which those factors have been applied.

Alito’s comprehensive knowledge of Supreme Court cases is truly impressive. Clearly a brilliant legal mind.

Feinstein asks about Alito’s dissent in Casey. “Why did you propose a different approach than Justice O’Connor?” The real answer, of course, is that he was trying to figure out what the heck her “undue burden” standard meant.

Feinstein asks Alito about his view of precedent in 1985 when he wrote his Thornburgh memo. Alito explains that stare decisis is a concern for the judiciary much more than it is for an advocate and that, given that his memo recommended that the U.S. not ask for Roe to be overruled, it didn’t address stare decisis.

Feinstein tries to argue that Alito equated a woman subject to a spousal-notice requirement with a child seeking parental consent. Alito explains what analogical reasoning is and makes clear that he did not equate the two.

FISA: Feinstein imagines that she’s caught Alito. He said that a warrant was “generally” required, thus implying an exception. Alito explains that he was discussing Fourth Amendment jurisprudence, not FISA.


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