Bench Memos

NRO’s home for judicial news and analysis.

Kohl’s Questions


Alito continues to do great. Dems not scoring any points. In an effort to remain focused, I’ll try, when I can, to follow the Qs more closely.

Kohl complains that judicial neutrality isn’t enough to promote social progress. Alito explains that where the Constitution is silent, policy is for legislators, not judges. (Why can’t legislators understand this elementary point?)

Kohl tries to use Alito’s favorable 1988 statement about Judge Bork against him. Lists a bunch of Bork’s views and asks whether Alito agrees with any of those views. Alito says he probably agrees with some and disagrees with others. Expresses admiration for Bork while distancing himself from him.

Kohl asks which Warren Court cases (referred to in Alito’s 1985 job essay) Alito disagreed with. Alito explains development of interest in constitutional law in college, spurred in part by Bickel book promoting judicial restraint. Was never opposed to “one person one vote” concept of legislative districts of equal population. Questioned cases pushing that concept too far — to virtual exact mathematical equality, which would have wiped out NJ plan that Alito’s father worked on, at expense of other factors.

Kohl asks what “traditional values” favored in 1985. Alito cites ability to live in peace and safety in neighborhood, ability to raise family according to religious beliefs.

Kohl raises spousal-notice position in Alito’s dissent in Casey. Alito: Undue-burden test was extremely difficult to apply, not very clear at that time. (Me: Good thing it’s so clear now.) Points out that 7 justices agreed with all but one of Alito’s positions on the abortion provisions at issue.

Back to reapportionment. Kohl seems not to realize that this was covered minutes ago. (Do senators listen to the answers?) Misstates role that Alito’s essay said that issue played. His essay says that it was “largely” because of Bickel’s writings “advocating judicial restraint” that Alito decided to go to Yale Law School. More good discussion by Alito of excesses of mathematical equality.

Kohl raises Family and Medical Leave Act case. (Obviously his staff hasn’t prepared him well.) Wrongly claims Supreme Court in Hibbs repudiated Alito’s opinion in Chittister. Alito: Clarifies different provisions at issue in Hibbs and Chittister. Explains all the judges, including Democrat appointees, who ruled the same way. Grand slam.

Kohl: Tell us “from your heart” whether Court should have granted review in Bush v. Gore.


Sign up for free NRO e-mails today:

Subscribe to National Review