January 11, 2006

More Questions for Democratic Senators

I present below the second installment of questions journalists should be asking Democratic senators on the Judiciary Committee (quotes are from Tuesday's hearings). The first installment is here.

For Sen. Leahy (D - VT) and Sen. Biden (D - DE):
During Tuesday's hearings, you criticized Judge Alito for having been a member of Concerned Alumni of Princeton (CAP), because, in Sen. Leahy's words, the group "resisted the admission of women and minorities to Princeton." Given that Alito joined CAP because of its opposition to ROTC's expulsion from campus, and there is no indication of whether Alito shared any of CAP's other views, can you point to anything which would make your criticism anything more than guilt by association? If not, how would you distinguish this line of attack from, say, attributing to various Democrats on this committee the extreme positions advocated by some of the organizations opposing Judge Alito, simply because those senators have held strategy meetings with those organizations?

For Judiciary Committee Democrats in general:
You expressed concern about various Supreme Court decisions and two of Judge Alito's Third Circuit opinions – in Rybar and Chittister – because they adapted a view of the Constitution which puts enforceable limits on Congress's authority under the Fourteenth Amendment and the commerce clause. Do you see any tension between criticizing Alito for having advocated an arguably expansive view of executive power, while simultaneously advocating an expansive view of Congress' power under the commerce clause and the Fourteenth Amendment?

For Sen. Feingold (D - WI):
You asked Judge Alito numerous questions about his practice sessions for these hearings, including the subjects discussed and the people present. Do you believe it would be fair game for reporters to ask you similar questions about the sessions during which your staff briefed you for these hearings?

For Sen. Kohl (D - WI):
You told Judge Alito that "the neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy," such that "many of the most fundamental protections of civil rights and civil liberties" require "that judges apply a more expansive, imaginative view of the Constitution." Why do you take that view given that 1) constitutional amendments were responsible for righting the greatest constitutional wrongs, such as the elimination of slavery and the enfranchisement of African-Americans and women, and 2) the greatest of all civil rights decision by the Supreme Court, Brown v. Board, was based squarely on the words of the Equal Protection Clause.

Second, when Supreme Court justices "apply a more expansive, imaginative view of the Constitution," as you suggest, is there any means of ensuring that the results will be consistent with the American people's – or even your – notions of "social progress" and the advancement of "civil liberties?"

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