Questions for Democratic Senators

During this week's hearings for Supreme Court nominee Samuel Alito, Democratic senators on the Judiciary Committee will undoubtedly ask Judge Alito many tough, often accusatory, questions. And they are entitled to do so, as long as the questions are both relevant and fair. Conversely, journalists are both entitled and duty-bound to ask those senators questions about the lines of attack they pursue at the hearings. In that spirit, I present below the first installment of suggested questions for the Judiciary Committee Democrats. Today's questions are all based on the senators' opening statements this afternoon.

For Sen. Leahy (D - VT) and Sen. Schumer (D - NY):
In your opening statement, you criticized the withdrawal of Harriet Miers' nomination. During the period in October in which her nomination was clearly in trouble, did you speak out on her behalf, urge the president not to withdraw her name, or otherwise support her nomination?

For Sen. Schumer (D - NY):
You said that, following the Miers nomination, "everyone now seems to agree that nominees should explain their judicial philosophy and ideology." Do you sincerely believe that the vast majority of your colleagues – no less "everyone" – now agree that ideology is a legitimate issue for Senators to pursue during the confirmation proceedings?

For Sen. Biden (D - DE):
You expressed concern that Judge Alito's confirmation might cause "the jurisprudence of the Supreme Court . . . to change from the consensus that existed the last 70 years." Given the sharp disagreements on the Court and among the American public over a wide variety of legal issues – including abortion, affirmative action, separation of church and state – what sort of consensus did you have in mind?

For Sen. Feinstein (D - CA):
You stated that Judge Alito's nomination to the Supreme Court is "a pivotal appointment" because he would replace Justice O'Connor. You then went on to express "very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution, including the commerce clause and the 14th Amendment." Given that Justice O'Connor sided with Rehnquist in the great majority of the pro-federalism decisions that you are referring to, do you have any reason to believe that Judge Alito's confirmation would shift the Court on this issue?

Also, in the last 70 years, the Supreme Court has only twice found legislation to be beyond Congress's authority under the commerce clause. Given that you are critical of the two instances in 70 years, is it fair to say that you effectively believe that the Supreme Court should never enforce the commerce clause's limits on Congressional power? If not, please provide a counterexample.

For Sen. Kohl (D - WI):
You talked about the "need to examine" the allegations by Judge Alito's critics, including the claim that he will "side with more powerful interests [and] narrow the rights we enjoy." How do you define those terms? For example, for the issue of abortion, which you cite as an example, is it the interests of the mother or of the unborn baby that are "more powerful?" And is it the rights of the mother or the unborn baby that Alito will allegedly "narrow?"

For Sen. Schumer (D - NY):
Apart from a twenty year old Justice Department memo in which Samuel Alito discusses whether money damages are the proper remedy for warrantless wiretapping, what is your basis for the following statement? You said that under Judge Alito's "absolutist view of separation of powers . . . in times of war, the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers."