The meta-message about Alito seeping through to news consumers is, I’m afraid, that he’s not so bad. Even the usually sharp Keith Olbermann made Alito out to be a moderate who wouldn’t really do all those nasty things people say he might do, like reverse Roe. That memo from 1985 was just something he said to get a job. Now, he says he is “keeping an open mind.”

What the hell does that mean, keeping an open mind? Notice that he hasn’t once said he supports Roe, just that he has an “open mind” about it. I’m told Clarence Thomas said the same thing in his hearings. An “open mind” can be open to the return of the coathanger, people.

Dan Abrams called the hearings “boring.” Is boring the effect the Republicans are going for? (How extreme can Alito be, if he’s boring? How can anyone that mundane be dangerous?)

The word for today, boys and girls, is stealthy: “Marked by or acting with quiet, caution, and secrecy intended to avoid notice.” Yeah, ol’ Sam is a real cautious guy. He and his “open mind” are tip-toeing right past the snoozers.

I am not encouraged. I haven’t watched the hearings first-hand, but the real fight isn’t in the Senate. It’s in the media. And our side is losing. Alito, a mild-mannered dweeb, carefully says what everyone wants to hear, and carefully avoids being pinned down on anything substantive. Journalists dutifully report on the packaging but aren’t looking real hard at the product.

This is the way America ends: not with a bang but a snore.

Some on the Left Blogosphere want to wake people up by comparing Alito to Robert Bork. Hello? This won’t mean anything to anyone but us liberal politics junkies. Your standard not-all-that-interested citizen probably barely remembers who Robert Bork is. And Bork got borked not because of any brilliant maneuvering by the Dems, IMO, but because Bork was an arrogant prick who pissed off the wrong people. Although in fact Bork and Alito may cling to the same twig of the ideological family tree, the lessons of Bork do not apply to Alito.

Personally, I think the only hope we have is if the Dems learn some message discipline overnight (well, a miracle may occur) and march around tomorrow with one word on their lips: credibility. Alito is not being upfront about his opinions. He has fudged answers about past ethical lapses. And the nominee of a president under suspicion for misuse of power had damn well better get his feet held to the fire about his opinions on presidential power. So far, his answers sound alarmingly like John Yoo’s.

Sorry if I sound discouraged. And why is it I keep hearing the Wicked Witch of the West in my head?

And now, my beauties! Something with poison in it, I think. With poison in it, but attractive to the eye — and soothing to the smell! (laughs)

Poppies! Poppies! Poppies!

On a more upbeat note — word is that Senator Schumer’s questioning was particularly good, so I copied it from the transcript and pasted it beneath the fold. Enjoy.

Senator Schumer?

SCHUMER: Thank you, Senator Specter.

And I want to thank you, Judge Alito. It has been a long day.

Judge Alito, in 1985, you wrote that the Constitution — these are your words — does not protect a right to an abortion. You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time.

Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it?

SCHUMER: It’s OK if you distance yourself from it, and it’s fine if you embrace it. We just want to know your view.

ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985.

And I made it from my vantage point as an attorney in the Solicitor General’s Office, but it was an expression of what I thought at that time.

If the issue were to come before me as a judge, if I’m confirmed and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I’ve discussed earlier and it’s a very important doctrine. And that was the starting point and the ending point of the joint opinion in Casey.

And then if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SCHUMER: But, sir, I am not asking you about stare decisis. I’m not asking you about cases.

I’m asking you about this: the United States Constitution. As far as I know, it’s the same as it was in 1985 with the exception of the 27th Amendment, which has nothing to do with what we’re talking about.

Regardless of case law, in 1985, you stated — you stated it proudly, unequivocally, without exception — that the Constitution does not protect a right to an abortion.

Do you believe that now?

ALITO: Senator…

SCHUMER: I’m not asking about case law. I’m not asking about stare decisis. I’m asking your view about this document and whether what you stated in 1985 you believe today; you changed your view; you’ve distanced your view?

You can give me a direct answer. It doesn’t matter which way you answer, but I think it’s important that you answer that question.

ALITO: Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it.

ALITO: That’s the only way I can answer that question.

SCHUMER: Sir, I’m not asking for the process. Obviously, you’d use a judicial mindframe. You’ve been a judge for 15 years.

I’m asking you — you stated what you believe the Constitution contained. You didn’t say the Constitution as interpreted by this or that. You didn’t say the constitution with this exception or that exception.

It was a statement you made directly. You made it proudly. You said you’re particularly proud of that personal belief that you had. You still believe it.

ALITO: And, Senator, I would make up my mind on that question if I got to it, if I got past the issue of stare decisis after going through the whole process that I have described.

I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.

SCHUMER: But, sir, I’m not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution.

I’m asking you — and not about the process you’ve used — I’m asking you about your view of the Constitution because, as we all know, and we’re going to talk about stare decisis in a few minutes, that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are and there’s precedent on the books for decades, it’s still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in this same memo — I can’t remember who asked the question — but you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn’t know that there was a word that was inapt.

But you said that it was inapt to have written that the elected branches are supreme. So, you discussed your view on that issue without reference to case law because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this.

Can you tell us your view just one more time, your view about the Constitution not protecting the right to an abortion, which you have talked about before? And you said you personally, proudly held that view. Can you?

ALITO: The question about the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country.

And so certainly that’s a subject that it is proper for me to talk about.

ALITO: But the only way you are asking me how I would decide an issue…

SCHUMER: No, I’m not. I’m asking you what you believes in the Constitution.

ALITO: Well, you’re asking me my view of a question that…

SCHUMER: I’m not asking about a question. I’m asking about the Constitution, in all due respect, and something you wrote about…

ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That’s in the First Amendment.

SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”

He said, “Well, I’m now married to her daughter for 21 years, not one year.”

I said, “No, no, no. Do you still hate your mother-in-law?”

And he said, “I can’t really comment.”

What do you think I’d think?

ALITO: Senator, I think…

SCHUMER: Let me just move on.

You have a very nice mother-in-law. I see her right here. And she seems like a very nice person.

(LAUGHTER)

OK.

ALITO: I have not changed my opinion of my mother-in-law.

SCHUMER: Good.

(LAUGHTER)

I’m glad you haven’t.

ALITO: I can answer that question.

SCHUMER: She seems nice.

Let me go now to stare decisis, because what you’ve said is you start out stare decisis, although I think a lot of people would argue you start out with the Constitution, upon which stare decisis is built.

SCHUMER: OK.

Now you’ve tried to reassure us that stare decisis means a great deal to you. You point out that prior Supreme Court precedents, like Roe, will stand because of the principle.

While you’re on the 3rd Circuit, of course, you can’t overrule precedents of the Supreme Court, but when you’re on the Supreme Court, you have a little bit more flexibility.

I just want to ask you this. Stare decisis is not an immutable principle, right? You said that before in reference to Senator Feinstein. When Judge Roberts was here, he said it was discretionary. So it’s not immutable. Is that right? You’ve told us it’s not an inexorable command. It doesn’t require you to follow the precedent.

ALITO: It is a strong principle. And in general courts follow precedence. The Supreme Court needs a special justification for overruling a prior case.

SCHUMER: But they have found them. I think you went over this. I can’t recall if it was Senator Kohl or Senator Feinstein, but you went through some cases.

In recent years the court has overruled various cases in a rather short amount of time. You mentioned I think it was National League of Cities about fair labor standards, and it was overruled just nine years later by Garcia. Stanford v. Kentucky was overruled by Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence v. Texas. And of course, Brown v. Board was over ruled by Plessy.

So the bottom line, let’s just — I mean, we can go through this — I mean Plessy was overruled by Brown. I apologize.

So the only point I’m making is that despite stare decisis, it doesn’t mean a Supreme Court justice who strongly believes in stare decisis won’t ever overrule a case. Is that correct? You can give me a yes or no.

ALITO: Yes.

SCHUMER: Now let’s try this another way.

SCHUMER: Here’s a quote: “Stare decisis provides continuity to our system. It provides predictability. And in our process of case- by-case decision-making, I think it’s a very important and critical concept.” Statement sounds reasonable to me. It sounds to me like it’s something you said to Senator Specter and others, right?

ALITO: I agree with the statement, yes.

SCHUMER: Let me show you who said that statement. It was Justice Thomas. Justice Thomas came before us and stated that, and yet when he got on the Supreme Court he voted to overrule or expressed a desire to overrule a whole lot of cases, including some very important ones on the court.

Here are some quotes. “Casey must be overruled.” “Buckley v. Valeo should be overruled.” “Bachus (ph)” — just last year — “should be overruled.”

And as you can see, it’s a very large number of cases. And these aren’t all of them. In fact, Justice Thomas said that a 1789 unanimous case by the Supreme Court, Calder v. Bull, which no one talked about for centuries, should be overruled.

So what do you think of Justice Thomas’ theory of stare decisis and how he applies it?

ALITO: Senator, I’ve explained my understanding of the doctrine of stare decisis, and it is important to me. I think it’s an important part of our legal system. It is…

SCHUMER: But how about what Justice Thomas, what do you think of what he’s doing?

ALITO: Well, I don’t think I should comment on all of those cases.

SCHUMER: OK. Let me just say this. You may not want to comment, but his fellow justice, Justice Scalia, did. Here’s what Justice Scalia said about Justice Thomas and stare decisis. And remember what he said when he was sitting in the same chair you’re sitting in. He pledged fealty to stare decisis.

Justice Scalia said Justice Thomas, quote, “doesn’t believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘Let’s get it right.'”

SCHUMER: Then Justice Scalia said, “I wouldn’t” — speaking of himself — “I wouldn’t do that.”

And it’s particularly relevant, because if you believe something is not in the Constitution, at least the way Justice Thomas talks about stare decisis, he’d let the Constitution overrule it and stare decisis would go by the wayside.

And I’m not saying Justice Thomas was disingenuous with the committee when he was here. I’m just saying that stare decisis is something of an elastic concept that different judges apply in different ways.

So let me go to another one here. I think I’ve covered everything I want to do with Justice Thomas.

Yes, here’s another quote: “There is a need for stability and continuity in the law. There’s a need for predictability in legal doctrine. And it’s important that the law not be considered as shifting every time the personnel of the Supreme Court changes.”

That, again, sounds reasonable to me, quite a lot like what you said.

You don’t have any dispute with that statement, do you?

ALITO: No, I don’t.

SCHUMER: OK, well, let’s see who said that one. It was Robert Bork, when he came before this committee to be nominated.

Now, here’s what Judge Bork wrote in the National Review Online just a few weeks ago. He wrote, quote, “Overturning Roe v. Wade should be the sine quon non of a respectable jurisprudence. Many justices have made the point that what controls is the Constitution itself, not what the court has said about it in the past.”

And even before his hearing, by the way, he sort of cut back on what he said at the hearing, I guess. It may have been in different context.

But here’s a quote that he said, a year, I think, before he came before us. He said, “I don’t think that in the field of constitutional law precedent is all that important.”

He said, in effect, that a justice’s view of the Constitution trumps stare decisis. That’s not an unrespectable view. It’s probably not the majority view of justices, but it’s there.

So, for example, it was his view, similar to Justice Thomas, that the Constitution does not protect a right — that if the Constitution does not protect the right to an abortion — as you wrote in 1985; we’re not talking about how you feel today — it would be overruled; it should be overruled despite stare decisis.

And one of the things I’m concerned about here is that, what you wrote — and I think Senator Kohl went over it a little bit — is what you wrote about Judge Bork in 1988.

And, by the way, this was not when you were working for someone or applying for a job. As I understand it, you were the U.S. attorney in New Jersey, well-ensconced, a very good U.S. attorney, and it was with some New Jersey news outlet. I saw the site, but I didn’t know what it was.

And you said that — about Justice Bork: “I think he was one of the most outstanding nominees of this century. He’s a man of unequaled ability” — and here’s the key point — “understanding of constitutional history,” and then, “someone who has thought deeply throughout his entire life.”

SCHUMER: Now, first, one of the most outstanding of the 20th century with Oliver Wendell Holmes and Benjamin Cardozo, and people you’ve expressed admiration for, Frankfurter and Brennan and Harlan?

I find it, you know, disconcerting that you would say that he is a great nominee of the 20th century in his understanding of constitutional law and yet he so abjectly rejects stare decisis.

ALITO: Well, I certainly was not aware of what he had said about stare decisis when I made those comments.

I’ve explained those comments. They were made when I was an appointee of President Reagan, and Judge Bork was President Reagan’s…

SCHUMER: But you weren’t — excuse me.

You weren’t working in the White House. You were a U.S. attorney prosecuting cases. There was no obligation for you to say what you said, right?

ALITO: No, but I had been in the Department of Justice at the time.

SCHUMER: I know.

But it was a voluntary interview with some New Jersey news outlet — is that correct?

ALITO: And I was asked a question about Judge Bork and I had been in the department at the time of his nomination, and I was an appointee of President Reagan and I was a supporter of the nomination.

SCHUMER: OK.

Let’s go to the next line of questioning here.

But again, the point being judges, justices overrule cases despite stare decisis, particularly when they think the Constitution dictates otherwise.

And now I want to turn to your own record in the 3rd Circuit, something you mentioned yesterday and today. And when you’ve been on the 3rd Circuit, of course, you had to follow Supreme Court precedent and you professed a whole lot of times your desire to do that, and I’m not disputing that here.

But it’s also true that when you were on the 3rd Circuit, the more apt analogy in terms of stare decisis would be about 3rd Circuit precedents. Because if you should get on the Supreme Court, stare decisis will apply to Supreme Court decisions the way stare decisis to a 3rd Circuit judge applies to 3rd Circuit decisions. That’s pretty fair, right?

ALITO: Yes, and I’ve tried to follow 3rd Circuit precedents.

SCHUMER: Right. OK.

Although, you have dissented more than most of your fellow judges, but we’ll leave that aside.

What I want to show here is how many times when you were on the 3rd Circuit your fellow judges on the 3rd Circuit, whom I’m sure have high respect for you — I know a lot of them are coming here in a few days and I think that’s nice.

SCHUMER: I don’t have any problem with that.

(LAUGHTER)

Well, there’s been some criticism about it, not by me.

But I just want to show you what they have said when it comes to their view of your respect for 3rd Circuit precedent, stare decisis, as relevant as we can find it for you.

So I’m going to read a few. There are a whole bunch. But in Dia v. Ashcroft — they’re all on this chart, I guess. There are too many, so the print isn’t large enough for most people to see. I wish there were fewer.

In Dia v. Ashcroft, the majority of your court said that your opinion, quote, “guts the statutory standard and ignores our precedent. In LePage’s Incorporated v. 3M, your opinion was criticized as, quote, “being contrary to our precedent and that of the Supreme Court.”

In RNS Services v. Secretary of Labor, you again dissented. And the majority, again, argued that, quote, “Your dissent overlooks our holding in the instant case and prior cases.”

In Riley v. Taylor, the on-bank majority argued that your view ignored case after case relied by the majority and, quote, “accords little weight to those authorities.”

In Texas Eastern Transmission Corp., a panel criticized your opinion because, quote, “it does not comport with our reading of the relevant case law.”

In Bray v. Marriott Hotels, the majority noted that binding circuit precedent made your analysis improper in a discrimination case. And the list goes on and on.

I don’t have to — but other cases that are mentioned are United Artists, the Warrington Beauty Time, the Vuskin (ph) Systems. Here’s a final one, Rappa v. Newcastle County. Judge Garth, the man I think you clerked for and is regarded as a mentor to you wrote that your majority opinion was, quote, “unprecedented in its, quote, “disregard of established principles of stare decisis.”

“Nothing,” Judge Garth wrote, “in the jurisprudence of the Supreme Court or in ours suggests that a three-judge panel of a court of appeals is free to substitute its own judgment for that of a four- justice plurality opinion, let alone that of the entire court.”

SCHUMER: So those are just some of the cases in which your own colleagues said you didn’t follow stare decisis.

Now there may have been good reason — you’re much more expert on these cases than I am. There may have been good reason for you to do it. But I think it shows something. And that is you.

If we have to project as to what kind of a Supreme Court justice you will be (inaudible) not going to be as reluctant as some to overturn precedent even by the rules of stare decisis.

And so you wonder, if you are as willing as you are to depart from precedent on the 3rd Circuit, what’s going to happen if you should get on the Supreme Court.

Your response because I mentioned a whole lot of cases here.

ALITO: You did, Senator. And I think that you need to examine each of the cases to see whether what I did was justified.

Let me just take one that struck me when you read from it, and that was the United Artists case. What I said there that a Supreme Court decision that had come up, that had been handed down after the most recent 3rd Circuit decision relating to the issue, superseded what our court had said.

So I was following an aspect of stare decisis there. I was following what we call vertical stare decisis, following the Supreme Court. And I don’t think there’s any dispute. When the Supreme Court hands down a decision that’s in conflict with one of our earlier cases, we have to follow the Supreme Court.

SCHUMER: Yes, but there’s no question that in that situation, Judge Cohen said your opinion was, quote, “wrong to revisit an issue that has already been decided and failed to give respect and deference to the circuit’s well-established jurisprudence employing the improper motive test in the substantive due process land use context.”

It’s rather complicated, but he’s sure saying, in his view, you didn’t follow court precedent.

ALITO: And, Senator, there was this body of 3rd Circuit precedent, and it said that it’s proper for a federal court to get involved in a zoning dispute, which is traditionally a local matter, if there is simply an improper motive, whatever that might be.

And after that, the Supreme Court, in an opinion by Justice Souter, emphasized that the test under substantive due process in an area like this, an area that the other judge in the majority and I thought was like this, is whether what was done shocks the conscience.

And so you had a Supreme Court decision intervening. And in that situation, I thought was our obligation — and I wrote the majority opinion there — to follow what the Supreme Court had said.

SCHUMER: But my only point being here is one judge’s view of what stare decisis requires and another judge’s view of what stare decisis requires are not always the same. The concept has some degree of elasticity.

And when, in reference to questions by people, you say: Well, how do you feel about this case, and particularly Roe, which has been where we started off here, I believe in stare decisis, it means that you’re going to take precedent into account, but it certainly doesn’t necessarily mean where you’d come out.

And let me tell you where I conclude where you’d come out, just sort of summarizing this argument. First, again, greatly disturbing I think to many Americans would be that you won’t distance yourself from your 1985 view that the Constitution does not protect a right to a woman’s right to choose; that that view has not changed; that you have refused to say, unlike you did in another part of that 1985 memo, that you think it’s wrong now — which would lead one to think that, you know, that you probably believe in it.

Second, you’ve told us you respect precedent and stare decisis, but we have seen that the stated respect for stare decisis hardly determines whether a Supreme Court justice will vote to uphold precedents — not because when they come here they’re being disingenuous with us.

SCHUMER: I don’t think that at all. But because the concept is somewhat elastic, because it doesn’t guarantee that you will uphold precedent, and particularly doesn’t guarantee it when the Constitution conflicts with stare decisis, with the precedents of the court.

And finally, to top it off, we have seen that your 3rd Circuit record can hardly provide a great deal of comfort in this area either, that many of your fellow judges criticized you for ignoring, abandoning or overruling precedent.

Taken together, these pieces are very disturbing to me. Your blanket 1985 statement, not distanced from, that the Constitution doesn’t protect the right to an abortion, the fact that respect for precedent and stability doesn’t prevent overruling of a past decision, and your own record of reversing or ignoring precedent on the 3rd Circuit lead to one inevitable conclusion: We can only conclude that if the question came before you it is very likely that you would vote to overrule Roe v. Wade.

Yield back my time.

ALITO: Senator, could I just respond to that question?

SCHUMER: Please. Time is yours.

ALITO: My 3rd Circuit record in looking at abortion cases provides the best indication of my belief that it is my obligation to follow the law in this area and in all other areas. If I have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases.

I have testified here today about what I think about stare decisis. I do think it’s a very important legal doctrine. And I’ve explained the factors that figure into it. It would be the first question that I would consider if an issue like this came before me.

SCHUMER: Let me just say, though, you have ruled on certain cases, many of them were on technicalities, and in all of them, as a 3rd Circuit judge, you were bound by Supreme Court precedent.

You never in the 3rd Circuit were squarely presented with the question that I asked, which is a decisive question, which is whether the Constitution protects a woman’s right to choose.

You were never asked in the court. You were never asked to overturn Roe v. Wade. And even if you were in the 3rd Circuit, you couldn’t, because you were bound by the precedent of the court.

I do not think your 3rd Circuit rulings are dispositive on what you would do should you become a U.S. Supreme Court justice.

Thank you, Mr. Chairman.

ALITO: If the matter were to come up before me on the Supreme Court, I would consider the issue of stare decisis. And if the case got beyond that, I would go through that entire judicial decision- making process that I described.

ALITO: That’s not a formality to me, that’s the way in which I think a judge or a justice has to address legal issues.

And I think that is very important. And I don’t know a way to answer a question about how I would decide a constitutional question that might come up in the future, other than to say I would go through that whole process. I don’t agree with the idea that the Constitution always trumps stare decisis.

SCHUMER: It doesn’t always, but sometimes…

SPECTER: Let him finish his answer, Senator Schumer.

ALITO: I don’t agree with the theory that the Constitution always trumps stare decisis. There would be no room for the doctrine of stare decisis in constitutional law if that were the case.

SCHUMER: But, sir, it can trump stare decisis. It doesn’t always, but can. Is that correct?

ALITO: It certainly can. And I think that’s a good thing, because otherwise Plessy v. Ferguson would still be on the books.

SCHUMER: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Schumer.