Russ focused primarily on three topics using a combination of the oblique approach and a frontal assault, Executive Power, the Vanguard Recusal and the Death Penalty.The first two topics have been pretty much beaten to death by the media so I’m going to focus on the conversation related to the death penalty since my boy Russ is against executing people.
But before I do, I’d like to pass on one exchange.
Feingold: Can the president violate or direct or authorize others to violate the criminal laws of the United States?
ALITO: The president has the obligation under Article II of the Constitution to take care that the laws are faithfully executed. And the laws mean, first and foremost, the Constitution of the United States. That applies to everybody. It applies to the president. And the president, no less than anybody else, has to abide by the Constitution.
And it also means that the president must take care that the statutes of the United States that are consistent with the Constitution are complied with. And the president has an obligation to follow those statutes as well.
That answer works for me.
In the Death Penalty questioning which took place during Russ’ second session, Feingold took the oblique approach and questioned Alito as to his rationale for some decisions, his attitude toward concerns with the death penalty and about a troubling statistic.
In a death penalty case called Rompilla v. Horn, Alito had rejected the argument that the defendant’s attorney’s had failed to prepare properly for the sentencing hearing. The Supreme Court ultimately overturned that decision. Alito defended his decision in the case by saying that, as an appellate judge, he had to abide by the law as passed by congress. That opened the door for Russ.
Feingold: So the question now is would your approach have been any different as a Supreme Court justice? What about your decision on the outcome of the case?
BULL’S EYE! See, the oblique approach. I could almost hear the bluh, bluh, bluh as Sammy replied. Basically he never really answered but sort of danced around it.
Alito: Well, my evaluation of the facts of the case would be the same. But I should add, however, that if a case came up in the future, the Supreme Court's expressed the view as to how the standard applies to the facts of the case. It was a 5-4 decision. But it would be a precedent that I would follow.
In other words, your opinion hasn’t changed any but you would have to take into account the precedent right? Up stare decisis is that it? Here’s my problem Sammy, you’re still talking like an Appellate Court Judge and I know you’re too smart not to have figured out that a Supreme Court Judge is not necessarily bound by the same rules. I suspect that should the opportunity come up, you would fall back upon your original position from Rompilla.
You're going to make it harder for appeals based upon the incompetency of the defendent's attorney to succeed unless the attorney was obviously incompetent. My concern is, will your definition of incompetent narrow once you become a Supreme and there ain't no one looking over your shoulder anymore?
Russ then pointed out an interesting, and troubling, statistic.
FEINGOLD: According to two independent studies, your record in death penalty cases has been more anti-capital defendant even than most Republican-appointed judges. In fact, in every disputed capital case that you heard -- that is, cases in which a panel of three judges did not all agree -- you would have ruled against the defendant.
Alito really couldn’t explain this statistic. All he could do was identify cases in which he had ruled in favor of the defendant. However they were all unanimous decisions. What Russ was pointing out, as I observed previously, was that if it’s close, Alito will come down on the side of the government. The concern is that without any worry about what the Supremes will think of his decisions, the definition of “close” might widen.
Russ then asked Alito his opinion about concerns expressed by Judge Stevens that Stevens felt tilted the proceedings in favor of the prosecution in death penalty cases.
Alito sort of danced around again. He expressed agreement with the general principles behind Steven’s concerns but didn't agree with them directly. This led Russ to comment:
FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices.
Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.
Like I’ve said before, the man let’s you know what he’s thinking and he thinks good. This is related to my observation that often men (or women) grow in stature once they reach the Supreme Court and realize there ain’t no Supremes looking over their shoulder any more who can fix their mistakes. Like Harry S. said, “the buck stops here.”
Of course on the other hand, they can also feel totally unfettered to do whatever they want. This is the major concern when someone is a true believer with an agenda. Alito claims he has no agenda and while it's too much to hope he won't give into this new found freedom a little bit, perhaps his deference to precedent will keep things from getting out of hand. Ok now, let's all practice leaning right without falling over.
Ok, so Sir Russell of Feingold did a fine job, a fine job. It was just that the media didn’t bother to report it. Maybe because his questioning was rational, non-confrontational and effective while the media likes to report on irrational, confrontational and ineffective efforts so we think they’re doing their job.
Time to practice again. All together now, LEAN RIGHT!
No comments:
Post a Comment