Day 2 Alito Summary

First, the issue of Roe v Wade is tackled by Arlen Specter (via the WaPo):

Alito said he agreed "that the Constitution protects a right to privacy," the main underpinning of the Supreme Court's 1973 Roe v. Wade ruling that legalized abortion nationally. He also agreed with Specter that stare decisis, meaning to stand by that which is already decided, "is a very important doctrine" that must be considered.

Asked by Specter whether he regards a 1992 Supreme Court ruling that reaffirmed Roe v. Wade as a "super precedent," Alito demurred.

"I personally would not get into categorizing precedents as super precedents or super-duper precedents," he said. "Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket." But he said that "when a precedent is reaffirmed, that strengthens the precedent."

However, Alito added, "Now, I don't want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not."

Alito said his 1985 anti-abortion memo was "a correct statement of what I thought" at the time, when he was an attorney in the Reagan administration.

"That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career," Alito said.

But more important in light of recent event is the subject of the unitary executive--here's commentary from Armando at Daily Kos:

In light of Senator Kennedy's sharp questioning on Alito's zealous belief in the "unitary executive," it is important to understand what that means. In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure . . . ." "[T]he case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The Bybee Memo put it this way:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

Alito did NOT disavow this view of an unfettered Presidential power - of the President as King.

But beside those two points, Dahlia Lithwick in Slate adds her commentary to a not-so-groundbreaking day:

There are, it seems, better and worse ways to game your Supreme Court confirmation hearings. John Roberts charmed his way through the proceedings. Sam Alito has chosen to simply bore his way through, and as a consequence, two days into the hearings, the Democrats on the judiciary committee have hardly laid a glove on him. I count only three occasions today on which he refuses to answer a question; that's not going to be his way. His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced. He never tells you the answer to the question, but he's always expansive on how he might get there.

[...]

It seems that committee Democrats are being harmed by their new emphasis on executive overreaching—it means they have lost whatever focus they once had on the issues of privacy and abortion—but they haven't got real traction on the executive-authority questions either. The public doesn't seem to care, and the senators don't fully understand the concepts—like that of the "unitary executive"—they are attempting to explore.

[...]

Committee Republicans don't exactly wow us, either: Mike DeWine, R-Ohio, uses his time for a protracted grumble about general stuff in the world that annoys him (cert pools, circuit splits ...), and Jeff Sessions, R-Ala., struggles to get Alito to promise that it wouldn't be that activist to overturn Roe. The almost laughable Republican position throughout the hearings is that Alito can't possibly be anti-women/minority/criminal defendant/little guy because there are 3/4/7/whatever single-digit-number-of cases among almost 5,000 in which he sided with them. It's a twist on the "Some of my best friends are ... " line. And here I thought that line stopped working in the '60s. Right about the time when colleges let in women and started going downhill.

And finally, here's ThinkProgress's Alito quote of the Day:

It’s what we call in law school the slippery slope and if you start answering the easy questions you are going to be sliding down the ski run into the hard questions, and that’s what I’m not so happy to do.