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Alito Plays Dodge Ball

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[Cross-posted at MSNBC's Altercation]

The media headlines from Judge Sam Alito's first day of questioning trumpet his declarations, I will keep an open mind on abortion and No one, including the president is above the law. The Washington Post leads with For Democrats, a most tender roast of Alito and Replies don't rock status quo while the New York Times declares Alito A powerful match for senators' questions.

Bloggers and liberal organizations are much harsher in their analysis. Digby calls Alito a "freeper." Armando at Daily Kos calls Alito Say Anything Sammy, while Jane at Firedoglake calls him Strip-Search Sammy.

Skipping the name-tags, Robert Gordon at Balkinization provides a cogent and detailed analysis of why Judge Alito is wrong for the Court, written on the eve of the hearing.

The ACLU, which has only opposed three Supreme Court Nominees in its 86 year history, explains its reasons for opposing Judge Alito, culled from rulings made during his 15 year tenure as a federal judge:

"At a time when our president has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely, America needs a Supreme Court justice who will uphold our precious civil liberties.... Unfortunately, Judge Alito's record shows a willingness to support government actions that abridge individual freedoms.".... By and large, Judge Alito's opinions make it more difficult for plaintiffs alleging discrimination to prevail, easier for the government to lend its support to religion, and harder to challenge questionable tactics by the police and prosecution.

I watched the hearing intermittently Tuesday and later read the transcripts of the portions I missed. While there was no knock-out punch, there is plenty of cause for concern. Time and again, I watched Judge Alito dodge the issue.

The Senators, with few exceptions, used their allotted time to pontificate rather than to learn something about Alito or give him enough rope to hang himself. They spent countless minutes spouting off their views, followed by close-ended questions he could answer or refuse to answer in a sentence or two. Walter Shapiro at Salon has more on their artless questioning.

In his answers, Judge Alito danced around stare decisis, under which judges rule in deference to a court's prior decisions, asserting he was a staunch believer in it, but then added an escape hatch: "It's not an inexorable command, but it is a general presumption that courts are going to follow prior precedents." What does it take to rebut the presumption? When is it okay to disregard precedent? He didn't say, he only outlined a general process he would follow in arriving at such a decision in the future.

Alito bobbled and weaved in his answers about his college membership in the conservative and discriminatory group CAP (Concerned Alumni of Princeton). Version one was he didn't remember being a member. When forced to acknowledge that he listed it on a 1985 application for employment in the Reagan Administration, he admitted he must have been a member, but said he could not have been a very active member, because then he would have remembered it. He added that his best guess is that he joined because of the group's willingness to stick up for ROTC members who had been expelled from the campus. I could almost hear Stars and Stripes playing in the background.

But CAP was not about the Vietnam War. It was about restricting female and minority admissions to Princeton, which had just gone co-ed in 1969. Read Attytood for yet another theory on Alito's ROTC comments.

On presidential power, he said the President must obey the law, except when the Constitution trumps it. When asked if Article II of the Constitution vests enough power in the commander in chief to trump statutes like FISA and no-torture laws, Judge Alito declined to answer, saying the issue might come before him as a Judge.

He tried, but failed to appease on abortion. He glossed over his troubling record in civil rights and employment discrimination cases. He recited constitutional support for upholding the strip-search of a ten year old while professing allegiance to the Fourth Amendment. He dismissed the notion that he goes out of his way to find reasons to rule for the Government and claimed his decisions in favor of the Government were just reasonable interpretations of the law. He distanced himself from his Reagan and Justice Department-era statements, claiming he was just a "line attorney," pitching for the boss.

The bottom line is we don't know anything more about Judge Alito today than we did yesterday. Except that he's good at dodge ball.