Day 3 Hearings Begin

First up is Senator Durbin, as we continue with the first round of questioning.

Liveblog coverage will continue here until 10:30, at which point Senator Grassley will be joining us for a chat.

All of the following is paraphrased, summarized, and hastily and selectively excerpted.

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Before Durbin began, Senator Leahy prefaced that several committee members continue to be "troubled" by "inconsistencies" on a number of issues, including 1 person 1 vote, Vanguard, the "theory of unitary government", judicial recusal, and CAP.  Let's hope this wasn't an early teeing up of a needless third round of questioning.

Dick Durbin:

Durbin started off saying he couldn't understand Judge Alito's answer to Schumer's [Constitution-waving] question on abortion, in which the nominee said he found Constitutional protection for free speech since it is explicit in the Constitution, but does would not comment on whether he found similar protection of freedom of abortions.

He claimed that the 1985 job application memo in which Alito stated he did not find such Constitutional basis suggested the Judge's mind was "closed" to the issue.

When he actually got around to asking a direct question, Durbin asked why Alito could find Constitutional support for Brown [equal protection] and Griswold [contraception], but not Roe?

Alito's response was swift and clear.  Brown addrressed equal protection under law, the basis for which is explicit in the language of the Constitution.  Griswold on the other hand dealt with an issue unlikely to come before the Supreme Court again, meaning the nominee could comfortably answer.  Abortion, on the other hand, is a matter still in litigation and likely to come before Court again.

Durbin: John Roberts saw Roe as "the settled law of the land".  Do you see it that way?

Alito: Roe is an important precendent, challenged and reaffirmed on a number of occasions, sometimes on the merits, sometimes on stare decisis.  Reaffirmation strengthens a precedent's value.

Durbin: Is it the settled law of the land?

Alito: If settled means can't be changed, that's one thing.  It's precedent to be respected.

Durbin: How do you see it?
 
Alito: As I've tried to explain, it's been on the books for decades, it's been repeatedely challenged and affirmed, and is involved in litigation now - cases in the Supreme Court and various courts of appeal in lower courts, working toward courts of appeal.

Later in his questioning, Durbin went on a griefbating binge, asking the nominee about a case of statutory interpretation in which he opined that a facility (described by Alito as "a pile of coal") was not, for purposes of federal mine safety regulations, a "mine".  Despite Durbin's suggestion that the nominee was uninterested in the safety of this facility, Alito succinctly explained that this was a matter of regulatory designation.  The facility was not, according to the regulatory definition, a "mine", and so was not subject to mining regulations, but was still subject to OSHA and perhaps additional state safety regulations.

The day is young, but Durbin is an early frontrunner for the Most Unseemly Attack of the Day Award.

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Sam Brownback:

The Supreme Court has gotten a lot of cases wrong over the years - more than 200.  Thankfully, they have been overturned or altered in the years since.  Do you feel Plessy v. Ferguson [approving de jure segregation] was wrong?

Alito: Yes.

Brownback: And when the Supreme Court considered Brown v. Board of Education, which would overturn Plessy (in place since 1896, twice as long as Roe v. Wade), should stare decisis have instructed the Court to uphold Plessy?

Alito: Stare decisis would be a factor in the decision, but ultimately Plessy was a "spectacularly wrong" decision, and "erroneous decision" that it took a long time to overturn.

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Judiciary Committee member Chuck Grassley is on his way in.  Liveblogging of the hearings will continue later.  Meantime, watch for a recap of the meeting with Senator Grassley.