The dumbass madmen who champion Big Babykilling continue to bang their heads on the brick wall of Sam Alito's reality.

Once again the leading dimbulbs of The Party of Blasphemy, Buggery, and 'Bortion have brought penknives to an intellectual gunfight.

From National Review Online's Bench Memos:


ALL EYES ON THE COURTS
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Biden's Round 3[Ed Whelan 01/12 10:43 AM]
Windup takes about 4-1/2 minutes.

President's war powers. Biden: Does President have authority to invade Iran tomorrow, w/o congressional approval and in the absence of any imminent threat? A: Unsettled.

Biden twice confuses John Yoo (former DOJ official and author of recent book on war powers) with "Ho". Misstates A's testimony.

Biden indicates that he thinks that "international law" is somehow binding on the President and Congress. And this is one of the Dems' experts on foreign policy?? Let's put that issue to the American people.

Stare decisis. Biden: No scholar says that a justice is required to follow precedent, right? A: Not an absolute requirement, but a presumption. Proper factors should be applied. Need special justification to revisit precedent.

Unitary executive. Biden: Discusses (and, I think, misstates) Scalia's dissent in Morrison v. Olson. Are you with the majority or Scalia? Is FDA constitutional? A: I don't know that there are removal restrictions on FDA Commissioner. (I don't think there are; Biden picked a bad example.) Where there are removal restrictions, line of developed precedent applies.


Has Biden Never Heard of Appropriations Riders?[Jonathan Adler 01/12 10:40 AM]

According to senator Biden, Congress cannot cut off funding for specific federal functions without defunding entire departments. That must be news to Congressional appropriators. For years, if not decades, Congress has attached riders to appropriations bills barring the expenditure of funds for specific purposes, in some cases on quite narrow items, such as drafting, implementing or enforcing a specific regulation.



Kennedy Flunks Administrative Law[Jonathan Adler 01/12 10:33 AM]

Senator Kennedy's questioning this morning about the unitary executive and administrative agencies reveals a profound misunderstanding of bedrock principles of administrative law, including the difference between agencies that are a part of the executive (such as the EPA, FWS, APHIS, etc.) and independent agencies (FTC, CPSC, FCC, Federal Reserve). Judge Alito patiently tried to explain this to him, to no avail. As it happens, I'm in the midst of grading my students' administrative law exams. Based upon his comments this morning, Senator Kennedy would easily hold down the bottom of the curve.

Heehee!

Earthjustice Errs (Again) on Alito[Jonathan Adler 01/12 10:31 AM]

Yesterday Judge Alito was asked about his opinion in the Magnesium Elektron case. Earthjustice did not like Judge Alito's decision in the case (as I discussed here). In a new release, Earthjusitce continues its patern of misrepresenting the holding of the case, in which the Third Circuit found environmental plaintiffs lacked standing because they failed to provide any evidence of any adverse environmental impact resulting from a companies violations of the Clean Water Act. "Unless people can prove they are sick from drinking the water, citizens are going to have a tough time protecting waters that they use and care about from industrial pollution if Alito is confirmed," commented Joan Mulhern, a senior legislative counsel at Earthjustice. "Effectively, what Judge Alito is saying is: don't drink the water."

This is wrong. The opinion does not hold that the plaintiffs have to "prove they are sick" from pollution. All they had to show was some impact on the water — any impact at all — from the illegal pollution. A tiny, yet measurable, increase in contaminant levels in the water would have been sufficient, yet they showed none at all. All three judges on the panel believed this was insufficient for purposes of standing under then-prevailing Supreme Court precedent. The only dispute was whether the plaintiffs should get another chance to provide additional evidence. Environmental activists are correct that this aspect of the decision has been overruled by the Supreme Court's decision in Friends of the Earth v. Laidlaw, but even under that case it is unlikely the Magnesium Elektron plaintiffs would have standing, as they failed to allege any connection to the area most likely to be effected by the illegal discharges, instead relying upon their interest in portions of the Delaware River, miles downstream. Earthjsutice errs further by claiming that Magnesium Elektron "relates directly" to the two Clean Water Act cases the Supreme Court will hear in February. This too is false, as standing is not an issue in either of the two cases. Nor is Earthjustice's characterisation of the issues in these cases accurate. Alas, this sort of thing has become par for the course.


Kennedy's Round 3[Ed Whelan 01/12 10:14 AM]

More Kennedy confusion about what the unitary-executive theory means.
And now more Vanguard! I guess that Kennedy will soon demand that Ruth Bader Ginsburg resign from the Court because of taking part in cases in which she was actually required to recuse. And I'm sure he'll re-examine the far more serious allegations against Justice Breyer that he treated dismissively at the time of Breyer's nomination.

Kennedy: Steven Calabresi is one of the originators of the bizarre, radical theory of the unitary executive. Yes, along with Alexander Hamilton and Article II of the Constitution.

More fulminating on CAP.
Kennedy wraps up with a summary of his case against Alito. Ridiculously weak and distorted. This is what the Left has degenerated into.


GOP Not Afraid of Filibuster[Ed Whelan 01/12 09:39 AM]

From a senior Senate GOP leadership aide:
1. Run against President Bush, like it’s 2004 all over again—NSA, 2000 Supreme Court election decision, etc.
2. When not doing 1, continually hammer at abortion—which the majority of America is uncomfortable with, to say the least.
3. When not doing 1 or 2, keep talking about CAP, which no American understands.
4. When not doing 1, 2, or 3, tick off Chairman Specter: first threaten to postpone the markup date, then pull a procedural stunt behind his back.
5. When not doing 1, 2, 3, or 4, and all else fails, don’t even apologize when the nominee’s wife cries.
Good plan.
And these guys still want to threaten a filibuster?
Bring it!


Re: Washington Post as Cheerleader for Democrats[Ed Whelan 01/12 07:20 AM]

The Post article asserts at one point that Alito's answers on Roe and stare decisis "departed notably from those that [John Roberts] gave when asked similar questions during his confirmation hearing four months ago." But three paragraphs later, it contradicts itself, noting that Roberts was "reluctant" to address the issue and relying instead on his statements from his D.C. Circuit confirmation hearing in 2003.

The article does note that Roberts stated the tautology that Roe is "settled as a precedent of the court." But in Roberts's usage, every precedent is settled; that is the necessary predicate for calling it precedent and for addressing whether it should remain settled. The article then quotes as seemingly authoritative Senator Durbin's statement that Alito "would not use those same words." In fact, Alito, in his exchange with Durbin, said essentially the same thing that Roberts did:

"If settled means that it can't be reexamined, then that's one thing. If settled means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way."

In sum, Roberts's and Alito's answers on Roe and stare decisis are substantively identical.


Rusher Update[Kathryn Jean Lopez 01/12 07:19 AM]

Following from what Ed told us last night, a committee-circle source tells me that Alito does not show up on "on cancelled checks, lists, minutes of meetings, nothing." Expect to see a memo from the committee on the Rusher papers this morning.


What Would George Orwell Say?[Kathryn Jean Lopez 01/12 07:04 AM]

The Democrats were too nice to Alito!! From the NYTimes; it's the "paper of record" so I have officially forgotten everything I witnessed yesterday and have adopted the accepted conventional wisdom from the head of NOW:

Ms. Gandy said Republicans had, to some extent, hamstrung Democrats by creating a public expectation that they would antagonize Judge Alito.
"So I think the Democrats are leaning over backwards to be extremely, very, very nice," she said. "I don't think it's an un-nice thing to ask follow-up questions and really expect the nominee to answer the question."

That is power, man. When a reporter will buy your line even when we all witnessed a reality to the contrary. AND THE NOMINEE'S WIFE LEFT THE ROOM IN TEARS.


Washington Post as Cheerleader for Democrats[Ed Whelan 01/12 06:57 AM]

The banner headline in today's Washington Post — "Alito Leaves Door Open to Reversing 'Roe'" — and the article's lead sentence, which states that the "once-sluggish confirmation hearings" for Alito "turned confrontational yesterday, as the nominee signaled he might be willing to revisit the ruling that legalized abortion nationwide," are nothing more than partisan cheerleading for the Democrats' feeble attack on Alito.

The simple fact is that Alito's testimony yesterday on Roe v. Wade and principles of stare decisis was exactly the same as he delivered the day before. And it is hardly news that a Supreme Court nominee will not give hints, previews, or forecasts on issues that might come before him. The headline could equally have been "Alito Leaves Door Open to Embracing 'Roe'".

If there was any news from yesterday, it was how desperate and nasty and empty the Democrats' attack on Alito was. But I concede that there is nothing new about that either.