In the meantime, enjoy a replay of one of our 50 (!!) episodes...

First and foremost, we must thank those senators who took a principled stand to protect the rights and freedoms of all Americans, rather than the interests of a powerful few.

The vote today yesterday, at 58-42, shows just how divisive Samuel Alito's nomination was. Democrats, along with a Republican and an Independent, came together on the Senate floor to reject Judge Alito's nomination and the agenda of a radical conservative movement that was clearly expressed in his writings and statements and embodied in his judicial record.

We will continue to fight to preserve justice for all Americans and to expand, rather than restrict, our freedoms. We hope that you will continue to fight the good fight along with us.

We'll put a show together as soon as we can after the vote... travel schedules and lost bags (thank you Northwest Airlines!) have intervened a bit, but we hope to get it to you late tonight.

Senator Kerry's courageous action marked a recognition of the importance of this vote This isn't just another academic debate about seemingly-arcane legislation—the vote senators make on this nomination will shape the future of our country for decades to come. There have been just two days of debate—two days of debate over a lifetime appointment to a sharply divided Supreme Court. Two days of debate at a time when the White House is attempting to circumvent and undermine the Constitution. Two days of debate when vital rights and freedoms are being challenged by the most radical fringes of this country at every turn. Two days of debate when the upholding of our system of checks and balances is more important than ever.

Will Kerry's filibuster attempt be successful? Only time will tell. Perhaps, however, it will drive home the often underappreciated message that the decisions of the Supreme Court reverberate in the lives of all Americans, that it is incumbent upon our political leaders to select judges who will provide everyone a fair hearing of their grievances, and that the country would be worse off if the Supreme Court were to roll back the hard-fought battles to expand justice and individual liberties. Senator Kerry, and senators like Ted Kennedy who are supporting him, recognize that Samuel Alito does not embrace the ideals of fairness, justice and equality that make this country great. Hopefully other senators, both Republicans and Democrats, will join them in their attempt before it is too late.

Thought I would take a moment and point you to one of our latest offerings in light of the continuing "hey, this is just like the Ginsburg nomination, but in reverse!" arguments that the GOP is so fond of making. Great line, just not terribly accurate. Take a look at our analysis, Revisionist History: Comparison of Ginsburg and Alito nominations defies the facts .

Lindsey Graham (R-SC) was also apparently less than pleased with the vote, though for different reasons, even throwing the gauntlet down and threatening to clean Democrats' clocks (seriously, that’s what he said). Very scary. He said he wanted to have a debate over the merits anytime, any place. But that's not true. He didn't want to, nor did Samuel Alito, nor did John Cornyn or Arlen Specter or any of the other Republicans who lamented the party-line vote and divisiveness while clinging to the party lines themselves. Because if they’d wanted to have a debate, we would have had an open conversation about Alito's record. But we didn't. The judge decided he didn't want to talk about it, or that he'd rather talk around issues or obfuscate or do just about anything than actually talk about the substance of his record or his views or ideas on the law. Why? Because that is a battle he couldn't win. Instead, he tried to talk his way into one of the most important jobs in the country using empty platitudes. He did tell us what he’d do, though - he'd be the same kind of jurist he is on the Third Circuit. Between unconstitutional strip searches and dismissing legitimate claims of extreme workplace harassment, please excuse us if we aren't comforted.

So, Lindsey Graham, we aren't going to make ridiculous sounding threats, but we are going to say that we tried to have a debate about ideas and the law and the future of the country, but instead we were fed evasion and hyperbole and rhetoric and that is not how the process should be. If Judge Alito is so afraid to even discuss his ideas, why shouldn’t we be afraid of what those ideas are?

That's how it usually works. There are other mechanisms in the Senate rules that end a debate, but since we're just getting started, we might as well hunker down and tune into C-SPAN 2's coverage...

ANYWAYS, there's a big vote in Committee today on Samuel Alito's referral to the full Senate starting at 9:30 AM. We think C-SPAN should be moving away from our north-of-the-border (Windsor, Ontario notwithstanding) friends' election for this one... we'll have a new show later today.

The vote counters are out in force. Take a gander at this Forbes article for the latest revelations.

Did you get used to a show every day last week? Do ya miss us? Well, we're not too proud to say we missed you too. A new show is on the way tomorrow...

Now we move on to the next step: the Committee vote. The vote was held over until the 24th. Congress is also back in session this week, so the Judiciary Committee doesn't have the halls of Hart to themselves anymore (really putting a damper on some killer parties).

We'll keep you updated as we move forward.

We have a wrap-up of yesterday (and today's) highlights in several parts.

The line of questioning undertaken by Senator Schumer perhaps best highlighted the problem with Judge Alito’s record: he inconsistently applies the law to achieve results that favor powerful interests over the individual. (Or, in the words of the senators, favoring the big guy over the little guy. Not to be confused with Senator Coburn’s “small people,� of course.)

In three cases, Judge Alito reached very different conclusions. We have already touched upon the Pirolli case, where Alito said that the plaintiff—who had been subjected to brutal sexual harassment—should not have his case considered because the lawyer who prepared the brief did an inadequate job. However, in a death penalty case, Judge Alito actually offered an argument for the government that prosecutors had not included in their brief. Judge Alito argued that federal judges had a duty to overlook some procedural problems when they reviewed convictions by state courts than they did when reviewing decisions by lower federal court. However, Senator Schumer pulled out another example of his inconsistency on such matters.

Dillinger v. Caterpillar, Inc. involved an injured worker suing a company for defectively designing the brake system that led to his injuries. Again, Judge Alito overstepped his role as an impartial adjudicator and provided an argument for the defendant that the defendant did not provide itself. When presented with the opportunity to aid a corporation he took it, just as he did for the government in the criminal context. When presented with the opportunity to correct manifest injustice carried out against a mentally retarded individual he dismissed the case on procedural grounds. That sounds like just what we want in a justice!

Judge Alito’s testimony concluded at around one, and after an executive session (Senate speak for a closed session when they can speak freely about confidential material from the nominee’s FBI file—or maybe just gossip and talk about the Redskins) the Senate went out to lunch.

All in all, we had evasive testimony from Judge Alito. We saw inconsistencies in his explanations in troubling issues like Vanguard and CAP. And most of all, we saw an unwillingness to proffer his views on anything that could remotely be considered controversial. We do, however, have his memos and 15 year record as a judge. And those things together show a conservative legal agenda determined to favor the powerful over the weak and government intrusion over individual rights. The nomination of Samuel Alito is not a step forward for progress and justice in this country, but rather a disturbing vision of what “justice� could become in this country.

We heard from a panel of judges (including Donald Trump’s sister! Her hair was marginally better, but that really isn’t saying much) in favor of Alito. We know we were surprised to hear such glowing remarks from sitting judges that could have their decisions reviewed by Alito should he be confirmed. Not an ethical minefield at all.

In our opinion, the star of the hearings was Goodwin Liu, professor of law at Boalt School of Law at the University of California Berkeley. He explained in very clear terms that Judge Alito’s legal reasoning is very clear and that he inevitably chooses a path that gives no benefit of the doubt to individuals seeks to protect their rights.

Though we were scheduled to be done yesterday, things ran a little long (Senate proceedings running long? Shocking, we know), so we continued with three more panels of witnesses today. Frankly, that’s fine with us. Not only do we love watching C-SPAN for hours on end, but since a Supreme Court confirmation is for life, well, it might be a good idea to take some time to really consider it. It certainly couldn’t hurt.

Chairman Specter expressed the desire to get the questioning of Alito wrapped up tonight, but his attempts to rush through the one job interview the American people get with a lifetime appointee to our nation's highest court was rejected. Tomorrow we'll have a third round of questioning that Senator Specter said would be limited to 25 minutes, barring any special circumstances (per Senator Leahy’s discretion).

We hope that Judge Alito will take advantage of this opportunity to provide full and clear insight into his views and what kind of justice he would be if confirmed.

Senator Feinstein hit upon a rather severe inconsistency in Judge Alito's performance thus far. Alito's been very forthcoming about his opinions on a number of constitutional issues, but has specifically refused to do so with respect to Roe v. Wade. One of his rationales for this difference: he can't comment on issues that might come before the Supreme Court. But Judge Alito has been very open about his feelings on the concept of "one-person-one-vote," even though, as Feinstein noted, the Supreme Court will hear a case taking this issue up in just a few months. In response to Senator Schumer later in the hearing, Alito said he'd perhaps been too forthcoming on certain issues, but wasn't going to go any further with respect to his feelings on the constitutional right to abortion. For the record, that leaves his statement that it his personal view that "the Constitution does not protect the right to abortion," as the only clear articulation of his position.

Alito was also treated to some hard-hitting questions from Senator Cornyn, who asked him - we're not kidding here - if he was a clone of anyone. Well played, senator. Well played, indeed.

FIREWORKS! Senator Kennedy continued to push Judge Alito on his membership in the explicitly anti-woman, anti-minority Concerned Alumni of Princeton (CAP). In 1985 Alito was proud enough of that membership to tout it in a job application, but now he doesn't remember being a member or his reasons for joining. Senator Kennedy brought up the fact that CAP had sent a letter in 1984 to every living alum of the college expressing it's discriminatory views, that Princeton's president responded with a similar letter, and that this exchange was covered in the Wall Street Journal. Apparently Judge Alito wasn't reading his mail or the paper at the time, because he claimed not to remember any of this.

After this exchange, Senator Kennedy stated his intent to subpoena [some CAP records from the Library of Congress], and asked that the Committee go into closed session to discuss this. Apparently he asked Senator Specter about this in a letter some weeks back, but the Chairman insisted he'd never gotten the letter. A heated exchange ensued, with the result being a visibly angered Chairman saying he would take the request into consideration.

This exchange was just one more instance of what has become the theme of these hearings: Alito is evasive and unwilling to provide a full and satisfactory accounting of his record and his views.

Well, today's questioning marked the beginning of the end. Well at least the end of the first round. Senator Durbin donned the mantle of Senators Feingold and Schumer of trying to get Judge Alito to provide just one moment of honesty, sincerity or frankness in his senate testimony. And despite a valiant effort from the gentleman from Illinois, again Judge Alito again chose stuck to dodges, evade , vagaries and mischaracterizezations. For instance, while admitting that Griswold and Brown are settled law (well at least we know that he's not against contraception and segregation, hallelujah!), like Roe, two decisions not based on the specific language of the constitution, he remained steadfast in his unwillingness to say whether he still believes that the Constitution does not provide for the right to an abortion. Is My god man, is it that hard to give an honest opinion? Is it that hard to say what you think?

Senator Durbin then went on to expose Judge Alito's record of advocating, in dissent, the use of legal technicalities to deny justice to a host of wronged individuals. by: 1) The first instance Senator Durbin cited involved accepting the appropriateness of a jury selection which systematically eliminated all African-American jurors. Alito used a comparison to left handedness versus right handedness in his dissent and stuck by it even as Durbin pointed out how that trivialized the issue. Alito argued that he had to make this argument because of his knowledge of stats. Hey, I remember that stat class from college (How To Misuse Stats 101).

The second example cited a truly disturbing case; 2) denying the right of a mentally retarded, sexually abused individual to bring a workplace harassment case. Because the facts of the case are so shocking, Durbin declined to read them into the record. We've done a fact sheet on the Pirolli case, however, that outlines the allegations and Alito's shocking opinion.

Finally, Durbin revisted his thoughts from the first day of the hearings and discussed, in light of recent tragedies; and 3) denying miners appropriate workplace protections.

These are just three in a long line of cases that shows Alito favoring the powerful over the powerless. Senator Coburn tried to revitalize Alito's image by citing 9 cases where he did not do so. That's 9 against hundreds of instances.

Judge Alito probably heaved a sigh of relief when Schumer's time ended and the floor was turned over to Senator Cornyn for more gentle questioning.

Wisconsin Senator Herb Kohl (Go Bucks!) was the first Dem after lunch. He was curious about why Judge Alito had said he thought Judge Bork was one of the best nominees of the century. Judge Alito said he disagreed with lots of Judge Bork’s positions. We’d really like to know which ones, but Judge Alito didn't tell us.

Kohl also touched on Alito’s professed problems with the right to abortion, but didn’t get an answer. When questioned about his professed problems with the one person one vote doctrine, he said that he actually loved the doctrine, thought it was the best ever. All he disagreed with was how strictly the Warren Court applied the doctrine (requiring almost perfectly equal-sized districts). Strange that he only had such minor concerns about this bedrock voting rights doctrine since he said in his 1985 job application that his disagreement with the Warren Court's reapportionment decisions was one of the reasons he chose to become a lawyer in the first place.

Senator Grassley opened his first round of questioning with an attack on the "extreme liberal groups"—including some that are blogging "right now" and we must say we appreciate the shout out—for pointing out that Judge Alito "didn't remember a promise" he made during his committee hearing for his nomination to the Third Circuit. regarding his willingness to recuse himself from any case involving Yup, we're talking about Vanguard again. Just a quick refresher, Alito had promised to recuse himself from any case involving Vanguard, a company in which he had a significant financial stake and then he ruled on a case involving Vanguard. Oops! Reassuring Judge Alito that forgetting about such a promise was ok, Senator Grassley assured him that he was in good company, noting awkwardly, "If senators kept every word they made to their constituents, there wouldn't be any senators left." Good to know we can count on you to defend the practice of breaking promised, senator.

Senator Biden's "questioning" began by emphasizing how "puzzle[ing]" Judge Alito's record and answers are, puzzling to him and puzzling to the public. One puzzling area was Judge Alito's justification of his membership in Concerned Alumni of Princeton. Senator Biden, if you haven't caught on to the theme yet, was puzzled how Judge Alito's disagreement with ROTC being kicked off campus in the 1960s provided a justification for his bragging, in a 1985 job application, about his membership in the sexist group. It was extra-puzzling, as it were, since Alito could remember why he might have joined but not that he had joined. Also, in 1985 Princeton had restored the ROTC program to campus. Puzzling.

Senator Biden was also you-know-what by Judge Alito's woeful record on employment discrimination cases. Two cases in which Judge Alito's own circuit sharply disagreed with his findings formed the base for the discussion. In one case, Bray, Judge Alito justified a position his colleagues on the court said, if adopted, would "eviscerate" Title VII, by falling back on the old law school favorite "reasonable person" standard. Basically, he concluded that the facts of the case lead to a conclusion that no reasonable juror could find that racial discrimination occurred. Good thing his fellow judges agreed with hi… Oh, that's right. The completely rejected that approach

Where things really got interesting, though, was in a discussion of the Sheridan case.. Judge Alito justified a ruling against a woman who had been systematically discriminated against by her employer as in-line with a later Supreme Court ruling involving similar facts written by Justice O'Connor. As he should have, Senator Biden quickly pushed back on Judge Alito's response, making it clear that while Justice O'Connor may have applied the same standard as Judge Alito, she most certainly would not have come to the same result. Senator Biden pointed out that Justice O'Connor would certainly have come to a different result in Sheridan, blowing Judge Alito's claims that he had the same views on this issue as the justice he wants to replace out of the water.

Senator's Kyl's questioning primarily consisted of prompting Judge Alito to promise that he would never, ever, pretty please, no fingers crossed, employ international law in deciding an issue of constitutional law, which Judge Alito happily did. Senator Kyl continued his questioning after the lunch break with a question that lead to a collective jaw dropping, having nothing to do with the turned crab bisque in the Senate dining room. Asking Judge Alito to comment on his position in the now infamous Rybar "machine gun" case, Judge Alito stated that he felt his position in Rybar was actually a modest position. Whaaa!!? Not only was Judge Alito's position rejected by almost every Circuit in the country, but the only Circuit that agreed with him was shot down by the Supreme Court. Boring though this statement about modesty may sound, this will likely become an issue of serious contention as the proceedings continue, and may qualify as the hearing's first blockbuster.

Things are really getting started today, with Round One of the Judiciary Committee's questioning of Judge Alito. As expected, Chairman Specter got things underway right on time at 9:30, and, after a brief note that we all might be here until late into the night and allowing Senator Leahy a quick intro, got straight into questioning Judge Alito about abortion... to little substantive result. After a few minutes, we'd pretty much heard a whole lot of nothing from Alito.

Judge Alito's responses were decidedly lacking in particulars, and Senator Specter refused to press him further. When asked about whether Roe v. Wade should be overruled, Judge Alito gave stock answers about the importance of stare decisis. Asked if he still believes, as he wrote in his 1985 job application, that "the Constitution does not protect the right to an abortion," Alito said that was an accurate representation of what he believed then, but did NOT say whether or not he believed it now. Since when did this pass for answering questions? Our English teacher in our junior year of high school would have been all over us for this kind of thing, so we're hoping the U.S. Senate won't put up with it from a nominee to our nation's highest court. Senator Specter also moved, as promised, into questions about executive power, but again, the answers were, if we're feeling kind, unenlightening. At best. Some might say "completely attempting to side-step the very issues at hand."

Ranking committee member Leahy took up the exec power line of questioning and pushed harder on the nominee, asking if, in Judge Alito's view, the president has the power to override the law to authorize torture. Alito hemmed and hawed and hedged with talk about Supreme Court precedent and the need specifics about a particular case, blah, blah, blah. What more specifics does he need other than the president is ordering people to be tortured? Torture is torture, Judge Alito.

Senator Leahy, who like Judge Alito is a former prosecutor, also got into Judge Alito's very troubling record of exceeding deference to intrusive uses of government power. This was the first time during questioning that the notorious "strip-search case," Doe v. Groody, was mentioned, (and we're sure to hear more about it). Judge Alito attempted to explain his disturbing dissent – an approach that was even rejected by now-Homeland Security chief and then-Judge Michael Chertoff. Here's the deal. For all of the talk about Alito being someone who will "strictly interpret the law," Doe v. Groody clearly shows his selective reading of the Constitution. In the Groody case, he just decided to ignore the part of the 4th Amendment that lays out the need for "particularly describing" the person or place to be searched in the warrant.

Reasonable people, Judge Alito professed, could disagree as to whether the warrant in that case actually authorized the intrusive search. Judge Chertoff didn't think so and neither did Senator Leahy. Citing his years in law enforcement, the senior senator from Vermont stated sternly, "I don't know of any reasonable officer in those circumstances who would find that search reasonable." We agree. For the full rundown on the Groody case and why it is so troubling and important, please see our handy fact sheet.

Senator Leahy finished off his first round of questions by asking Judge Alito why the heck he joined a group – the Concerned Alumni of Princeton, or CAP – that was anti-minority and anti-woman, and then flacked his membership in 1985 job application. Here we got a bit of insight into the latest set of talking points for the Republican senators (following up on the preview we got yesterday during opening statements). Apparently they'd been briefed on the new rationale for Judge Alito's membership. See, it just so happens that in his judiciary committee questionnaire, Alito said he had no recollection of joining the group... and he still doesn't, BUT he thinks that the only reason he joined was that the way Princeton treated the ROTC had "rankled" him quite a lot. Wow. He can't remember being a member of the group, but he can remember why he joined? That's a new and different approach, and just about as satisfying as New Coke. (Are we dating ourselves? We don't care. New Coke was an abomination.)

Senator Hatch was up next, and lobbed his usual round of softballs, trying to prop up Alito's membership in CAP and trying to launch a pre-emptive strike on the issue of ethics and recusal from cases involving his investments in Vanguard funds. Thing is, as Senator Kennedy noted next, Judge Alito promised to the Judiciary Committee in 1990, under oath, that he'd recuse himself from cases involving Vanguard. This goes beyond judicial ethics rules, it speaks to something far more basic: a promise ... someone's word of honor. And Judge Alito didn't keep his promise to the Judiciary Committee and there is no explaining that away. Judge Alito said that he should have handled it differently, but the fact is, he didn't.

Following Senator Kennedy's sharp questioning about the Vanguard promise, he questioned Judge Alito about a statement he once made arguing that the elected branches are supreme to the judiciary. Response: that was an "inapt phrase," but Judge Alito hasn't changed his mind... Well, that's comforting. Continuing on the issue of deference to government authority, where Judge Alito's record is decidedly slanted against individuals, Senator Kennedy asked about an excessive force case where Judge Alito's colleague called the search "Gestapo-like," Judge Alito reiterated that he thought the jury's judgment was rightly rejected. So we have an approval for excessive force as well as inappropriate searches. Good to know we have such a staunch defender of 4th Amendment rights in Judge Alito. Oh, wait... Never mind. Kennedy then entered into the record several independent reports highlighting Judge Alito's extreme deference to government authority.

Finally, Senator Kennedy asked Judge Alito if he still believes his statement that "the President's approval [of a bill] is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important as that of Congress." Judge Alito's response was—prepare for a shock—completely unresponsive. He talked about his method of reading statutes, but did NOT say anything about whether he believed – then or now – that president can change laws passed by Congress just by saying what he thinks it is ... just like President Bush did last week when he gutted the McCain Amendment banning torture. As he told Senator Leahy earlier, Alito said the memo was a draft and was written for a working group, but gave no indication of his position on this extremely troubling view of presidential signing statements.

So, up to this point, all we are left with is an unresponsive witness and a fifteen year judicial record of troubling decisions when it comes to protecting individual rights and the interests of the American people.

On Tuesday, the second day of confirmation hearings before the Senate Judiciary Committee, "we get down to business," said Sen. Dick Durbin of Illinois, the Senate’s No. 2 Democrat.

The hearings begin at 9:30 AM and will likely go well into the evening, as there is a 7 PM dinner break scheduled. We'll wrap a few things up, then scurry into Studio 1-A for SCW 42, AKA Late Night With Kelly, Adam, Dan and Tim.

The afternoon actually ended ahead of schedule, with Judge Alito getting his chance to say “I will,� and give a statement pledging his undying dedication. Okay, so it wasn’t a wedding, but Judge Alito did get sworn in and then gave his opening statement, affirming his dedication the rule of law. BUT FIRST, he had to wait a few minutes for formal introductions by his home state representatives (Jersey represent!), Senator Frank Lautenberg and former governor Christine Todd Whitman. (New Jersey’s other senator, Jon Corzine, won’t be around to vote on Alito since he is being sworn in as Jersey’s next governor on January 17, but he did submit a statement for the record). Senator Lautenberg said some nice things about Judge Alito’s family and upbringing, but didn’t take the bait when Senator Specter asked if he’d “care to make a recommendation on the nominee.� Ms. Whitman, however gave her endorsement of the nominee.

After some pretty bad jokes equating the number of photographers in the room to the number of senators needed to approve a nominee as senators stalled for time to get the cameras in position, the photogs got their shot and Chairman Specter administered the oath and invited Judge Alito to deliver an opening statement.

Judge Alito’s statement, like much of the day’s comments, consisted of primarily snooze, with only a nugget or two of news. After dispensing with the initial thank yous and a failed attempt at humor (with a punch line that included references to I-95 and Amtrak, two notably unfunny topics), Judge Alito took senators through his life story. Asserting his blue collar bona fides, he discussed the rags to riches story of his immigrant parents and his rise from an “unpretentious, down-to-earth� New Jersey community, to the halls of academic excellence at Princeton and Yale Law School. In a shot at his collegiate peers, Judge Alito explained that he “saw some very smart people and very privileged people behaving irresponsibly.�

Remarking on his legal career, interestingly, Judge Alito paid short shrift to his time at the Department of Justice, merely stated that it was an honor it was to have the United States as his first and only client. However, Judge Alito used his discussion of his judicial career as an opportunity to launch a pre-emptive attack on likely Democratic senatorial criticisms. Addressing judicial activism, Judge Alito asserted that he had no agenda as a judge other than to carry out the dictates of the “rule of law.� On deference to the executive branch, he reiterated a point raised earlier by Senator Leahy that, “[n]o person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.�

Given the opening statements from Chairman Specter and all of the Democrats, expect him to be pushed on each of these assertions tomorrow—that he was representing the United States and not pushing a legal agenda when he argued against Roe v. Wade, affirmative action and other important legal doctrines in the justice department, that he consistently follows the rule of law as a judge, and that his record does not show excess deference to the executive branch at a time when the president is asserting breathtaking powers as detailed in the AFJ report.

So, we’ve heard from all the Senators now. Only Alito’s opening statement is left.

Senator Graham was the first to drop the “f�-bomb,telling Democratic senators not to filibuster over Roe v. Wade. In what has become a familiar refrain, Senator Graham harped on process and reminded Democratic senators to “know their role.� To channel our playground self, takes one to know one, Senator Graham. Following up on the Wall Street Journal article we mentioned in the previous post, Senator Graham might want to reassess his own role: the Constitution says senators should provide “advice and consent� to the president on judicial nominations. In Graham’s case, that apparently includes prepping the nominee for his hearing, which sounds like a bit more than the “advice� the Framers had in mind.

Graham also used the “L� word (no, not the drama from Showtime): “litmus test� He argued that although Roe, or more precisely Casey, is foremost on many people’s minds, senators should consider Judge Alito’s entire record rather than relying on a one or two case litmus test. Considering the other senators talked about presidential power, 4th amendment rights, civil rights, workers’ rights and all of the other things that are cause for major concern in Alito’s record, we don’t think Senator Graham has to worry too much on that score.

Senator Schumer brought things back to earth for a few minutes, asserting that it is Judge Alito who has the burden of proof to show that he deserves a lifetime appointment on the Supreme Court over the course of the hearing. Schumer echoed one of the common themes of the afternoon: the fact that Alito has been nominated to replace the Court’s most frequent swing voter. He also gave his own take on the so-called “Ginsburg standard,� noting that Justice Ginsburg answered questions on issues on which she had written or commented. Turns out, Judge Alito has written and said quite a bit when it comes to hot-button issues like the power of the president, abortion, and voting rights, so we should get a lot of answers, right? We’d better. I guess we’ll see tomorrow…

In a shout-out to the failed Harriet Miers nomination that was torpedoed by the same members of the radical right that are acting as Judge Alito’s cheerleaders, Schumer chastised the “the cadre of conservative critics that demanded answers from her and then rolled out the red carpet for Judge Alito.� Schumer wants to know why that’s the case, and so do we.

Demonstrating that he attends the very same séances as Justice Scalia, Senator Cornyn channeled the spirits of the founding fathers telling us all that the “founding fathers believe people of faith should be allowed to express their beliefs… .� Senator Cornyn charged that “a number of groups really don’t want a fair-minded judge,� that they want “traditional marriage� to be found unconstitutional and that they want to “ban any religious expression from the public square.� Who are these groups? Could Senator Cornyn send us a list, because we’d really like to know?

Senator Dick Durbin’s theme for the hearing was this: Would Judge Alito use his powers to restrict freedom or expand it? Durbin characterized Alito’s choice as follows: would he continue the legacy of rights and freedoms, or would he sign off on gag rules on doctors regarding family planning, interference into family decisions regarding life support, efforts by the government to tap our phones and invade our medical records, or (surprise, surprise) rules that would come between a woman, her doctor and her conscience on the decision of whether to have an abortion. Durbin charged that we as a society have gone too far in curbing individual rights and urged that the Supreme Court is the backstop for these rights (okay, we added the gratuitous baseball reference—we’ll try to make sure it doesn’t happen again).

Durbin urged Alito to explain his views on reapportionment and involvement in the Conservative Alumni of Princeton (newly recollected it seems as a stand against ROTC? more on that later, to be sure).

In a grim moment that really showed the sort of impact decisions judges make on every aspect of our daily lives, Senator Durbin reminded us of a dissent Judge Alito wrote which would have limited the reach of a law that protects the health and safety of coal miners. (Our report includes a background on the case in question.)

In a shocking development, Senator Brownback used most of his time to recycle the same attack on a woman’s right to choose that he had used at the Roberts hearing. Couldn’t he have come up with some new lines in the intervening four months? Senator Brownback, clearly in favor of sports references, added this one to the list: “Only two more pitchers then you get to bat.�

We’d suspect that Brownback’s list of four cases where Judge Alito voted for civil rights, like Senator Jeff Sessions’ list, uses a very loose definition of what a “discrimination� case really is. Unfortunately, we’ll have to wait for the official transcript to come out weeks from now, since Brownback inserted his list into the record but didn’t bother to tell us what the contents of the list was.

Senator Coburn, an MD, followed Senator Brownback, continued his diatribe on the right to choose, or as he put it the “right to choose to kill� or the “ripping and tearing of an unborn child from its mothers womb.� He followed this with an equally polemic diatribe on the “right to take your own life,� and left us all with this thought-provoking question “how is it that we have sodomy protected under due process but not prostitution?� His medical diagnosis: “Its schizophrenic.� In case we had yet to figure it out, Coburn tipped his hand, telling us that “the real debate is about Roe.� If you’ve listened to our podcasts, you now know why we dubbed Brownback and Sessions the abortion twosome.

Well, the hearings have gotten started and while it hasn't been what we'd call "rockin'" there have been some interesting moments in between the self-congratulatory and bombastic speeches (Senator Sessions, we're looking in your direction.) Up until now, we've heard from 12 senators, so only 6 more speeches to go.

Chairman Specter kicked things off by inviting Judge Alito to introduce his family. That's the last time he'll have a chance to talk for the next several hours. Do you suppose practicing an "interested, I'm listening" face is part of the murder board process? It should be.

We found out in the gripping administrative portion of the session that Senator Specter intends for the hearings to conclude this week with a committee vote on Tuesday the 17th, "subject to something extraordinary happening." Specter then followed by laying out the structure of the hearings: 1) Today, each senator will have 10 minutes for opening statements, followed by the formal introduction of the nominee by his home state Senator, Frank Lautenberg and former NJ Governor (and current EPA Administrator) Christine Todd Whitman, and Judge Alito's opening statement; 2) Questioning will begin tomorrow morning with Round 1 of questioning – 30 minutes per Senator – and Round 2 – 20 minutes apiece – will follow, with 15 minute breaks at "convenient times; 3) Specter intends for the hearings to conclude this week, with a committee vote on Tuesday, Jan. 17, "subject to something extraordinary happening." With that and a brief word from ranking committee member Patrick Leahy of Vermont, things got moving.

But onto the real fun—the senators' 10 minute opening statements. Senator Specter laid out his concerns (sadly sans the word "super-duper" or a big blue chart): executive power in light of recent revelations about domestic spying by the Bush administration, abortion, and respect for congressional decision-making. Nearly every senator on both sides of the aisle also noted the importance of Judge Alito's deference to executive power, several noting Justice O'Connor's statement "a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens," in a 2004 opinion rejecting the president's assertion of a right to detain American citizens.

Chairman Specter also described the interchange between the senators and the nominee in the hearings as "a subtle minuet." Senator Biden took a liking to the metaphor, indicating that classical music may replace baseball as the central metaphor for these hearings. We certainly hope so.

You may have heard a few words about Judge Alito's 1985 job application. You know, the one in which he expressed disagreement with the Supreme Court's holdings enshrining the principle of one person one vote, and expressed pride in his work fighting against abortion rights. This was cited by many senators as a cause for concern. Senator Kennedy, in particular, is "deeply troubled." As are we, Senator Kennedy, as are we.

Senator Grassley got the first laugh of the day on the heels of Senator Kennedy's expression of "deep concerns" about Alito's record, beginning his comments with the "quip" "I have a more positive view of Judge Alito." It's a Judiciary Committee hearing, not a night at the Improv. Or even the Capitol Steps. We have to take what we can get when it comes to humor.

Also expressing serious concern with Judge Alito's dedication to the protection of Americans' individual rights were Senators Leahy, Biden, Kohl, Feinstein, and Feingold. Senator Kohl summed it up in two key quotes: "Before we give you the keys to the car, we'd like to know where you're going to take us," and, on the importance of a judge's awareness that his or her rulings affect the lives of real people, "justice may be blind, but [long pause for sip of water—hey, we aim to be accurate] it should not be deaf."

Senator Sessions, noting his own adulation of our nation's founding document, previewed his questioning by saying that he intends to inquire as to whether Judge Alito loves the Constitution. I think they sell t-shirts to that effect at the National Archives and we totally want one. Seriously. Senator Sessions also cited a criminal procedure case to "rebut" Senator Kennedy's correct observation that Judge Alito has not written an opinion in favor of a plaintiff in a race discrimination case. Whoops. I wonder why he wasn't confirmed to the bench back in the 80s... Huh. Weird.

There is one other interesting thing we'd like to note. In his opening statement, Senator Hatch said that the "first principle" in judicial selection is that "the Senate and the president have different roles." Apparently Senator Graham didn't get that memo. Oops. According to today's Wall Street Journal (sorry, we'd link, but a paid subscription is required), Senator Lindsay Graham participated in a prep session for Judge Alito at the White House last Thursday. First principles can be such a pain.

It’s finally here! The day we’re sure all of you have been waiting for. Day One of Judge Samuel Alito’s Judiciary Committee hearings gets underway today in the Hart Senate Office Building, just a few blocks from One First Street. The hearings begin at noon (EST), and are scheduled to go at least through Thursday. You can view today’s schedule here. We’ll be with you every step of the way (and yes, we have lives, they just will be revolving around this for the time being), monitoring the hearings from gavel to gavel and providing regular updates with breaking news and observations. You can catch the hearings live on C-SPAN.

A quick news update before we get started: Senators hit the airwaves yesterday in a spate of Sunday news show appearances, making it clear that the stakes are extremely high and that Judge Alito’s writings and rulings place a heavy burden on his confirmation. Senator Kennedy laid it all out in a Friday op-ed in the Washington Post and we’ll be hearing from him again today, as well as all the other members of the Judiciary Committee.. All 18 of them. Today is prepared remarks—including the headliner himself with an opening statement—but the real fun gets underway tomorrow when the questioning of Alito begins. Stay tuned. We’ll have more for you after the first break.

Of course, stay tuned to the Insider Scoop blog for our coverage throughout the day, but we'd also like to plug the excellent WashingtonPost.com Campaign for the Court blog for continuous coverage, including video clips.

Also, for live coverage on C-SPAN online click here. TV coverage is on C-SPAN 1, so no need to go to channel 283476234 like we did for the Roberts hearings...

So, enjoy your morning and get set for the 11:30 AM start!

Also, AP put out a good summary of the pre-hearing discussion here.

Alito's words and record must credibly demonstrate that he understands and supports the role of the Supreme Court in upholding the progress we've made in guaranteeing that all Americans have an equal chance to take their rightful place in the nation's future. "Credibility" has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito.

Hearings begin Monday morning. Just a reminder... we'll be posting throughout the day at the Insider Scoop blog on the main supremecourtwatch.org page, plus we'll be gathering the ragtag gang of usual suspects for a hearing wrap show every night, DC time.

This is why more than 500 law professors around the country have signed on to a letter opposing the confirmation of Samuel Alito. You can check out the letter and signatures here.

We know, lots of reading material today. But it's all an excellent primer on what is going to come since the fun gets underway on Monday with the start of the Alito hearings.

Today, Alliance for Justice released a 168 195 page report examining the record of Supreme Court nominee Samuel J. Alito. The comprehensive qualitative and quantitative analysis shows a nominee determined to reshape the law and drive the Supreme Court sharply to the right.

"Given his record, it is no surprise that the Alito nomination has been embraced by the radical right. They believe that he will realize their hopes of undoing decades of progress in the advancement of individual rights," said Nan Aron, president of Alliance for Justice.

Throughout his career, Alito has quietly promoted a legal agenda and jurisprudence that aggrandizes executive power at the expense of individual liberties; limits Congressional authority to enact legal safeguards; and generally diminishes judicial authority to enforce both statutory and constitutional rights. "The reasoning Judge Alito employs and the results he reaches are not balanced. Rather, they track a staunchly conservative political and legal view to a remarkable degree," continued Aron.

Judge Alito has frequently gone to the right of even his Republican-appointed colleagues to find against individuals who claim that government officials or corporations violated the law. "This quantitative analysis shows a clear pattern - Judge Alito consistently opts to restrict individual rights and freedoms, and champion the causes of corporations and government power."

"Judge Alito is not simply a judicial conservative. Rather, he has the ideas and vision to move American legal thought in a radical new direction, jeopardizing our most cherished individual rights and freedoms," concluded Aron.

Check out the final report here.

Like just about everyone else, we've decided to make a New Year's Resolution. While it should probably have something to do with eating more vegetables or watching fewer reality shows, that doesn't sound very fun. So, we've opted instead to be much better about blogging. (And with the Alito hearings starting in less than a week, we have good reason to stick to our resolution.)

Starting tomorrow, we'll have all sorts of up-to-the minute (or at least up-to-the-day) information for you, though we cannot promise there won't be random references to not-quite-ready-for-C-SPAN programming. Happy New Year!

See the rest of Adam Cohen's piece in the NYT here.

Update... we also stumbled upon this editorial on executive power and Alito from The Palm Beach Post.

Who says we never post on Saturdays? Happy new year everyone!

This show is 17:40... if your download cut off at the nine minute mark, download it again here.

(No, I have no idea what that means either.)

The National Archives is releasing another 291 pages today... take a gander here, after 9 AM.

News Advisory:

WHAT: The National Archives at College Park will release 45 documents relating to Samuel Alito. These records total 744 pages from Record Group 60, Records of the Department of Justice, Files of John Bolton, Michael Carvin, Roger Clegg, Stephen Galebach, Brian Landsberg, Mark Levin, and Richard Willard.

The National Archives found the documents, consisting of memoranda and other documents, in various folders in the files of these individuals during the processing of additional FOIA requests.

WHERE: These records will be posted on the National Archives Web site at http://www.archives.gov/news/samuel-alito/

WHEN: The records will be available on Friday, Dec. 23 at 9 a.m., EST

We did a little pre-podcast caucus today, and it looks like we'll be recording and uploading the last show of the year on Thursday. But... a little elf told me there may a little something in your podcatcher stocking on Christmas day. The tease continues in SCW 37 on Thursday.

Update - looks like everything is straightened out... enjoy the show and your weekend!

Whether Samuel Alito would vote to overrule Roe v. Wade and whether his vote would be the last necessary step to Roe's demise are not the only questions before the Senate or the American public. For overruling Roe is not the only way to end legal abortion or make access so difficult, expensive, and dangerous that abortion's legality is practically meaningless. Indeed, overturning Roe outright is not the most likely avenue for the Court and anti-choice legislatures to take in the near term.

Stacking the Court with Justices who are indisposed to find a state regulation to be an "undue burden" is as sure a way of ending legal abortion for many women in much of the country as is overturning Roe. It's just far more subtle and less likely to create political backlash.

UPDATE - Our upstairs neighbors (and AFJ member) National Women's Law Center have added their report to your Alito reading list. Get crackin' people!

A new podcast is coming your way tomorrow... in the meantime, let it snow ice rain, let it snow ice rain, let it snow ice rain!

Confirmation hearings for Supreme Court nominee Samuel Alito are scheduled for early next year, and a majority of the public is withholding judgment about him. Seventy-five percent haven't heard enough about Alito or are undecided in their views of him...

See the poll here.

Rolling Justice will be visiting Americans in towns throughout the country to educate and engage them on the importance of the Supreme Court and the impact of the Alito nomination. We want to hear the stories and voices of Americans and find out what the Supreme Court means to them.

For more on Alliance for Justice's eleven state tour, click here.

Check back in tomorrow (we promise this time) for SCW 35! If you're in the need of a little more reading, take a look at "Review of cases shows Alito to be staunch conservative" by Stephen Henderson and Howard Mintz.

Senate Democrats on Wednesday pushed for the Justice Department to release more documents about U.S. Supreme Court nominee Samuel Alito as some liberal advocacy groups prepared to come out against his nomination.

* * *

Leahy pushed for the release of documents the administration has determined are not covered by a Freedom of Information Act request. He said the Senate was entitled to see the documents, or in some cases edited portions of them, and could handle them on a confidential basis if warranted.

Hang tight and we'll get a show out to you tomorrow Friday with all of the week's news, plus a new segment... "Dan Roth, Senior Supreme Court Correspondent."

Also, Senate as a full partner, not a rubber stamp by Sen. Patrick Leahy is well worth the read.

When Sen. Dianne Feinstein (D-Calif.) asked Alito about that letter seeking a promotion, she said he told her: "First of all, it was different then.... I was an advocate seeking a job. It was a political job. And that was 1985."

Rather than defend his letter, in other words, Alito preferred to leave the impression that he might have been engaging in a bit of opportunism. Does that mean that 20 years from now, he will say that his statements to members of the Senate Judiciary Committee were simply those of an appeals court judge seeking a promotion and were never intended to be taken too seriously?

In a 15-page memo, he argued in favor of letting states give police the power to shoot to kill at their discretion whenever a suspect flees, whether or not he poses a threat. Alito's memo is written with his usual dispassion. But he's forceful in his belief that the Constitution has no role to play in a cop's decision about whether to shoot an unarmed suspect.

More to come on this case, to be sure.

On the tech front (i.e. feel free to skip this if it makes you sleepy), we've just updated our Odeo feed. Click on our Odeo Channel (odeo/31867e600dc3d102) if you want to check us out through there.

In celebration, we're going to do exactly nothing out of the ordinary. We'll be gathering the roundtable today in Studio 1A and should have a show up sometime later in the day tomorrow. Stay tuned!

Supreme Court nominee Samuel A. Alito Jr. was an architect of the Reagan administration's failed 1985 attempt to have the high court consider overruling Roe v. Wade, according to a memo from the period released today.

Alito, then assistant to the solicitor general, urged his boss to use a case before the court to "make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."

In the memo, Alito suggested that the government challenge Roe in an amicus, or friend-of-the-court, brief in an abortion case that itself did not challenge the 1973 decision legalizing abortion. This approach, he wrote, is better than a "frontal assault."

Here is the AFJ statement on the memo at the heart of the article:

The 1985 memo that came to light today reveals precisely what Supreme Court nominee Samuel Alito was talking about when, in a 1985 job application released two weeks ago, he declared that he was proud to have joined the Reagan administration's effort to scuttle women's reproductive freedoms. The memo shows that Samuel Alito worked in the boiler room as one of the chief engineers of a multi-tiered strategy to reverse Roe v. Wade.

Unlike Chief Justice John Roberts, Judge Alito cannot claim that he was simply a government lawyer doing government work. The memo released today illustrates his dedication to eliminating a woman's right to choose - a dedication that carried through to his dissenting opinion on the Third Circuit in Planned Parenthood v. Casey. Casey was the only case he has ruled on that presented an open question regarding reproductive freedoms. And in Casey, as in the memo released today, he devised a way to hollow out a vital right.

With the memo, Alito promoted "the goals of bringing about the eventual overturning of Roe v. Wade, and in the meantime, of mitigating its effects." There is little doubt that he would do likewise if elevated to the Supreme Court.