If Ted Kennedy provided the most bombastic example of foolishness of the Alito testimony, his colleague Chuck Schumer comes in a close second as a fool of the first order. This last day of testimony provided plenty of examples, but I will be happy to show a couple of them -- one with Alito, and the other later in the day with the ABA. In the first, Schumer apparently had his mind set on catching Alito in a contradiction, and wanted to move in for the kill. On the video, viewers could see Schumer's agitation level rise as his hands flew all over the place and his over-the-glasses stare sharpened considerably. He tried to make the case that he allowed the government to make new arguments on appeal when he earlier denied the same process to a "retarded" plaintiff -- but as Alito pointed out, the difference was a Congressional mandate in the former case:

SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.

I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.

They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates."

SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.

In the first case, you said to that retarded individual, "Sorry, you're out of luck." In the second case, you said to the government, "I'll make your argument for you." And that doesn't seem even handed to me.

Can you explain the difference, please?

ALITO: Yes, Senator.

As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.

What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.

And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.

The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?

Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.

SCHUMER: But the majority didn't agree with you in that situation, did they?

ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.

And my position on...

SCHUMER: Let me ask you -- I understand your explanation. I'm not sure I agree with it.

Now wouldn't one think that a member of Congress who voted on that law should know that material before asking the question? Moreover, the requirement obviously would apply to both sides of a habeas case. Alito certainly knew the answer.

The second incident came during the ABA's explanation of how it came up with their highest rating for Judge Alito. Schumer's turn to offer questions came late in that round. Again, like any bad lawyer, he asks one question too many:

SCHUMER: Thank you, Mr. Chairman. I just have a brief question because we've heard a lot about the ABA rating, which is something that's prized and important.

Your sheet here that describes it says it describes three qualities: integrity, professional competence, judicial temperament. Is that right?

TOBER: That's correct.

SCHUMER: So it would not get into what somebody's judicial philosophy would be. Is that correct?

TOBER: That's also correct.

SCHUMER: And so, if somebody were very far right or very far left, as long as they had integrity, professional competence or judicial temperament, you would give them -- that's what you would rate them on.

TOBER: Senator, we don't do politics.

What we do is integrity, professional competence and judicial temperament. They are objective standards. And that's what we bring to this committee.

SCHUMER: And if one standard was -- however one defined it, if somebody was out of the mainstream, again, your rating would not give us any inclination whether that was part of it?

TOBER: If the suggestion was that they were out of the mainstream politically, that's correct.

If they're out of the mainstream in terms of their judicial temperament, we might have a different thought.

What did Schumer accomplish here? He got the ABA to emphasize that Alito has a mainstream judicial temperament as well as a high sense of ethics -- and that an extreme temperament would have damaged his rating from the ABA. But even more damaging, the answer that the ABA "doesn't do politics" slaps at the committee's handling of the hearings and the question of the confirmation itself. Politics shouldn't enter into it for two reasons. The first is that the position should be non-political and would remain so if the Court stuck with an originalist approach to Constitutional issues. Secondly this hearing itself shows the danger of allowing the Court to drift into legislative tasks.

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Tracked on January 13, 2006 9:02 AM