SubscribeThorzdad: ... Unless Jesus Christ himself descends onto Capitol Hill, carrying 8x10 glossies and video of Alito enjoying a lunch of ground infant on toast with his good friend Osama, the appointment is a lock.Only if it's a pre-birth infant. Nobody cares what you do with the buggers once they're out of the womb.
11:40 Kennedy reminds Alito that Chertoff took exception, describes Chertoff's dissent as eloquent. Describes various studies of Alito's record, study indicating that Judge Alito rules against individuals 84% of the time. Returns to McCain anti-torture amendment, says nice things about McCain.
12:13 Grassley says that some constitutional provisions are so vague that some judges think they can do whatever they want; wants to know what Alito thinks of this approach. Alito rejects this approach. Says constitution contains general principles, but judiciary has to be very careful not to inject its own views.Hur hur, what a suprise.
We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting appli- cation or affidavit if the warrant uses appro- priate words of incorporation, and if the sup- porting document accompanies the warrant... But in this case the warrant did not incorpo- rate other documents by reference, nor did either the affidavit or the application (which had been place under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.Id. at 157. In Doe v. Groody, the issue that divided the panel was the degree of technical precision that should be demanded in determining whether a warrant adequately incorporates an attached application or affidavit. Indeed, if the majority had concluded that the affidavit had been properly incorporated, then the search of the 10-year old girl would have been perfectly legal.
The appellants in this case did not exhibit incompetence or a willingness to flout the law. Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises where: (1) that is what the application sought; (2) the affidavit asserted that there was probable cause for such a search; (3) the warrant expressly incorporated the affidavit on the issue of probable cause, (4) the language of the warrant was drafted to confer authorization to search all occupants, and (4) the magistrate signed the warrant without modification.Is he right? Reasonable minds can differ on whether the warrant effectively incorporates the affidavit. The majority concluded that the difference in the scope between the warrant and the affidavit was significant enough to disregard the language in the warrant incorporating the affidiavit. Alito disagreed. You might not like the result of Alito's analysis, but it's not clearly wrong.
ALITO: She represented herself initially, and we take those very seriously. We give those just as much consideration, in fact more consideration in many respects than we do with the cases without lawyers because we take into account that somebody who is representing himself or herself can't be expected to comply with all the legal technicalities. But, for whatever reason, our court system for handling the monitoring of recusals in these pro se cases is different from the system that we use in the cases with lawyers, and maybe that's because recusal issues don't come up very often in pro se cases. But in any event, in a case with a lawyer, before the case is ever sent to us, we receive what are known as clearance sheets, and those are -- it's a sheet of -- it's a stack of papers, and it lists all the cases that the clerk's office is thinking of sending to us. It lists the parties in each case, and it lists the lawyers in each case, and it says, Do you need to recuse yourself in any of these cases? And this is the time when the judges -- and this is the time when I focus on the issue of recusal. And I look at each case, I look at the parties, I look at the lawyers, and I ask myself, Is there a reason why I should not participate in the case? Now, because this case, the Monga case, was a pro se case, it didn't come to me with clearance sheets. I just received the briefs, and it had been through our staff attorney's office. They take a first look at the pro se cases, and they try to make sure -- they try to translate the pro se arguments into the sort of legal arguments that lawyers would make, to help the pro se litigants. And they give us a recommended disposition and a draft opinion. And when this came to me, I just didn't focus on the issue of recusal. And I sat on the initial appeal in the case.
ALITO: And then after the case was decided, I received a recusal motion. And I was quite concerned because I take my ethical responsibilities very seriously. So I looked into the question of whether I was required, under the code, because I just wanted to see where the law was on this. Was I required, under the code of conduct, to recuse myself in this case? And it seemed to me that I was not. And a number of legal experts, experts on legal ethics, have now looked into this question, and their conclusion is: No, I was not required to recuse. But I didn't stand on that because of my own personal policy of going beyond what the code requires. So, I did recuse myself. And, not only that, I asked that the original decision in the case be vacated -- that is, wiped off the books -- and that the losing party in the case, the appellant, Ms. Monga, be given an entirely new appeal before an entirely new panel. And that was done. And I wanted to make sure she did not go away from this case with the impression that she had gotten anything less than an absolutely fair hearing. And then, beyond that, I realized that the fact that this had slipped through in a pro se case pointed to a bigger problem, and that was the absence of clearance sheets. So, since that time, I have developed my own forms that I use in my own chambers. And, for pro se cases now, there's -- I have a red sheet of paper printed up, and it's red so nobody misses it. And when a pro se case comes in, it initially goes to my law clerks. And they prepare a clearance sheet for me in that case and then they do an initial check to see whether they spot any recusal problem. And if they don't, then there's a space at the bottom where they initial it. And then it comes to me, and there's a space at the bottom for me to initial to make sure that I focus on the recusal problem. And in very bold print at the bottom of the sheet, for my secretary, it says: No vote is to be sent in in this case unless this form is completely filled out.
ALITO: So there are a number of internal checks now in my own office to make sure that I follow my own policy of going beyond what the code requires.
Affirmed.After the order was vacated and reconsidered by a new panel, that panel issues a new order, Monga v. Ottenberg, 95 Fed. Appx. 463 (3d Cir. April 7, 2004) (unpublished). The new order states, in its entirety:
Affirmed.Although I don't know the details of how this case, or any other case in the Third Circuit, was handled, this is entirely consistent with the approach to summary cases with which I'm familiar. An appeals court has basically two calendars: an oral argument calendar, and a summary calendar. Cases which are more complex or which might benefit from oral argument are placed on the oral argument calendar, while cases which are straightforward and appear to be easily resolved under existing law are placed on the summary calendar. There is no oral argument for cases on the summary calendar. Often the staff attorneys office will write a short memo and recommendation on the case, and then pass the case on to the panel for review. These cases are then typically divided among a panel of three judges. Sometimes the summary cases go straight to the judge, but often the cases are reviewed by the judge's law clerks. The clerks examine the case and either draft a short opinion for the judge's review, or recommend that it be moved to the oral argument calendar.
monju_bosatsu: As an aside, the Vanguard is a loser for the Democrats. If they really wanted to attack Alito, they would attack his pattern of deference to the Executive, and stick to it.You're probably right, but it's actually the Vanguard thing that bothers me more about him. Alito is an ethical cypher -- he seems to have a convenient memory w.r.t. these things. Put that together with his pattern of deference to power (in general, not specifically to the Executive), and the guy worries the hell out of me.
amberglow: .... (Dinesh D'Souza) ....... fortunately for Dinesh, CAP had failed in its bid to cap [sic] minority admissions. Otherwise the editor of the Daily Princetonian in 1985 would have been Watson Hungerford III, a member of that "relatively homogenous group" of men that made up D'Souza's lauded "elite."
[Appologies -- work intruded on my blogging duties. I think Alito was just explaining whether or not he would overrule Roe v. Wade and how he would rule on the President's authority to engage in warrantless electronic surveilance. But I may be mistaken... back to live coverage]Oh, that's helpful. Thanks.
4:43 Sen. Graham moves on to his years at Princeton. "The more I learn about Princeton... it's an interesting place. What's an eating club?"
Alito explains to the rednecks in the audience what a Princeton dining club.
Senators Leahy and Kennedy have made some fundamental mistakes, and I'm going to try to correct them both:
1) Leahy: "Can the congress pass a law taking jurisdiction over first amendment issues away from the Supreme Court?" The real answer is, "Sure it can. And the Supreme Court can rule such a law (or any law you jackasses pass) unconstitutional."
2) Kennedy: "Can the congress pass laws that prevent the president from firing members of the executive branch?" Answer: ditto.
Basically, once I'm on the court, I am MUCH MUCH more powerful than you are. Each of you makes up 1% of the people that pass laws, and I make up over 11% of the people that can slap you silly for passing dumb ones.
Oh, please, PLEASE keep talking about Vanguard. I can answer this in my sleep now.
Turning to the "unified executive" theory, Sessions asks a hard question: "There are only three branches, aren't there?"
He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;"Financial interest," in turn, is defined as:
"ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: ... [o]wnership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;Because, as I understand it and as the discussion to which you linked explains, Alito, as an individual fund holder, does not participate in the management of the Vanguard Group, he does not have a "financial interest" within the meaning of the disqualification statute.
dios: You called Alito "not very bright."Why? Really: Why does having an opinion on the judge's intellectual capabilities, and expressing that opinion in a relatively value-netural way (as opposed to, say, "dumb as a post" or "an idiot", which would be more in tune with the current level of political discourse in America) in and of itself mean that you're "a blind partisan"?
That makes you a blind partisan.
dios: You are kidding, right? You realize that these people are far, far, far more intelligent than you and 99% of this country....You do understand, dios, that whether they're brighter than me (or you, which by your own comparison they clearly must be) is not relevant?
dios: This ends it. The proverbial nail in the coffin.Oh, please. There was never any possibility that Alito would not be approved. You know that as well as anybody, and you're as guilty of dragging out the drama as amberglow or anybody else on this thread.
me & my monkey: You seem to be confusing rhetorical skills and self-presentation with intelligence. That's a big mistake, unless you want to hire a politician or a salesman.Maybe, but...not really. Rhetorical skills are generally a pertty good indicator of analytical skills. If you can't clearly communicate what you think -- especially in a rhetorically focused area like high-level jurisprudence -- then you probably can't think very clearly in the first place.
I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
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posted by delmoi at 7:03 AM on January 10, 2006