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January 13, 2006

Reasons to watch the end of Alito hearings

With Judge Alito done testifying, one might be inclined to say that the confirmation process is all over but the shouting.  But, starting at 9AM today, the final panels of witnesses get their say(starting with Panel IV on this official list), and there are more than a few reasons I'll be watching.

First, my casebook co-author and FSR co-managing editor and friend, Hofstra Prof. Nora Demleitner, will begin the festivities this morning.  Nora clerked for Judge Alito in the early 1990s, and I am hopeful she might add a sentencing perspective to the Alito discussion. 

Second, the rest of Panel IV is filled with other notable academic heavy hitters: Profs. Erwin Chemerinsky, Anthony Kronman, Charles Fried, Laurence H. Tribe.  We can probably predict what we will hear from these folks, but they should be interesting nonetheless.

Third, according to this New York Times article, "to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas."  I wonder if today anyone might comment upon the fact that, if this is true, it may lead to a further expansion of criminal defendants' Fifth and Sixth Amendment rights.

As I explained in a post entitled, "Why some defendants hope Alito is like Scalia," Justice Scalia's constitutional vision sometimes leads him to liberal results in criminal cases, especially as concerns jury trial rights.  More generally, reflecting again the current SCOTUS sentencing head-count on Apprendi-Blakely issues, the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule seem even more likely to fall if indeed a Justice Alito will look at these important issues in a manner similar to Justices Scalia and Thomas.

UPDATE:  Most of the members of Senate Judiciary Committee have not bothered to come to this morning's hearing.  But, valuably, Senator Specter gave a plug to the Federal Sentencing Reporter in his introduction of Nora.  And Nora, describing herself as a "left-leaning democrat," made a strong statement in support of Judge Alito and highlighted that Alito's record includes work on sentencing reform through his prior service as an FSR board member and on the Constitution Project's Sentencing Initiative.

FURTHER UPDATE: The Q & A between the senators and members of Panel IV was pretty engaging, and Senator Sessions and Nora has an interesting dialogue about Judge Alito's willingness to review a trial transcript after Nora had suggested in a case during her clerkship that perhaps a conviction should be reversed.  Nora's anecdote cast Judge Alito in a quite favorable light, though the story ends, tellingly, with Judge Alito explaining to Nora why he would vote to uphold the conviction. 

Nora and a few others in Panel IV brought a few new ideas to the Alito conversation.  But, sadly, another confirmation hearing seems likely to conclude, to my chagrin, without any mention of Blakely or Booker (or even Senator Sessions' latest thoughts about crack sentencing).

January 13, 2006 at 08:02 AM | Permalink


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» Blog Round-Up - Friday, January 13th from SCOTUSblog
On the hearings: Here is an article in the New York Times titled, "Blogger Reaction to the Alito Hearings." Here PrawfsBlawg asks if Alito is an originalist. Here the Campaign for the Court has a post on a conversation between... [Read More]

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