Blue Mass Group

NY Times: If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable…. For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question. WaPo: Alito Replies Don’t Rock Status Quo.  Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary’s role as a check on presidents who overstep their constitutional authority. ABC News: If Democrats were looking for an issue on which to hang a politically risky filibuster of Judge Samuel Alito’s nomination to the Supreme Court, they didn’t appear to find one today. And so it will go, apparently.  Like I said earlier today, the problem is the Senators themselves.  They don’t know how to ask tough questions.  (NYT on Sen. Biden (D-Del.): “Mr. Biden in particular devoted most of his 30 [...]

I’m just back from the Denise Provost election night party at Sauce in Davis Square, where Marty Martinez announced the unofficial results to us at about 8:26pm (updated now to official results):

Denise Provost: 2,343 (63%)

Elizabeth Moroney: 1,394 (37%)

We at Denise’s party were, I think, the first to hear the results.  Whoever happened to be at the Someday Cafe were the next to know, because I texted the results to the Wiffiti screen there as soon as Marty announced them   The Somerville News posted about 11 minutes later, but without the numbers.

For a special election, this qualifies as a blowout.  Moroney only won one precinct, 4-3, but that was only by 5 votes.  In her stronghold of Davis Square, Denise won 6-1 by 70%-30%.  Overall turnout was, as expected, tiny.  Denise Provost goes on to be the only candidate on the ballot in the February 7th general election.

Detailed results, observations, and some photos, below…

In response to a question from Schumer, Alito was unequivocal that the Constitution protects free speech, but said its protection of abortion was a matter of interpretation: damning the Roe doctrine  with faint praise. Separately, he refused to disavow his 1985 conclusion that the Constitution does not protect abortion — even though he has retracted or revised other positions under questioning during the hearings. In combination, his testimony supports the conclusion he has major doubts about Roe. Look for further restrictions on choice if he is confirmed. (The Court may never actually overturn the case, but may reduce it to a meaningless shell). Schumer, incidentally, gets a B+ today from me: he wandered around a bit too much, was somewhat repetitive, and did not have good exhibits. Still, not bad.

Argh.  Sen. Russ Feingold, who is generally doing a pretty good job on his questioning, is still missing the point on the executive power questions he’s putting to Judge Alito. Here’s the thing.  Feingold wants to know whether the President can disregard federal statutes, and whether the President can authorize other executive branch employees to disregard federal statutes.  Alito responds that the President must “take care that the laws be faithfully executed,” as set forth in Article II, which (Alito says) means that the President must be sure that the Constitution is followed, and that those federal laws that are consistent with the Constitution must also be followed. But look at the size of the loophole that Alito leaves for himself!  According to Alito, the President only has to follow those federal laws that are consistent with the Constitution.  Fair enough – but the key question is who decides?  Would Alito authorize the President to disregard a federal law if the President believed it were unconstitutional, or would Alito insist that the President follow the law, despite his belief that it’s unconstitutional, until the judiciary has declared the law unconstitutional?  If the former, then Alito is fully on board with [...]

Michael Dukakis published an outstanding op-ed in today’s Globe in which he castigates the “business community” (i.e., AIM and the Chamber of Commerce) for opposing all forms of “pay or play” in the health care debate.  Dukakis makes the point we’ve been pushing here for ages: the current system is grossly unfair to businesses that do the right thing by providing healthcare benefits for their employees, and is far worse for those employers than the DiMasi-care proposal. Here’s how it starts: The state’s business community is one of our biggest assets. But some of its leaders don’t seem to understand that the state’s healthcare system is anti-busineess. Maybe they just don’t understand how the healthcare system works. If they did, they would be supporting Speaker Sal DiMasi’s proposal for healthcare reform, just like the business leaders who worked with me on universal health insurance in 1988. Go read the rest.

Under strong questioning from Senator Feinstein this afternoon (A- is my grade for her performance) Alito reiterated his suggestion of this morning to Leahy that Bush can order spying on Americans without a warrant. He got there by noting that the 4th Amendment allows warrantless searches under some circumstances and that the FISA law, in his estimation, may not require a warrant in all circumstances. (Dick Cheney, the remaining neo-cons, and he are probably the only people who interpret FISA this way). Even if FISA does require a warrant, he suggested the post-9/11 Congressional use of force resolution may have given Bush authority to order warrantless spying. The nominee did not answer the question conclusively — he still appears to have his wits about him, despite what must be a grueling day — but what he said supports the suspicion his expansive view of Executive power was a primary reason for his nomination. There is widespread opposition to warrantless spying on Americans. This may be a break issue for some Senators.

There are two angles in the whole Reilly phone call kerfuffle that need to be separated: Tom Reilly’s ethics as Attorney General Tom Reilly’s political skills in addressing the press and public These two are related but not identical. As for #1, this won’t cause me to lose any sleep at all. Tom Reilly made a phone call to remind someone who was all but certain to do the right and legal thing, to do the right and legal thing. Absolutely no story there, as far as I’m concerned. The only ethical question is whether he made the call on behalf of a friend, a consideration that the rest of us in the Commonwealth can’t expect. Well, I would be very surprised if that didn’t happen every single day at every level of government, from President down to DMV clerk. And Reilly was clearly emotionally affected by the deaths of his friend’s daughters. (To call this fellow a “contributor” is accurate but misses the point: $300 is way more significant to the donor than to the recipient.) In any event, to charge that he “obstructed an investigation” is ridiculous; any “ethical lapse” in this situation seems like making a mountain [...]

As I’m watching the Q&A in the Alito confirmation hearings, I am struck by how bad most Senators are at asking questions in these kinds of proceedings.  They just cannot get out of speechifying/campaign mode.  As a result, they spend a lot of time explaining their own take on Alito’s writings, but they never really pin down the witness on the point they’re trying to establish. These hearings would be so much better if, instead of the Senators themselves asking the questions, each side hired a special counsel who was an experienced trial attorney to do the questioning.  The Senators do not appear to understand the basics of cross-examining a witness.  The goal of cross-examination is to force the witness to answer the question that he really doesn’t want to answer.  But the Senators don’t know how to do that.  There are basic techniques to accomplish that goal that trial attorneys understand, and some of them are very good at it.