Blue Mass Group

Reality-based commentary on politics.

Feingold does a good job

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Sen. Russ Feingold (D-Wis.) just finished the best questioning I’ve heard so far in the Alito hearings.  Highlights:

  • On executive power, Feingold forced Alito into conceding the possibility that the federal courts might not be willing to consider a case in which the President, in the exercise of his “inherent” constitutional authority, refused to follow a congressional enactment.  Alito noted that the “political question” doctrine might be in play here, which would deprive the federal courts of jurisdiction.  This answer is in stark contrast to Alito’s answer to Sen. Leahy’s similar question yesterday, in which he said: “If the matter is later challenged in court, of course, the president isn’t going to have the last word on that question. That’s for sure. And the courts would exercise absolutely independent judgment on that question.”  So Alito is now on record as at least allowing for the possibility that the President, not Congress or the courts, would have the last word as to the extent of his own constitutional authority, and his attendant authority to disregard congressional enactments.

  • Feingold laid out a pretty good hypothetical on a death penalty case in which evidence of actual innocence came up after the ordinary appellate and collateral review processes had ended.  Alito again would not concede the possibility of a constitutional right not to be executed when innocent.
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