Sen. Joe Biden, who has spent the last 24 hours rambling on incessantly uring the hearings, failing to ever pause to let the nominee speak, says that the confirmation hearings are broken:
Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.
“The system’s kind of broken,” said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.
“Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues,” such as a president’s authority to go to war, said Biden.
As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC’s “Today” show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.
“Just go to the Senate floor and debate the nominee’s statements,” the Delaware senator said, “instead of this game.”
I was listening to him ramble on at one point today when he was discussing the inability of Congress to really stop the president should he decide to invade Iran, and all I could think was “For God’s sake breathe!”
At any rate, he may have a point about the hearings.
(h/t Fark)
Geek, Esq.
I dunno. Roberts and Alito didn’t seem that different before the hearings, but they certainly did after the hearings.
DJ Any Reason
Part of the problem is the hyper-partisan nature of the contemporary congress. Most of the dems have probably already made up their minds, and its blindingly obvious that the only repub with any chance of voting no is Specter. Therefore, Alito’s task is to avoid offending anybody, since the repubs are in the majority. That way, if the Dems try a filibuster, repubs can go nuclear with what looks like a reasonable candidate.
If we had a Congress which put principle ahead of party, or, at least, weren’t fixated on one issue of questionable import, we might get somewhere.
Marcus Wellby
I don’t know, Gabby Joe seemed to enjoy “this game” until he started getting shit for rambling on and on and on. To me, he is one of the two best examples of why the hearings don’t work — pure senatorial ego. A news establishment that thinks a weepy wife is the most important thing to come out of yesterday’s hearings is the second.
neil
Quite so.
ObKos:
The Disenfranchised Voter
Biden definitely has a point. These hearings are pointless and in fact, while their purpose is to get a better idea of what the nominee believes, all they really do is give the nominee a chance to fudge and obscure his past statements/rulings.
I believe the American public would be much better served if the “hearing” took place on the Senate floor as an intense debate in which the Senators could debate the nominee and his record on it’s merits; not one retractions and misleading statements that the nominee would give at his hearings.
A perfect example of this “fudging” that I am describing is Alito’s comments about his view of the Unitary Executive theory. It is widely accepted that this theory is based on the belief that the President has the power to override decision’s made by Congress, international treaties, laws, if he personally believes it those things are constricting his power as Commander in Chief.
Alito claims that his version of Unitary Executive has nothing to do with the scope of Presidential powers, rather that his theory just means “the President is the head of the Executive”. Obviously, this mischaracterization of the theory is bullshit, because everyone thinks the President is the head of the Executive”.
You see if we didn’t have these hearings a nominee, like Alito, wouldn’t have the chance to fudge up his past statements and instead his past statement would be debated for what it really is–granting the President unfettered power.
Davebo
I laugh constantly at Joe Biden and his delusions of ever becoming president. But this?
He “may” have a point? I heard his statement and that is not at all what he said.
He said roughly that the presidents lawyers have advised him that he could wage war on Iran without contacting congress.
And of course, he could. For ninety days at least and assuming the congress actually invoked the War Powers Act.
And since the presidents lawyers have also convinced him that he could legally rap Jenna on the White House front lawn if he chose to I personally don’t find this suprising.
What I do find suprising is that “some” on the right seem to believe that the presidents lawyers have the last word on these issues.
The Other Steve
Interesting… It’s looking more and more like the Mrs. Alito crying seen was staged.
That’s a bit convenient on the part of Creative Response Concepts, is it not? And the name. Creative Response? Interesting. I suspect there is a Terri Schiavo style “Look, we can make political gold if we do this” memo lurking behind the wings.
These people have no shame.
The Other Steve
That came from Time
Sojourner
Once the Repubs disembowled the rules of the Judiciary, this whole exercise became irrelevant. Only the Repubs can stop a nomination and we all know they lack the guts. So what is the point? The American people are screwed regardless.
The Other Steve
I liked the suggestion from the other thread that Democrats ought to ask questions like “What is your favorite color?”
As I recall, with John Roberts they did get a chance to ask him what movies were his favorite.
They should turn the hearings into a mockery, just to make a point.
John Cole
Davebo, always eager to launch into an attack on me, completely misreads the post.
I meant he may have a point about the hearings, you clown.
If some of you people who have been reading me for over a year now would just try to give me the benefit of the doubt and try to honestly understand what I am writing, other than just launching into broadsides whenevr possible, it would make my life a joy.
KC
I used to like Biden a lot until I learned he was just one of those people who liked to hear himself talk.
p.lukasiak
DV…
unfortunately, the “Unitary Executive” theory has nothing to do with a president’s powers to ignore statutory law as Commander-in-Chief…
It really is a rather esoteric concept, that states that “executive powers” cannot be shared with other branches of government — i.e. that Congress cannot create “independent” agencies that are not answerable to the whim of the Executive that exercise “executive” powers.
One example would be the Federal Reserve Board, which is an agency that makes and enforces “rules” under authority provided by Congress, but whose members cannot be fired by a President.
Its a rather silly and stupid theory, because Congress does control the pursestrings, and can decide how that money is spent any way it wants to. Nothing in the constitution prohibits the establishment of independent agencies, and these agencies are part and parcel of the “system of checks and balances”.
The fact that Alito subscribes to the theory demonstrates that he is well outside the mainstream as a jurist, and should be allowed nowhere near the Supreme Court.
p.lukasiak
I used to like Biden a lot until I learned he was just one of those people who liked to hear himself talk.
agreed. Biden is the personification of political vanity… even when I agree with him, I can’t stand to watch or listen to him.
Paddy O'Shea
Yeah, the issue isn’t General Georgie dragging us into another war, or the Executive Branch being given de facto rights to do whatever it wants no matter how unconstitutional or flat out wrong, or torture, or exponential debt increase, or betraying the trust of an undercover CIA agent, or sending troops off to war dressed in nothing but their underwear. None of that boring stuff.
The issue is Biden’s propensity to talk a lot. Or Martha’s tears. Or Katie Couric’s need to feel safe from the terrorists. Or whether or not John McCain had a black child out of wedlock. Or whether John Kerry really earned his medals in Viet Nam. Or if Democrats hate God. Or if Al Gore really invented the internet.
John, don’t you teach a course on propaganda at the university level?
Have you ever considered giving your students their money back?
“At any rate, he might have a point about the hearings.”
Not nearly enough, John. Not by a long shot.
Zifnab
Hey John, try not to take everything as a personal slight. Seriously, buddy. There’s eleven posts here and you seem to zero in on the only one that is even tangentally critical of you.
But seriously, I wasn’t the biggest Kerry fanatic, and yet Biden makes Kerry look exciting and fun. I find it amazing that Biden can rant for his full thirty minutes without leaving Alito more than two dozen words in edgewise and can then successfully call foul on the confirmation process.
Shummer and Fienstien seem to have used their time productively. Even Kennedy got a chance to launch his accusations in a national forum. Cornyn, Kyl, and Coburn all got to ask Alito very politely not to connect them to the Abramoff affair. And Graham got the opportunity to try and touch George Bush’s balls to his tonsils before the full Judiciary Committee.
Biden makes a good point in theory. What’s the point of a confirmation hearing when the nominee can just say “I don’t recall”, “I can’t say”, and “Starie Decisis or something” any time he doesn’t like a question? But after his rambling incoherent questioning, Biden simply managed to prove himself longwinded.
So far, the confirmation hearings have improved my opinion of Alito.
Davebo
John,
I did miss the last few words, “about the hearings” and I certainly wasn’t attacking you. Frankly if that’s what you got from my comment, then perhaps a new line of work is in order (not what would qualify as an attack, but a totally justified one in my opinion).
You mischaracterized his statement, at least the one he made this morning.
As to this..
I’d avoid the area of civics education as well John.
But I am curious, did you bother to confirm whether or not the statement Biden made (not the one you think you heard) had any truth to it?
In other words, has Bush been advised by his attorneys that he can invade Iran without congressional approval?
Now might be a good time to check into that one I think.
And please, spare us the “you’re attacking me” crap. Your side seems to constantly require a rallying call of persecution.
The Disenfranchised Voter
p.lukasiak:
“In 2000, Judge Alito referred to the unitary-executive theory of presidential power as “the gospel according to OLC,” a reference to his office in the Reagan Justice Department. The theory has since become the foundation for the current administration’s assertions that it has the power to interpret treaties, determine the fate of enemy prisoners, and jail U.S. citizens as enemy combatants without charging them.
Thus far, the theory has fared unevenly in federal courts. Bush administration officials have criticized some court rulings and pledged to appoint new judges more sympathetic to executive-power claims.”
Source
space
Joe Biden is a serious schmuck.
This is a crock and Biden knows it. Democratic nominees have never been evasive. Yes, they have rightly refused to speak about fact situations that the Court was in danger of imminently facing. But they have never refused to simply say what the law is, as Roberts and now Alito have. But how do we know that Biden knows this? Because he said so during the Roberts hearings, repeatedly attacking the myth of the so-called “Ginsburg Precedent”.
So, why is he now offering up this crock of b.s.? Who knows? Perhaps he feels that he needs to appear less confrontational if he runs in 2008, attempting to grasp the mantle of the “Democratic John McCain”.
DJAnyReason
Space,
I think Biden was just trying to not be unneccessarily confrontational. His point is the hearings aren’t working. If he makes a partisan issue of it, his point is lost.
Perhaps he actually thinks the hearings for J. Ginsberg and J. Breyer weren’t useful. After all, they both came off of Sen. Hatch’s list of acceptable nominees, which is why they were confirmed by the margins that Sen. Graham is so fond of citing.
Pb
The staged crying woman gag is ancient, I’m just surprised she wasn’t supposed to allegedly be just another average Iraqi citizen oppressed by evil dictator Saddam Hussein too. Instead it turns out that Alito was such a dork, he married someone he met on the job–a law librarian. She sounds feisty, though.
jg
Where’s the fun in that?
Paul L.
Wow, I would hate to see the extent of your rage if you had real proof.
Filibuster Alito !!!!!!!!!!!!
No Blood for Oil
Peace Out
Pb
The Other Steve,
Good point with the Schiavo reference. I wonder what Move America Forward (aka Russo Marsh & Rogers) is doing right now. Oops, nope, apparently this operation is being run by Progress for America (this is a quote: “PROFESSIONAL PUBLIC RELATIONS & GRASSROOTS ORGANIZATION IN 20 STATES”).
There are waaay too many faux-grassroots Republican-paid PR operations out there to keep track of them all. I wonder if the Republicans require them to have “America” in the title, or if “Truth” works too… anything for some irony, I suppose.
Bob Munck
Why in the name of all that’s holy didn’t the eight Democratic senators get together, figure out the eight most important issues, assign one issue to each senator, do a huge amount of research and preparation, and then have each one drill Alito on that one issue each, with absolutely no blather about the senator’s own position and opinions or faux praise of the general wonderfulness of the nominee? That might have approximated a congressional hearing to evaluate his fitness for the position.
Is there any possible way that we can “re-boot” the national government and parties, start over fresh? The guys we have now just aren’t working out.
Al Maviva
The unitary executive theory isn’t some wild notion that the President’s power is unlimited. It’s based on a separation of powers argument that delegation of powers across branches is generally improper, and that agencies (as in any official or quasi official body established to do some official function) needs to answer to the branch whose power it is exercising.
For instance the GAO is an arm of Congress. It investigates factual issues at the direction of members. It would be a violation of separation of powers to look at GAO, conclude that what it does is something like an executive branch function, and place it under the FBI. Similarly, there is controversy over some Inspector General statute language, from department to department. In some departments, the reporting chain is clear, and the IG is located within the respective cabinet secretarys’ chain of command even though there is a “report to Congress” function. Other IG language makes some IG shops appear to have an authority to report directly to Congress. This is a violation of separation of powers, if you take that notion seriously.
More abstract applications of this are in “independent agencies” that do not answer to the executive branch. I believe the old railroad Rates Commission or whatever they called that thing was an example. The President and Congress both nominated people to it, then it went and just did its thing. It wasn’t accountable to the President, nor was it accountable to Congress. It was by definition an unaccountable bureaucracy, and if it wanted to set rates in a manner that screwed up Treasury’s economic policy, or Congress’ directives, then it could do so. Remember Ken Starr and the “independent prosecutor” statute? Same thing, once the investigation was started the IP was off and running, subject only to a judge ordering the shutdown of the investigation. And if you happened to have a strongly ideological judge overseeing the special prosecutor (i.e. Silberman) then the prosecutor could run amok, and if the public didn’t like it, well, they could always… hah. The public couldn’t do anything about it since the Article III judge with nominal oversight authority had lifetime tenure and was unlikely to act anyhow, and neither Congress nor the Executive could control the situation. This is more problematic when you talk about rulemaking and decision-making authorities, since the former looks a lot like legislating and the latter a lot like judging; the implication of unitary executive theory is that the unitary nature of the legislative branch counsels restrained rulemaking, since rulemaking that exceeds the scope of legislation would be usurping Congress’ power.
The idea that all federal activities should be under the supervision of a branch of government that is regularly answerable to the voting public isn’t as insane as Chuck Schumer is trying to make it seem, and while it’s mostly a legal conservative notion these days, I think it’s a reasonable legal philosophical position to hold.
KC
Bob, you’re absolutely right.
The Disenfranchised Voter
When the issue concerns the President’s authority as Command in Chief, it most certainly is. The Unitary Executive theory means that the President should not be restricted to perform his duty as CiC. Therefore, any issue related to his CiC duties, he has unlimited power in.
The Disenfranchised Voter
*most certainly does
Steve
Jack Balkin had a very interesting post on why hearings are still relevant, even if we learn nothing about the nominee.
Also, one of the major reasons the hearings seem irrelevant is that Republicans are in charge of both the Presidency and the Senate, and thus, there’s really no need to convince anyone else. If there were a Democratic majority and thus some incentive for Alito not to stonewall, you’d see more useful testimony.
The Other Steve
That’s no fun. :-)
Seriously, the reason I come here is because if you try to argue with liberals on dailykos you get troll rated, and if you argue with conservatives on redstate you get banned. I just like arguing. :-)
Although, I actually thought this was a fair minded post, because it offers insight.
The Other Steve
Honestly, I don’t know that we know what it means.
Conservatives these days are afraid to openly discuss what they want to do, and instead talk in coded language and vaguge references. Seriously, that’s a problem, and I think it shows the central weakness of conservative ideology that they’re afraid.
If Unitary executive meant what you say it did, that’s generally how I see government operating. Congress sets laws, sets funding, and the Executive branch enforces those laws and spends that money to accomplish the stated goal of Congress.
Where I and others have a problem is when the Executive Branch goes off and does things that Congress has said “Thou Shalt Not Do”. Such as Iran-Contra, Torture, etc.
It is entirely conceivable and likely that the “unitary executive” theory promoted by Alito means that things like Iran-Contra are not crimes, because Congress cannot place limits on the executive branch, only the American people.
Pb
The Other Steve,
That about sums it up. Then again, arguing around here often turns into a fairly pointless flamefest. But I guess that’s still better than the alternatives. Who would have thought it’d be so hard to try to have both sides of whatever argument represented in one place.
Fledermaus
Ditto, although for me the breaking point was that “Bankruptcy reform” that he was all in favor of. MBNA so owns his ass.
Prof Bainbridge also made a good point about the Senators. Most of these guys are lawyers yet I don’t think that they have the faintest idea on how to conduct an effective cross-examination. Perhaps they need to re-watch Irving Younger’s “10 Commandments of Cross Examination”
I can kind of understand the GOP senators blathering on and on just to run out the clock, don’t agree with it but at least it makes sense. What’s Biden’s excuse?
The Other Steve
There are a lot of Democrats who supported “Bankruptcy reform”, and I’m not just talking elected ones. I’m talking friends of mine. We had that discussion, and while we didn’t like that particular bill we did support it in general.
Steve
Being able to conduct an effective cross-examination is a rarer skill than you think. We’re all trained by Boston Legal and Law&Order and the like to believe that every cross-examination is a tour de force which leaves the witness shattered, but in the real world, 99% of lawyers are all like “um” and “er” and “let me find my notes.” So no, I’m really not surprised that a bunch of Senators, even if they have law degrees, totally fail to come to a point. It’s actually not that easy.
ppGaz
1) The crying-wife thing is going to go down in the history books as a set-up. I am giving 3-5 odds on this outcome today.
2) Senators are not like other people. Whether you like them or not, they live in a world unlike ours, and unlike almost any other. It’s a good-old-boys club of rich men who weild or seek power mostly by talking to each other and playing games with each other. Which is fine with me, actually, but I think they are foolish to expose it to national television. Back in the days of black and white television and Joe McCarthy, there was some entertainment value there, but now …. it’s truly awful.
Who in their right mind would watch more than 20-30 mins of this a day?
Bob Munck
I would have preferred it if Biden had spent his time muttering “Denny Crane … Denny Crane” Shooting Alito in the knee would probably have been a bit over the edge.
The Other Steve
I got my training from Perry Mason.
CaseyL
Senators are no more intelligent than most anyone else, which isn’t very intelligent at all.
By ‘intelligent’ I don’t mean ‘knows a lot of stuff.’ I mean ‘can think critically, on the fly, and express those thoughts cogently.’ Thinking well, and fast, and being able to come up with follow-up questions based on what you’ve just heard, is not easy.
And we don’t make it any easier when our elections come down to whoever can come up with the catchiest talking points, and has enough money to buy enough air time to repeat them endlessly. That’s how we elect everyone these days: whoever’s the most glib.
I wonder sometimes – more and more often, lately – if our country is in its last throes as a major power, as a driver of civilization. It has less to do with the general corruption and dishonesty than it does with with how essentially mindless our public discourse has become. Hardly anyone in politics thinks hard about first principles anymore; the rhetoric has that stale and lifeless quality of minds which haven’t had an original thought since college. If then.
ppGaz
Me too. Della Street was hot in her day.
The Other Steve
Except see… I always wanted to be Paul Drake.
He was the man who always solved the case, by digging up the facts.
chef
Biden (and Bush) always parse platitudinous remarks as if they were string theory, all the while with those idiotic toothy grins that suggest they have a coat hanger lodged in their cheeks.
Just imagine a coach-class flight to Singapore with either of them. The pharase mental waterboarding come to mind.
Great idea for a thread: a list of worst possible companions. You are in the middle seat! For example, between David Frum and Gail Norton.
Kimmitt
The Unitary Executive Theory goes like this:
1) The President gets to do whatever he wants during wartime.
2) It is wartime whenever the President says it is.
3) Suck it.
skip
Worst airplane companions: Ed Gillespie and Britt Hume.
But if I were in the middle seat: Hastert and Koko.
Sojourner
Hatch, Frist, Delay, Cornyn, Bush, Cheney, Rice, Coburn.
Too many to name.