Ugh! Now I've got the flu and it's a toss-up which makes me feel more queasy and achy: the bug or the Alito Hearings I'm watching helplessly as I down Theraflu. In his final round of questioning, Senator Schumer actually rebuked Alito for not ruling in one of his opinions in accordance with a SCOTUS case decided years later. So apparently Schumer believes not just in super-duper precedents, but pre-precedents. Can't find the line in the transcript now, but the question was along the lines, "now that the Court has ruled x, would you still rule the same way?"
By far the most incredible line of questioning today, however, came courtesy of Sen. Durbin, whose criticism of the Judge was that he follows the rule of law instead of his feelings of sympathy for persons before the Court. First, Durbin revisited Alito's ruling that allowed a 10-year-old girl to be searched. You can read his entire explanation here --it's inarguable. Instead of following the statute --and SCOTUS precedent-- both of which Alito invoked in his answer, Durbin keeps coming back to: "sputter, sputter, but it was a little girl":
DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?
ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate. But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.
Same track, different train. Then Durbin took up the case of a man whose asylum case Alito denied (in dissent). Once again, Alito reads and applies the law, and Durbin is mad at him precisely because he does so. This excerpt is a little long, but note how Durbin basically begs Alito to ignore the law whenever he feels like it --and how Alito gently explains to the Gentleman from Illinois who has power to do something about the law.
[DURBIN]:My point I want to get to, and this will be the last thing I ask you, is if we know the system's broken, if we know that it doesn't give basic fairness and justice, do you not feel at your level that you have to be more sensitive to the fact that there are people's lives at stake here and that you have to take care when they're asking for asylum and protection in the United States not to let this broken system work to their detriment?
ALITO: We do have to keep in mind just what's at stake, and I do that. I know that a lot is at stake in these cases. And I read the record to see if there is support for the arguments that are made by these petitioners. But I have no way of supplementing the record.
And there are serious problems. One of the most serious problems, I think, is that the witnesses, the asylum seekers generally testify in another language. Sometimes it's a language that is not well represented in the population in the United States, so it may be difficult to get a translator. And the quality of the transcripts is often very poor, which makes it very difficult to understand what was going on before the immigration judge.
Now, there have been cases where we've said the transcript here is so bad that we can't make a decision on this, and we will send it back. There's the additional problem that the immigration judges are forced to forced to make credibility determinations based on viewing someone who comes from a different culture, where mannerisms, gestures, facial expressions may mean something different than they do in our culture.
ALITO: And I'm aware of that. But these are bigger problems. These are problems for Congress to address. They're not problems that I can address in the context of deciding these particular cases. (Emphasis mine.)
Durbin's questioning was exceptionally revealing of the wacky Left's disdain for the rule of law. What they want is (more or less) benevolent dictatorship --because freedom and the rule of law depend precisely on even-handed application and "predictability" of outcome. When you just have a nice guy ruling according to who garners his sympathy the most, that --no matter how nice the guy-- is tyranny. Turns out he really is "Turban Durbin" --more than we knew.
