Analysis of Day Two of Alito Hearings: Part II

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris.

We're joined again by Douglas Kmiec and Jeffrey Rosen for more analysis on the Samuel Alito hearings.

I'd like to move on to the other marquee issues of the day, the separation of powers and presidential powers. On the separation of powers and in the case of the United States vs. Rybar, I'm wondering, Douglas Kmiec, if you were at all surprised by Judge Alito's candor.

Professor DOUGLAS KMIEC (Pepperdine University): I wasn't surprised by his candor and I think he stated the law accurately. He pointed out that his decision in the Rybar case, which was a dissent that indicated that Congress didn't have the power in his judgment to punish the possession of a machine gun, was a very narrow ruling and one that could be easily conquered by a redrafting of the statute to include a jurisdictional element or some congressional findings. And he was quite candid in saying that the scope of the commerce power, while it was attempted to be limited by the Rehnquist court, that many of those limitations attempted by Justice Rehnquist have now been eclipsed by later opinions in the Rehnquist court, most notably opinions from last term. So he largely conceded the existence of the greatest power that Congress has to regulate the environment, health and safety and a whole host of questions, and that should be quite reassuring to every member of the Senate panel.

NORRIS: Just quickly before we move on, you were not surprised by his candor. Jeffrey, what about you?

Professor JEFFREY ROSEN (George Washington University Law School): Candor? I don't know that that's the word that I would use. I thought that in the federalism case, as in the question of presidential power, he really left it possible to read into his answers whatever either side thought. And when Senator Feinstein pressed him about federalism and said, `Didn't you call the Lopez decision a revolution, and do you agree that it was a seismic event?' he said, `Yes, it was very dramatic,' and really left it--in other words, he didn't reassure people like me who are unsure about whether he'd really be a partisan of strict limitations on congressional power or not.

NORRIS: And just a few other quick things before we let both of you go. There were some interesting gymnastics today when Judge Alito distanced himself from positions taken by Robert Bork, the conservative nominee who never made it past confirmation, someone he's praised in the past. Jeffrey, was this an awkward moment?

Prof. ROSEN: I thought this was one of the more revealing moments. The fact that he said graciously 'cause he said he supported Bork but firmly, `There are several things I disagree with Judge Bork about, in particular the existence of a right to use contraception,' and also the one man-one vote decisions which he'd previously criticized--I thought that there at least he reassured people who were concerned the he would go much further. But on the other hand, on all the other controversial issues on Bush vs. Gore and particular about presidential power, this was really the central question that he was pressed on again and again, and he refused to say whether or not he thought that the president's current domestic spying program violated congressional statutes. And he also refused to determine whether he'd be more like Justice Thomas, who imposed few limitations on presidential power, or like Scalia, who has lots of limitations. In that sense, he just kept his cards very close to his vest.

NORRIS: Well, we'll have to leave it at that. Thank you both for joining us.

Prof. KMIEC: Good to be with you.

Prof. ROSEN: Thank you.

NORRIS: Jeffrey Rosen is a professor at George Washington University Law School and legal affairs editor at The New Republic. Douglas Kmiec is chair and professor of constitutional law at Pepperdine University. Transcript provided by NPR, Copyright NPR.