Sen. Diane Feinstein (D.-Calif.) followed the lead of her committee cohorts by first kissing the floor that Justice O’Connor walks on and then slamming Alito by misrepresenting the facts of a past ruling.
Her remarks were based on Alito’s stand in U.S. v. Rybar:
“Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.” [Note: Actually, Judge Alito said only that Congress could not ban mere possession of firearms, not transfer.]
But…it turns out Judge Alito was only following precedent set forth by Justice O’Connor and her Supreme Court colleagues. For example:
In the case of United States v. Lopez, 514 U.S. 549 (1995) Justice O’Connor joined Chief Justice Rehnquist’s majority opinion, which invalidated the federal ban on firearm possession in the Gun-Free School Zones Act of 1990 because it exceeded the scope of Congress’s commerce power. It is difficult, then, to fault Judge Alito’s position: if possession of any firearm in Lopez was not commercial activity, the possession of firearms in Rybar was not commercial activity either, at least under Supreme Court precedent at the time—and Justice O’Connor’s position.
Although it is true that the Court changed course 9 years later in Gonzlaes v. Raich, Judge Alito is not a mind reader. More important, however, Justice O’Connor (and two others) dissented in Raich. Thus, if Judge Alito is extreme for thinking possession is not "commerce," then so is Justice O’Connor, the “model justice” for Committee Democrats.