[Senate Hearing 109-277]
[From the U.S. Government Publishing Office]
S. Hrg. 109-277
CONFIRMATION HEARING ON THE NOMINATION OF SAMUEL A. ALITO, JR. TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JANUARY 9-13, 2006
__________
Serial No. J-109-56
__________
Printed for the use of the Committee on the Judiciary
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25-429 WASHINGTON : 2006
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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JANUARY 9-11, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 15
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 44
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 47
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 39
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 24
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 41
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 31
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 26
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 33
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 13
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 8
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 10
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 21
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5
prepared statement........................................... 1229
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 36
prepared statement........................................... 1443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 28
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 2
PRESENTERS
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey presenting Samuel A. Alito, Jr., Nominee to be an
Associate Justice of the Supreme Court of the United States.... 50
Whitman, Christine Todd, former Governor of New Jersey, and
former Administrator, U.S. Environmental Protection Agency,
presenting Samuel A. Alito, Jr., Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 51
STATEMENT OF THE NOMINEE
Alito, Samuel A., Jr., of New Jersey, Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 54
Questionnaire................................................ 58
----------
JANUARY 12, 2006
WITNESSES
Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 659
Axelrod, Edna Ball, Attorney at Law, Law Offices of Edna Ball
Axelrod, South Orange, New Jersey.............................. 681
Barry, Maryanne Trump, Judge, U.S. Court of Appeals for the Third
Circuit, Philadelphia, Pennsylvania............................ 658
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 654
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Chicago, Illinois............................... 661
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of
Constitutional Law, University of North Carolina School of Law,
Chapel Hill, North Carolina.................................... 683
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and
Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione,
Newark, New Jersey............................................. 664
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New
York University, New York, New York............................ 687
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner,
Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio..... 685
Lewis, Timothy K., Judge (retired), U.S. Court of Appeals for the
Third Circuit, and Counsel, Schnader Harrison Segal & Lewis,
LLP, Washington, D.C........................................... 667
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of
Law, University of California, Berkeley, Berkeley, California.. 690
Phillips, Carter G., Managing Partner, Sidley Austin, LLP,
Washington, D.C................................................ 689
Scirica, Anthony J., Chief Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 656
Tober, Stephen L., Esq., Chairman, American Bar Association
Standing Committee on the Federal Judiciary, Portsmouth New
Hampshire; accompanied by Marna Tucker, Esq., D.C. Circuit
Representative, American Bar Association Standing Committee on
the Federal Judiciary, Washington, D.C.; and John Payton, Esq.,
Federal Circuit Representative, American Bar Association
Standing Committee on the Federal Judiciary, Washington, D.C... 641
----------
JANUARY 13, 2006
WITNESSES
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political
Science, Duke University Law School, Durham, North Carolina.... 708
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor
of Law, Hofstra University School of Law, Hempstead, New York.. 706
Flym, John G.S., retired Professor of Law, Northeastern
University School of Law, Boston, Massachusetts................ 738
Fried, Charles, former Solicitor General of the United States,
and Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts.................................................. 713
Frost, Amanda, Assistant Professor of Law, Washington College of
Law, American University, Washington, D.C...................... 736
Gonzalez, Hon. Charles A., a Representative in Congress from the
State of Texas................................................. 750
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan,
Gray & Nathanson, Tuskegee, Alabama............................ 728
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale
Law School, New Haven, Connecticut............................. 710
Michelman, Kate, former President, National Abortion and
Reproductive Rights Action League Pro-Choice America,
Washington, D.C................................................ 731
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C..... 711
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman
LLP, New York, New York........................................ 748
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense and Educational Fund, Inc.............................. 758
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law,
and Senior Fellow, Jamestown Project, Yale Law School, New
Haven, Connecticut............................................. 733
Tribe, Laurence H., Carl M. Loeb University Professor and
Professor of Constitutional Law, Harvard Law School, Cambridge,
Massachusetts.................................................. 714
Turner, Reginald M., Jr., President, National Bar Association,
Washington, D.C................................................ 756
Wasserman Schultz, Hon. Debbie, a Representative in Congress from
the State of Florida........................................... 752
White, Jack, Associate, Kirkland and Ellis, LLP, San Francisco,
California..................................................... 754
QUESTIONS AND ANSWERS
Responses of Samuel A. Alito, Jr. to questions submitted by
Senators Biden, Durbin, Kennedy, Leahy, Levin, Schumer, and
Feingold....................................................... 773
Responses of Erwin Chemerinsky to questions submitted by Senators
Coburn and Kennedy............................................. 813
Response of Laurence Tribe to a question submitted by Senator
Coburn......................................................... 816
SUBMISSIONS FOR THE RECORD
Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania, prepared statement.. 819
Alliance for Justice, Nan Aron, President, Washington, D.C.,
letter and attachment.......................................... 823
American Association for Affirmative Action, Shirley J. Wilcher,
Interim Executive Director, Washington, letter................. 839
American Association of University Women, Lisa M. Maatz,
Director, Public Policy and Government Relations, Washington,
D.C., letter................................................... 841
American Bar Association, Stephen L. Tober, Chair, Washington,
D.C.:
letter, January 4, 2006...................................... 843
letter, January 9, 2006...................................... 845
American Civil Liberties Union, Washington, D.C.:
Shin Inouy, Legislative Office, January 9, 2006, press
release.................................................... 865
Anthony D. Romero, Executive Director, prepared statement.... 867
American Federation of Labor and Congress of Industrial
Organizations, John J. Sweeney, President, Washington, D.C.,
letter......................................................... 875
American Federation of State, County and Municipal Employees,
Gerald W. McEntee, International President, Washington, D.C.,
letter......................................................... 877
Americans United for Separation of Church and State, Rev. Barry
W. Lynn, Executive Director, Washington, D.C., letter.......... 879
ADA Watch/National Coalition for Disability Rights, Jim Ward,
Founder and President, Washington, D.C., letter................ 881
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, D.C., letter................... 883
Attorneys General of various States, joint letter................ 885
Axelrod, Edna Ball, Attorney at Law, South Orange, New Jersey,
prepared statement............................................. 888
Bar Association of San Francisco, Joan Haratani, President, San
Francisco, California, letter.................................. 892
Bazelon Center for Mental Health Law, Robert Bernstein, Executive
Director, Washington, D.C., letter............................. 897
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania, prepared statement.. 899
B'nai B'rith International, Joel S. Kaplan, President and Daniel
S. Mariaschin, Executive Vice President, Washington, D.C.,
letter......................................................... 904
Boston Globe, Boston, Massachusetts, January 10, 2006, article... 905
Brady Center to Prevent Gun Violence, Washington, D.C.:
Mike Barnes, President, letter............................... 908
Dennis A. Henigan, Director, Legal Action Project, prepared
statement.................................................. 910
California Women Lawyers, Pearl Gondrella Mann, President,
Sacramento, California, letter................................. 930
Catholics for a Free Choice, Frances Kissling, President,
Washington, D.C., letter....................................... 934
Center for Reproductive Rights, New York, New York, prepared
statement...................................................... 937
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political
Science, Duke University Law School, Durham, North Carolina,
prepared statement............................................. 946
Chertoff, Michael, Secretary, Department of Homeland Security,
Washington, D.C., press release................................ 957
Chicago Tribune, Steven Lubet and David McGowan, November 18,
2005, article.................................................. 958
Colorado Hispanic Bar Association, Victoria Lovato, President,
Denver, Colorado, letter....................................... 960
Congressional Hispanic Caucus, Hon. Grace Flores Napolitano,
Chair, and Hon. Charles A. Gonzales, Chair, Congressional
Hispanic Caucus Civil Rights Task Force, Washington, D.C.:
January 6, 2006, letter...................................... 963
January 20, 2006, letter..................................... 967
Congress of the United States, women Members of Congress,
Washington, D.C., letter....................................... 969
Daily Princetonian, Princeton, New Jersey, article............... 972
Deans or former deans of law schools, joint letter............... 976
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor
of Law, Hofstra University School of Law, Hempstead, New York,
prepared statement............................................. 979
Dujack, Stephen R., Alexandria, Virginia, prepared statement..... 982
Earthjustice, Vawter Parker, Executive Director, Washington,
D.C., letter................................................... 992
Factual responses to falsehoods in the Knight-Ridder article
attacking Judge Alito, list.................................... 994
Fellow judges criticize application of precedent, list........... 998
Feminist Majority, Eleanor Smeal, President, Arlington, Virginia,
letter......................................................... 1000
Ferrara, Ralph C., former General Counsel of the Securities and
Exchange Commission, and Partner, LeBoeuf, Lamb, Greene &
MacRae LLP, Washington, D.C., letter........................... 1002
Fleming, Cathy, Edwards Angell Palmer & Dodge, LLP, New York, New
York, letter................................................... 1006
Flym, John G.S., retired Professor of Law, Northeastern
University School of Law, Boston, Massachusetts, prepared
statement...................................................... 1008
Former law clerks of Judge Samuel A. Alito, Jr., joint letter.... 1024
Fraternal Order of Police, Grand Lodge, Chuck Canterbury,
National President, Washington, D.C., letter................... 1029
Fried, Charles, former Solicitor General of the United States,
and Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts, prepared statement.............................. 1031
Friends of the Earth, Brent Blackwelder, President, Washington,
D.C., letter................................................... 1037
Frost, Amanda, Assistant Professor of Law, Washington College of
Law, American University, Washington, D.C., prepared statement. 1039
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Chicago, Illinois, prepared statement........... 1050
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of
Constitutional Law, University of North Carolina School of Law,
Chapel Hill, North Carolina, prepared statement................ 1060
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and
Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione,
Newark, New Jersey, prepared statement......................... 1079
Gillers, Stephen, Emily Kempin Professor of Law, New York
University School of Law, New York, New York, letter........... 1091
Gonzales, Hon. Charles A., a Representative in Congress from the
State of Texas, prepared statement............................. 1096
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan,
Gray & Nathanson, Tuskegee, Alabama, prepared statement........ 1105
Hazard, Geoffrey C., Jr., Trustee Professor of Law, University of
Pennsylvania, Philadelphia, Pennsylvania, letter............... 1114
Higginbotham, Michael, Wilson Elkins Professor of Law, University
of Baltimore School of Law, Baltimore, Maryland, letter........ 1118
Human Rights Campaign, Joe Solmonese, President, Washington, D.C.
prepared statement and letter.................................. 1120
Independent Living Center of Kern County, Norris Ledbetter,
System Change Coordinator, and Bonita Coyle, Executive
Director, Bakersfield, California, letter...................... 1126
Independent Living Resource Center San Francisco, Herb Levine,
Executive Director, San Francisco, California, letter.......... 1131
Instances of judges testifying during Supreme Court confirmation
hearings, list................................................. 1133
Ipas, Charlotte Hord Smith, Policy Director, Chapel Hill, North
Carolina, letter............................................... 1134
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New
York University, New York, New York, prepared statement........ 1136
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas, letter......................................... 1140
Japanese American Citizens League, John Tateishi, National
Executive Director, San Francisco, California, letter.......... 1149
Jewish Community Action, Vic Rosenthal, Executive Director, St.
Paul, Minnesota, prepared statement............................ 1151
Jewish Council on Urban Affairs, Chicago, Illinois, prepared
statement...................................................... 1153
Journal of Child Psychology and Psychiatry, Malden,
Massachusetts, article......................................... 1155
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner,
Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio,
prepared statement............................................. 1164
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale
Law School, New Haven, Connecticut, prepared statement......... 1176
Lambda Legal, Kevin M. Cathcart, Executive Director, New York,
New York, letter............................................... 1180
Law professors who oppose the confirmation of Judge Alito, joint
letter......................................................... 1182
Law professors who support the confirmation of Judge Alito, joint
letter......................................................... 1208
Lawyers' Committee for Civil Rights Under Law, Marjorie Press
Lindblom, Co-Chair and Robert E. Harrington, Co-Chair,
Washington, D.C, prepared statement and letter................. 1210
Leadership Conference on Civil Rights, Dorothy I. Height,
Chairperson, and Wade Henderson, Executive Director,
Washington, D.C., letter....................................... 1216
League of United Latin American Citizens, Washington, D.C., press
release........................................................ 1227
Legal Momentum, Lisalyn R. Jacobs, Vice President for Government
Relations, Washington, D.C., letter............................ 1232
Legal professionals in support of the nomination of Judge Samuel
A. Alito, Jr., joint letter.................................... 1234
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of
Law, University of California, Berkeley, Berkeley, California,
prepared statement............................................. 1245
Mabel Wadsworth Women's Health Center, Ruth Lockhart, Executive
Director, Sharon Barker, President, Board of Directors, and
Stephanie Cotsirilos, past President, Board of Directors,
Bangor, Maine, letter.......................................... 1262
Mexican American Legal Defense and Educational Fund, Ann Marie
Tallman, President, General Counsel, Los Angeles, California,
prepared statement............................................. 1268
Michelman, Kate, former President, National Abortion and
Reproductive Rights Action League Pro-Choice America,
Washington, D.C., prepared statement........................... 1271
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade
Regulation Law, George Washington School of Law, Washington,
D.C., letter................................................... 1276
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington Bureau, Washington,
D.C., letter................................................... 1279
NAACP Legal Defense and Educational Fund, Inc., Theodore M. Shaw,
Director-Counsel and President, Washington, D.C., prepared
statement and attachment....................................... 1281
NARAL Pro-Choice America, Nancy Keenan, President, Washington,
D.C., prepared statement and letter............................ 1289
National Abortion Federation, Vicki A. Saporta, President and
Chief Executive Officer, Washington, D.C., prepared statement
and letter..................................................... 1298
National Association of Social Workers, Elizabeth J. Clark,
Executive Director, Washington, D.C., letter................... 1304
National Association of Women Lawyers, Stephanie A. Scharf,
Chair, Committee for the Evaluation of Supreme Court Nominees,
Chicago, Illinois, letter and attachment....................... 1305
National Cancer Institute, U.S. National Institutes of Health,
Washington, D.C., report and fact sheets....................... 1308
National Council of Jewish Women, Phyllis Snyder, President, New
York, New York, prepared statement and letter.................. 1323
National Council of Women's Organizations, Susan Scanlan, Chair,
and Terry O'Neil, Executive Director, Washington, D.C., letter. 1328
National Council on Independent Living, John Lancaster, Executive
Director, and Kelly Buckland, President, Arlington, Virginia,
letter......................................................... 1329
National District Attorneys Association, Paul A. Logli,
President, and Thomas J. Charron, Executive Director,
Alexandria, Virginia, letter and resolution.................... 1334
National Employment Lawyers Association, Marissa M. Tirona,
Program Director, San Francisco, California, letter............ 1336
National Family Planning and Reproductive Health Association,
Judith M. DeSarno, President, Chief Executive Officer,
Washington, D.C., letter....................................... 1337
National Gay and Lesbian Task Force, Matt Foreman, Executive
Director, Washington, D.C., letter............................. 1338
National Journal Group Inc., Washington, D.C.:
December 12, 2005, article................................... 1340
January 9, 2006, article..................................... 1344
National Latina Institute for Reproductive Health, Silvia
Henriquez, Executive Director, New York, New York, letter...... 1347
National Organization for Women, Kim Gandy, President,
Washington, D.C., prepared statement and letter................ 1349
National Partnership for Women & Families, Debra L. Ness,
President, Washington, D.C., letter and prepared statement..... 1352
National Urban League, Marc H. Morial, President and Chief
Executive Officer, New York, New York, letter.................. 1382
National Women's Law Center, Nancy Duff Campbell, Co-President
and Marcia D. Greenberger, Co-President, Washington, D.C.,
letter......................................................... 1383
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C.,
prepared statement............................................. 1386
Pennsylvania State Senators in support of Judge Samuel Alito,
Harrisburg, Pennsylvania, joint letter......................... 1395
People For the American Way, Ralph G. Neas, President,
Washington, D.C., letter....................................... 1398
Phillips, Carter G., Managing Partner, Sidley Austin, LLP,
Washington, D.C., prepared statement........................... 1400
Physicians for Reproductive Choice and Health, Wendy Chavkin, MD,
MPH, Board Chair, New York, New York, prepared statement....... 1405
Planned Parenthood of America and Planned Parenthood Action Fund,
Karen Pearl, Interim President, Washington, D.C., letter and
prepared statement............................................. 1408
Precedents Justice Thomas has called for unraveling, list........ 1417
Princeton Packet, Princeton, New Jersey, February 12, 1985,
article........................................................ 1420
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman,
LLP, New York, New York, prepared statement.................... 1422
Reach Out America, Dorothy Puryear, Executive Committee, and
Sybil Bank, Executive Committee, Great Neck, New York, letter.. 1425
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director and Counsel, and Jane Wishner, Chair,
Commission on Social Action of Reform Judaism, Washington,
D.C., letter................................................... 1426
Religious Coalition for Reproductive Choice, Reverend Carlton W.
Veazey, President and CEO, Washington, D.C., letter............ 1429
Republican Majority for Choice, Washington, D.C., Janury 11,
2006, press release............................................ 1431
Rotunda, Ronald D., George Mason University Foundation Professor
of Law, George Mason University School of Law, Arlington,
Virginia, letter............................................... 1433
Sergeants Benevolent Association, Police Department, City of New
York, Ed Mullins, President, New York, New York, letter........ 1448
Service Employees International Union, Andrew L. Stern,
International President, and Anna Burger, International
Secretary-Treasurer, Washington, D.C., letter.................. 1450
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense & Educational Fund, Inc., Washington, D.C., prepared
statement...................................................... 1456
Sierra Club, Patrick Gallagher, Director, Environmental Law
Program, Washington, D.C., letter.............................. 1460
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law,
and Senior Fellow, Jamestown Project, Yale University, New
Haven, Connecticut, prepared statement......................... 1464
Sydney Morning Herald, Sydney, Australia, January 3, 2006,
article........................................................ 1491
Tober, Stephen L., Esq., American Bar Association, Washington,
D.C., prepared statement....................................... 1493
Tribe, Laurence H., Carl M. Loeb University Professor and
Professor of Constitutional Law, Harvard Law School, Cambridge,
Massachusetts, prepared statement.............................. 1498
Turner, Reginald M., Jr., President, National Bar Association,
Washington, D.C., prepared statement........................... 1519
Union of Orthodox Jewish Congregations of America, Institute for
Public Affairs, Mark Bane, Chair, and Nathan J. Diament,
Director, Washington, D.C., letter............................. 1536
Unitarian Universalist Association of Congregations, Robert C.
Keithan, Director, Washington, D.C., letter.................... 1540
United Automobile, Aerospace and Agricultural Implement Workers
of America, Alan Reuther, Legislative Director, letter......... 1543
Violence Policy Center, M. Kristen Rand, Legislative Director,
Washington, D.C., letter....................................... 1545
Walk, R. David, Jr., Dechert LLP, Swarthmore, Pennsylvania,
letter......................................................... 1548
Wall Street Journal, New York, New York, January 5, 2006, article 1550
Washington Post, Washington, D.C.:
January 2, 2006, article..................................... 1556
January 8, 2006, article..................................... 1558
January 9, 2006, article..................................... 1564
Washington Times, Washington, D.C., January 13, 2006, article.... 1570
Wasserman Schultz, Hon. Debbie, a Representative in Congress from
the State of Florida, prepared statement....................... 1572
White, Jack, Associate, Kirkland & Ellis LLP, Washington, D.C.,
prepared statement............................................. 1581
Women of Reform Judaism, Shelley Lindauer, Executive Director,
and Rosanne M. Selfon, President, Lancaster, Pennsylvania,
letter......................................................... 1585
Women's Medical Fund, Inc., Anne Nicol Gaylor, Administrator,
Madison, Wisconsin, letter..................................... 1586
YWCA USA, Peggy Sanchez Mills, Chief Executive Officer,
Washington, D.C., letter....................................... 1587
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
MONDAY, JANUARY 9, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 12 p.m., in room
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman
of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. Good afternoon, ladies and gentlemen. The
Senate Judiciary Committee will now proceed to the confirmation
hearing of Judge Samuel Alito, Jr. for the Supreme Court of the
United States. A few matters of administration or housekeeping,
and then we will proceed to the opening statements.
Today we will hear first from Judge Alito--the introduction
of his family. Judge, the floor is yours to introduce your
family.
Judge Altio. Thank you very much, Mr. Chairman. Let me
introduce my wife, Martha, who is here today; and my sister,
Rosemary, who is a lawyer in New Jersey and a tough trial
lawyer. I am glad that she took time from her schedule to come
to the hearing today. My daughter, Laura, who is a senior at
James Caldwell High School in West Caldwell, New Jersey; and if
a father can be permitted to brag for a second, a really great
swimmer who led her high school team to win the county
championship last week. My son, Phillip, who is a second-year
student at the University of Virginia. And when I had my
confirmation hearing for the Court of Appeals, Phillip was 3
years old. And when I was called up to the chair, he took it
upon himself to run up and sit next to me in case any hard
questions came up.
[Laughter.]
Judge Altio. I don't know whether he is going to try the
same thing tomorrow, but probably I could use the help.
I am glad that my in-laws are able to be here today: my
father-in-law, Gene Bomgardner, who is a retired Air Force NCO;
and my mother-in-law, Barbara Bomgardner, who is a retired Air
Force librarian. And my cousins Andrew and Aldomar Kiriev from
Gwynedd Valley, Pennsylvania, are also here.
My mother, who turned 91 a couple of weeks ago,
unfortunately is not able to be here today, but I am sure she
is watching at home.
Thank you very much, Mr. Chairman.
Chairman Specter. Well, thank you, Judge Alito. You have a
beautiful family, and we are delighted to have them with us on
the confirmation proceedings.
We will have 10-minute rounds of opening statements, each
Senator 10 minutes. We will then turn to the presenters, those
who will be presenting Judge Alito formally to the Committee.
And then we will administer the oath to Judge Alito, and we
will hear his testimony.
We will begin tomorrow morning at 9:30 for the opening
round of questions. Each Senator will have 30 minutes on the
opening round, and we have a second round scheduled of 20
minutes for each Senator. And then we will see how we will
proceed.
Our practice is to adhere to the time limits, and we do
that for a number of reasons. One of them is that Senators come
and go, and if we maintain the schedule, which is known to
everybody, they know when to return for their next round of
questions. We will take 15-minute breaks at a convenient time,
and, again, we will hold the breaks to 15 minutes.
I have worked closely with Senator Leahy on scheduling
matters and all other matters, and this is the model that we
used for the confirmation of Chief Justice Roberts. It is our
intention to conclude the hearings this week, and as Senator
Leahy and I worked out, the arrangement is to have a markup on
Tuesday, January the 17th, subject to something extraordinary
happening.
Now let me yield to the distinguished Ranking Member,
Senator Leahy.
Senator Leahy. Well, Mr. Chairman, I don't want to hold up
your opening statement, or the others. I do appreciate people
being here. As the hearing for Chief Justice John Roberts
showed, there will be real questions asked. I would hope
Senators on both sides of the aisle would do that. I think it
is important. We are talking about a position representing 295
million Americans.
On the schedule, I will work with the senior Senator from
Pennsylvania, the Chairman. I understand one of our leaders
once said that getting Senators to all move in order is like
having bullfrogs in a wheelbarrow. But we will continue to work
towards that, and I think the most important thing is we have a
good, solid hearing this week.
Mr. Chairman, you have been totally fair in your procedures
for this, as always.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Thank you very much, Senator Leahy. And
now we begin the opening statements.
No Senator's vote, except for the declaration of war or the
authorization for the use of force, is more important than the
confirmation of a nominee to the Supreme Court for a lifetime
appointment. Judge Alito comes to this proceeding with
extensive experience as a Government lawyer, as a prosecutor,
and as a judge. He has written some 361 opinions. He has voted
in more than 4,800 cases. And it is possible to select a few of
his cases to place him at any and every position on the
judicial spectrum. By selecting the right cases, he could look
like a flaming liberal or he could look like an arch-
conservative.
This hearing will give Judge Alito the full opportunity to
address the concerns of 280 million Americans on probing
questions which will be put to him by 18 Senators representing
their diverse constituencies. I have reserved my own vote on
this nomination until the hearing is concluded. I am committed
as Chairman to a full, fair, and dignified hearing. Hearings
for a Supreme Court nominee should not have a political tilt
for either Republicans or Democrats. They should be in
substance and in perception for all Americans.
There is no firmly established rule as to how much a
nominee must say to be confirmed. While I personally consider
it inappropriate to ask the nominee how he would vote on a
specific matter likely to come before the Court, Senators may
ask whatever they choose, and the nominee is similarly free to
respond as he chooses. It has been my experience that the
hearings are really, in effect, a subtle minuet, with the
nominee answering as many questions as he thinks necessary in
order to be confirmed.
Last year, when President Bush had two vacancies to fill,
there was concern expressed that there might be an ideological
change in the Court. The preliminary indications from Chief
Justice Roberts's performance on the Court and his Judiciary
Committee testimony on modesty, stability, and not jolting the
system all suggest that he will not move the Court in a
different direction. If that holds true, Judge Alito, if
confirmed, may not be the swing vote regardless of what
position Judge Alito takes on the political spectrum.
Perhaps the dominant issue in these hearings is the
widespread concern about Judge Alito's position on a woman's
right to choose. This has arisen in part because of a 1985
statement made by Judge Alito that the Constitution does not
provide for the right to an abortion. It has arisen in part
because of his advocacy in the Solicitor General's office
seeking to limit or overrule Roe and from the dissenting
portion of his opinion in Casey v. Planned Parenthood in the
Third Circuit.
This hearing will give Judge Alito the public forum to
address the issue as he has with Senators in private meetings,
that his personal views and prior advocacy will not determine
his judicial decisions, but instead he will weigh factors such
as stare decisis, that is, what are the precedents; that he
will weigh women's and men's reliance on Roe and he will
consider too whether Roe is ``embedded in the culture of our
Nation.''
The history of the Court is full of surprises on the issue.
The major case upholding Roe was Casey v. Planned Parenthood,
where the landmark opinion was written jointly by three
Justices, Justice O'Connor, Justice Kennedy and Justice Souter.
Before coming to the Court, Justice Souter, Justice Kennedy and
Justice O'Connor, had all expressed views against a woman's
right to choose. David Souter, as Attorney General of New
Hampshire, even opposed changing New Hampshire's law
prohibiting abortion even after the Supreme Court of the United
States had declared it unconstitutional. At the time of Justice
Souter's confirmation hearing, there was a stop Souter rally of
the National Organization for Women a few blocks from where we
currently are holding this hearing, displaying in red a banner
``Stop Souter or Women Will Die,'' ``Stop Souter Rally, a Mass
Lobbying Day,'' somewhat similar to this morning's press where
banners are paraded in front of the Supreme Court ``Save Roe''
and a brochure circulated again by NOW, ``Save Women's Lives,
Vote No on Alito.''
The history of this issue has been one full of surprises.
This hearing comes at a time of great national concern about
the balance between civil rights and the President's national
security authority. The President's constitutional powers as
commander in chief to conduct electronic surveillance appear to
conflict with what Congress has said in the Foreign
Intelligence Surveillance Act. This conflict involves very
major considerations raised by Justice Jackson's historic
concurrence in the Youngstown Steel seizure cases, where
Justice Jackson wrote, ``When the President acts pursuant to an
express or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses in his
own right, and all that Congress can delegate. When the
President acts in absence of a congressional grant of
authority, he can rely only upon his own independent powers.
When the President takes measures incompatible with the express
or implied will of Congress, his power is at its lowest ebb.''
And as Justice Jackson noted, ``What is at stake is the
equilibrium established in our constitutional system.''
Another major area of concern is congressional power, and
in recent decisions the Supreme Court of the United States has
declared Acts of Congress unconstitutional, really denigrating
the role of Congress. In declaring unconstitutional legislation
designed to protect women against violence, the Supreme Court
did so notwithstanding a voluminous record in support of that
legislation, but because of Congress's ``method of reasoning,''
rather insulting to suggest that there is some superior method
of reasoning in the Court.
When the Supreme Court handled two cases recently on the
Americans with Disabilities Act, they upheld the Act as it
applied to discrimination as to access, and declared it
unconstitutional as it applied to discrimination in employment.
They did so by applying a test of what is called ``congruent
and proportionate,'' which candidly stated, no one can figure
out. In dissent, Justice Scalia called it a flabby test, where
the Court set itself up as the taskmaster to see if Congress
had done its homework, and Justice Scalia said that it was an
invitation to judicial arbitrariness by policy driven
decisionmaking, and this hearing, I know, will involve
consideration as to Judge Alito's views on congressional power.
There is reason to believe that our Senate confirmation
hearings may be having an effect on Supreme Court nominees on
their later judicial duties. Years after their hearings,
Supreme Court Justices talk to me about our dialogs at these
hearings. This process has now evolved to a point where
nominees meet most of the Senators. In this process, nominees
get an earful. While no promises are extracted, statements are
made by nominees which may well influence their judicial
decisions. Chief Justice Roberts, for example, will have a
tough time giving a jolt to the system after preaching modesty
and stability. There is, I think, a heavy sense of drama as
these hearings begin. This is the quintessential example of
separation of powers under our constitutional process, as the
President nominates, the Senate confirms or rejects, and the
successful nominee ascends to the bench. While it may be a bit
presumptuous, I believe the Framers, if they were here, would
be proud and pleased to see how well their Constitution is
being applied.
My red light just went on, and I now yield to my
distinguished colleague, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
Good afternoon, Judge and Mrs. Alito, and the others.
Following up on what the Chairman was saying, the challenge
for Judge Alito in the course of these hearings is to
demonstrate that he is going to protect the rights and
liberties of all Americans, and in doing that, serve as an
effective check on Government overreaching. I have said that
the President did not help his cause by withdrawing his earlier
nomination of Harriet Miers in the face of criticism from a
narrow faction of his own party who were concerned about how
she might vote.
Supreme Court nominations should not be conducted through a
series of winks and nods designed to reassure a small faction
of our population, while leaving the American people in the
dark. And no President, I think we would all agree, should be
allowed to pack the courts, and especially the Supreme Court,
with nominees selected to enshrine Presidential claims of
Government power. The checks and balances that should be
provided by the courts, Congress and the Constitution are too
important to be sacrificed to a narrow partisan agenda.
This hearing is the opportunity for the American people to
learn what Samuel Alito thinks about their fundamental
constitutional rights and whether he--you, Judge--will protect
their liberty, their privacy and their autonomy from Government
intrusion.
The Supreme Court belongs to all Americans, not just to the
person occupying the White House, and not just to a narrow
faction of either political party, because the Supreme Court is
our ultimate check and balance. Independence of the Court and
its members is crucial to our democracy and our way of life,
and the Senate should never be allowed to be a rubber stamp.
Neither should the Supreme Court. So I will ask the Judge to
demonstrate his independence from the interests of the
President nominating him. This is a nomination to a lifetime
seat on the Nation's highest Court. It is a seat that has often
represented the decisive vote on constitutional issues, so we
have to make an informed decision. That means knowing more
about Samuel Alito's work in the Government and knowing more
about his views.
I will, as the Judge knows, ask about the disturbing
application he wrote to become a political appointee in the
Meese Justice Department. In that application he professed
concern with the fundamental principle of ``one person, one
vote,'' a principle of the equality that is the bedrock of our
laws. This hearing is the only opportunity that the American
people and their representatives have to consider the
suitability of the nominee to serve as a final arbiter on the
meaning of the Constitution and its laws. Has he demonstrated
commitment to the fundamental rights of all Americans? Would he
allow the Government to intrude on Americans' personal privacy
and freedoms?
In a time when this administration seems intent on
accumulating unchecked power, Judge Alito's views on Executive
power are especially important. It is important to know whether
he would serve with judicial independence or as a surrogate for
the President nominating him. So this public conversation, this
hearing over the next few days is extremely important. It is
the people's Constitution and the people's right that we are
all charged with protecting and preserving. In this hearing we
embark on the constitutional process, one that was designed to
protect these rights and has served this country so very well
for more than two centuries.
I am reminded of a photograph, Mr. Chairman, that hangs in
the National Constitution Center in Philadelphia. It shows the
first women ever to serve on the Supreme Court of the United
States taking the oath of office in 1981. How Justice Sandra
Day O'Connor serves is as a model Supreme Court Justice, widely
recognized as a jurist with practical values and a sense of the
consequences of the legal decisions being made by the Supreme
Court. I regret that some on the extreme right have been so
critical of Justice O'Connor, and that they adamantly oppose
the naming of a successor who shares her judicial philosophy
and qualities. Their criticism actually reflects poorly upon
them. It does nothing to tarnish the record of the first woman
to serve as Associate Justice of the Supreme Court of the
United States. She is a Justice whose graciousness and sense of
duty fuels her continued service, even agreeing to serve more
than 6 months after her retirement date, and I know both you
and I commend her for that.
The Court that serves America should reflect America. This
nomination was an opportunity, of course, for the President to
make a nomination based on diversity. He did not, even though
there is no dearth of highly qualified Hispanics and African-
Americans, other individuals who could well have served as
unifying nominees while adding to diversity. But that, of
course, is the President's choice, Judge, not yours. But I look
forward to a time when the membership of the Supreme Court is
more reflective of the country it serves.
As the Senate begins its consideration of President Bush's
nominee, his third to this seat, to Justice O'Connor's seat, we
do so mindful of her critical role in the Supreme Court. Her
legacy is one of fairness, and when I decide how to vote it is
because I want to see that legacy preserved. Justice O'Connor
has been a guardian of the protections the Constitution
provides the American people. She has come to provide balance
and a check on Government intrusion into our personal privacy
and freedoms. In the Hamdi decision she rejected the Bush
administration's claim that they could indefinitely detain a
United States citizen. She upheld the fundamental principle of
judicial review over the exercise of Government power, and she
wrote--and this is one we should all remember--she wrote that
even war is not a blank check for the President when it comes
to the rights of the Nation's citizens. She held that even this
President is not above the law, and of course, no President,
Democratic or Republican, no President is above the law, as
neither are you, nor I, nor anyone in this room.
Her judgment has also been critical in protecting our
environmental rights. She joined in 5-4 majorities affirming
reproductive freedom, and religious freedom, and the Voting
Rights Act. I mention each of these cases because they show how
important a single Supreme Court Justice is, and it is crucial
that we determine what kind of Justice Samuel Alito would be if
confirmed. Of course, Judge, my question will be, will you be
an independent jurist?
It is as the elected representatives of the American
people, all of the people, nearly 300 million people, that we
in the Senate are charged with the responsibility to examine
whether to entrust their precious rights and liberties to this
nominee. The Constitution is their document. It guarantees
their rights from the heavy hand of Government intrusion, and
individual liberties, to freedom of speech, to religion, to
equal treatment, to due process and to privacy. Actually, this
hearing, this is their process. The Federal Judiciary is unlike
the other branches of Government. Once confirmed, a Federal
Judge serves for life, and there is no court above the Supreme
Court. The American people deserve a Supreme Court Justice who
can demonstrate that he or she will not be beholden to the
President, but only to the law.
Last October, the President succumbed to partisan pressure
from the extreme right of his party by withdrawing Harriet
Miers. By withdrawing her nomination and substituting this one,
the President has allowed his choice to be vetoed by an extreme
faction within his party before even a hearing or a vote.
Frankly, that was an eye-opening experience to me. It gives the
impression there are those who do not want an independent
Federal Judiciary. They demand judges who will guarantee the
results that they want, and that is why the questions will be
asked so specifically of you, Judge.
The nomination is being considered against the backdrop of
another recent revelation, that the President has, outside the
law, been conducting secret and warrantless spying on Americans
for more than 4 years. This is a time when the protections of
America's liberties are directly at risk, as are the checks and
balances that serve to constrain abuses of power for more than
200 years. The Supreme Court is relied upon by all of us to
protect our fundamental rights.
I have not decided how I will vote in this nomination, and
like the Chairman, I will base my determination on the whole
record at the conclusion of these hearings, just as I did in
connection with the nomination of John Roberts to be Chief
Justice. At the conclusion of those hearings I determined to
vote for him.
The stakes for the American people could not be higher. At
this critical moment, Senate Democrats serving on this
Committee will perform our constitutional advice and consent
responsibility with heightened vigilance. I would urge all
Senators, Republicans and Democrats and Independents, to join
with us in serious consideration. The appointment of the next
Supreme Court Justice must be made in the people's interest and
in the Nation's interest, not in the interest of any partisan
faction.
Mr. Chairman, Thank you very much.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Hatch.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
I welcome you, Judge Alito, your family members, friends
and others who are accompanying you.
This hearing is part of an ongoing evaluation of Judge
Samuel Alito's nomination to replace Justice Sandra Day
O'Connor as Associate Justice of the Supreme Court of the
United States. It is remarkable that after a nearly record-long
period without a Supreme Court vacancy, we are here considering
a second nominee in less than 6 months.
Mr. Chairman, let me first commend you for firmly and
fairly handling these hearings. The timetable we are following
reflects your efforts to accommodate all sides, and the 70 days
since President Bush announced the nomination significantly
exceeds the average for other Supreme Court nominees.
The debate over this and other judicial nominations is a
debate over the judiciary itself. It is a debate over how much
power unelected judges should have in our system of government,
how much control judges should have over a written Constitution
that belongs to the people. Ending up in the right place in
this debate requires starting in the right place. The right
place to start is the proper description of what judges are
supposed to do, and the rest of the process should reflect this
judicial job description.
The process for evaluating Judge Alito's nomination began
when President Bush announced it more than 2 months ago. It
continued with Judge Alito's meetings with more than two-thirds
of the Senators and a vigorous debate in the media among
analysts, scholars, and activists. As the Senate completes the
evaluation process, we must keep some very important principles
in mind and follow a few basic rules.
The first principle is that in this judicial selection
process, the Senate and the President have different roles.
Under the Constitution, the President, not the Senate,
nominates and appoints judges. The Senate has a different role.
We must give our advice about whether President Bush should
actually appoint Judge Alito by giving or withholding our
consent. Abiding by the Constitution's design and our own
historical tradition requires that after Judge Alito's
nomination reaches the Senate floor, we vigorously debate it
and then vote up or down.
The second principle is that in our system of Government
the judicial and legislative branches have different roles. As
Chief Justice Roberts described it when he was before this
Committee last fall, ``Judges are not politicians. Judges must
decide cases, not champion causes. Judges must settle legal
disputes, not pursue agendas. Judges must interpret and apply
the law, not make the law.'' This principle that judges are not
politicians lies at the very heart of the judicial job
description.
In addition to these two principles, a few basic rules
should guide how we complete this confirmation process. First,
we must remember that judicial nominees are constrained in what
they may discuss and how they may discuss it. Like Chief
Justice Roberts and others before him, Judge Alito is already a
Federal judge. He not only will be bound by the canons of
judicial ethics as a Supreme Court Justice, he is already bound
by these canons as an appeals court judge. Because judges may
not issue advisory opinions, judicial nominees may not do so
either, especially on issues likely to come before the Court.
That rule has always been honored.
Needless to say, those who will demand such advisory
opinions in this hearing will do so precisely on those issues
that are likely to come before the Court. They have a right to
ask those questions. But as the Washington Post editorialized
just this morning, however, ``he will not--and should not--tell
Americans how he will vote on hotly contested issues.''
When Judge Ruth Bader Ginsburg was before us in 1993, she
said that her standard was to give no hints, no forecasts, no
previews, and declined to answer dozens of questions.
The second rule we should follow is to consider each part
of Judge Alito's record on its own terms for what each part
actually is. He wrote memos when he worked for the Justice
Department. He has written judicial opinions while on the
appeals court. He wrote answers to the questionnaire from this
Committee in 1990 and again last year. He has written articles
and given speeches. He has joined certain groups, and each of
these is different. Each of these must be considered in its own
context, on its own terms, rather than squeezed, twisted, and
distorted into something designed instead to support a
preconceived position or serve a preplanned agenda.
The third rule we should follow is considering Judge
Alito's entire record. Some interest groups focus on--some
would say they obsess about--one recusal question, or they
cherrypick from the thousands of cases in which Judge Alito
participated and the hundreds of opinions he authored or
joined. Or they look at the results that ignore the facts and
the law in those cases.
Judge Alito comes to us with a record that is long, broad,
and deep. He deserves, and our constitutional duty requires,
that we consider his entire record.
Finally, and perhaps most important, we must apply a
judicial rather than a political standard to the information
before us, and we do have a lot of information. The record
includes more than 360 opinions of all kinds--majority,
concurring, and dissenting--written during his judicial tenure.
We have more than 36,000 pages of additional material,
including unpublished opinions, legal briefs, articles,
speeches, and Department of Justice documents relating to his
service in the Office of Legal Counsel and in the Solicitor
General's office. We must apply a judicial, not a political,
standard to this record. Asking a judicial nominee whose side
you will be on in future cases is a political standard.
Evaluating Judge Alito's record by asking those whose side he
has been on in past cases is, again, a political standard.
Scorecards are common in the political process, but they
are inappropriate in the judicial process. The most important
tools in the judicial confirmation process are not litmus paper
and a calculator. Applying a proper judicial standard to Judge
Alito's record means putting aside the scorecards and looking
at how he does what judges are supposed to do, namely, settle
legal disputes by applying already established law.
A judicial standard means that a judicial decision can be
entirely correct even when the result does not line up with our
preferred political positions or cater to certain political
interests. When he was here last fall, Chief Justice Roberts
compared judges to umpires who apply rules they did not write
and cannot change to the competition before them. We do not
evaluate an umpire's performance based on which team won the
game, but on how that umpire applied the rules inning after
inning. We do not hire umpires by showing them the roster for
the upcoming season and demanding to know which teams they will
favor before those teams even take the field. Similarly, we
should evaluate judges and judicial nominees based on the
general process for applying the law to any legal disputes, not
on the specific result in a particular case or dispute.
The fact that Judge Alito is such a baseball fan gives me
even more confidence that he knows the proper role of a judge.
I know that there is a pitched battle going on outside the
Senate, with dueling press conferences, television ads, e-mail,
petition drives, and stacks of reports and press releases. The
Senate can rise above that battle if we remember the proper
role for the Senate and the proper role for judges. We can rise
above that battle if we respect that judicial nominees are
limited in what they may discuss. Take each part of Judge
Alito's record on its own terms. Consider Judge Alito's entire
record and apply a judicial rather than a political standard.
Judge Alito, I know you. I have known you for a long time.
You are a good man. You are an exceptional judge as well. I
welcome you and your family to this Committee, and I hope that
the days ahead will reflect more light than heat. We
congratulate you that you are willing to go through this
grueling process to represent your country on one of the three
separated powers. It means so much to all of us, and I am
grateful to personally know you as well as I do.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman.
Judge Alito, I join in welcoming you and your family to
this Committee. I appreciated the opportunity to visit with you
in my office a few weeks ago, and I was particularly impressed
by your personal family story of how you were encouraged to do
well and contribute to your community. And I also applaud your
dedication to public service throughout your lifetime.
Supreme Court nominations are an occasion to pause and
reflect on the values that make our Nation strong, just, and
fair. And we must determine whether a nominee has a
demonstrated commitment to those basic values. Will a nominee
embrace and uphold the essential meaning of the four words
inscribed above the entrance of the Supreme Court Building,
``Equal justice under law.''
Justice Louis Powell spoke for all of us when he said,
``Equal justice under law is perhaps the most inspiring idea of
our society. It is one of the ends for which our entire legal
system exists.''
As we have seen from Justice O'Connor's example, even one
Justice can profoundly alter the meaning of those words for our
citizens. Even one Justice can deeply affect the rights and
liberties of the American people. Even one Justice can advance
or reverse the progress of our journey.
So the question before us in these hearings is this: does
Judge Alito's record hold true to the letter and the spirit of
equal justice? Is he committed to the core values of our
Constitution that are at the heart of our Nation's progress,
and can he truly be evenhanded and fair in his decisions?
In a way Judge Alito has faced this issue before as a
nominee to the Court of Appeals. I had the privilege of
chairing his confirmation hearing in 1990, and at that time he
had practiced law for 14 years, but only represented one
client, the U.S. Government. I asked whether he believed he
could be impartial in deciding cases involving the Government,
and in that hearing Judge Alito said on the record that the
most important quality for a judge is open-mindedness to the
arguments, and he promised the Committee that he would make a
very conscious effort to be absolutely impartial. We took him
at his word and overwhelmingly confirmed him to the Third
Circuit Court of Appeals.
We now have the record of Judge Alito's 15 years on the
bench, and the benefit of some of his earlier writings that
were not available 15 years ago, and I regret to say that the
record troubles me deeply.
In a era where the White House is abusing power, is
excusing and authorizing torture and is spying on American
citizens, I find Judge Alito's support for an all-powerful
executive branch to be genuinely troubling. Under the
President's spying program there are no checks and balances.
There is no outside review of the legality of this brazen
infringement on the civil rights and liberties of the American
people. Undeterred by the public outcry, the President vows to
continue spying on American citizens. Ultimately the courts
will make the final judgment whether the White House has gone
too far. Independent and impartial judges must assess the
proper balance between protecting our liberties and protecting
our national security.
I am gravely concerned by Judge Alito's clear record of
support for vast Presidential authority unchecked by the other
two branches of Government. In decision after decision on the
bench, he has excused abusive actions by the authorities that
intrude on the personal privacy and freedoms of average
Americans, and in his writings and speeches he has supported a
level of overreaching Presidential power that, frankly, most
Americans find disturbing and even frightening.
In fact, it is extraordinary that each of the three
individuals this President has nominated for the Supreme Court,
Chief Justice Roberts, Harriet Miers and now Judge Alito, has
served not only as a lawyer for the executive branch, but as a
defendant of the most expansive view of Presidential authority.
Perhaps that is why this President nominated them. But as
Justice O'Connor stated, even a state of war is not a blank
check for a President to do whatever he wants. The Supreme
Court must serve as an independent check on abuses by the
executive branch and a protector of our liberties, not a
cheerleader for an imperial presidency.
There are other areas of concern. In an era when too many
Americans are losing their jobs or working for less, trying to
make ends meet, in close cases Judge Alito has ruled the vast
majority of the time against the claims of the individual
citizens. He has acted instead in favor of Government, large
corporations and other powerful interests. In a study by the
well-respected expert, Professor Cass Sunstein of the
University of Chicago Law School, Judge Alito was found to rule
against the individual in 84 percent of his dissents. To put it
plainly, average Americans have had a hard time getting a fair
shake in his courtroom. In an era when America is still too
divided by race and riches, Judge Alito has not written one
single opinion on the merits in favor of a person of color
alleging race discrimination on the job; in 15 years on the
bench, not one.
When I look at that record in light of the 1985 job
application to the Reagan Justice Department, it is even more
troubling. That document lays out an ideological agenda that
highlights his pride in belonging to an alumni group at
Princeton that opposed the admission of women and proposed to
curb the admission of racial minorities. It proclaims his legal
opinion that the Constitution does not protect the right of
women to make their own reproductive decisions. It expresses
outright hostility to the basic principle of one person, one
vote, affirmed by the Supreme Court as essential to ensuring
that all Americans have a voice in their Government. This
application was not a youthful indiscretion. It was a document
prepared by a mature, 35-year-old professional.
Finally, many of us are concerned about conflicting
statements that Judge Alito has made in response to questions
from this Committee and others. As Chairman Specter has stated,
this confirmation largely depends on the credibility of Judge
Alito's statements to us, and we have questions. When asked
about the ideological statements and specific legal opinions in
his 1985 application, Judge Alito has dismissed those
statements as just applying for a job.
When he was before this Committee in 1990 applying for a
job to the circuit, he promised under oath that he would recuse
himself from cases involving Vanguard, the mutual fund company
in which he had most of his investments. But as a judge he
participated in a Vanguard case anyway, and has offered many
conflicting reasons to explain why he broke his word. We need
to get to the bottom of this matter to assure ourselves that
what Judge Alito says in these hearings will not be just words,
but pledges that guide him in the future if he is confirmed.
Judges are appointed by and with the advice and consent of
the Senate, and it is our duty to ask questions on great issues
that matter to the American people and to speak for them. Many
Republican Senators certainly demanded answers from Harriet
Miers. We should expect no less from Judge Alito. There is not
time for a double standard. If confirmed, Judge Alito could
serve on the Court for a generation or more, and the decisions
he will make as Justice will have a direct impact on the lives
and liberties of our children, our grandchildren and even our
great-grandchildren. We have only one chance to get it right,
and a solemn obligation to do so.
Judge Alito, I have serious questions to ask. I
congratulate you on your nomination, and I look forward to your
answers in these hearings.
Chairman Specter. Thank you, Senator Kennedy.
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I have a much more positive view of Judge
Alito.
[Laughter.]
Senator Grassley. I think the record will sustain my view.
But first, Judge Alito, I welcome you and your proud family to
the Committee, and congratulations on your nomination.
I first want to remind all Americans who might be listening
that the Senate has a very important responsibility to confirm
only well-qualified individuals who will faithfully interpret
the law and the Constitution. Confirmation should be limited to
those individuals who will be fair, unbiased, devoted to
addressing the facts in the law before them without imposing
their own values and political beliefs when deciding cases.
Nominees should not be expected to precommit to ruling on
certain issues in a certain way, nor should Senators ask
nominees to pledge to rule on cases in a particular way.
If we fulfill our responsibility to the Constitution, the
Supreme Court will be filled with superior legal minds who will
pursue the one agenda that our Founding Fathers intended in
writing the Constitution, justice rather than political or
personal goals. The Supreme Court will then consists of
individuals who meticulously apply the law and the Constitution
regardless of whether the results they reach are popular or
not. If we do our job right, the Supreme Court will not be made
up of men and women who are on the side of the little guy or
the big guy, rather the Supreme Court will be made up of men
and women who are on the side of the law and the Constitution.
From all accounts, Judge Alito has an impressive and
extensive legal and judicial record, certainly one worthy of
someone on the Supreme Court. Judge Alito excelled at top-notch
schools, member of law review, clerked for a Federal judge. He
also held important positions at the Department of Justice,
Office of Legal Counsel, the Solicitor General's Office and was
U.S. Attorney for New Jersey before being appointed to the
Third Circuit.
I want to remind the American people this nominee, Judge
Alito, has been confirmed unanimously by the U.S. Senate, not
once, but twice. This is a tremendous record of accomplishment
in public service equal to any Supreme Court nominee that I
have considered in the 25 years I have been on this Committee.
Not only that, Judge Alito has a reputation for being an
exceptional and honest judge devoted to the rule of law, as
well as being a man of integrity.
Judge Alito enjoys the support and respect of people who
work with him, practice with him, and therefore, know him best.
Example, 54 of Judge Alito's law clerks, Democrats, Republicans
and Independents alike, signed a letter to the Committee that
stated, ``We collectively were involved in thousands of cases
and it never once appeared to us that Judge Alito has prejudged
a case or ruled based on political ideology.'' Continuing to
quote, ``It is our uniform experience that Judge Alito was
guided by his profound respect for the Constitution and the
limited role of the judicial branch.'' Those 54 opinions say a
lot about Judge Alito and his approach to judicial function.
Like Chief Justice Roberts, it appears that Judge Alito tries
to act like an umpire, calling the balls and strikes, rather
than advocating a particular outcome.
I am also impressed with the very complimentary things that
some lawyers have had to say about Judge Alito in the Lawyers
Evaluation Section of the Almanac of Federal Judiciary. With
respect to his legal ability, lawyers praised him, saying that
Judge Alito was ``exceptional,'' ``a brilliant jurist.''
Another lawyer stated that, ``to say that he is outstanding is
to use understatement. He's the best judge on the circuit,
maybe in the country.''
With respect to his demeanor and temperament, lawyers found
Judge Alito to be measured and judicial while on the bench. One
lawyer commented that he is demanding, but always courteous. He
may occasionally, quoting, ``demonstrate a little bit of
impatience with lawyers that aren't quite getting it. This can
be directed at either side. It's just a sign that his mind is
working more efficiently than yours. He's never discourteous,
never abusive.'' Another lawyer said, ``He is pleasant and
courteous.'' Others commented about the impression that Judge
Alito is a conservative judge, but certainly not out to impose
his own personal agenda while on the bench. One lawyer
commented that he ``is a conservative, but reaches honest
decisions,'' while another said, ``By reputation he's known to
be one of the more conservative judges on the court, but he is
forthright and fair. He tries to decide cases in front of him
in the right way.''
The American Bar Association came out just last week with
an evaluation of Judge Alito to be a Justice, and they
considered things like integrity, judgment, compassion, open-
mindedness and freedom from bias and commitment to equal
justice under the law. The ABA once again found Judge Alito to
be unanimously well qualified. This recommendation should have
much weight for my colleagues on the other side, who have time
and time again described the rating of the ABA as, quote,
``gold standard.'' Yet, some liberal interest groups have come
out in full force and have attempted to paint Judge Alito to be
an extremist and to be an activist. They have criticized a
nominee who has, from what I see described by these lawyers and
fellow judges, a reputation of being a restrained jurist
committed to the rule of law and the Constitution, but that is
what these outside-the-mainstream groups always do.
They attack individuals who they believe will not implement
their agenda before the Supreme Court, so Judge Alito should
see criticism as a badge of honor worn by many past and present
members of the Court. Yet, I am glad to see the public fully
participate in this process because this is the nature of our
system of Government, but I do not like to see facts twisted,
untruths fabricated to give the nominee a black eye even before
he comes before our Committee.
So, Judge Alito, now you have that opportunity to set
everyone straight on your record and your approach to deciding
cases. These hearings are also an opportunity, a very good
opportunity to remind the public about the proper role of a
judge in our system of checks and balances limited Government.
Judges are required by our democratic system not to overstep
their positions to become policymakers or super legislators.
Supreme Court nominees should know, without any doubt, that
their job is not to impose their own personal opinions of what
is right and wrong, but to say what the law is, rather than
what they personally think the law ought to be. Supreme Court
nominees should know that this exercise of judicial restraint
is a key ingredient of being a good judge, as the Constitution
constrains judges every bit as it constrains we legislators,
executives and citizens in their actions.
Moreover, Supreme Court nominees should be individuals who
not only understand but truly respect the equal roles and
responsibilities of different branches of Government and our
State Governments. As Alexander Hamilton said in Federalist No.
78, ``The courts must decide the sense of the law, and if they
should be disposed to exercise will instead of judgment, the
consequences would be the substitution of their pleasure to
that of the legislative body.'' Our Framers expected the
judicial branch to be the least dangerous branch of Government.
At our meeting in my office in November, I heard Judge
Alito place emphasis on the limited role of the courts in our
democratic society. He also reiterated this belief in a
questionnaire he submitted to this Committee. So I have some
idea of how Judge Alito approaches the law and views the role
of a judge. I am hopeful that his commitment to judicial
restraint and to confining decisions to the law and the
Constitution will shine through in this hearing, and I believe
it will, and I am hopeful that my colleagues will give Judge
Alito a civil, a fair and a dignified process, as well as an up
or down vote, because as always, the Constitution sets the
standard: the President nominates, the Senate deliberates, and
then we are obligated to give our advice and consent in an up
or down vote.
Judge Alito, I congratulate you.
Chairman Specter. Thank you very much, Senator Grassley.
Senator Biden.
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you, Mr. Chairman.
Judge, welcome. Mrs. Alito and your family, welcome. It is
an incredible honor to be nominated by a President of the
United States to be an Associate Justice of the Supreme Court,
and you are to be congratulated.
Judge, this may be one of the most significant,
consequential nominations that the Senate will vote on since I
have been here in the last three decades. I think history has
delivered you, fortunately or unfortunately, to a moment where
Supreme Court historians far into the future are going to look
back on this nomination and make a judgment whether or not with
your nomination, and if you are confirmed, whether the
jurisprudence of the Supreme Court begin to change from the
consensus that existed the last 70 years, or whether it
continued on the same path it has over the past six or seven
decades, and that moment is right now.
Lest we think it is kind of like we all go through this
process--and I like the phrase ``minuet'' that the Chairman
used--we all act like there is not an elephant in the room. The
truth of the matter is, there is significant debate among
judicial scholars today as to whether or not we have gone off
on the wrong path with regard to Supreme Court decisions. There
is a very significant dispute that has existed in 5-4 decisions
over the past two decades in a Court that is very closely
divided on the critical, central issues of the day.
Just to make it clear, I am puzzled by some of the things
you have said, and I am sure you are going to get a chance to
tell me what you meant by some of the things you wrote and
said, but when in your job application you talked about being
proud, as you should be, to be proud of your subscription to
and adhering to notions put forward in the National Review that
you are a proud member of the Federalist Society, the National
Conservative Political Action Committee, the American Spectator
is something you look to, et cetera. These are all really very
bright folks. They all have a very decided opinion on the
issues of the day--very decided. And those very organizations I
have named think, for example, we misread the Fifth Amendment
and have been misreading it for the past three decades. Those
same groups argue that, in fact, there is no right of privacy
in the Constitution, et cetera. So people are not making this
up. In a sense, it is not about you. You find yourself in the
middle of one of the most significant national debates in
modern constitutional history because you have been nominated
to replace a woman, in addition, who has been the deciding vote
on a significant number of these cases. Since 1995 there have
been 193 5-4 decisions, and Justice O'Connor 77 percent of the
time has been the deciding vote. And for 70 years, there has
been a consensus among scholars and the American people on a
reading of the Constitution that protects the right of privacy,
the autonomy of individuals, while at the same time empowering
the Federal Government to protect the less powerful. Only
recently has the debate come that States rights are being
trumped in a fundamental way, a reading of the 10th Amendment
and 11th Amendment. That is a legitimate debate. Totally
legitimate. But anybody who pretends that how you read the 10th
and 11th Amendment does not have a fundamental impact on the
things we care about is kidding themselves. They are either
uninformed or they are kidding themselves.
So, Judge, there is a genuine struggle going on well beyond
you, well beyond the Congress, in America about how to read the
Constitution. And I believe at its core we have a Constitution,
as our Supreme Court's first great Justice Marshall said in
1819, and I quote, ``intended to endure for the ages to come
and consequently to be adapted to the various crises of human
affairs.'' That is the crux of the debate we are having now,
whether it is an adaptable Constitution. A lot of my friends
make very powerful and convincing arguments--and they may be
right--that, no, no, no, no, no, it is not adaptable, it is not
adaptable. And since our country's founding, we have tried to
keep Government's heavy hand out of our personal lives while
ensuring that we do the most important thing, which is to
protect those who cannot protect themselves. And the debate
raging today is about whether we will continue along that path
and whether our courts will continue to be one of the places
where society puts the little guy--and I know this is not
something you are supposed to say--the little guy on the same
footing with the big guy. The one place David is equal to
Goliath is in the Supreme Court.
It is also important to note that you are slated to replace
the first woman ever nominated to the Supreme Court. We can
pretend that is not the fact, but it is. And through no fault
of your own, we are cutting the number of women in half on the
Court. And now, as I said, that is not your fault, but I think
it means that we have to take, at least speaking for myself, a
closer look at your stands on issues that are important to
women. And, moreover, Justice O'Connor brought critical
qualities to the High Court that not everybody thinks are
qualities--I happen to think they are--her pragmatism and her
statecraft. Not that I have always agreed with what she said,
far from it, but Justice O'Connor has been properly lauded in
my view as a judge who approached her duties with open-
mindedness and with a sensitivity to the effects her decisions
would have on everyday, ordinary people. She, unlike Judge
Bork, did not think that being on the Court would be ``an
intellectual feast,'' to quote Judge Bork. Justice O'Connor
also brought balance to our highest Court. Most recently, as
has been repeated many times, she cautioned about war does not
give a blank check. Her decisions reflect, in my view, that our
societies work very hard to improve the workaday world, to open
doors to workers confronted by powerful employers and for women
facing harassment and stereotypes.
Now, I acknowledge this is a very tough job a judge has in
determining whether or not there is an openness that is
required under the Constitution. But I also acknowledge that
prejudice runs very deep in our society, and in the real world,
discrimination rears its ugly head in the shadows where it is
very difficult to root it out. But Justice O'Connor was not
afraid to go into the shadows.
The Constitution provides for one democratic moment, Judge,
before a lifetime of judicial independence when the people of
the United States are entitled to know as much as we can about
the person that we are about to entrust with safeguarding our
future and the future of our kids. And, Judge, simply put, that
is this moment, the one democratic moment in a lifetime of
absolute judicial independence. And that is what these hearings
are about, in my view.
In the coming days, we want to know about what you believe,
Judge, how you view the Constitution, how you envision the role
of the Federal courts, what kind of Justice you would seek to
become. As I said, this one democratic moment when the people,
through their elected representatives, get to ask questions of
a President's choice for the highest Court. And I hope you will
be forthcoming.
I cannot imagine, notwithstanding what many of my
colleagues, whom I have great respect for, believe, I can't
imagine the Founders, when they sat down and wrote the document
and got to the Appointments Clause and said, You know what? The
American people are entitled to know before we make him
President, before we make her Senator, before we make him
Congressman, what they believe on the major issues of the day.
But judges, Supreme Court nominees, as long as they are smart
and honest and decent, it really does not matter what they
think. We do not have to know. I can't fathom--can't fathom--
that that was the intent of the Founders. They intended the
American people to know what their nominees thought.
And I might add--and I will end with this--we just had two
Supreme Court Justices before our caucus just as they were
before, I think, the Republican Caucus. They ventured opinions
on everything. On everything, things that are going to come
before the Court. It did not in any way jeopardize their
judicial independence.
So, Judge, I really hope that this does not turn out to be
a minuet. I hope it turns out to be a conversation. I believe
we--you and I and this Committee--owe it to the American people
in this one democratic moment to have a conversation about the
issues that will affect their lives profoundly. They are
entitled to know what you think.
And I remind my colleagues, many of whom are on this
Committee, they sure wanted to know what Harriet Miers thought
about everything. They sure wanted to know in great detail.
They were about ready to administer blood tests. The good news
is no blood test here. The good news is no blood test, just a
conversation, and I hope you will engage in it with us because
I am anxious to get a sense of how you are going to approach
these big issues.
I thank you very much, Judge.
Chairman Specter. Thank you, Senator Biden.
Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
Welcome, Judge Alito, to your confirmation hearing. At the
outset, I am pleased to note that you have more judicial
experience than any Supreme Court nominee in more than 70
years. Indeed, only one Supreme Court Justice in history, one
Horace Lurton, nominated by President Taft, had more Federal
appeals court experience. Moreover, you have devoted virtually
your entire professional life to public service, and the Nation
owes you gratitude for that service. I look forward to a
dignified hearing followed by a fair up or down vote on the
Senate floor.
Before discussing your nomination, I would like to take a
moment to express my respect and admiration for the Justice
whom you are nominated to replace, my fellow Arizonan Sandra
Day O'Connor, whom I have known for more than 30 years. Justice
O'Connor has served with great distinction during her career in
the Arizona Legislature, on the Arizona Court of Appeals, and
for what has been a quarter of a century on the U.S. Supreme
Court. Arizonans are deeply proud of Justice O'Connor's service
to this country. She will always be remembered by Arizonans and
all Americans as an extraordinary public servant.
Judge Alito, I would like to discuss your background and
experience in the context of other Justices on the Supreme
Court so that everyone understands how well you satisfy what we
have come to expect from our top judges. Like all the sitting
Justices, you had an outstanding education. One of your
classmates at Yale Law School, Tony Kronman, who later went on
to be the dean of the law school and could, I believe, fairly
be described as a political liberal, has recently remarked, and
I quote, ``He impressed me''--speaking of you--``as being more
interested in the technical, intellectual challenges of the law
and its legal reasoning than its political uses or
ramifications.'' Thus, even in your early 20's, it appears you
were focused on the law as an independent pursuit rather than
using law to influence political ends.
With your intellect and education, you could have become a
wealthy attorney, but instead you devoted virtually all of your
legal career to the public service. In doing so, you meet, and
even exceed, the stellar examples set by Justices Thomas and
Souter, each of whom devoted most of their pre-judicial careers
to public service. Perhaps this is because, like Justices
Ginsburg and Scalia, you had a father who was an immigrant to
this Nation. It seems that immigrants often have a special
understanding of the incredible opportunities that this Nation
affords its citizens. Moreover, your father's long service to
the people of New Jersey both as a schoolteacher and as a civil
servant in the State legislature plainly served as a model for
you.
I also note that you served in the U.S. Army Reserves from
1972 until 1980. If confirmed, only you and Justice Stevens
would have any military experience. You would also be the first
Supreme Court Justice to have served in the Army Reserves since
Justice Frank Murphy did so during World War II.
You have spent much of your career as a Federal prosecutor
pursuing terrorists, mob kingpins, drug dealers, and others who
threaten our safety and our security. Justice Souter had a
distinguished career as a State prosecutor, but no sitting
Justice has served as a Federal prosecutor. Again, this
experience could prove helpful given that approximately 40
percent of the Supreme Court docket involves criminal matters.
You also served as an attorney in the executive branch.
Like Chief Justice Roberts, you served in the Solicitor
General's office representing our Government before the Supreme
Court. And like Justice Scalia, you served in the Office of
Legal Counsel, providing constitutional advice to the President
and the rest of the executive branch. In both of these roles,
your job was to advance the policies of a President who twice
won an electoral college landslide. He set the agenda, and you
helped him implement it.
Similarly, Justice Thomas served Presidents Reagan and Bush
in political/legal capacities, and Justice Breyer also worked
in political jobs, both in President Johnson's Justice
Department and as a lawyer to this Committee.
I note that you were just 39 when nominated to serve on the
Third Circuit. Justice Kennedy was only 38 when nominated to
the Ninth Circuit, and Justice Breyer only 42 when nominated to
the First Circuit. Like them, you now have a great deal of
hands-on experience that you can bring to the Court for years
to come.
During your judicial service, you amassed an impressive
record for the Senate to review, including more than 350
authored opinions. It is this judicial record that should be
the focus of this Committee, just as it was with all of the
other sitting Justices on the Court. It appears to me that you
easily fit into the mold of what this Nation has come to expect
from a Supreme Court Justice: a first-rate intellect,
demonstrated academic excellence, a life of engagement with
serious constitutional analysis, and a reputation for fair-
mindedness and modesty. These are the standards for a Supreme
Court Justice, and you plainly meet these expectations. As a
consequence, I view your nomination with a heavy presumption in
favor of confirmation. Before I conclude, I would like, though,
to address two other points.
First, some of my colleagues are fond of asking the
question, Which side are you on? You have heard that today.
Politicians must pick sides regularly, every time they vote, so
it is perhaps natural that they see the world as a battle
between competing groups. But it is wholly inappropriate as an
approach to the judicial role. The only relevant side is that
of the law and the Constitution. We do great injury to the
integrity of the court system when we start speaking of sides
and stop devoting ourselves to the pursuit of impartial
justice.
During Chief Justice Roberts's confirmation hearings, I was
struck by the way he answered the question. Then Judge Roberts
explained that he had been asked earlier in the confirmation
process, Are you going to be on the side of the little guy?
Roberts explained that this question troubled him, and this is
how he answered. He said, ``If the Constitution says that the
little guy should win, the little guy is going to win. But if
the Constitution says that the big guy should win, well, then
the big guy is going to win because my obligation is to the
Constitution. That's the oath. The oath that a judge takes is
not that I will look out for particular interests. The oath is
to uphold the Constitution and the laws of the United States.''
And this is the essence of justice. Our courts provide a
neutral forum for the adjudication of disputes under the law,
not based on economic or political power, on race, on sex, or
any other personal characteristics. Big guy, little guy--it
should make no difference. The rule of law demands neutrality.
Second, I want to address the proper scope of questioning
during these hearings, a matter that has also come up already.
As I reminded Chief Justice Roberts at his hearings, the
American Bar Association Model Code of Judicial Conduct
dictates that, and I quote, ``a judge or candidate for election
or appointment to judicial office shall not, with respect to
cases, controversies, or issues that are likely to come before
the court, make pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative
duties of the office.'' In other words, no judicial nominee
should answer any question that is designed to reveal how the
nominee will rule on any issue that could come before the
Court. This rule has come to be known as ``the Ginsburg
standard'' because Justice Ginsburg stated during her own
confirmation hearings that she would give no forecasts, no
hints about how she would rule on issues. And I was pleased to
see that Chief Justice Roberts refused to prejudge issues or
make promises in exchange for confirmation votes. We are all
better off because of his principled stand.
Soon after his confirmation, Justice Ginsburg was asked
about this Ginsburg standard as applied to the Roberts
hearings, and she said, ``Judge Roberts was unquestionably
right. My rule was I will not answer a question that attempts
to project how I will rule in a case that might come before the
Court.'' In other words, Justice Ginsburg reaffirmed the
Ginsburg standard.
In light of the Chief Justice's confirmation hearings and
Justice Ginsburg's later remarks, I asked my colleagues for
basic fair play. Apply the same standards to Judge Alito that
we applied to John Roberts, Stephen Breyer, Ruth Bader
Ginsburg, and all of the other sitting Justices. Let's not
invent a new standard for Judge Alito or change the rules in
the middle of the game. Politicians must let voters know what
they think about issues before the election. Judges should not.
And it is not a hypothetical matter. Senator Kennedy in his
opening statement expressed concern about the extent of the
executive branch's authority to conduct surveillance of
terrorists and said ultimately the courts will decide whether
the President has gone too far. Indeed they will.
Judge Alito, I will tell you the same thing I told John
Roberts. I expect you to adhere to the Code of Judicial
Conduct, and I want you to know that I will strongly defend
your refusal to give any indication of how you might rule on
any matter that might come before you as a judge or to answer
any question that you believe to be improper under the
circumstances. Congratulations, Judge Alito, on your
nomination.
Chairman Specter. Thank you, Senator Kyl.
Senator Kohl?
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman.
Judge Alito, let me also send my welcome to you this
afternoon and to your family. You are to be congratulated on
your nomination.
Through its interpretation of the Constitution, the Supreme
Court hugely shapes the fabric of our society for us and for
future generations. Over the course of more than 200 years, it
has found a right to equal education regardless of race. It has
guaranteed an attorney and a fair trial to all Americans, rich
and poor alike. It has allowed women to keep private medical
decisions private. And it has allowed Americans to speak, vote,
and worship without interference from their Government.
Through these decisions and many more, the judicial branch
has in its finest hours stood firmly on the side of individuals
against those who would trample their rights. In the words of
Justice Black, ``The courts stand against any winds that blow
as havens of refuge for those who might otherwise suffer
because they are helpless, weak, outnumbered, or because they
are nonconforming victims of prejudice or public excitement.''
As the guardian of our rights, the Supreme Court makes
decisions every year which either protect the individual or
leave him at the mercy of more powerful forces in our society.
They consider questions like when can a disabled individual sue
to gain access to a courthouse, when can a parent leave work to
care for a sick child, when should the Government be allowed to
listen to a private conversation, and when will the courthouse
doors open or close to an employee suffering discrimination at
work.
Whether interpreting the Constitution or filling in the
blanks of a law or a regulation, every word of the Court's
opinion can widen or narrow our rights as Americans and either
protect us or leave us more vulnerable to any winds that blow.
If confirmed, you will write the words that will either broaden
or narrow our rights for the rest of your working life. You
will be interpreting the Constitution in which we as a people
place our faith and on which our freedoms as a Nation rest. And
on a daily basis, the words of your opinions will affect
countless individuals as they seek protection behind the
courthouse doors.
Despite your enormous power, you will be free of all
constraints, unaccountable and unrecallable. We give Supreme
Court Justices this freedom because we expect them to remain
above the pull of politics, to avoid the effects of public
excitement and allow a broader view, not tied to the whims of
the majority at a certain moment in the history. So for only a
short time this month will the people through their Senators be
able to question and to judge you. In short, before we give you
the keys to the car, we would like to know where you plan to
take us.
To a certain extent, we know more about what is in your
heart and in your mind than we did with now Justice Roberts.
You have a long track record as a judge and as a public
official in the Justice Department. When we met privately and I
asked you what sort of Supreme Court Justice you would make,
your answer was fair when you said, ``If you want to know what
sort of a Justice I would make, then look at what sort of a
judge I have been.''
Taking this advice, your critics argue that your judicial
record demonstrates that you will not sufficiently protect the
individual, but will instead side with more powerful interests,
narrow the rights we enjoy, and leave individual Americans more
vulnerable to abuse. For example, they cite your Casey dissent
as diminishing the power of married women over their own
bodies. They identify your decision in the Chittister case as
evidence that you will make it harder for working people to
care for a family. They cite the Bray case and others where you
often side with corporations to block the victims of
discrimination from getting their day in court. Others raise
concerns about your views on the rights of the accused when
faced with the Government's enormous power in the criminal
justice process.
In addition to your record on the bench, your opponents
identify memos you wrote while in the Justice Department as
further evidence of your hostility to individual rights. For
example, in your now famous 1985 job application, you expressed
pride in some of the work you did in the Solicitor General's
office. You chose to single out the assistance that you
provided in crafting Supreme Court briefs urging that ``the
Constitution does not protect a right to an abortion.'' While
these statements came in the context of your work on behalf of
the Reagan administration, they were, nevertheless, your self-
proclaimed personal views.
In the same job application, you wrote that you had pursued
a legal career because you disagreed with many of the decisions
of the Warren Court, especially, and I quote, ``in the areas of
criminal procedure, the Establishment Clause, and
reapportionment.'' These Warren Court decisions establishing
one person/one vote, Miranda rights, and protections for
religious minorities are some of the most important cases
protecting our rights and our liberties, protecting minorities
against majority abuses and protecting individuals against
Government abuses, and yet antagonism toward these decisions
seems to have motivated your pursuit of the law.
Your supporters, on the other hand, contend that it is not
fair to select a few specific cases in light of a career as a
judge spanning 15 years. Further, they dismiss some of your
early memos in the Justice Department as old and not
particularly relevant. They argue that you are well within the
mainstream of judges, especially Republican-appointed judges.
So it is our job to sort out the truth about your record,
separate the rhetoric from the reality, and decide where you
will lead the country. We will need to examine whether, as your
critics contend, you will consistently side against the
individual or whether, as your supporters contend, you are a
mainstream conservative who will fairly decide all cases. I
hope these hearings will add to our record in making this
critical determination.
This would be an appropriate time to share my perspective
on how we will judge the nominee. We have used the same test
for each of the five previous Supreme Court nomination
hearings: a test of judicial excellence. Judicial excellence,
it seems to me, involves at least four elements:
First, a nominee must possess the competence, character,
and temperament to serve on the bench.
Second, judicial excellence means that a Supreme Court
Justice must have a sense of the values from which the core of
our political and economic system goes. In other words, we
should not approve any nominee whose extreme judicial
philosophy would undermine rights and liberties relied upon by
all Americans.
Third, judicial excellence requires an understanding that
the law is more than an intellectual game and more than a
mental exercise. He or she must recognize that real people with
real problems are affected by the decisions rendered by the
Court. Justice, after all, may be blind, but it should not be
deaf.
And, finally, judicial excellence requires candor before
confirmation. We are being asked to give the nominee enormous
power, and so we want to know what is in your mind and in your
heart.
Judge Alito, we are convinced that your intellect and
experience qualifies you for this position. I enjoyed meeting
you a few weeks ago and appreciated our discussion. Your legal
talents are undeniably impressive, and your opinions are
thoughtful and well reasoned. We are now familiar with your
abilities in your long tenure as a judge. And yet we do not
know whether the concerns some have raised about your judicial
philosophy are overstated or whether we need to have serious
doubts about your nomination. I look forward to these hearings
as an opportunity to learn more and measure whether you meet
our test of judicial excellence.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Thank you, Mr. Chairman.
Judge Alito, I want to welcome you and your family,
appreciate you being here with us today.
The Constitution gives the Senate a solemn duty, a solemn
duty when it comes to the nomination of any individual to sit
on the U.S. Supreme Court. While the President is to nominate
that individual, we in the Senate must provide our advice and
consent. This function is not well defined. The Constitution
does not set down a road map. It does not require hearings. In
fact, it does not even require questioning on your
understanding of the Constitution or the role of the Supreme
Court.
To me, however, these things are certainly important. The
reason is obvious. When it comes to the Supreme Court, the
American people have only two times when they have any input
into how our Constitution is interpreted and who will have the
privilege to do so. First, we elect a President who has the
power to nominate Justices to the Supreme Court. Second, the
people, acting through their representatives in the Senate,
have their say on whether the President's nominee should in
fact be confirmed.
Judge Alito, I want to use our time together today to make
a point about democracy. When it comes to our Constitution,
judges perform certainly an important role. But the people,
acting through their elected representatives, should play an
even more important role. After all, our Constitution was
intended as a popular document. It was drafted and ratified by
the people. It established democratic institutions. It entrusts
the people with the power to make the tough decisions. In most
cases, it prefers the will of the people to the unchecked rule
of judges. If confirmed, Judge, you should always keep this in
mind.
In my opinion, Chief Justice Roberts put it best during his
recent confirmation hearings, when he said, and I quote, ``The
Framers were not the sort of people, having fought a
revolution, having fought a revolution to get the right of self
government, to sit down and say, well, let's take all the
difficult issues before us, let's have the judges decide them.
That would have been the farthest thing from their mind,'' end
of quote.
Sometimes, Judge, however, I fear that the Supreme Court
forgets this advice. In the last 15 years, in fact, the Court
has struck down, in whole or in part, more than 35 acts of this
Congress, and nearly 60 State and local laws. Without question,
the Court does play a vital role in our constitutional system.
Sometimes local, State, and Federal law so clearly run afoul of
the Constitution, that the Court must step in and strike them
down.
In most cases, the Court performs this admirably and with
great restraint. In recent years, the Court has struck down
some laws that, in my opinion, did not deserve such a fate.
Take, for instance, the Americans with Disabilities Act; it
passed this Congress with overwhelming bipartisan support. The
law was supported by an extensive factual record, and it was
based on our Government's longstanding constitutional power to
fight discrimination wherever it exists. When the Court
considered the ADA in the Garrett case, however, it ignored the
Act's broad support, cast aside the legislative record, and
struck down a portion of the law. The decision was a close one,
5-4. The majority relied on a highly controversial legal
theory, and the case evoked a vigorous dissent.
This is precisely my problem with Garrett. In such a
difficult case where the Constitution does not clearly support
the majority's decision, the proper response is not to strike
down the law. In such a case, the Court should defer to the
will of the people. In other ways, Judge, the Court's recent
decisions have made life more difficult for the democratic
institutions that perform the day-to-day work of our Nation,
recent cases involving affirmative action and the posting of
the Ten Commandments on public property, which seem to me at
least to prove the point. The Court has upheld one affirmative
action program at the University of Michigan, but struck down
another one, and has allowed the posting of the Ten
Commandments outside of a public building, but banned it on the
inside in another case.
To add to the confusion, some of the Court's decisions
involve multiple concurrences and dissents, making it hard,
even for lawyers and judges to figure out what the law is and
why.
Chief Justice Roberts mentioned this problem at his
hearing. And in one of his final statements as Chief Justice,
William Rehnquist noted that one of the Court's decisions had
so many opinions within it that he--and I quote--``didn't know
we had so many Justices on the Court.''
What has emerged in certain areas, therefore, is a
patchwork, a patchwork that leaves local officials, State
legislators, Members of Congress and the public guessing what
the law permits and what it does not. In 1937, President
Franklin Roosevelt reminded us that the Constitution is, and I
quote, ``a layman's document, not a lawyer's contract.'' But
that very document does little to serve people when Supreme
Court decisions are written so that even high-price lawyers
cannot figure them out.
I am not the first to raise these democratic concerns. Many
have faulted the Court for its lack of clarity in certain cases
and many have criticized its recent lack of deference to
decisions made by State legislatures and Congress. In fact,
some have even suggested that this recent trend has transformed
our democracy from one founded on ``we, the people,'' to one
ruled by ``we, the Court.'' To me, the criticism has some
force. The Constitution empowers the people to resolve our
days' most contentious issues. When judges forget this basic
truth, they do a disservice to our democracy and to our
Constitution. Judges are not Members of Congress. They are not
State legislators, Governors, nor Presidents. Their job is not
to pass laws, implement regulations, nor to make policy. To use
the words of Justice Byron White, words that I quoted at our
last Supreme Court hearing: the role of the judge is simply to
decide cases; to decide cases, nothing more.
Judge, from what I have seen so far, you do not need much
reminding on this score. Your decisions are usually brief and
to the point. You write with clarity and common sense, and in
most cases you defer to the decisionmaking of those closest to
the problem at hand. I do not expect to agree with every case
that you decide, but your modest approach to judging seems to
bode well for our democracy.
Over the next several days the members of this Committee
will question you to find out what kind of Justice you will be.
This hearing is really our opportunity to try to answer that
question. Our constitutional system is founded on democracy, a
world of people, not the unchecked rule of judges. If
confirmed, it will be your job to faithfully interpret our
Constitution and to defend our democracy case by case. I wish
you well.
Thank you.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, Judge Alito. I am one that believes your
appointment to the Supreme Court is the pivotal appointment,
and because you replace Sandra Day O'Connor and because she was
the fifth vote on 148 cases, you well could be a very key and
decisive vote. So during these hearings, I think it is fair for
us to try to determine whether your legal reasoning is within
the mainstream of American legal thought and whether you are
going to follow the law regardless of your personal views about
the law.
Since you have provided personal and legal opinions in the
past, I very much hope that you will be straightforward with
us, share your thinking, and share your legal reasoning.
I would like to use my time to discuss with you some of my
concerns. I have very deep concern about the legacy of the
Rehnquist Court and its efforts to restrict congressional
authority to enact legislation by adopting a very narrow view
of several provisions of the Constitution, including the
Commerce Clause and the 14th Amendment. This trend, I believe,
if continued, would restrict and could even prevent the
Congress from addressing major environmental and social issues
of the future.
As I see it, certain of your decisions on the Third Circuit
raise questions about whether you would continue to advance the
Rehnquist Court's limited view of congressional authority, and
I hope to clear that up.
Let me give you one example here, and that is the Rybar
case. Your dissent argued that Congress lacked the authority to
ban the possession and transfer of machine guns based
essentially on a technicality. The congressional findings from
previous statutes were not explicitly incorporated in the
legislation. You took this position even though the Supreme
Court had made clear in 1939, the Miller case, that Congress
did have the authority to ban the possession and transfer of
firearms, and even though Congress had passed three Federal
statutes that extensively documented the impact that guns and
gun violence have on interstate commerce. I am concerned that
your Rybar opinion demonstrates a willingness to strike down
laws with which you personally may disagree by employing a
narrow reading of Congress's constitutional authority to enact
legislation.
The subject of Executive power has come up, and indeed it
is a very big one. I think we are all concerned about how you
approach and decide cases involving expanded Presidential
powers. Recently there have been several actions taken by the
administration that highlight why the constitutional checks and
balances between the branches of Government are so essential.
These include the use of torture, whether through an expansive
reading of law, or disregarding Geneva Conventions, including
the Convention on Torture, whether the President is bound by
ratified treaties or not, allowing the detention of American
citizens without providing due process--of course, Sandra Day
O'Connor was dispositive in the Hamdi case--and whether the
President can conduct electronic surveillance on Americans
without a warrant despite legislation that establishes a court
process for all electronic surveillance.
I am also concerned with the impact you could have on
women's rights, and specifically, a woman's right to choose. In
the 33 years since Roe was decided, there have been 38
occasions on which Roe has been taken up by the Court. The
Court has not only declined to overrule Roe, but it has also
explicitly reaffirmed its central holding. In our private
meeting, when we spoke about Roe and precedent, you stated that
you could not think of a case that has been reviewed or
challenged more than Roe. You also stated that you believe that
the Constitution does provide a right of privacy and that you
have a deep respect for precedent.
However, in 1985, you clearly stated that you believed Roe
should be overturned and that the Constitution does not protect
a woman's right to choose. So despite voting to sustain Roe on
the Third Circuit, your opinions also raise questions about how
you might rule if not bound by precedent, and of course,
obviously, I would like to find that out.
I am also concerned about the role the Court will play in
protecting individual rights in this and the next century.
Historically, the Court has been the forum to which individuals
can turn when they believed their constitutional rights were
violated. This has been especially noteworthy in the arena of
civil rights, and as has been mentioned, in that same 1985 job
application, you wrote that while in college you developed a
deep interest in constitutional law, and then you said,
motivated in part by disagreement with the Warren Court's
decisions, particularly in the areas of criminal procedure, the
Establishment Clause, and reapportionment. Now, of course, it
was the Warren Court that brought us Brown v. Board of
Education, and of course, reapportionment is the bedrock
principle of ``one man, one vote.'' So exactly what you mean by
this I think is necessary to clear up.
Now, additionally, Justice O'Connor was a deciding vote on
a critical affirmative action case involving the University of
Michigan, Grutter v. Bollinger. So your views here may well be
pivotal, so I think the American people deserve to know how you
feel, how you think, how you would legally reason affirmative
action legislation.
When you served in the Solicitor General's Office during
the Reagan administration, you argued in three cases against
the constitutionality of affirmative action programs, then once
on the Third Circuit, you sided against the individual alleging
discrimination in about three-quarters of the cases before you.
We have a lot to learn about what your views are and your
legal reasoning, and how you would apply that legal reasoning.
I really look forward to the questions, and once again, because
this appointment is so important, I hope you really will be
straightforward with us, and thereby be really straightforward
with the American people.
So thank you, and welcome.
Chairman Specter. Thank you, Senator Feinstein.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
I would like to also extend my congratulations to you,
Judge Alito and your family. It is a very special day, a great
honor to be nominated to the Supreme Court, the greatest court
in the world, in my view, and this will be a good process. The
Senate has an obligation to make a vigorous inquiry, and they
will do so. I just hope and truly believe that by the end of
these hearings your answers will be heard. The charges that I
have heard made I know will be rebutted. People will listen and
see the answers that you give, and when they do, they will feel
great confidence in you as a member of the Supreme Court.
You have a record as a brilliant but modest jurist, one who
follows the law, who exercises restraint and does not use the
bench as an opportunity to promote any personal or political
agenda. This is exactly what I believe the American people want
in a Justice to the Supreme Court. It is exactly what President
Bush promised to nominate. You represent philosophically that
kind of judge who shows restraint, but at the same time you
bring extraordinary qualifications and abilities.
As has been said, judges are not politicians. They must
decide discrete cases before them based on the law and the
facts of that case. They are not policymakers. Every lawyer
that has practiced in America knows that. That is what they
want in a judge. That is what I understand they believe you
are. That is why the ABA has given you their top rating, in my
view.
This ideal of American law is the rule of law. It is the
American ideal of justice, not to have an agenda, not to allow
personal views to impact your decisionmaking, and I am real
proud to see that your record indicates that.
I like Judge Roberts's phrase of ``modesty.'' I believe
that is your philosophy also. We had the opportunity for a time
to serve as United States Attorneys together. You were the top
prosecutor in the office in New Jersey, one of the largest in
the country. You had the whole State, much larger than my
office. I know your reputation as one of ability, but modesty.
In fact, I remember distinctly somebody told me, ``Don't
underestimate Sam Alito. He's a modest kind of guy, but he's
probably the smartest guy in the Department of Justice.'' I
think that is the reputation you had and one that you can be
quite proud of.
Your record of achievement is extraordinary. You were Phi
Beta Kappa at Princeton and a Woodrow Wilson scholar. You
attended Yale Law School. You were an editor of the law review,
elected by your colleagues, and of course, for a graduating law
student at a prestigious law school or any law school, being an
editor of the law review is an extraordinary honor.
You clerked for a Federal judge on the Third Circuit. You
were an Assistant United States Attorney. You did appellate
work, handling criminal cases, and as United States Attorney
you were primarily a prosecutor. As I have checked the record,
you will be the first person to serve on the Supreme Court
since Tom Clark, who was appointed by Harry Truman in 1949,
that had actual Federal prosecutorial experience, which I think
is a great value. Matter of fact, I know it is a value. I have
seen instances of Supreme Court rulings where errors have been
made, mostly as a result of just not understanding the system
and how it operates.
As an Assistant Solicitor General you argued 12 cases
before the Supreme Court. That is an extraordinary number.
Very, very few people in our country have had the opportunity
to do that. Very few lawyers will ever in their career do one
case much less 12.
So you did a great job, and I think that is why the ABA,
the American Bar Association has rendered their views on you.
It is a 15-member committee. All of them participate on a
Supreme Court nominee. They take this very seriously. They
interview judges with whom you work. They interview your
colleagues. They interview people who litigated against you.
They interview litigants who have lost before you as well as
those who won before you, your co-counsel. And at the
conclusion of all of that, they unanimously gave you their
highest possible rating. I think that is an important thing.
Some of us on our side of the aisle criticize the ABA. We say
they tilt a little to the left, but their analysis process and
the way they go about it provides valuable insight to this
Committee and to the people of America, that the people of the
country can know that they have interviewed a host of people
who have dealt with you in every single area of your life, and
they found you highly qualified, the best recommendation they
can give, and that is something you should take great pride in.
We do not want an activist judge. That is not what we want
in this country. By ``activist'' I mean a judge who allows his
personal views to overcome a commitment to faithfully following
the law, following the law as it is, not as you would like it
to be, good or bad, following that law. That is what we count
on. When we violate that, we undermine law, we undermine
respect for law, and endanger this magnificent heritage of law
that we have been given. From what I understand your approach
to law, you have it right, and your record indicates that.
The judicial oath you take is important. Some might say you
have to follow precedent and precedent is a very big part of
what you do, but you take the oath to swear that you will
support and defend the Constitution of the United States. You
will take that oath if confirmed, and you have already taken it
as a Third Circuit Judge. It is an oath not to decide whether a
decision is good policy or not. That is for the legislative
branch. It is not an oath to defend the wall that the Supreme
Court has enclosed sometimes around itself. It is not an oath
to avoid admitting error in previous decision. But let me be
more direct. The oath you take is not an oath to uphold
precedent whether that precedent is super duper or not. If you
love the Constitution, which I hope you do, and I intend to
inquire about that, you will enforce the Constitution as it is,
good and bad. That is your responsibility in our democracy.
We have already had this morning some matters that have
been raised, and I think are worthy of just responding to
briefly because allegations get made in these hearings, you may
never get a chance by the time this hearing is over to rebut
some of the things that have already been raised. Senator
Kennedy claimed that you have not offered an opinion or a
dissent siding with a claim of racial discrimination. I would
point him to U.S. v. Kithcart. There you made it clear that the
Constitution does not allow police officers to racially profile
black drivers. A police officer received a report that two
black males in a black sports car had committed three
robberies. Later they pulled over a driver because he was a
black man in a black sports car. You wrote that this violated
the Fourth Amendment. You stated that the mere fact that
Kithcart was black and the perpetrators had been described as
two black males was plainly insufficient.
They also may want to look at your majority opinion in
Brinson v. Vaughn, where you rule that the Constitution does
not allow prosecutors to exclude African-Americans from jurors,
and you granted the petitioner's habeas petition in that case,
reversing the conviction. You stated the Constitution
guarantees, ``that a State does not use peremptory challenges
of jurors to remove any black jurors because of his race, thus
a prosecutor's decision to refrain from discriminating against
some African-American voters does not cure discrimination
against others.''
As for dissents, you were the lone dissenter calling for an
expansive interpretation of civil rights laws. Your dissent
complained in an employer case that the majority had
substituted its own opinion for the law, and you dissented, and
later the Supreme Court vindicated you, 9-0.
I would also note you were questioned about judicial
independence. I think some of our people have mentioned that,
but an academic study of Federal Appeals Court opinions rated
you the fourth most independent judge in the Federal judiciary.
That is out of 98. They took that based on issues such as
whether or not you are most likely to disagree with judges or
agree with judges of a different political party.
Mr. Chairman, I thank you for your leadership, and look
forward to a vigorous hearing. I am confident this nominee has
the skills and graces to make an outstanding Supreme Court
Justice.
Chairman Specter. Thank you, Senator Sessions.
We are going to turn to one more Senator, Senator Feingold,
for an opening statement, and then we are going to take a 15-
minute break. We will have concluded the opening statements of
12 of our 18 Judiciary Committee members. That will leave us
four more. Then Senator Lautenberg and Governor Whitman to make
the formal presentation of Judge Alito, and then Judge Alito's
opening statement. At this time we will adjourn and we will
reconvene at 2:10.
Pardon me. We are going to proceed with you, Senator
Feingold.
[Laughter.]
Senator Feingold. Thank you, Mr. Chairman, I think.
Senator Leahy. This is called the potted plant routine,
Russ.
[Laughter.]
Chairman Specter. I am so anxious for the recess, I jumped
the gun a little.
[Laughter.]
STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM
THE STATE OF WISCONSIN
Senator Feingold. Mr. Chairman, I too want to welcome our
nominee and thank him in advance for the long hours that he
will put in this week.
Judge, I do greatly admire your legal qualifications, and
of course, your record of public service, and I wish you well
here. And as with the hearing and the nomination of Chief
Justice Roberts, I approach this proceeding with an open mind.
Judge Alito, I know that as a long-time student of the law
in the Supreme Court, you appreciate the importance of the
process that we begin today. A position on the Supreme Court is
one of the highest honors and greatest responsibilities in our
country. The Constitution requires the Senate to offer its
advice and decide whether to grant its consent to your
nomination, and the Senate has duly delegated to the Judiciary
Committee the task of examining your record and hearing your
testimony and responses to questions about your views.
So it is our job in these hearings to try to get a sense
for ourselves, for our colleagues who are not on the Committee,
and for the American people, of whether you should be given the
enormous responsibility of protecting our citizens'
constitutional freedoms on the Supreme Court. So you will,
obviously, face tough questions here, Judge.
No one is entitled to a seat on the Supreme Court simply
because he has been nominated by the President. I think the
burden is actually on the nominee to demonstrate that he should
be confirmed.
We begin these hearings today at an important time. Less
than a month ago we learned that this administration has for
years been spying on American citizens without a court order
and without following the laws passed by Congress. Americans
are understandably asking each other whether our Government
believes it is subject to the rule of law. Now more than ever
we need a strong and independent judicial branch. We need
judges who will stand up and tell the executive branch it is
wrong when it ignores or distorts the laws passed by Congress.
We need judges who see themselves as custodians of the rights
and freedoms that the Constitution guarantees even when the
President of the United States is telling the country that he
should be able to decide unilaterally, unilaterally, how far
these freedoms go.
To win my support, Judge Alito will have to show that he is
up to the challenge. His instincts sometimes seem to be to
defer to the executive branch to minimize the ability of the
courts to question the Executive in national security cases, to
grant prosecutors whatever powers they seek, and to deny relief
to those accused of crimes who assert that their constitutional
rights were violated. So it will be up to Judge Alito to
satisfy the Senate that he can be fair and objective in these
kind of cases.
We need judges on the bench who will ensure that the
judicial branch of Government is the independent check on
Executive power that the Constitution requires and that the
American people expect.
In these days of corruption investigations and indictments
in Washington, we also need judges who are beyond ethical
reproach. In 1990, when the judge appeared before this
Committee in connection with this nomination to the Court of
Appeals, Judge Alito promised to recuse himself from cases
involving a mutual fund company with which he had substantial
investments, Vanguard. He kept those investments throughout his
service on the Court of Appeals and still has them today. But
in 2002 he sat on a panel in a case involving Vanguard. Since
his nomination to the Supreme Court, we have now heard
different explanations from the nominee and his supporters
about why he failed to recuse himself. Needless to say, the
shifting explanations and justifications are somewhat
troubling. I hope that we will get the full and final story in
these hearings.
Before we grant lifetime tenure to Federal judges, and
particularly Justices of the Supreme Court, we must make sure
that they have the highest ethical standards. The stakes for
this nomination could hardly be higher. Justice O'Connor, as
many have said, was the swing vote in many important decisions
in the past decade. Her successor could well be the deciding
vote in a number of cases that have already been argued this
term, that may have to be reargued after a new Justice is
confirmed. The outcome of these cases could shape our society
for generations to come.
Now, we do not have the right to know how a nominee would
rule on those cases. Indeed, we should all hope that the
nominee does not know either, but we do have a right to know
what and how a nominee thinks about the important legal issues
that have come to the Court in recent years. Commenting on past
Supreme Court decisions, in my view, would no more disqualify a
nominee from hearing a future case on a similar topic than
would a current Justice participating in those past decisions.
Mr. Chairman, it simply cannot be that the only person in
America who cannot express an opinion on a case where Justice
O'Connor cast the deciding vote, is the person who has been
nominated to replace her on the Court.
So I look forward to questioning you, Judge Alito, about
Executive power, the death penalty, employment discrimination,
criminal procedure and other important topics, and I look
forward to your candid answers. I will have to say that I was
rather pleased that the judge was actually less guarded in our
private meeting, than were the other two Supreme Court nominees
who I had had the privilege to meet. I hope he is even more
forthcoming in this hearing.
Given his long judicial record and the memos we have seen
that express his personal views on legal issues, I expect
complete answers, and I think my colleagues do too. If a
nominee expresses a personal view on a legal issue in a memo
written over a decade ago, I think we and the American people
have the right to know if he still holds that view today.
Mr. Chairman, if confirmed to the Supreme Court, Judge
Alito is likely to have a profound impact on the lives of
Americans for decades to come. That is a fact. It is clear, Mr.
Chairman, from how you have planned these hearings, that you
recognize that.
Thank you for your efforts to ensure a full and fair
evaluation of this nominee, and I not only look forward to the
questioning, but I want to note that I have caused the recess
to occur 3 minutes and 40 seconds earlier than it normally
would have.
[Laughter.]
Chairman Specter. Thank you, Senator Feingold, for your
brevity.
We will now take a 15-minute recess until 2:15.
[Recess from 2 p.m. to 2:15 p.m.]
Chairman Specter. It is 2:15. We will resume these
hearings. Next up on opening statement is Senator Graham.
Senator Graham. Shall I wait or go ahead, Mr. Chairman?
[Pause.]
Chairman Specter. Senator Graham, you may begin.
STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman, and welcome back,
Judge. I would hate for you to miss my opening statement, a
loss for the ages.
Welcome to the Committee. Welcome to one of the most
important events in your life. You have got the people that
mean the most here with you today, your family, and I know they
are proud of you, and I am certainly proud of what you have
been able to accomplish.
To say the least, you come to the Senate in interesting
political times. There is going to be a lot of talk by the
Senators of this Committee about concepts that are important to
Americans, but what I worry the most about is your time,
believe it or not, will come and go. You will not be here
forever. It may seem that way, but I think you are going to be
just fine.
I don't know what kind of vote you are going to get, but
you will make it through. It is possible you could talk me out
of voting for you, but I doubt it. So I won't even try to
challenge you along those lines. I feel very comfortable with
you being on the Supreme Court based on what I know, and the
hearings will be helpful to all of us to find out some issues
that are important to us.
We had a talk recently about Executive power. That is very
important to me. In time of war, I want the executive branch to
have the tools to protect me, my family and my country. But
also I believe even during a time of war, the rule of law
applies.
I have got some problems with using a force resolution to
the point that future Presidents may not be able to get a force
resolution from Congress if you interpret it too broadly. And
we will talk about those things and we will talk more about it.
I am going to talk a little bit about some of the points my
colleagues have been making. Everybody knows you are a
conservative. The question is are you a mainstream
conservative. Well, the question I have for my colleagues is
who would you ask to find out. Would you ask Senator Kennedy?
Probably not. If you asked me who a mainstream liberal is, I
would be your worst person to pick because I don't hang out
over there.
I suspect that most all of us, if not all of us, will vote
for you, and I would argue that we represent from the center
line to the right ditch in our party and if all of us vote for
you, you have got to be pretty mainstream. So the answer to the
question, are you a mainstream conservative, will soon be know.
If every Republican member of the Judiciary Committee votes
for you and you are not mainstream, that means we are not
mainstream. And it is a word that means what you want it to
mean. Advise and consent means what? Whatever you want it to
mean. Advise and consent means the process has got to work to
the advantage of people I like, and with people I don't want on
the Court, it is a different process. That is politics.
Every Senator will have to live within themselves as to
what they would like to see happen for the judiciary. My main
concern here is not about you. It is about us. What are we
going to be doing as a body to the judiciary when it is all
said and done?
Roe v. Wade and abortion. If I wanted to work for Ronald
Reagan, one of the things I would tell the Reagan
administration is I think Roe v. Wade was wrongly decided. They
are likely to hire me because they were trying to prove to the
Court that the Court took away from elected officials a very
important right, protecting the unborn.
I was on a news program with Senator Feinstein this
weekend, who is a terrific person. She made a very emotional,
compelling argument that she can remember back-alley abortions
and women committing suicide when abortion was illegal. I
understand that is very seared in her memory banks and that is
important to her.
Well, let me tell you there is another side to that story.
There are millions of Americans, a bunch of them in South
Carolina, who are heartsick that millions of unborn children
have been sent to certain death because of what judges have
done. It is a two-sided argument. It is an emotional event in
our society.
They are talking about filibustering maybe if you don't
give the right answer. Well, what could possibly be the right
answer about Roe v. Wade? If you acknowledge it is a precedent
of the Court, well, then you would be right. If you refuse to
listen to someone who is trying to change the way it is applied
or to overturn it and you will say here I will never listen to
them, you might talk me out of voting for you. I don't think
any American should lose the right to challenge any precedent
that the Supreme Court has issued because the judge wanted to
get on the Court.
And you may be a great fan of Roe v. Wade and you think it
should be there forever. There may be a case where someone
disagrees with that line of reasoning. What I want from the
judge is the understanding that precedent matters, but the
facts, the brief and the law is what you are going to base your
decision on as to whether or not that precedent stands, not
some bargain to get on the Court, because I can tell you if
that ever becomes a reason to filibuster, there are plenty of
people that I personally know, if it became fashionable to
stand on the floor of the Senate to stop a nominee on the issue
of abortion, who feel so deeply, so honestly held belief that
an abortion is certain death for an unborn child that they
would stand on their feet forever.
And is that what we want? Is that where we are going as a
Nation? Are we going to take one case and one issue and if we
don't get the answer we like that represents our political view
on that issue, are we going to bring the judiciary to their
knees? Are we going to say as a body it doesn't matter how
smart you are, how many cases you have decided, how many things
you have done in your life as a lawyer, forget about it, it all
comes down to this one issue?
If we do, if we go down that road, there will be no going
back, and good men and women will be deterred from coming
before this body to serve their Nation as a judge at the
highest levels. What we are saying and what we are doing here
is far more important than just whether or not Judge Alito gets
through the process.
What is the proper role of a Senator when it comes to
advising and consenting? I would argue that if we start taking
the one or two cases we cherish the most and make that a litmus
test, we have let our country down and we have changed the
historical standard.
Elections matter. Values debates occur all over this
country. They occur in Presidential elections. It is no mystery
as to what President Bush would do if he won. He would pick
people like John Roberts and Sam Alito. That is what he said he
would do. That is exactly what he has done. He has picked solid
strict constructionists, conservatives, who have long,
distinguished legal careers.
What did President Clinton do? He picked people left of the
center who worked for Democrats. And it cannot surprise the
people on the other side that the two people we picked worked
for Ronald Reagan. We liked Ronald Reagan. President Clinton
picked Ginsburg and Breyer. Justice Ginsburg was the general
counsel for the ACLU. If I am going to base my decision based
on who you represented as a lawyer, how in the world could I
ever vote for somebody that represented the ACLU?
If I am going to make my decision based on whether or not I
agree with the Princeton faculty and administration policies on
ROTC students and quotas and I am bound by that, I will get
killed at home. What Princeton does with their admission
policies and whether or not a ROTC unit should be on a campus
is an OK thing to debate; at least I hope it is OK. I think
most Americans are going to be with the group that you are
associated with, not the policies of Princeton.
The bottom line is you come here as an individual with a
life well lived. Everybody who seems to have worked with you as
a private lawyer, public lawyer and as a judge admires you,
even though they may disagree with you.
My biggest concern, members of this Committee, is if we
don't watch the way we treat people like Judge Alito, we are
going to drive good men and women away from wanting to serve.
There will be a Democratic President one day. I don't know
when, but that is likely to happen, and there will be another
Justice Ginsburg come over. If she came over in this
atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't
get 98 votes, and that is sad to me.
I hope we will use this opportunity not only to treat you
fairly, but not use a double standard. I hope we will
understand that this is bigger than you, this is bigger than
us, and the way we conduct ourselves and what we expect of you
we had better be willing to expect when we are not in power.
Thank you.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
Judge Alito, welcome to you, Mrs. Alito, your two children,
the rest of your family. I join my colleagues in congratulating
you on your nomination. If confirmed, you will be one of nine
people who collectively hold power over everyone who lives in
this country. You will define our freedom, you will affect our
security, and you will shape our law. You will determine on
some days where we pray and how we vote. You will define on
other days when life begins and what our schools may teach, and
you will decide from time to time who shall live and who shall
die. These decisions are final and appeals impossible.
That is the awesome responsibility and power of a Supreme
Court Justice, and it is therefore only appropriate that
everyone who aspires to that office bear a heavy burden when
they come before the Senate and the American people to prove
that they are worthy.
But while every Supreme Court nominee has a great burden,
yours, Judge Alito, is triply high, first because you have been
named to replace Sandra Day O'Connor, the pivotal swing vote on
a divided Court; second, because you seem to have been picked
to placate the extreme right wing after the hasty withdrawal of
Harriet Miers; and finally, and most importantly, because your
record of opinions and statements on a number of critical
constitutional questions seems quite extreme.
So, first, as this Committee takes up your nomination, we
can't forget recent history, because that history increases
your burden and explains why the American people want us to
examine every portion of your record with great care.
Harriet Miers's nomination was blocked by a cadre of
conservative critics who undermined her at every turn. She
didn't get to explain her judicial philosophy, she didn't get
to testify at the hearing, and she did not get the up-or-down
vote on the Senate floor that her critics are now demanding
that you receive. Why? For the simple reason that those critics
couldn't be sure that her judicial philosophy squared with
their extreme political agenda. They seem to be very sure of
you. The same critics who called the President on the carpet
for naming Harriet Miers have rolled out the red carpet for
you, Judge Alito. We would be remiss if we didn't explore why.
And there is an additional significance to the Miers
precedent which is this: everyone now seems to agree that
nominees should explain their judicial philosophy and ideology.
After so many of my friends across the aisle spoke so loudly
about the obligation of nominees to testify candidly about
their legal views and their judicial philosophy when the
nominee was Harriet Miers, I hope we will not see a flip-flop
now that the nominee is Sam Alito.
The second reason your burden is higher, of course, is that
you are filling the shoes of Sandra Day O'Connor. Those are big
shoes to be sure, but hers are also special shoes. She was the
first woman in the history of the Supreme Court, is the only
sitting Justice with experience as a legislator, and has been
the most frequent swing vote in a quarter century of service.
While Sandra Day O'Connor has been at the fulcrum of the
Court, you appear poised to add weight to one side. That alone
is not necessarily cause for alarm or surprise, but is
certainly a reason for pause. Are you in Justice O'Connor's
mold or, as the President has vowed, are you in the mold of
Justices Scalia and Thomas?
Most importantly, though, your burden is high because of
your record. Although I haven't made up my mind, I have serious
concerns about that record. There are reasons to be troubled.
You are the most prolific dissenter in the Third Circuit.
This morning, President Bush said Judge Alito has the
intellect and judicial temperament to be on the Court. But the
President left out the most important qualification: a
nominee's judicial philosophy.
Judge Alito, in case after case, you give the impression of
applying careful legal reasoning, but too many times you happen
to reach the most conservative result. Judge Alito, you give
the impression of being a meticulous legal navigator, but in
the end you always seem to chart a right-ward course.
Some wrongly suggest that we are being results-oriented
when we question the results you have reached. But the opposite
is true. We are trying to make sure you are capable of being
fair, no matter the identity of the party before you.
Sometimes, you give the government a free pass, but refuse to
give plaintiffs a fair shake. We need to know that Presidents
and paupers will receive equal justice in your courtroom.
If the record showed that an umpire repeatedly called 95
percent of pitches strikes when one team's players were up and
repeatedly called 95 percent of pitches balls when the other
team's players were up, one would naturally ask whether the
umpire was being impartial and fair.
In many areas, we will expect clear and straightforward
answers because you have a record on these issues; for example,
Executive power, congressional power and personal autonomy,
just to name a few. The President is not a king, free to take
any action he chooses without limitation by law.
The Court is not a legislature, free to substitute its own
judgment for that of elected bodies, and the people are not
subjects, powerless to control their own most intimate
decisions. Will your judicial philosophy preserve these
principles or will it erode them?
In each of these areas, there is cause for concern. In the
area of Executive power, Judge Alito, you have embraced and
endorsed the theory of the unitary Executive. Your deferential
and absolutist view of separation of powers raises questions.
Under this view, in times of war the President would, for
instance, seem to have inherent authority to wiretap American
citizens without a warrant, to ignore congressional Acts at
will, or to take any other action he saw fit under his inherent
powers. We need to know, when a President goes to far, will you
be a check on his power or will you issue him a blank check to
exercise whatever power alone he thinks appropriate. Right now,
that is an open question, given your stated views.
Similarly on the issue of federalism, you seem to have
taken an extreme view, substituting your own judgment for that
of a legislature. Certainly, one important case you wrote, in
Rybar v. U.S., that Congress exceeded its power by prohibiting
the possession of fully automatic machine guns. Do you still
hold these cramped views of congressional power? Will you
engage in judicial activism to find ways to strike down laws
that the American people want their elected representatives to
pass and that the Constitution authorizes?
And, of course, you have made statements expressing your
view that the, quote, ``Constitution does not protect the right
to an abortion,'' unquote. In fact, you said in 1985 that you
personally believe very strongly this is true. You also spoke
while in the Justice Department of, quote, ``the opportunity to
advance the goals of bringing about the eventual overruling of
Roe v. Wade.''
It should not be surprising that these statements will
bring a searching inquiry, as many of my colleagues have
already suggested. So we will ask you, do you still personally
believe very strongly that the Constitution does not protect a
right to an abortion? We will ask, do you view elevation to the
Supreme Court, where you will no longer be bound by High Court
precedent, as the long-sought opportunity to advance the goals
of bringing about the eventual overruling of Roe v. Wade, as
you stated in 1985?
Judge Alito, I sincerely hope you will answer our
questions. Most of the familiar arguments for ducking direct
questions no longer apply and certainly don't apply in your
case. For example, the logic of the mantra repeated by John
Roberts at his hearing that one could not speak on a subject
because the issue was likely to come before him quickly
vanishes when the nominee has a written record, as you do, on
so many subjects.
Even under the so-called Ginsburg precedent, which was
endorsed by Judge Roberts, Republican Senators and the White
House, you have an obligation to answer questions on topics
that you have written about. On the issue of choice, for
example, because you have already made blanket statements about
your view of the Constitution and your support for overruling
Roe, you have already given the suggestion of pre-judgment on a
question that will likely come before the Court. So I
respectfully submit you cannot use that as a basis for not
answering.
So I hope, Judge Alito, that when we ask you about prior
statements you have made about the law, some strong, some even
strident, you will simply not answer, in effect, no comment.
That will not dismiss prior expressions of decidedly legal
opinions as merely personal beliefs, and that will enhance
neither your credibility nor your reputation for careful legal
reasoning.
I look forward, Judge, to a full and fair hearing.
Chairman Specter. Thank you, Senator Schumer.
Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Judge Alito, welcome to the Committee, and to your family
as well. I am a little surprised to learn that you have a
triply high burden for confirmation here. I guess we will get a
chance to explore that and the fairness of that, or whether all
nominees ought to have the same burden before the Committee.
What I want to also make sure of is that we don't hold you
to a double standard, that we don't expect of you answers to
questions that Justice Ginsburg and others declined to answer
in the interests of the independence of the judiciary and in
the interests of observing the canons of judicial ethics.
Nevertheless, we have already heard a great deal about you
and your credentials for the Supreme Court. As has been noted,
you served with distinction on the court of appeals. You have
served as a United States Attorney, and indeed you have served
your entire adult life in public service.
We have also heard a bit today--and we will hear more as
these proceedings unfold--about the testimonials from people
who have worked with you, people who know you best, whether
liberal, moderate or conservative. The judges on your court
have praised you as a thoughtful and open-minded jurist, and we
will hear more from them later in the week.
The same can be said of the dozens of law clerks who have
worked with you over the last 15 years. As you know, law clerks
are those who advise appellate judges on the cases they hear,
and you have had law clerks from all political persuasions,
from members of the Green Party, to Democrat clerks, even a
clerk that went on to serve as counsel of record for John
Kerry's campaign for President. And every single one of them
says that you will make a terrific Supreme Court Justice, that
you apply the law in a fair and even-handed manner, and that
you bring no agenda to your job as a judge.
If fairness, integrity, qualifications and an open mind
were all that mattered in this process, you would be confirmed
unanimously. But we know that is not how the process works, or
at least how it works today. We know that 22 Senators,
including 5 on this committee, voted against Chief Justice
Roberts's confirmation just a few short months ago. And my
suspicion is that you do not come here with a total level
playing field.
I am reluctantly inclined to the view that you and other
nominees of this President to the Supreme Court start with no
more than 13 votes on this Committee and only 78 votes in the
full Senate, with a solid, immovable, and unpersuadable block
of at least 22 votes against you, no matter what you say and no
matter what you do. Now, that is unfortunate for you, but it is
even worse for the Senate and its reputation as the world's
greatest deliberative body.
The question is why--with so many people from both sides of
the aisle and across the ideological spectrum supporting your
nomination--are liberal special interest groups and their
allies devoting so much time and so much money to defeat your
nomination? The answer, I am afraid, is that there are a number
of groups who really don't want a fair-minded judge who has an
openness to both sides of the argument. Rather, they want
judges who will impose their liberal agenda on the American
people--views so liberal that they cannot prevail at the ballot
box.
So they want judges who will find traditional marriage
limited to one man and one woman unconstitutional. They want
judges who will ban any trace of religious expression from the
public square. They even want judges who will prohibit
schoolchildren from reciting the Pledge of Allegiance. As I
say, none of these are mainstream positions embraced by the
American people. So the strategy is to try to impose their
agenda through unelected judges.
Judge Alito, the reason why these groups are trying to
defeat your nomination--because you won't support their liberal
agenda--is precisely why I support it. I want judges on the
Supreme Court who will not use their position to impose
personal policy preferences or a political agenda on the
American people. I want judges on the Supreme Court who will
respect the words and the meaning of the Constitution, the laws
enacted by Congress, and the laws enacted by State
legislatures.
Now, this doesn't mean, as you know, that a judge will
always reach what might be called a conservative result. It
means that judges will reach whatever result is directed by the
Constitution, by the law, and by the facts of a case. Sometimes
it might be called conservative, sometimes it might be called
liberal. But the point is that the meaning of the Constitution
and other laws should not change unless we the people change
them.
A Supreme Court appointment is not a roving commission to
rewrite our laws however you and your colleagues see fit. I
will give you one example of an area where I believe our
Supreme Court has been rewriting the Constitution for a long
time. It is an area near and dear to me and others in this
country. I am speaking of the ability of people of faith to
freely express their beliefs in the public square.
There is no doubt where the Founding Fathers stood on this
issue. They believed that people of faith should be permitted
to express themselves in public. They believed that this
country was big enough and free enough to allow expression of
an enormous variety of views and beliefs. They believed that
freedom of expression included religious views and beliefs, so
long as the government did not force people to worship in a
particular manner and remained neutral on what those views and
beliefs were.
But this country has gotten seriously off track under the
Supreme Court when it went so far as to limit the right of even
private citizens to freely express their religious views in
public. As I mentioned to you when we met early on in these
proceedings, I had an opportunity, as some have had on this
Committee, to argue a case before the U.S. Supreme Court. When
I was attorney general, I helped argue a case called Santa Fe
Independent School District v. Doe.
The school district in that case had the temerity to permit
student-led, student-initiated prayer before football games.
And, of course, someone sued. I repeat, this is student-led,
student-initiated, voluntary prayer. The Supreme Court held by
a vote of six to three that even this was unconstitutional.
The decision led the late Chief Justice Rehnquist to remark
that the Court now exhibits ``hostility to all things religious
in public life.'' It is hard to disagree with him. Depictions
or expressions of sex, violence, crime are all permitted
virtually without limit, but religion, it seems, never.
Now, this is where you come in, Judge Alito. I appreciate
your record on the Third Circuit respecting the importance of
neutrality of government when it comes to religious expression
on a voluntary basis by individual citizens. It is my sincere
hope that, when confirmed, you will persuade your colleagues to
reconsider their attitude toward religious expression and grant
it the same freedom currently reserved for almost all other
non-religious speech.
No wonder many in America seem to believe that the Supreme
Court has become one more inclined to protect pornography than
to protect religious expression. Most people in America don't
believe that ``God'' is a dirty word. But the sad fact is that
some Americans are left to wonder whether the Supreme Court
might have greater regard for it if it were.
Again, welcome to the Committee and thank you for your
continued willingness to serve our great Nation.
Chairman Specter. Thank you, Senator Cornyn.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. Judge
Alito, welcome to you and your family before the Judiciary
Committee. You have heard time and again from my colleagues why
this seat on the Supreme Court means so much. They have quoted
the statistics of 193 5-4 decisions where Sandra Day O'Connor
was the deciding vote in 148 of those instances. She was a
critical vote in issues of civil rights, human rights, workers'
rights, women's rights, restraining the power of an
overreaching President.
If you look at the record, the enviable record which Sandra
Day O'Connor has written, you find she was the fifth and
decisive vote to safeguard Americans' right to privacy, to
require courtrooms to grant access to the disabled, to allow
the Federal Government to pass laws to protect the environment,
to preserve the right of universities to use affirmative
action, to ban the execution of children in America. And
Justice O'Connor was the fifth vote to uphold the time-honored
principle, which bears repeating, of separation of church and
state. There was real wisdom in the decision of our forefathers
in writing a Constitution that gave us an opportunity to grow
as such a diverse Nation, and we should never forget it.
Justice O'Connor has been the critical decisive vote on
many issues that go to the heart of who we are as a Nation. We
believe, many of us, that the decision on filling this vacancy
is going to tip the scales of justice on the Supreme Court one
way or the other, and that is why we are so mindful of the
importance of our task.
Yesterday, the Chicago Tribune editorialized that anyone
who questions your nomination has a heavy burden of proof. I
disagree. I believe the burden of proof is yours, Judge Alito,
the burden of demonstrating to the American people and this
Committee that you or any nominee is worthy to serve on the
highest Court, to succeed Sandra Day O'Connor.
My friend Illinois Senator Paul Simon once said as a member
of this same Committee that the test for a Supreme Court
nominee is not where he stands on any given issue. The test is
this: Will you use your power on the Court to restrict freedom
or expand it? In the simplest terms, I think Paul Simon got it
right. That is the best test because the Supreme Court is the
last refuge in America for our rights and liberties. In my
lifetime, it is the Supreme Court, not Congress, that
integrated public schools, that allowed people of different
races to marry, and established the principle that our
Government should respect the value of privacy of American
families. These decisions are the legacy of Justices who chose
to expand American freedom. If you are confirmed, Judge Alito,
will you continue their legacy?
You and I spoke about the Griswold decision in my office.
It is hard to imagine that 40 years ago people could be
convicted of a crime, fined, and sent to prison for using the
most common forms of birth control. The Supreme Court looked at
that decision and said that is just wrong. We may not find the
word ``privacy'' in the Constitution, but that is just inherent
to our freedom as Americans. It seems like a given now. Who
would even question it? But it has not been that long ago that
up here on Capitol Hill we were involved in a bitter debate
over the tragedy of Terri Schiavo. And Republican congressional
leaders threatened Federal judges with impeachment if they did
not agree to intervene into that family's painful personal
decision. We see it in attempts on Capitol Hill to impose gag
rules on doctors on what they can say to their patients about
family planning. And we certainly see it now with an effort by
this Government to tap our phones, invade our medical records,
credit information, library records, and the most sensitive
personal information in the name of national security.
Now, Justice O'Connor was the critical fifth vote to
protect our right of privacy. We want to know whether you will
be that vote as well. You were the only judge on your court to
authorize a very intrusive search of a 10-year-old girl. You
were the only judge on your court who voted to diminish the
right of privacy in the case of Planned Parenthood v. Casey, a
position that was specifically rejected by the Supreme Court.
And as a Government lawyer, you wrote that you personally
believed very strongly the Constitution does not protect the
right to an abortion.
Like many, I have thought about this issue of abortion time
and again. It is not an easy issue for most people. I have
thought about the law and the impact of my personal religious
beliefs and feelings. I have thought about the real lives of
people and the tragic experiences of the women that I have met.
And I have come to believe over the years that a woman should
be able to make this agonizing decision with her doctor and her
family and her conscience and that we should be very careful
that we don't make that decision a crime except in the most
extreme circumstances.
There is also the issue of personal privacy when it comes
to the Executive power. Throughout our Nation's history, during
times of war, whether it was habeas corpus in the Civil War,
the Alien and Sedition Acts in World War I, or Japanese
internment camps in World War II, Presidents have gone too far.
And in going too far, they have taken away the individual
rights of American citizens. The last stop to protect those
rights and liberties is the Supreme Court. That is why we want
to make certain that when it comes to the checks and balances
of the Constitution, you will stand with our Founding Fathers
in protecting us from a Government or a President determined to
seize too much power in the name of national security.
As a Government lawyer, you pushed a policy of legislative
construction designed to make congressional intent secondary to
Presidential intent. You wrote, and I quote, ``The President
will get the last word on questions of interpretation.'' In
speeches to the Federalist Society, you have identified
yourself as a strong proponent of the so-called unitary
Executive theory. That is a marginal theory at best, and yet it
is one that you have said you believe in.
This is not an abstract debate. The Bush administration has
repeatedly cited this theory to justify its most controversial
policies in the war on terrorism. Under this theory, the Bush
administration has claimed the right to seize American citizens
in the United States and imprison them indefinitely without
charge. They have claimed the right to engage in torture, even
though American law makes torture a crime. Less than 2 weeks
ago, the White House claimed the right to set aside the McCain
torture amendment that passed the Senate 90-9. What was the
rationale? The unitary Executive theory, which you have
supported.
In the Hamdi case, Justice O'Connor wrote for the
plurality, and it has been quoted many times: ``A state of war
is not a blank check for the President when it comes to the
rights of the Nation's citizens.'' If you are confirmed, Judge
Alito, who will inspire your thinking if this President or any
President threatens our fundamental constitutional rights? Will
it be the Federalist Society or will it be Sandra Day O'Connor?
Two months ago, Rosa Parks was laid to rest. Her body laid
in state in the Capitol Rotunda, a fitting tribute to the
mother of our modern civil rights movement. Her courage is well
known. The courage of Federal Judge Frank Johnson, whom we
talked about, is well known as well. He was the one who gave
the legal authority for the right to march from Selma to
Montgomery, and he suffered dearly for it. He was ostracized
and rejected. His life was threatened as a result of it.
When we met in my office, Judge Alito, you told me about
how your father as a college student was almost expelled for
standing up to the college president who decided that the
school basketball team should not use its African-American
players against an all-white opponent. That university
president did not want to offend their all-white opponent, but
your dad stood up, and you were so proud of that moment in your
family history. I admire your father's courage as well. But
just as we do not hold the son responsible for the sins of the
father, neither can we credit the son for the courage of the
father. As Supreme Court Justice, would you have the courage to
stand up for civil rights even if it is unpopular?
We want to understand what you meant in 1985 when you said
from the heart that you disagreed with the Warren Court on
reapportionment, the one man/one vote principle. That was a
civil rights decision. We want you to explain your membership
in an organization that you highlighted at Princeton University
that tried to challenge the admission of women and minorities.
And I think we want to make certain of one thing. We want to
make certain that every American who stood in silent tribute to
Rosa Parks hopes that you will break your silence and speak out
clearly for the civil rights that define our unity as a Nation.
There have been many controversial cases alluded to here.
Some people have questioned, What is the difference? What
difference in my life does it make if Sam Alito is on the bench
or if he isn't? Why would I care if it is a narrow
interpretation or a broad interpretation of the law? How does
it affect my life? We know it affects everyone's life. We were
reminded just very recently with the tragedy that was in the
headlines. In one of your dissents, you would have allowed a
Pennsylvania coal mine to escape worker safety and health
requirements required by Federal law. Last week's tragedy at
the Sago mine reminds us that such a decision could have life
and death consequences.
Judge Alito, millions of Americans are concerned about your
nomination. They are worried that you would be a judicial
activist who would restrict our rights and freedoms. During
your hearing, you will have a chance to respond, and I hope you
do. More than any recent nominee, your speeches, your writings,
your judicial opinions make it clear that you have the burden
to prove to the American people that you would not come to the
Supreme Court with any political agenda. Clear and candid
answers are all that we ask.
I sincerely hope you can convince the U.S. Senate and the
American people that you will be a fifth vote on the Supreme
Court that the American people can trust to protect our most
basic important freedoms and preserve our time-honored values.
Thank you very much.
Chairman Specter. Thank you, Senator Durbin.
Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman.
Welcome, Judge Alito, your wife and family. Delighted to
have you here. You only have two more pitchers, and then you
get a bat. So I am sure people will be happy to hear from you.
Mr. Chairman, before I go forward with my statement, I
would like to enter into the record a summary of four cases
that Judge Alito has ruled on where he backed employees
claiming racial discrimination. It has been entered a couple of
times here that he has not ruled in favor of people claiming
racial discrimination, and I have a summary of four cases where
he has, and I want to enter that into the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Judge Alito, I welcome you to the
hearing. This is an extraordinary process. It is a fabulous
process and a chance for a discussion with you, with the
American public, about the role of the judiciary in our society
today. It has become an ever-expanding and important discussion
because of the expanding role of the courts in recent years in
American society. When the courts, improperly, I believe,
assume the power to decide more political than legal issues in
nature, the people naturally focus less on the law and more on
the lawyers that are chosen really to administer the law. Most
Americans want judges who will stick to interpreting the law
rather than making it. It is beyond dispute that the
Constitution and its Framers intended this to be the role of
judges.
For instance, although he was perhaps the leading advocate
for expansive Federal power, you can look at Founding Father
Alexander Hamilton, nevertheless assuring--assuring--the
countrymen in Federalist 78 that the role of the Federal courts
under the proposed Constitution would be limited. He said,
``The courts must declare the sense of the law, and if they
should be disposed to exercise will instead of judgment, the
consequences would equally be the substitution of their
pleasure to that of the legislative body.''
It seems like we are back at an old debate--the role of the
courts--and I believe you and others would look and say that
the role of the courts is limited, and it is not to decide
political matters.
Chief Justice Marshall later explained in Marbury v.
Madison that the Constitution permitted Federal courts neither
to write nor execute the laws but, rather, to say what the law
is. That narrow scope of judicial power was the reason the
people accepted the idea that the Federal courts could have the
power of judicial review. That is the ability to decide whether
a challenged law comports with the Constitution.
The people believed that while the courts would be
independent, they would defer to the political branches on
policy issues. This is the most foundational and fundamental of
issues. And yet we are back in discussing it because of the
role of the judiciary expanding in this society today.
It may seem ironic, but the judicial branch preserves its
legitimacy through refraining from action on political
questions. That concept was put forward best by Justice
Frankfurter, appointed by President Roosevelt. He said,
``Courts are not representative bodies. They are not designed
to be a good reflex of a democratic society. Their judgment is
best informed and, therefore, most dependable within narrow
limits.''
Now, I want to take on this point of the reservation of
certain seats on the bench for certain philosophies, which it
seems as if we have heard a great deal about today that you
need to be like Sandra Day O'Connor in judicial philosophy to
be able to go on her seat on the bench. Some interest groups
have put forward that philosophy and argued that you deserve
closer scrutiny because you don't appear to have the same
philosophy, or even opposition if it is not determined that you
do not have the same judicial philosophy. This testimony
suggests that that would change the ideological balance, that
you would change that ideological balance, therefore, you
should not be approved. And I say that that notion is not
anywhere in the understanding of the role of the judges. It
creates a double standard for your approval and looks
conveniently--it looks suspiciously convenient for the
opposition to put forward.
Seats on the bench are not reserved for causes or
interests. They are given to those who will uphold the rule of
law so long as the nominee is well qualified to interpret and
apply the law. This has long been the case of the Supreme
Court. And I want to note here that historically the makeup of
the Court has changed just as elected branches have changed. In
fact, nearly half of the Justices, 46 of 109, who have served
on the Supreme Court replaced Justices appointed by a different
political party. In recent years, even as the Court has become
an increasingly political body, the Senate is not focused on
preserving any perceived ideological balance when Democrat
Presidents have appointed people to the Court. And the best
example of that is the Senate rejecting that notion when Ruth
Bader Ginsburg came in front of the Senate and was approved 96-
3 to be on the Supreme Court to replace conservative Justice
Byron White. This was in 1993.
Now, Justice Ginsburg, it was noted earlier, was the
general counsel for the ACLU, certainly a liberal group. It was
abundantly clear during the confirmation hearing that Ginsburg
would swing the balance of the Court to the left. But because
President Clinton won the election and because Justice Ginsburg
clearly had the intellectual ability and integrity to serve on
the Court, she was confirmed.
During her hearing, hardly any mention was made about
balance with Justice White. The only discussion that occurred
about Justice White was when Senator Kohl, our colleague, asked
her what she thought of Justice White's career. And she started
off by saying that she was not an athlete.
History has shown that she did, in fact, dramatically
change the balance of the Court in many critical areas, such as
abortion, the privacy debate expansion, and child pornography.
And I have behind me three of the key cases where Justice White
ruled one way, even wrote the majority opinion, and Justice
Ginsburg ruled the other way with the majority. You talk about
a swing of balance, and yet the issue was not even raised at
Justice Ginsburg's confirmation hearing, and yet now it seems
as if that is the paramount issue--not only the paramount
issue, it actually makes you have to go to a higher standard to
be approved. And that is just simply not the way we have
operated in the past, nor is it the way we should operate now.
As I stated at Justice Roberts's hearing, the Court has
injected itself into many of the political debates of our day,
and as my colleague Senator Cornyn has mentioned, the Court has
injected itself in the definition of marriage, deciding whether
or not human life is worth protecting, permitting Government to
transfer private property from one person to another, even
interpreting the Constitution on the basis of foreign and
international laws.
The Supreme Court has also issued and never reversed a
number of decisions that are repugnant to the Constitution's
vision of human dignity and equality. Although cases like Brown
v. Board of Education in my State are famous for correcting
constitutional and court errors, there remain several other
instances in which the Court strayed and stayed beyond the
Constitution and the laws of the United States. Among the most
famous of these Supreme Court cases of exercise of political
power, I believe, are the cases of Roe v. Wade and Doe v.
Bolton, two 1973 cases based on false statements which created
a constitutional right to abortion. And you can claim whatever
you want to of being pro-life or pro-choice, but the right to
abortion is not in the Constitution. The Court created it. It
created a constitutional right. And these decisions removed a
fully appropriate political judgment from the people of several
States and has led to many adverse consequences.
For instance, it has led to the almost complete killing of
a whole class of people in America. As I noted to my colleagues
in the Roberts hearings, this year--this year--between 80 to 90
percent of the children in America diagnosed with Down syndrome
will be killed in the womb simply because they have a positive
genetic test--which can be wrong and is often wrong, but they
would have a positive genetic test for Down syndrome and they
will be killed.
America is poorer because of such a policy. We are at our
best when we help the weakest. The weak make us strong. To kill
them makes us all the poorer, insensitive, calloused, and
jaded. Roe has made it not only possible but has found it
constitutional to kill a whole class of people simply because
of their genetic makeup. This is the effect of Roe.
I think this is a proper issue for us to consider, and the
judge you are replacing noted one time ``that the Court's
unworkable scheme for constitutionalizing abortion has had this
institutionally debilitating effect should not be surprising
since the Court is not suited to the expansive role it has
claimed for itself in the series of cases that began with
Roe.''
You will have many issues in front of you, many that we
will not discuss here in front of this committee. I think it
unfortunate that we only narrow in on so few of the cases that
you are likely to hear in front of you. And yet that is the
nature of the day because they are the hot, political, heat-
seeking cases. You are undoubtedly qualified. You are cited by
the ABA to be unanimously well qualified. I look forward to a
thorough discussion and a hopeful approval of you to be able to
join the Supreme Court of the United States.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
We now move to the final opening statement. When we finish
the statement of Senator Coburn, we are going to go right to
the presenters, Senator Lautenberg and Governor Whitman. So I
would like them to be on notice that we will be doing that in
just a few moments, and following Senator Lautenberg and
Governor Whitman, we will be hearing from Judge Alito.
Senator Coburn, the floor is yours.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you. Judge Alito, welcome. I know you
are tired of this, and I will try to be as brief as possible.
One of the advantages of going last is to be able to hear
what everybody else has said, and as I have listened today, we
have talked about the unfortunate, the frail. The quotes have
been ``fair shake for those that are underprivileged.'' We have
heard values, ``strong, free, and fair,'' ``progress of our
judiciary.'' We have heard ``the vulnerable, the more
vulnerable, the weak, those who suffer.'' We have heard of an
``Alito mold'' that has to be in the mold of somebody else. And
as a practicing physician, the one disheartening thing that I
hear is these very common words, this ``right to choose,'' and
how we sterilize that to not talk about what it really is.
I have had the unfortunate privilege of caring for over 300
women who have had complications from this wonderful right to
choose to kill their unborn babies. And that is what it is. It
is a right of convenience to take the life. And the question
that arises as we use all these adjectives and adverbs to
describe our positions as we approach a Supreme Court nominee
is where are we in America when we decide that it is legal to
kill our unborn children. I mean, it is a real question for us.
I debate honestly with those who disagree with me on this. It
is a real issue of measurement of our society when we say it is
fine to destroy unborn life who has a heartbeat at 16 days
post-conception; 39 days post-conception you can measure the
brain waves and there is pain felt. The ripping and tearing of
an unborn child from its mother's womb through the hands of
another and we say that is fine, you have a constitutional
right to do that.
How is it that we have a right of privacy and due process
to do that, but you do not have the right, as rejected
unanimously by the Supreme Court in 1997, to take your own life
in assisted suicide. You know, how is it that we have sodomy
protected under that due process, but prostitution unprotected.
It is schizophrenic. And the reason it is schizophrenic is
there is no foundation for it whatsoever other than a falsely
created foundation that is in error.
I don't know if we will ever change that. It is a measure
of our society. But the fact is you cannot claim in this Senate
hearing to care for those that are underprivileged, those that
are at risk, those that are vulnerable, those that are weak,
those that are suffering, and at the same time say I don't care
about those who have been ripped from the wombs of women and
the complications that have come about throughout that.
So the debate for the American public and the real debate
here is about Roe. Don't let it--we are going to go off in all
sorts of directions, but the decisions that are going to be
made in votes on the Committee and the votes on the floor is
going to be about Roe, whether or not we as a society have
decided that this is an ethical process, that we have this
convenient process that, if we want to rationalize one moral
choice with another, we just do it through abortion, this
taking of the life--of life of an unborn child.
I asked Chief Justice Roberts about this definition of
life. You know, what is life? The Supreme Court cannot figure
it out or does not want to figure it out. The fact that we know
that there is no life if there is no heartbeat and brain waves,
we know that in every State and every territory. But when we
have heartbeat and brain waves, we refuse to accept it as the
presence of life. This lack of logic of which we approach this
issue because we like and we favor convenience over ethics, we
favor convenience over the hard parts of life that actually
make us grow.
Senator Brownback talked about those with disabilities that
are destroyed in the womb because of a genetic test that is
sometimes wrong. I would put forward that we all have
disabilities. Some of us, you just can't see it. And yet who
makes the decision on whether or not we're qualified or not. We
have gone down a road to which we don't have the answers for.
That is why we have the schizophrenic decisions coming out of
the Supreme Court that don't balance logically with one versus
another decision.
So my hope as we go through this process is to not confuse
it with easy words and really be honest and straightforward
about what this is about. I firmly believe that the Court
should take another direction on many of these moral issues
that face us. If we are to honor the heritage of our country,
whether it be in terms of religious freedom, whether it be in
terms of truly protecting life, protecting not just the unborn
but who comes next, the infirm, the elderly, the maimed, the
disabled--that is who comes next. As we get into the budget
crunch of taking care of those people in the years to come, I
believe we ought to have that debate honestly and openly. But
the fact is we are going to cover it with everything except the
real fact is we have made a mistake going down that road in
terms of saying we can destroy our unborn children and there
are no consequences to it.
So I welcome you. This is a difficult process for you and
your family. I am hopeful that you will be treated fairly. I am
very disturbed at the picture that was painted by Senator
Kennedy that you are not a man of your word, that you are
dishonest. The implication that you are not reliable I don't
think is a fair characterization of what I have read. And I
look forward to you being able to give answers as you can to
your philosophy. The real debate is we have had an activist
Court, and the American people do not want an activist Court.
And the real fear from those who might oppose you is that you
will bring the Court back within a realm of where the American
people might want us to be with the Supreme Court, one that
interprets the law, equal justice under the law, but not
advancing without us advancing, the legislative body advancing
ahead of you.
I welcome you. I return the balance of my time, and I look
forward to your introduction and your opening statement.
Chairman Specter. Thank you very much, Senator Coburn.
We will now turn to our presenting witnesses, Senator
Lautenberg and Governor Whitman. In accordance with our
standing rules of the Committee, the presenters will each have
5 minutes. They have been so informed, and we first welcome our
colleague, Senator Frank Lautenberg, to present Judge Alito.
PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES, BY HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE
OF NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman, and Senator
Leahy, colleagues on this Committee. Thank you for the
opportunity to testify here today. John Corzine, U.S. Senator,
and now Governor-elect in New Jersey, wanted to be here, but
transition duties in Trenton prevent him from doing so.
Now, I have been honored to serve in the U.S. Senate for 21
years, and I am convinced that our duty to provide advice and
consent for Justices of the Supreme Court is our most important
constitutional responsibility. Our mandate is to be a Nation of
laws, and the Supreme Court is the place where we look to
safeguard our civil rights and our individual liberties.
But I believe that Justices must recognize that our
Constitution is an 18th century document that needs to be
applied in the context of the 21st century. We also depend on
the Supreme Court to uphold the integrity of our Government. So
I am privileged to have the opportunity to introduce Sam Alito,
Jr., to this Committee, and his beautiful family that he
brought along to fortify his candidacy.
Judge Alito was born and raised in the great State of New
Jersey. Our State has a legacy of producing outstanding
jurists, most notably the late William J. Brennan, who ushered
in our Nation's re-commitment to civil rights in the latter
half of the 20th century. Another distinguished jurist, Justice
Antonin Scalia, also was born in New Jersey.
In 1950, Sam Alito was born in our State's capital city,
Trenton, New Jersey, to a family of worthy achievement. Judge
Alito's father--I am moving too quickly here--Judge Alito's
father was an immigrant from Italy who taught history in high
school and later ran the New Jersey Office of Legislative
Services, which is similar to our own congressional Research
Service, in that it provides objective, unbiased information to
the legislature. Judge Alito's mother was a librarian, teacher
and school principal, and she is now 91 and still, as I
understand it, residing in the family home in Hamilton, New
Jersey.
From his parents, Judge Alito learned the importance of
education and integrity. Judge Alito and his sister went to
public school in Hamilton, New Jersey, where they both joined
the debating team. It seemed like the debating experience paid
off, as both he and his sister have excelled in the legal
profession.
Sam Alito then went on to Princeton University, where his
yearbook entry predicted that one day he would warm a seat on
the Supreme Court. He graduated from Yale School in 1975, and
then served as a clerk for Circuit Court Judge Leonard Garth,
with whom he currently serves.
In 1977, Sam Alito joined the U.S. Attorney's office in
Newark, where he met his future wife, Martha, who is present
here today. They later moved to Washington, where Sam Alito
served as an assistant to the Solicitor General and later in
the Department of Justice Office of Legal Counsel.
In 1987, Judge Alito returned home to New Jersey after
President Reagan appointed him U.S. Attorney for the District
of New Jersey. He was a strong prosecutor, and nobody was
surprised when President George H.W. Bush appointed him to the
Third Circuit Court in 1990, and I had the privilege of
introducing him then as well.
Judge Alito's accomplishments in life are the embodiment of
the American dream. I am honored today to introduce him to the
Committee. He is a young man. If the Senate confirms him for a
lifetime appointment to the Supreme Court, he could serve for
three decades, or even longer, especially judging it from my
point of view. His decisions would affect our rights, the
rights of our children, our grandchildren, and other future
generations.
Mr. Chairman, you know well it is the job of this Committee
to evaluate Judge Alito's qualifications and fitness for the
Court, including his views on legal issues. And I know every
member of the Committee takes that obligation seriously, and I
trust that Judge Alito will be forthcoming and cooperative in
this process. I have had a chance to meet him. I know that he
responded to the questions that I put to him. Maybe they were
too easy, but he responded very well to them.
I thank you, Mr. Chairman. I am pleased to be here with our
former Governor, Christie Whitman, and we haven't sat at a
table together for a long time, but it is a good opportunity to
do so.
Thank you.
Chairman Specter. Senator Lautenberg, do you care to make a
recommendation on the nominee?
Senator Lautenberg. I care to present the evidence, just
the evidence, Mr. Chairman, and we will let the record speak
for itself.
Chairman Specter. Our next presenter is Governor Whitman,
distinguished two-term Governor for the State of New Jersey,
and in the Cabinet of President Bush as Administrator of the
Environmental Protection Agency.
We welcome you here, Governor Whitman, and look forward to
your testimony.
PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES, BY CHRISTINE TODD WHITMAN, FORMER GOVERNOR OF NEW
JERSEY, AND FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION
AGENCY
Governor Whitman. Thank you, Mr. Chairman. It is a pleasure
to be here today with Senator Lautenberg to introduce Judge
Samuel A. Alito, Jr., and I do urge your support for his
nomination to the Supreme Court.
I won't go into his family background. Senator Lautenberg
has done that--save to mention one member of the family that he
didn't, which is that the Judge's sister, Rosemary, is a
nationally recognized employment attorney and someone who is
recognized as part of a family that has devoted itself to
public service and continues to do that.
Judge Alito personifies the motto of the civic pride
embodied in the slogan of his hometown, ``Trenton makes, the
world takes.'' And with the consent of the Senate, one of the
most important bodies in the world, the U.S. Supreme Court, can
take a proud product of Trenton, New Jersey, into their
chambers.
But I am not here to discuss Judge Alito's family
background or his State ties. I am here to discuss his own
history of achievement and his potential to be a great
Associate Justice of our Supreme Court.
Sam Alito has excelled at everything he has undertaken. He
was an exceptional student at Princeton University and Yale Law
School, an outstanding young attorney at the Justice
Department, an accomplished United States Attorney, and for the
past 15 years has been a respected and exemplary Federal
Appeals Court Judge.
The American Bar Association just gave him their highest
rating for his seat as Justice, and in his past two appearances
before the Senate for confirmation, he has received unanimous
support.
There is, however, more to my support of Judge Alito. Like
other Americans, I have read many articles dissecting positions
Judge Alito has taken throughout his career, trying to discern
how he might decide on issues likely to appear before the
Supreme Court that he would confront as a Justice. I too have
examined the record. In the final analysis, my decision to
support Judge Alito for this position is not based on whether I
agree with him on a particular issue or set of issues or on his
conformity with any particular political ideology. In fact,
while we may agree on some political issues, I know there are
others on which we disagree. Nevertheless, one's agreement or
disagreement on a political question is, after all, ultimately
irrelevant to the issue of whether or not Judge Alito should
serve as an Associate Justice of the Supreme Court.
The Court's role is not to rule based on Justices' personal
persuasions, rather on persuasive arguments grounded on fact,
those facts presented in that particular case, and on their
interpretation of the Constitution. Those decisions are, of
course, grounded in the hard reality of disputed fact and the
messiness of the real world, but they are also guided by
principles of law and justice which have long been treasured by
the people of this country. We should look for Justices who
understand that instinctively in the very core of their being.
I saw this trait in Judge Alito when he served on the Appeals
Court during my terms as Governor, and I have every reason and
every confidence that he will exhibit the same as a Supreme
Court Justice.
Policy in the United States is defined through the laws
crafted by the legislative branch of Government and carried out
by the executive. Our judges make decisions based on their
interpretation of the intent of those laws. We do not want
Justices to conform their decisions' ideologies. We do want
Justices whose opinions are shaped by the facts before them and
by their understanding of the Constitution. We should also look
for Justices who possess the necessary qualities of intellect
and humility, desirable in those with great responsibility and
who can express their thinking clearly and in understandable
language. While we should expect the Justices will hold
philosophies that will guide their decisions, we should equally
expect that they will not hold ideologies that will
predetermine their decisions. That is the genius of our system.
Mr. Chairman, some have suggested that Judge Alito has an
ideological agenda. I believe that an honest and complete
review of his record as a whole will find that his only agenda
is fidelity to his judicial craft. If Judge Alito has a bias,
it is in favor of narrowly drawn opinions that respect
precedent and reflect the facts before him.
Members of the Committee, yours is an extraordinary
responsibility. Decisions by our Supreme Court will affect the
lives of Americans for generations to come. As politicians,
whether current or retired, we all have deeply held positions
we want to protect. When I was Governor, it fell to me five
times to appoint members of the New Jersey State Supreme Court.
One thing that experience taught me was that it is virtually
impossible to find judges who will act as you would act were
you in their position. That is as it should be. Your
responsibility is to the extent possible to determine whether
or not the nominee before you has the legal background,
intelligence and integrity to be a credit to the Court.
Sam Alito has been a model as a Federal Appeals Court
Judge. He has shown that he has the intellect, the experience
and the temperament to serve with true distinction. I have
every confidence he will be a balanced, fair and thoughtful
Justice. I urge this Committee to favorably report his
nomination to the U.S. Senate.
Thank you very much.
Chairman Specter. Thank you very much, Governor Whitman.
Without objection, the statement of Senator Corzine will be
made a part of the record.
We appreciate your coming, Senator Lautenberg, appreciate
your coming Governor Whitman.
Judge Alito, if you will resume center stage. Judge, you
can remain standing. We now come to the formal swearing in of
the nominee. I count 41 cameras in the well.
[Laughter.]
Chairman Specter. And there are just behind you, a grouping
of cameras, seven in number, and I see three more. So you are
well up to 50, which exceeds the number present, only 28, for
Chief Justice Roberts. So that may be an omen. I am stalling
for time a little bit here to allow the photographers to
position themselves. They have sat, if not patiently,
impatiently, all day. We may move the swearing in to the
beginning of the ceremony in the future so they can all go out
and do something productive.
[Laughter.]
Chairman Specter. If you would raise your right hand, do
you solemnly swear that the testimony you will give before the
Committee of the Judiciary of the U.S. Senate will be the
truth, the whole truth and nothing but the truth, so help you
God?
Judge Alito. I do.
Chairman Specter. Thank you, Judge Alito. You may be
seated, and we welcome whatever opening comments you care to
make.
STATEMENT OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO BE
AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Judge Alito. Thank you very much, Mr. Chairman. I am deeply
honored to appear before you. I am deeply honored to have been
nominated for a position on the Supreme Court, and I am humbled
to have been nominated for the seat that is now held by Justice
O'Connor. Justice O'Connor has been a pioneer, and her
dedicated service of the Supreme Court will never be forgotten,
and the people of the country certainly owe her a great debt
for the service that she has provided.
I am very thankful to the President for nominating me, and
I am also thankful to the members of this Committee and many
other Senators who took time from their busy schedules to meet
with me. That was a great honor for me, and I appreciate all of
the courtesies that were extended to me during those visits.
And I want to thank Senator Lautenberg and Governor Whitman for
coming here today and for their kind introductions.
During the previous weeks, an old story about a lawyer who
argued a case before the Supreme Court has come to my mind, and
I thought I might begin this afternoon by sharing that story.
The story goes as follows:
This was a lawyer who had never argued a case before the
Court before, and when the argument began, one of the Justices
said, ``How did you get here?'' meaning how had his case worked
its way up through the court system. But the lawyer was rather
nervous, and he took the question literally, and he said--and
this was some years ago. He said, ``I came here on the
Baltimore and Ohio Railroad.''
This story has come to my mind in recent weeks because I
have often asked myself how in the world did I get here. And I
want to try to answer that today and not by saying that I came
here on I-95 or on Amtrak.
I am who I am in the first place because of my parents and
because of the things that they taught me, and I know from my
own experience as a parent that parents probably teach most
powerfully not through their words but through their deeds. And
my parents taught me through the stories of their lives, and I
don't take any credit for the things that they did or the
things that they experienced. But they made a great impression
on me.
My father was brought to this country as an infant. He lost
his mother as a teenager. He grew up in poverty. Although he
graduated at the top of his high school class, he had no money
for college, and he was set to work in a factory. But at the
last minute, a kind person in the Trenton area arranged for him
to receive a $50 scholarship, and that was enough in those days
for him to pay the tuition at a local college and buy one used
suit. And that made the difference between his working in a
factory and going to college.
After he graduated from college, in 1935, in the midst of
the Depression, he found that teaching jobs for Italian-
Americans were not easy to come by, and he had to find other
work for a while. But eventually he became a teacher, and he
served in the Pacific during World War II, and he worked, as
has been mentioned, for many years in a nonpartisan position
for the New Jersey Legislature, which was an institution that
he revered.
His story is a story that is typical of a lot of Americans,
both back in his day and today, and it is the story, as far as
I can see it, about the opportunities that our country offers
and also about the need for fairness and about hard work and
perseverance and the power of a small good deed.
My mother is a first-generation American. Her father worked
in the Roebling Steel Mill in Trenton, New Jersey. Her mother
came from a culture in which women generally did not even leave
the house alone, and yet my mother became the first person in
her family to get a college degree. She worked for more than a
decade before marrying. She went to New York City to get a
master's degree, and she continued to work as a teacher and a
principal until she was forced to retire. Both she and my
father instilled in my sister and me a deep love of learning.
I got here in part because of the community in which I grew
up. It was a warm but definitely an unpretentious, down-to-
earth community. Most of the adults in the neighborhood were
not college graduates. I attended the public schools. In my
spare time, I played baseball and other sports with my friends.
And I have happy memories and strong memories of those days and
good memories of the good sense and the decency of my friends
and my neighbors.
And after I graduated from high school, I went a full 12
miles down the road, but really to a different world, when I
entered Princeton University. A generation earlier, I think
that somebody from my background probably would not have felt
fully comfortable at a college like Princeton, but by the time
I graduated from high school, things had changed. And this was
a time of great intellectual excitement for me. Both college
and law school opened up new worlds of ideas. But this was back
in the late 1960s and early 1970s. It was a time of turmoil at
colleges and universities. And I saw some very smart people and
very privileged people behaving irresponsibly, and I couldn't
help making a contrast between some of the worst of what I saw
on the campus and the good sense and the decency of the people
back in my own community.
I am here in part because of my experiences as a lawyer. I
had the good fortune to begin my legal career as a law clerk
for a judge who really epitomized open-mindedness and fairness.
He read the record in detail in every single case that came
before me. He insisted on scrupulously following precedents,
both the precedents of the Supreme Court and the decisions of
his own court, the Third Circuit. He taught all of his law
clerks that every case has to be decided on an individual
basis, and he really didn't have much use for any grand
theories.
After my clerkship finished, I worked for more than a
decade as an attorney in the Department of Justice, and I can
still remember the day as an Assistant U.S. Attorney when I
stood up in court for the first time and I proudly said, ``My
name is Samuel Alito, and I represent the United States in this
court.'' It was a great honor for me to have the United States
as my client during all of those years.
I have been shaped by the experiences of the people who are
closest to me, by the things I have learned from Martha; by my
hopes and my concerns for my children, Phillip and Laura; by
the experiences of members of my family, who are getting older;
by my sister's experiences as a trial lawyer in a profession
that has traditionally been dominated by men. And, of course, I
have been shaped for the last 15 years by my experiences as a
judge of the court of appeals.
During that time, I have sat on thousands of cases.
Somebody mentioned the exact figure this morning. I don't know
what the exact figure is, but it is way up in the thousands.
And I have written hundreds of opinions. And the members of
this Committee and the members of their staff who have had the
job of reviewing all of those opinions really have my sympathy.
[Laughter.]
Judge Alito. I think that may have constituted cruel and
unusual punishment.
I have learned a lot during my years on the Third Circuit,
particularly, I think, about the way in which a judge should go
about the work of judging. I have learned by doing, by sitting
on all of these cases, and I think I have also learned from the
examples of some really remarkable colleagues.
When I became a judge, I stopped being a practicing
attorney, and that was the big change in role. The role of a
practicing attorney is to achieve a desirable result for the
client in the particular case at hand. But a judge can't think
that way. A judge can't have any agenda. A judge can't have any
preferred outcome in any particular case. And a judge certainly
doesn't have a client. The judge's only obligation--and it's a
solemn obligation--is to the rule of law, and what that means
is that in every single case, the judge has to do what the law
requires.
Good judges develop certain habits of mind. One of those
habits of mind is the habit of delaying reaching conclusions
until everything has been considered. Good judges are always
open to the possibility of changing their minds based on the
next brief that they read or the next argument that is made by
an attorney who is appearing before them or a comment that is
made by a colleague during the conference on the case, when the
judges privately discuss the case.
It has been a great honor for me to spend my career in
public service. It has been a particular honor for me to serve
on the court of appeals for these past 15 years because it has
given me the opportunity to use whatever talent I have to serve
my country by upholding the rule of law. And there is nothing
that is more important for our Republic than the rule of law.
No person in this country, no matter how high or powerful,
is above the law, and no person in this country is beneath the
law.
Fifteen years ago, when I was sworn in as a judge of the
court of appeals, I took an oath. I put my hand on the Bible
and I swore that I would administer justice without respect to
persons, that I would do equal right to the poor and to the
rich, and that I would carry out my duties under the
Constitution and the laws of the United States. And that is
what I have tried to do to the very best of my ability for the
past 15 years, and if I am confirmed, I pledge to you that that
is what I would do on the Supreme Court.
Thank you.
Chairman Specter. Thank you very much, Judge Alito, for
those opening comments.
We will adjourn at this point, and we will resume tomorrow
morning at 9:30, when we will start the first round of
questioning with each Senator on round one having 30 minutes.
[Whereupon, at 3:40 p.m., the Committee was adjourned.]
[The biographical information of Judge Alito follows.]
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NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
TUESDAY, JANUARY 10, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room 216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The Judiciary Committee will now proceed
with the confirmation hearing of Judge Alito for the Supreme
Court.
Before beginning the first round of questioning, just a
little review as to our procedure. As announced, there will be
a 30-minute allocation for each Senator. We intend to work
rather late this afternoon, perhaps even into the early
evening. I do not know that it is possible to complete the
first round of questioning today. That would be a good
objective. We will see how it goes.
Judge Alito, you are free to let us know whenever you want
to break. We will take a couple of breaks at the midpoint of
the morning and the afternoon, but there are 18 of us and only
one of you, so when you would like a break, your schedule takes
precedence over ours.
Before beginning the opening round, let me yield to my
colleague, Senator Leahy, to see if he has some additional
comments.
Senator Leahy. I thank you, Mr. Chairman. I also appreciate
the fact we have kept to the clock. I think it has been
helpful, and I would hope that Judge Alito would bear with us
on that. We will have a lot of questions. I think to take the
time to get to them all--you have always been accommodating
about that--I think that that requires cooperation on both
sides of the dais.
We do have the advantage, Mr. Chairman, that we did not
have with Judge Roberts's hearings, that we are not in session
and we are not going to be interrupted by votes, and we have
the time to do it. I would hope that we do not go into a
marathon for both his sake and us older guys' sake. But I do
appreciate that you have run this with fairness and even-
handedness, and I appreciate that.
Chairman Specter. Since there are no older guys involved or
gals, we can consider the marathon, but we will keep it within
bounds. You can start the clock. I will maintain the clock
meticulously, as we have maintained timing as our Judiciary
Committee practice.
Judge Alito, you will be faced with many, many questions on
many topics. I am going to start today with a woman's right to
choose, move to Executive power, and then hopefully within the
30 minutes pick up congressional power.
Starting with a woman's right to choose, Judge Alito, do
you accept the legal principles articulated in Griswold v.
Connecticut, that the Liberty Clause and the Constitution
carries with it the right to privacy?
Judge Alito. Senator, I do agree that the Constitution
protects a right to privacy, and it protects the right to
privacy in a number of ways. The Fourth Amendment certainly
speaks to the right of privacy. People have a right to privacy
in their homes and in their papers, and in their persons. And
the standard for whether something is a search is whether
there's an invasion of a right to privacy, a legitimate
expectation of privacy.
Chairman Specter. Well, Griswold dealt with the right to
privacy on contraception for married women. Do you agree with
that?
Judge Alito. I agree that Griswold is now I think
understood by the Supreme Court as based on the Liberty Clauses
of the Due Process Clause of the Fifth Amendment and the 14th
Amendment.
Chairman Specter. Do you agree also with Eisenstadt which
carried forward Griswold to single people?
Judge Alito. I do agree with the result in Eisenstadt.
Chairman Specter. Let me move now directly into Casey v.
Planned Parenthood, and picking up the gravamen of Casey as it
has applied, Roe on the woman's right to choose, originating
from the Privacy Clause with Griswold being its antecedent, and
I want to take you through some of the specific language of
Casey to see what your views are, and what weight you would
ascribe to this rationale as you would view the woman's right
to choose. In Casey the joint opinion said, ``People have
ordered their thinking and lives around Roe. To eliminate the
issue of reliance would be detrimental. For two decades of
economic and social development people have organized intimate
relationships and reliance on the availability of abortion in
the event contraception should fail.'' Pretty earthy language,
but that is the Supreme Court's language. The Court went on to
say, ``The ability of women to participate equally in the
economic and social life of the Nation has become facilitated
by their ability to control their reproductive lives.''
Now that states in specific terms the principle of
reliance, which is one of the mainstays, if not the mainstay,
on stare decisis precedent to follow tradition. How would you
weigh that consideration on the woman's right to choose?
Judge Alito. Well, I think the doctrine of stare decisis is
a very important doctrine. It's a fundamental part of our legal
system, and it's the principle that courts in general should
follow their past precedents, and it's important for a variety
of reasons. It's important because it limits the power of the
judiciary. It's important because it protects reliance
interest, and it's important because it reflect the view that
courts should respect the judgments and the wisdom that are
embodied in prior judicial decisions. It's not an inexorable
command, but it is a general presumption that courts are going
to follow prior precedents, and as you mentioned--
Chairman Specter. How do you come to grips with the
specifics where the Court, in the joint opinion, spoke of
reliance on the availability of abortion in the event
contraception should fail, on that specific concept of
reliance?
Judge Alito. Well, reliance is, as you mentioned, Mr.
Chairman, one of the important foundations of the doctrine of
stare decisis. It is intended to protect reliance interests,
and people can rely on judicial decisions in a variety of ways.
There can be concrete economic reliance. Government
institutions can be built up in reliance on prior decisions.
Practices of agencies and Government officials can be molded
based on reliance. People can rely on decisions in a variety of
ways. In my view--
Chairman Specter. Let me move on to another important
quotation out of Casey. Quote: ``A terrible price would be paid
for overruling Casey, for overruling Roe. It would seriously
weaken the Court's capacity to exercise the judicial power and
to function as the Supreme Court of a Nation dedicated to the
rule of law, and to overrule Roe under fire would subvert the
Court's legitimacy.''
Do you see the legitimacy of the Court being involved in
the precedent of Casey?
Judge Alito. Well, I think that the Court, and all the
courts, the Supreme Court, my court, all the Federal courts,
should be insulated from public opinion. They should do what
the law requires in all instances. That's why they're not--
that's why the members of the judiciary are not elected. We
have a basically democratic form of Government, but the
judiciary is not elected, and that's the reason, so that they
don't do anything under fire. They do what the law requires.
Chairman Specter. But do you think there is as fundamental
a concern as legitimacy of the Court would be involved if Roe
were to be overturned?
Judge Alito. Mr. Chairman, I think that the legitimacy of
the Court would be undermined in any case if the Court made a
decision based on its perception of public opinion. It should
make its decisions based on the Constitution and the law. It
should not be--it should not sway in the wind of public opinion
at any time.
Chairman Specter. Let me move to just the final quotation
that I intend to raise from Casey, and it is, ``After nearly 20
years of litigation in Roe's wake, we are satisfied that the
immediate question is not the soundness of Roe's resolution of
the issue, but the precedentual force that must be accorded to
its holding.'' That separates out the original soundness of
Roe, which has been criticized, and then lays emphasis on the
precedentual value. How would you weigh that consideration were
this issue to come before you if confirmed?
Judge Alito. Well, I agree that in every case in which
there is a prior precedent, the first issue is the issue of
stare decisis, and the presumption is that the Court will
follow its prior precedents. There needs to be a special
justification for overruling a prior precedent.
Chairman Specter. Let me turn to an analogous situation,
and that is Chief Justice Rehnquist's change of heart on the
Miranda ruling. In 1974 in the case of Michigan v. Tucker, he
was then Justice Rehnquist, wrote an opinion severely limiting
Miranda, in effect stating he did not like it. Then in the year
2000 in the case of United States v. Dickerson, Chief Justice
Rehnquist wrote an opinion of holding Miranda, and he did that
because, ``Miranda was embedded in the routine police practices
to a point where the warnings have become a part of our
National culture.''
Now, there has been an analogy made from what Chief Justice
Rehnquist said on the Miranda issue to the Roe issue. How would
you evaluate the consideration of Roe being embedded in the
culture of our society?
Judge Alito. Well, I think that Chief Justice Rehnquist
there was getting at a very important point, and--
Chairman Specter. Think he was right?
Judge Alito. I think he was getting at--he was right in
saying that reliance can take many forms. It can take a very
specific and concrete form, and there can be reliance in the
sense that he was talking about there, and I think what he's
talking about there is that a great many people, and in that
instance, police departments around the country, over a long
period of time, had adapted to the Miranda rule, had
internalized it. I think that all the branches of Government
had become familiar with it and comfortable with it, and had
come to regard it as a good way--after a considerable breaking
in period--a good way of dealing with a difficult problem, and
the problem was how to deal with interrogations leading to
confessions, in terms of--
Chairman Specter. Judge Alito, let me move to the
dissenting opinion by Justice Harlan in Poe v. Ullman, where he
discusses the constitutional concept of liberty and says, ``The
traditions from which liberty developed, that tradition is a
living thing.'' Would you agree with Justice Harlan that the
Constitution embodies the concept of a living thing?
Judge Alito. I think the Constitution is a living thing in
the sense that matters, and that is that it is--it sets up a
framework of Government and a protection of fundamental rights
that we have lived under very successfully for 200 years, and
the genius of it is that it is not terribly specific on certain
things. It sets out some things are very specific, but it sets
out some general principles, and then leaves it for each
generation to apply those to the particular factual situations
that come up.
Chairman Specter. Would you agree with Cardozo on Palco
that it represents the values of a changing society?
Judge Alito. The liberty component of the Fifth Amendment
and the 14th Amendment, which I was talking about earlier,
embody the deeply rooted traditions of the country, and it's up
to each--those traditions and those rights apply to new factual
situations that come up. As times change, new factual
situations come up, and the principles have to be applied to
those situations. The principles don't change. The Constitution
itself doesn't change, but the factual situations change, and
as new situations come up, the principles and the rights have
to be applied to them.
Chairman Specter. Judge Alito, the commentators have
characterized Casey as a super precedent. Judge Luttig, in the
case of Richmond Medical Center, called the Casey decision
super stare decisis. In quoting from Casey, Judge Luttig
pointed out, the essential holding of Roe v. Wade should be
retained and once again reaffirmed. Then in support of Judge
Luttig's conclusion that Casey was super stare decisis, he
refers to Stenberg v. Carhart, and quotes the Supreme Court,
saying, ``We shall not revisit these legal principles.'' That
is a pretty strong statement for the Court to make, that we
shall not revisit the principles upon which Roe was founded,
and the concept of super stare decisis or super precedent
arises as the commentators have characterized it, by a number
of different Justices appointed by a number of different judges
over a considerable period of time. Do you agree that Casey is
a super precedent or a super stare decisis as Judge Luttig
said?
Judge Alito. Well, I personally would not get into
categorizing precedents as super precedents or super duper
precedents, or any--
Chairman Specter. Did you say ``super duper?''
[Laughter.]
Judge Alito. Right.
Chairman Specter. Good.
Judge Alito. Any sort of categorization like that--
Chairman Specter. I like that.
[Laughter.]
Judge Alito [continuing]. Sort of reminds me of the size of
laundry detergent in the supermarket.
[Laughter.]
Judge Alito. I agree with the underlying thought that when
a precedent is reaffirmed, that strengthens the precedent, and
when the Supreme Court says that we are not--
Chairman Specter. How about being reaffirmed 38 times?
Judge Alito. Well, I think that when a precedent is
reaffirmed, each time it's reaffirmed that is a factor that
should be taken into account in making the judgment about stare
decisis, and when a precedent is reaffirmed on the ground that
stare decisis precludes or counsels against reexamination of
the merits of the precedent, then I agree that that is a
precedent on precedent.
Now, I don't want to leave the impression that stare
decisis is an inexorable command because the Supreme Court has
said that it is not, but it is a judgment that has to be based,
taking into account all of the factors that are relevant and
that are set out in the Supreme Court's cases.
Chairman Specter. Judge Alito, during the confirmation
hearing of Chief Justice Roberts, I displayed a chart. I do not
ordinarily like charts, but this one I think has a lot of
weight because it lists all 38 cases which have been decided
since Roe, where the Supreme Court of the United States had the
opportunity to--Senator Hatch is in the picture now.
[Laughter.]
Chairman Specter. It is a good photo op for Senator Hatch.
Senator Leahy is complaining.
[Laughter.]
Senator Leahy. Just balance it on Orrin's head.
Senator Hatch. Put that over by Leahy.
Chairman Specter. He wants it on his side.
[Laughter.]
Chairman Specter. I think the point of it is that there
have been so many cases, so many cases, 15 after your statement
in 1985 that I am about to come to, and eight after Casey v.
Planned Parenthood, which is why it has special significance,
and I am not going to press the point about super precedent. I
am glad I did not have to mention super duper, that you did.
Thank you very much.
Let me come now to the statement you made in 1985, that the
Constitution does not provide a basis for a woman's right to an
abortion. Do you agree with that statement today, Judge Alito?
Judge Alito. Well, that was a correct statement of what I
thought in 1985 from my vantage point in 1985, and that was as
a line attorney in the Department of Justice in the Reagan
administration.
Today if the issue were to come before me, if I am
fortunate enough to be confirmed and the issue were to come
before me, the first question would be the question that we've
been discussing, and that's the issue of stare decisis. And if
the analysis were to get beyond that point, then I would
approach the question with an open mind, and I would listen to
the arguments that were made.
Chairman Specter. So you would approach it with an open
mind notwithstanding your 1985 statement?
Judge Alito. Absolutely, Senator. That was a statement that
I made at a prior period of time when I was performing a
different role, and as I said yesterday, when someone becomes a
judge, you really have to put aside the things that you did as
a lawyer at prior points in your legal career and think about
legal issues the way a judge thinks about legal issues.
Chairman Specter. Judge Alito, coming to the role you had
in the Solicitor General's Office, where you wrote the
memorandum in the Thornburgh case, urging restriction and
ultimate appeal of Roe, that was in your capacity as an
advocate. And I have seen your other statements that the role
of an advocate is different from the role of a judge. But when
you made the statement that the Constitution did not provide
for the right to an abortion, that was in a statement you made
where you were looking to get a job, a promotion within the
Federal Government. So there is a little difference between the
1985 statement and your advocacy role in the Thornburgh
memorandum, is there not?
Judge Alito. Well, there is, Senator, and what I said was
that that was a true expression of my views at the time, the
statement in the 1985 appointment form that I filled out. It
was a statement that I made at a time when I was a line
attorney in the Department of Justice. I'm not saying that I
made the statement simply because I was advocating the
administration's position, but that was the position that I
held at the time, and that was the position of the
administration.
Chairman Specter. Would you state your views, the
difference as you see it between what you did as an advocate in
the Solicitor General's Office to what your responsibilities
would be, are on the Third Circuit, or what they would be on
the Court if confirmed as a judicial capacity?
Judge Alito. Well, an advocate has the goal of achieving
the result that the client wants within the bounds of
professional responsibility. That's what an advocate is
supposed to do, and that's what I attempted to do during my
years as an advocate for the Federal Government. Now, a judge
doesn't have a client, as I said yesterday, and a judge doesn't
have an agenda, and a judge has to follow the law. An important
part of the law in this area, as we look at it in 2006, is the
law of stare decisis.
Chairman Specter. Judge Alito, you have written some 361
opinions that I would like to have the time to discuss quite a
few of them with you, but I am only going to pick up one in the
first round, and that is an opinion you wrote in the Elizabeth
Blackwell Health Center for Women v. Knoll, and that was a case
where there was a challenge between a Pennsylvania statute,
which required as a prerequisite to a woman getting Medicaid,
that she would have had to have reported a rape or an incest to
the police, and second, a requirement that there be a second
opinion from a doctor that she needed an abortion to save her
life. And that statutory requirement, those two provisions
conflicted with a regulation by the Department of Health and
Human Services. You were on the Third Circuit, which held that
the Pennsylvania statute should be stricken in deference to the
rule of the Health and Human Services Department. And Judge
Nygaard entered a very forceful dissent saying that this was an
interpretive rule and it was inappropriate to have that kind of
an interpretive rule by the Department countervail a statute.
What was your thinking in that case? Had you been
predisposed to take a tough line on a woman's right to choose
or on Medicaid support for someone who had been raped, you
would have upheld the statute. What was your thinking in that
case?
Judge Alito. Well, what you said is correct, Senator. I
cast the deciding vote there to strike down the Pennsylvania
statute, and I did it because that's what I thought the law
required. I thought the law required that we defer to the
interpretation of the Federal statute that had been made by the
Department of Health and Human Services. If I had had an agenda
to strike down any--I'm sorry, to uphold any regulation of
abortion that came up in any case that was presented to me,
then I would have voted with Judge Nygaard in that case, and
that would have turned the decision the other way.
I've sat on three abortion cases on the Third Circuit. In
one of them--that was the Casey case--I voted to uphold
regulations of abortion, and in the other two--the Elizabeth
Blackwell case and Planned Parenthood v. Farmer--I voted to
strike them down. And in each instance, I did it because that's
what I thought the law required.
Chairman Specter. Judge Alito, I want to turn now to
Executive power and to ask you first if you agree with the
quotation from Justice Jackson's concurrence in the Youngstown
Steel seizure case about the evaluation of Presidential power
that I cited yesterday.
Judge Alito. I do. I think it provides a very useful
framework, and it has been used by the Supreme Court in a
number of important subsequent cases, in the Dames and Moore,
for example, involving the release of the hostages from Iran.
And it doesn't answer every question that comes up in this
area, but it provides a very useful way of looking at them.
Chairman Specter. Do you agree with Justice O'Connor's
statement quoted frequently yesterday from Hamdi that, ``We
have long since made clear that a state of war is not a blank
check for the President when it comes to the rights of the
Nation's citizens,'' when she was citing the Youngstown case?
Do you agree with that?
Judge Alito. Absolutely. That's a very important principle.
Our Constitution applies in times of peace and in times of war,
and it protects the rights of Americans under all
circumstances.
Chairman Specter. You made a speech at Pepperdine where you
said, in commenting about the decision of the Supreme Court in
Ex Parte Milligan, that ``The Constitution applies even in an
extreme emergency.'' The Government made a ``broad and unwise
argument'' that the Bill of Rights simply doesn't apply during
wartime.
Do you stand by that statement?
Judge Alito. I certainly do, Senator. The Bill of Rights
applies at all times, and it's particularly important that we
adhere to the Bill of Rights in times of war and in times of
national crisis, because that's when there's the greatest
temptation to depart from them.
Chairman Specter. Steering clear, Judge Alito, of asking
you how you would decide a specific case, I think it is very
important to find out your jurisprudential approach in
interpreting whether the September 14, 2001, congressional
resolution authorizing the use of force constituted
congressional authorization for the National Security Agency to
engage in electronic surveillance where one party to the
conversation was in the United States. Let me take just a
moment to lay out the factual and legal considerations.
The Foreign Intelligence Surveillance Act of 1978 provides
it ``shall be the exclusive means by which electronic
surveillance shall be conducted and the interpretation of
domestic wire, oral, and electronic communications may be
conducted.'' The Government contends that the Foreign
Intelligence Surveillance Act clause, ``except as authorized by
statute, opens the door to interpreting that resolution to
authorize the surveillance.''
Let me give you a series of questions. I don't like to put
more than one on the table at a time, but I think they are
necessary in this situation to give the structure as to where I
am going.
First, in interpreting whether Congress intended to amend
FISA by that resolution, would it be relevant that Attorney
General Gonzales said we were advised that ``that was not
something we could likely get.''
Second, if Congress had intended to amend FISA by the
resolution, wouldn't Congress have specifically said so, as
Congress did in passing the PATRIOT Act, giving the Executive
greater flexibility in using roving wiretaps?
Third, in interpreting statutory construction on whether
Congress intended to amend FISA by the resolution, what would
the relevance be of rules of statutory construction that repeal
or change by implication--that changes by--makes the repeal by
implication or disfavor, and specific statutory language trumps
more general pronouncements? How would you weigh and evaluate
the President's war powers under Article II to engage in
electronic surveillance with the warrant required by
congressional authority under Article I in legislating under
the Foreign Intelligence Surveillance Act? And let me start
with the broader principles.
In approaching an issue as to whether the President would
have Article II powers, inherent constitutional authority to
conduct electronic surveillance without a wiretap, when you
have the Foreign Intelligence Surveillance Act on the books,
making that the exclusive means, what factors would you weigh
in that format?
Judge Alito. Well, probably the first consideration would
be to evaluate the statutory question, and you outlined some of
the factors and the issues that would arise in interpreting the
statute, what is meant by the provision of FISA that you quoted
regarding FISA--the Foreign Intelligence Surveillance Act--
being the exclusive means for conducting surveillance. And
then, depending on how one worked through that statutory
question, then I think one might look to Justice Jackson's
framework. And he said that he divided cases in this area into
three categories where the President acts with explicit or
implicit congressional approval, where the President acts and
Congress has not expressed its view on the matter one way or
the other, and the final category where the President exercises
Executive power and Congress--and that is in the face of an
explicit or implicit congressional opposition to it. And
depending on how one worked through the statutory issue, then
the case might fall into one of those three areas.
But these questions that you pose are obviously very
difficult and important and complicated questions that are
quite likely to arise in litigation, perhaps before my own
court or before the Supreme Court.
Chairman Specter. Before pursuing that further--and we will
have a second round--I want to broach one other issue with you.
My time is almost up. That is, in the memorandum you wrote back
on February 5, 1986, about the President's power to put a
signing statement on to influence interpretation of the
legislation, you wrote this: ``Since the President's approval
is just as important as that of the House or Senate, it seems
to follow that the President's understanding of the bill should
be just as important as that of Congress.''
Is that really true when you say the President's views are
as important as Congress's? The President can express his views
by a veto and then gives Congress the option of overriding a
veto, which Congress does not have if the President makes a
signing declaration and seeks to avoid the terms of the
statute. And we have the authority from the Supreme Court that
the President cannot impound funds, cannot pick and choose on
an appropriation. We have the line item veto case where the
President cannot strike a provision even when authorized by
Congress.
Well, I have got 10 second left. I guess when my red light
goes on, it does not affect you. You can respond. Care to
comment?
[Laughter.]
Judge Alito. I do, Senator. I think the most important part
of the memo that you are referring to is a fairly big section
that discussed theoretical problems, and it consists of a list
of questions, and many of the questions are the questions that
you have just raised. In that memo, I said this is an
unexplored area, and here are the theoretical questions that--
and, of course, they are of more than theoretical importance--
that arise in this area.
That memo is labeled a rough first effort at stating the
position of the administration. I was writing there on behalf
of a working group that was looking into the question of
implementing a decision that had already been made by the
Attorney General to issue signing statements for the purpose of
weighing in on the meaning of statutes. And in this memo--as I
said, it was a rough first effort, and the biggest part of it,
to my mind, was the statement there are difficult theoretical
interpretive questions here and here they are. And had I
followed up on it--and I don't believe I had the opportunity to
pursue this issue further during my time in the Justice
Department--it would have been necessary to explore all those
questions.
Chairman Specter. Well, my red light went on.
Senator Leahy?
Senator Leahy. Well, Judge, good morning.
Judge Alito. Good morning, Senator.
Senator Leahy. You survived yesterday listening to us. Now
we have a chance to listen to you. I will have further
questions on the memo that Senator Specter spoke of, but it
gets beyond the theoretical. The last few weeks, we have seen
it well played out in the press where the President and Senator
John McCain negotiated rather publicly an amendment, which
passed overwhelmingly in the House and the Senate, outlawing
the use of torture by United States officers, yet the President
in a signing statement implies that it will not apply to him or
to those under his command as commander in chief. Doesn't that
get well beyond a theoretical issue there?
Judge Alito. It is, and I think I said in answering the
Chairman that there are theoretical issues but they have
considerable practical importance. But the theoretical issues
really have to be explored and resolved. I don't believe the
Supreme Court has done that up to this point. I have not had
occasion in my 15-plus years on the Third Circuit to come to
grips with the question of what is the significance of a
Presidential signing statement in interpreting a statute.
Senator Leahy. Let me follow with a related issue. I feel
one of the most important functions of the Supreme Court is to
stop our Government from intruding into Americans' privacy or
our freedom or our personal decisions. In my State of Vermont,
we value our privacy very, very much. I think most Americans do
automatically, and many times they have to go to the courts to
make sure that the Government does not--whatever part of the
Government it is, whatever administration it might be--that
they do not overreach in going into that privacy.
Three years ago, the Office of Legal Counsel at the Justice
Department--and you are familiar with that; you worked there
years ago--they issued a legal opinion, which they kept very
secret, in which they concluded that the President of the
United States had the power to override domestic and
international laws outlawing torture. It said the President
could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote,
that the President enjoys ``complete authority over the conduct
of war,'' and they went on further to say that if Congress
passed a criminal law prohibiting torture ``in a manner that
interferes with the President's direction of such core matters
as detention and interrogation of enemy combatants,'' that
would be unconstitutional. They seemed to say that the
President could immunize people from any prosecution if they
violated our laws on torture. And that remained the legal basis
in this administration until somebody apparently at the Justice
Department leaked it to the press and it became public. Once it
became public, with the obvious reaction of Republicans,
Democrats, everybody saying this is outrageous, it is beyond
the pale, the administration withdrew that opinion as its
position. The Attorney General even said in his confirmation
that this no longer--no longer--represented Bush administration
policy.
What is your view--and I ask this because the memo has been
withdrawn. It is not going to come before you. What is your
view of the legal contention in that memo that the President
can override the laws and immunize illegal conduct?
Judge Alito. Well, I think the first thing that has to be
said is what I said yesterday, and that is that no person in
this country is above the law, and that includes the President
and it includes the Supreme Court. Everybody has to follow the
law, and that means the Constitution of the United States and
it means the laws that are enacted under the Constitution of
the United States.
Now, there are questions that arise concerning Executive
powers, and those specific questions have to be resolved, I
think, by looking to that framework that Justice Jackson set
out that I mentioned earlier.
Senator Leahy. Well, let's go into one of those specifics.
Do you believe the President has the constitutional authority
as commander in chief to override laws enacted by Congress and
to immunize people under his command from prosecution if they
violate these laws passed by Congress?
Judge Alito. Well, if we were in--if a question came up of
that nature, then I think you'd be in where the President is
exercising Executive power in the face of a contrary expression
of congressional will through a statute or even an implicit
expression of congressional will. You would be in what Justice
Jackson called ``the twilight zone,'' where the President's
power is at its lowest point, and I think you would have to
look at the specifics of the situation. These are the gravest
sort of constitutional questions that come up, and very often
they don't make their way to the judiciary or they are not
resolved by the judiciary. They are resolved by the other
branches of the Government.
Senator Leahy. But, Judge, I am a little bit troubled by
this because you suggested, and I completely agreed with what
you said, that no one is above the law and no one is beneath
the law. You are not above the law, I am not, the President is
not. But are you saying that there are situations where the
President not only could be above the law passed by Congress,
but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We
passed a law outlawing certain conduct. The President in his
Bybee memo, which has now been withdrawn, was saying that that
law won't apply to me or people that I authorize. doesn't that
place not only the President but anybody he wants above the
law?
Judge Alito. Senator, as I said, the President has to
follow the Constitution and the laws and, in fact, one of the
most solemn responsibilities of the President--and it is set
out expressly in the Constitution--is that the President is to
take care that the laws are faithfully executed, and that means
the Constitution, it means statutes, it means treaties, it
means all of the laws of the United States.
But what I am saying is that sometimes issues of Executive
power arise and they have to be analyzed under the framework
that Justice Jackson set out. And you do get cases that are in
this twilight zone and it is--they have to be decided when they
come up based on the specifics of the situation.
Senator Leahy. But are you saying that there could be
instances where the President could not only ignore the law,
but authorize others to ignore the law?
Judge Alito. Well, Senator, if you are in that situation,
you may have a question about the constitutionality of a
congressional enactment. You have to know the specifics of--
Senator Leahy. Let's assume there is not a question of the
constitutionality of the enactment. Let's make it an easy one.
We pass a law saying it is against the law to murder somebody
here in the United States. Could the President authorize
somebody, either from an intelligence agency or elsewhere, to
go out and murder somebody and escape prosecution or immunize
the person from prosecution, absent a Presidential pardon?
Judge Alito. Neither the President nor anybody else, I
think, can authorize someone to--can override a statute that is
constitutional. And I think you are in this--when you are in
the third category, under Justice Jackson, that is the issue
which you are grappling with.
Senator Leahy. But wouldn't it be constitutional for the
Congress to outlaw Americans from using torture?
Judge Alito. And Congress has done that, and it is
certainly an expression of a very deep value of our country.
Senator Leahy. And if the President were to authorize
somebody to torture or say that he would immunize somebody from
prosecution for doing that, he wouldn't have that power, would
he?
Judge Alito. Well, Senator, I think the important points
are that the President has to follow the Constitution and the
laws, and it is up to Congress to exercise its legislative
power. But as to specific issues that might come up, I really
need to know the specifics. I need to know what was done and
why it was done, and hear the arguments on the issue.
Senator Leahy. Let's go to some specifics. Senator Specter
mentioned FISA and your role with FISA, the Foreign
Intelligence Surveillance Act. Certainly, you had to be
involved with it, and appropriately so, when you were a U.S.
Attorney. This law came in after the abuses of the 1960s and
1970s. We had had President Nixon's enemies list, with the
government breaking into doctors' offices and wiretapping
innocent Americans, and so on. After that, the Congress in a
strong bipartisan effort passed the FISA legislation. We have
that court which can handle applications in secret for wiretaps
or surveillance, if necessary, for national security.
Now, we have just learned that the President has chosen to
ignore the FISA law and the FISA court. He has issued secret
orders, and according to the press and the President's own
press conference, time after time after time secret orders for
domestically spying on American citizens without obtaining a
warrant.
Do you believe the President can circumvent the FISA law,
and bypass the FISA court to conduct warrantless spying on
Americans?
Judge Alito. The President has to comply with the Fourth
Amendment and the President has to comply with the statutes
that are passed. This is an issue I was speaking about with
Chairman Specter that I think is very likely to result in
litigation in the Federal courts. It could be in my court. It
certainly could get to the Supreme Court and there may be
statutory issues involved--the meaning of the provision of FISA
that you mentioned, the meaning certainly of the authorization
for the use of military force--and those would have to be
resolved.
And in order to resolve them, I would have to know the
arguments that are made by the contending parties. On what
basis is it claimed that there is a violation? On what basis
would the President claim that what occurred fell within the
authorization of the authorization for the use of military
force? And then if you got beyond that, there could be
constitutional questions about the Fourth Amendment, whether it
was a violation of the Fourth Amendment, whether it was the
valid exercise of Executive power.
Senator Leahy. But wouldn't the burden be on the Government
to prove that it wasn't a violation of the Fourth Amendment if
you were spying on Americans without a warrant, especially when
you have courts set up--in this case the FISA court, which sets
up a very easy procedure to get the warrant? Wouldn't the
burden be on the Government in that case?
Judge Alito. Well, Senator, I think the in first instance
the Government would have to come forward with its theory as to
why the actions that were taken were lawful. I think that is
correct.
Senator Leahy. Well, let me ask you another one. You are
saying this may come before the Third Circuit or could come
before the Supreme Court, and I will accept that. But how does
somebody even get there? If you are conducting illegal secret
spying on a person, how are they even going to know? Where are
they going to get the standing to sue?
Judge Alito. Certainly, if someone is the subject of a
search and they claim that the search violates a statute or it
violates the Constitution, then they would have standing to sue
and they could sue in a Federal court that had jurisdiction.
Senator Leahy. And I am not asking these as hypothetical
questions, Judge. People are getting very concerned about this.
We just found out, again not because the Government told us,
but because the press found out about it--and thank God that we
do have a free press because so much of the stuff that is
supposed to be reported to Congress never is, and we first hear
about it when it is in the press.
But we found out that the Department of Defense is going
around--and this makes me think of COINTELPRO during the
Vietnam War--they are going around the country photographing
and spying on people who are protesting the war in Iraq. They
went, according to the press, and spied on Quakers in Vermont.
Now, I don't know why they spent all that money to do that.
If they want to find a Vermonter protesting the war, turn on C-
SPAN. I do it on the Senate floor all the time. But I know some
of these Quakers. I mean, in the Quaker tradition, they have
been protesting war throughout this country's history.
Now, I worry about this culture we are getting, and I just
want to make sure since Congress is not going to stand up and
say no, and the administration certainly is authorizing this--I
want to make sure that the courts are going to say we will
respect your privacy, we will respect your Fourth Amendment
rights.
You know, if you have somebody who has been spied on, would
you agree--and I think you did, but I want to make sure I am
correct on this--do you agree that they should have a day in
court?
Judge Alito. Certainly. If someone has been the subject of
illegal law enforcement activities, they should have a day in
court and that is what the courts are there for, to protect the
rights of individuals against the government and to--or anyone
else who violates their rights. And they have to be absolutely
independent and treat everybody equally.
Senator Leahy. And those Fourth Amendment rights are pretty
significant, are they not?
Judge Alito. They are very significant.
Senator Leahy. I think they set us apart from most other
countries in the world, to our betterment. And you were a
prosecutor; I was a prosecutor. I think we can agree even
looking of our past professions that it protects us.
Judge Alito. I agree, Senator. I tried to follow what the
Fourth Amendment required when I was a prosecutor and I regard
it as very important.
Senator Leahy. Well, let me go back to the last time we saw
Government excesses like this before FISA. When you worked in
the Reagan administration, you argued to the Supreme Court that
President Nixon's Attorney General should have absolute
immunity for domestic spying without a warrant even in the case
of willful misconduct. In your memo you said, ``I do not
question that the Attorney General should have immunity, but
for tactical reasons I would not raise the issue here.''
Do you believe today that the Attorney General would be
absolutely immune from civil liability for authorizing
warrantless wiretaps?
Judge Alito. No, he would not. That was settled in that
case. The Supreme Court held that the Attorney General does not
have--
Senator Leahy. But you did believe so then?
Judge Alito. Actually, I recommended that that argument not
be made. It was made and I think it is important to understand
the context of that. First of all--
Senator Leahy. You did say in the memo, ``I do not question
that the Attorney General should have this immunity.''
Judge Alito. That is correct, and the background of that,
if I could just explain very briefly--
Senator Leahy. Sure.
Judge Alito [continuing]. Is that we were--there, we were
not just representing the Government; we were representing
former Attorney General Mitchell in his individual capacity. He
was being sued for damages and we were, in a sense, acting as
his private attorney. And this was an argument that he wanted
to make. This was an argument that had been made several times
previously by the Department of Justice during the Carter
administration and then just a couple of years earlier in
Harlow v. Fitzgerald in the Reagan administration. And I said I
didn't think it was a good idea to make the argument in this
case, but I didn't dispute that it was an argument that was
there.
Senator Leahy. You don't have any question that the
judiciary has a role to play here and there can be judicial
checks on such things?
Judge Alito. No. Absolutely, it is the job of the judiciary
to enforce the Constitution.
Senator Leahy. Let's go into a couple search cases, and I
think we have indicated to you that we would bring these up--
Doe v. Groody, Baker v. Monroe Township. Those are unauthorized
searches. In Doe, the police officers had a warrant for a man
at a certain address. When they arrived, they found his wife
and 10-year-old daughter. They were not in the warrant, they
posed no threat. But the officers detained them and strip-
searched them, the wife and the 10-year-old, the 10-year-old
girl.
In Baker, a mother and her three teenage children were
detained and searched when they arrived at the home of the
mother's adult son. They didn't live there. They were not in
the home. They were outside. They didn't pose a threat to the
police, but they were ordered at gunpoint to lie on the ground.
They were handcuffed, they were taken into the house and they
were searched.
In Doe, the strip-search case of the 10-year-old girl, the
officers didn't ask for permission to search anybody beyond the
man they were looking for. In fact, the magistrate didn't give
a search warrant for anybody else. But you went beyond that and
you said that they were justified in strip-searching this 10-
year-old and the mother. You went beyond the four corners of
the search warrant the magistrate gave.
And one of your members of the Third Circuit, Judge
Chertoff, who is now the head of Homeland Security and a former
prosecutor, criticized your reasoning. He said that it would
come dangerously close to displacing the critical role of the
independent magistrate.
Do you continue to hold the position you took in your
opinion or do you now agree with the majority that they are
right and you are wrong?
Judge Alito. Well, Senator, I haven't had occasion to think
that what I said in that case was correct, but let me just
explain what was going on there.
Senator Leahy. Sure.
Judge Alito. The issue there was whether--the first issue
was whether the warrant authorized the search of people who
were on the premises and that was the disagreement between me
and the majority and it was a rather technical issue about
whether the affidavit that was submitted by police officers was
properly incorporated into the warrant for the purposes of
saying who could be searched.
And I thought that it was, and I thought that it was quite
clear that the magistrate had authorized a search for people
who were on the premises. That was the point of disagreement. I
was not pleased that a young girl was searched in that case and
I said so in my opinion. That was an undesirable thing, but the
issue wasn't whether there should be some sort of rule of
Fourth Amendment law that a minor can never be searched. And I
think if we were to--
Senator Leahy. But we both agree on that, Judge. The only
reason I bring up these two cases is it seems in both of them
you went beyond the four corners of the search warrant and you
settled all issues in a light most favorable--the majority in
the opinion didn't, but you did--in a light most favorable to
law enforcement. In fact, in Baker, the majority said that.
And I worry about this because I always worry that the
courts must be there to protect individuals against an
overreaching government. In this case, your position in the
minority was that you protected what the majority felt was an
overreaching government.
Am I putting too strong an analysis on that?
Judge Alito. I do think you are, Senator.
Senator Leahy. OK.
Judge Alito. I think you need to take into account what was
going on here. The police officers prepared an affidavit and
they said we have probable cause to believe that this drug
dealer hides drugs on people who are on the premises. And
therefore, when we search, we want authorization not just to
search him, but to search everybody who is found on the
premises because we think he hides--we have reason to believe
he hides drugs there.
And the magistrate who issued the warrant said that the
affidavit was incorporated into the warrant for the purpose of
establishing probable cause. And we are supposed to read
warrants in a common-sense fashion because they are prepared by
police officers for the most part, not by lawyers, and they are
often prepared under a lot of time pressure.
And it seemed to me that, reading this in a common-sense
fashion, what the magistrate intended to do was to say, yes,
you have authorization to do what you ask us to do. But even
beyond that, the issue there was whether these police officers
could be sued for damages, and they couldn't be sued for
damages if a reasonable officer could have believed that that
is what the magistrate intended to authorize. And I thought
that surely a reasonable officer could view it that way. Now,
Judge Chertoff looked at it differently and there are cases
where reasonable people disagree, and that is all that was
going on.
Senator Leahy. I know. You look for what a reasonable
officer would think--I spent 8 years in law enforcement. I
don't know where any reasonable officer under those
circumstances would feel they could strip-search a 10-year-old
girl.
Let me go into another area, and it is one that touched me
in your statement yesterday. You spoke eloquently of your
father's experience when he came to this country. The reason it
touched me is I was thinking that, when my maternal
grandparents emigrated to America, to Vermont, speaking only
Italian, coming from Italy to a new country, I know some of the
problems they faced--these people speaking this strange
language. My mother was a child learning English when she went
to school. People asking, ``Why don't they speak like us? Why
are they different than us''; those were just some of the
obstacles they faced.
In my father's case, my paternal grandfather, whom I never
knew, named Patrick Leahy, died as a stonecutter in Barre,
Vermont. My father was a young teen and had to go to work to
support his mother, my grandmother, whom I also never knew. And
the signs then were ``No Irish Need Apply'' or ``No Catholics
Need Apply.'' And I think you and I would be in total agreement
that we are now at a different world in at least most of our
country and that we are better people because we have done away
with that.
What we both understand, I think, in our core, I would
hope, is what happens if you have either ethnic prejudice or
religious prejudice. In my case, my father was a self-taught
historian, but he never was able to finish high school. I was
the first Leahy to get a college degree, my sister the next
one.
So with that in mind, there was something in your
background that I was troubled with. That is the Concerned
Alumni of Princeton University, CAP. This was a group that
received attention because it was put together, but it resisted
the admission of women and minorities to Princeton. They were
hostile to what they felt were people that did not fit
Princeton's traditional mold--women and minorities.
Now, two prominent Princetonians--one, Bill Frist, who is
now the Majority Leader of the United States Senate, in a
committee, roundly criticized CAP. Bill Bradley, who had joined
it and then found out what it was, left it, and roundly
criticized it. And yet you, proudly in 1985, well after this
criticism, in your job application, proudly wrote that you were
a member of it, a member of Concerned Alumni of Princeton
University, a conservative alumni group.
Why, in heaven's name, Judge, with your background and what
your father faced, why in heaven's name are you proud of being
part of CAP?
Judge Alito. Well, Senator, I have racked my memory about
this issue, and I really have no specific recollection of that
organization. But since I put it down on that statement, then I
certainly must have been a member at that time. But if I had
been actively involved in the organization in any way, if I had
attended meetings or been actively involved in any way, I would
certainly remember that, and I don't.
I have tried to think of what might have caused me to sign
up for membership, and if I did, it must have been around that
time. And the issue that had rankled me about Princeton for
some time was the issue of ROTC. I was in ROTC when I was at
Princeton, and the unit was expelled from the campus. And I
felt that was very wrong. I had a lot of friends who were
against the war in Vietnam, and I respected their opinions, but
I didn't think that it was right to oppose the military for
that reason. And the issue, although the Army unit was
eventually brought back, the Navy and the Air Force units did
not come back, and the issue kept coming up. And there were
people who were strongly opposed to having any unit on campus,
and the attitude seemed to be that the military was a bad
institution and that Princeton was too good for the military,
and that Princeton would somehow be sullied if people in
uniform were walking around the campus, that the courses didn't
merit getting credit, that the instructors shouldn't be viewed
as part of the faculty. And that was the issue that bothered me
about that.
Senator Leahy. But, Judge, with all due respect, CAP was
most noted for the fact that they were worried that too many
women and too many minorities were going to Princeton. In 1985,
when everybody knew that is what they stood for, when a
prominent Republican like Bill Frist and a prominent Democrat
like Bill Bradley, both had condemned it, you, in your job
application, proudly stated this as one of your credentials.
Now, you strike me as a very cautious and careful person,
and I say that with admiration, because a judge should be. But
I cannot believe that at 35, when you are applying for a job,
that you are going to be anything less than careful in putting
together such a job application, and frankly, I do not know why
that was a matter of pride for you at that time.
My time is up. We will come back to this. I have other
questions.
Judge Alito. Well, Senator, as you said, from what I now
know about the group, it seemed to be dedicated to the idea of
bringing back the Princeton that existed at a prior point in
time, and as you said, somebody from my background would not
have been comfortable in an institution like that, and that
certainly was not any part of my thinking in whatever I did in
relation to this group.
Senator Leahy. Or my background either, Judge, or my
background either.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. Welcome, Judge Alito. We appreciate you and
the service that you have given, but much has been made about
your membership in an organization called the Concerned Alumni
of Princeton. Now, you mentioned this organization in your 1985
job application for a position in President Reagan's
administration. And you have told us what you felt--you know
about your membership in that organization. So is it fair to
say that you were not a founding member?
Judge Alito. I certainly was not a founding member.
Senator Hatch. You were not a board member?
Judge Alito. I was not a board member.
Senator Hatch. Or, for that matter, you were not even an
active member of the organization, to the best of your
recollection?
Judge Alito. I don't believe I did anything that was active
in relation to this organization.
Senator Hatch. Now, some have suggested, as my friend from
Massachusetts did yesterday, that by your membership in this
organization, you are somehow against the rights of women and
minorities attending colleges. So let me just ask you directly
on the record: Are you against women and minorities attending
colleges?
Judge Alito. Absolutely no, Senator, no.
Senator Hatch. I felt that that would be your answer. I
really did.
[Laughter.]
Senator Leahy. Tough question, Orrin. Tough question.
Senator Hatch. It is a good question, though. It is one
that kind of overcomes the implications that you were.
Judge Alito. Senator, I had never attended a non-
coeducational school until I went to Princeton, and after I was
there a short time, I realized the benefits of attending a co-
educational school.
[Laughter.]
Senator Hatch. Now, I am glad that you mentioned in your
opening statement yesterday that a decade earlier, a person
like yourself--and by this, I assume you meant someone of
Italian ancestry.
Judge Alito. I do, Senator, and someone not from any sort
of exalted economic status.
Senator Hatch. Modest background, son of an immigrant
father, and a person who had gone to public school and might
not have been fully welcomed sometimes at Princeton at that
time. Now, people like me are not even sure of what an eating
club is, but it sure as heck does not sound like a cafeteria.
Judge Alito. No. It's something like a fraternity, except
it's just a facility. It's a private facility where students
eat. Traditionally, they were selective. They had a process
like Vicker and they chose people that they thought fit in with
the group.
Senator Hatch. Sure.
Judge Alito. And I did not choose to belong to an eating
club. I belonged to a university facility called Stevenson
Hall, which was named after Adlai Stevenson, and it was one of
the most co-educational facilities on the campus. It was not
selective. It was attractive to me because a lot of faculty
members went there for lunch. There was a master who lived on
the facility with his family, and it was an opportunity at
dinner and lunch to talk to faculty members.
Senator Hatch. Well, much has been written about the just
and egalitarian changes that took place at Princeton and other
elite institutions in the 1960s, making them more welcoming to
persons without an elite background. It has been alleged by
some--most prominently, I might add, by a Democratic witness
who was withdrawn at the last minute because of some
politically embarrassing comments that he made--that your
membership in this group demonstrates your desire to maintain
some old boys' network to the detriment of women and
minorities. Could you comment on that particular suggestion?
Judge Alito. I certainly had no such desire, and I think
that what I did when I was a student at Princeton and my
activities since then illustrate that.
As I said, when I was at Princeton, I was a member of this
university facility, and it was open to everybody, and it was
one of the most co-educational facilities on the campus. And
since graduating, I have actually been involved in a way in the
admissions process. I was on the Schools Committee for a number
of years and interviewed applicants to Princeton, and I think
that shows my attitude toward the general way in which the
university has been run.
Senator Hatch. Well, ROTC programs are an excellent
opportunity for young men and women to attend college and to
serve their country through service in the armed forces. Now,
there are actually more military officers who were ROTC
students than went to West Point, the Naval Academy, or the Air
Force Academy. Now, that includes the eminent Colin Powell.
Now, you were a member of the ROTC; is that true?
Judge Alito. I was, Senator.
Senator Hatch. You were a proud member of the ROTC.
Judge Alito. I was.
Senator Hatch. Did you enjoy your time in the ROTC and in
the Army afterward?
Judge Alito. I was proud to be a member, and the unit was
thrown off the campus after--well, the decision was made
shortly after I joined the ROTC, and so I attended the ROTC
classes on the campus during my junior year, but during my
senior year the unit had been expelled from the campus, and I
had to go to Trenton State College occasionally to finish up my
ROTC work.
Senator Hatch. I heard a report yesterday that the ROTC
building on the Princeton campus was actually firebombed at
about the same time that American servicemen of college age
were fighting in Vietnam. Is that accurate?
Judge Alito. That's correct. It was very extensively
damaged.
Senator Hatch. Was anybody injured?
Judge Alito. I don't recall that anybody was injured, but
certainly there's a serious risk of injury whenever an arson
takes place.
Senator Hatch. Now, Judge Alito, some Senators and left-
wing activist groups have focused on one case involving the
Vanguard Company, claiming that your consideration of that case
amounts to some kind of ethical lapse. Now, I would observe
that the universal opinion is that you have unquestioned
integrity and a record that is above reproach. I know we will
hear from the American Bar Association later this week, but I
know their highest rating includes the highest marks for
integrity. In fact, I have a copy of their recommendations
here.
On the issue of integrity, it says, ``The matter of
integrity is self-defining. A nominee's character and general
reputation in the legal community are investigated, as are his
or her industry and diligence. Judge Alito enjoys an excellent
reputation for integrity and character, notwithstanding a
widespread awareness of the Vanguard and Smith Barney recusal
issues. During his personal interview with us, Judge Alito was
asked about the recusal matter in detail, and he acknowledged
at length that he takes the matter of recusal very seriously
and that the cases had `slipped through' the court's screening
process.''
I won't read the whole matter, but let me just go toward
the end. ``Judge Alito explained to the satisfaction of the
Standing Committee the special circumstances that resulted in
the screen not working or otherwise not being applied in these
limited matters''--that is, the screening of cases--``and he
further accepted responsibility for the errors. We accept his
explanation and do not believe these matters reflect adversely
on him. To the contrary, consistent and virtually unanimous
comment from those interviewed included `He has the utmost
integrity'; `he is a straight shooter, very honest, and calls
them as he sees them'; `his reputation is impeccable'; `you can
find no one with better integrity'; `his integrity and
character are of the highest caliber'; `he is completely
forthright and honest'; `his integrity is absolutely
unquestionable'; `he is a man of great integrity.' ''
``On the basis of our interviews with Judge Alito with well
over 300 judges, lawyers, and members of the legal community
nationwide, all of whom know Judge Alito professionally, the
Standing Committee concluded that Judge Alito is an individual
of excellent integrity.''
Now, the reason I want to go into this is to kind of get
rid of this problem that I think is as phony as anything I have
ever seen in my time around here. Like I say, this case has
been written about or reported on for weeks in bits and pieces
so that getting a clear picture of the facts is indeed a
challenge, let alone getting a clear picture of the ethical
issues involved as well. And I know you have not had a chance
to respond to any of it publicly, so I want to give you that
chance now.
Now, please take a few minutes and briefly describe the
facts of the case, and then I have a few questions on the
issues that are raised by the case.
Judge Alito. Thank you, Senator, and I appreciate the
opportunity to address this because a lot has been said about
it and very little by me. And I think that once the facts are
set out, I think that everybody will realize that in this
instance I not only complied with the ethical rules that are
binding on Federal judges--and they're very strict--but also
that I did what I have tried to do throughout my career as a
judge, and that is to go beyond the letter of the ethics rules
and to avoid any situation where there might be an ethical
question raised.
And this was a case where--this is a case that came up in
2002, 12 years after I took the bench, and I acknowledge that
if I had to do it over again, there are things that I would
have done differently. And it's not because I violated any
ethical standard, but it's because when this case first came
before me, I did not focus on the issue of recusal and apply my
own personal standard, which is to go beyond what the code of
conduct for judges requires.
This was a pro se case, and we take our pro se cases very
seriously.
Senator Hatch. By pro se, explain that.
Judge Alito. It's a case where the plaintiff was not
represented by a lawyer. She was representing--she was
representing--
Senator Hatch. Paying for her own counsel and represented
herself.
Judge Alito. She represented herself initially, and we take
those very seriously. We give those just as much
consideration--in fact, more consideration in many respects
than we do with the cases without lawyers because we take into
account that somebody who's representing himself or herself
can't be expected to comply with all the legal technicalities.
But for whatever reason, our court system for handling the
monitoring of recusals in these pro se cases is different from
the system that we use in the cases with lawyers. And maybe
that's because recusal issues don't come up very often in pro
se cases. But, in any event, in a case with a lawyer, before
the case is ever sent to us, we receive what are known as
clearance sheets, and those are--it's a stack of papers and it
lists all the cases that the clerk's office is thinking of
sending to us. It lists the parties in each case, and it lists
the lawyers in each case. And it says, ``Do you need to recuse
yourself in any of these cases?'' And this is the time when the
judges and this is the time when I focus on the issue of
recusal, and I look at each case. I look at the parties. I look
at the lawyers. And I ask myself: Is there a reason why I
should not participate in the case?
Now, because this case, the Monga case, was a pro se case,
it didn't come to me with clearance sheets. I just received the
briefs, and it had been through our staff attorneys' office.
They take a first look at the pro se cases, and they try to
make sure--they try to translate the pro se arguments into the
sort of legal arguments that lawyers would make to help the pro
se litigants. And they give us a recommended disposition and a
draft opinion.
And when this came to me, I just didn't focus on the issue
of recusal, and I sat on the initial appeal in the case. And
then after the case was decided, I received a recusal motion.
And I was quite concerned because I take my ethical
responsibilities very seriously.
So I looked into the question of whether I was required
under the code--because I just wanted to see where the law was
on this. Was I required under the code of conduct to recuse
myself in this case? And it seemed to me that I was not. And a
number of legal experts, experts on legal ethics, have now
looked into this question, and their conclusion is no, I was
not required to recuse.
But I didn't stand on that because of my own personal
policy of going beyond what the code requires, so I did recuse
myself. And not only that, I asked that the original decision
in the case be vacated, that is, wiped off the books and that
the losing party in the case, the appellant, Ms. Monga, be
given an entirely new appeal before an entirely new panel. And
that was done.
I wanted to make sure that she did not go away from this
case with the impression that she had gotten anything less than
an absolutely fair hearing. And then beyond that, I realized
that the fact that this has slipped through in a pro se case
pointed to a bigger problem, and that was the absence of
clearance sheets.
So since that time, I have developed my own forms that I
use in my own chambers, and for pro se cases now, there is--I
have a red sheet of paper printed up, and it is red so nobody
misses it. And when a pro se case comes in, it initially goes
to my law clerks, and they prepare a clearance sheet for me in
that case, and then they do an initial check to see whether
they spot any recusal problem. And if they don't, then there's
a space at the bottom where they initial it. And then it comes
to me, and there's a space at the bottom for me to initial to
make sure that I focus on the recusal problem. And in very bold
print at the bottom of the sheet for my secretary, it says,
``No vote is to be sent in in this case unless this form is
completely filled out.''
So there are a number of internal checks now in my own
office to make sure that I follow my own policy of going beyond
what the code requires.
Senator Hatch. In other words, there was never any
possibility of you benefiting financially no matter how that
case came out. Is that right?
Judge Alito. Absolutely no chance.
Senator Hatch. And you actually did recuse yourself when
the question was eventually raised, even though you didn't have
to.
Judge Alito. That's correct, Senator.
Senator Hatch. Did you genuinely feel that you were either
legally or ethically required to recuse under those
circumstances?
Judge Alito. I did not think the code required--
Senator Hatch. You were just going beyond, which has been
your philosophy and--
Judge Alito. That's right.
Senator Hatch [continuing]. Ethical response, your personal
ethical approach to it.
Well, your own conclusion certainly is supported by the
independent ethics experts that you mentioned who have recently
examined this case. I know one of them is Professor Geoffrey
Hazard from the University of Pennsylvania. That name stuck out
in particular because I remember when a financial conflict of
interest issue arose in connection with the nomination of
Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy
and I, we strongly defended the Breyer nomination. I did, too.
And during the hearings, Senator Kennedy highlighted a letter
from Professor Geoffrey Hazard to answer Justice Breyer's
critics.
Well, Professor Hazard has examined this matter, and
concluded that you, Judge Alito, handled it, in his words,
``quite properly.''
Now, Mr. Chairman, I would like to put not only Professor
Hazard's letter into the record, but the letter of Steven
Lubet, Thomas Morgan, and Professor Ronald Rotunda, all of whom
found that you made no ethical mistakes.
Chairman Specter. Without objection, all will be made a
part of the record.
Senator Hatch. And let me just observe that these are all
top ethics experts in our country today, and, you know, I have
to say that Rotunda--or Morgan, of the George Washington
University Law School, he happens to be the co-author of the
Nation's most widely read ethics textbook. Now, he was blunt in
his assessment saying that there was simply no basis for
suggesting that you did anything improper. So I am glad to put
those in the record.
Now, you actually did more than simply recusing yourself in
this case. As you have explained, you even set up a special
system to make sure that, you know, there never is going to be
a question about this. And so you went farther than you were
legally or ethically mandated to do.
Judge Alito. I did, Senator, and that is what I have tried
to do throughout my time on the bench.
Senator Hatch. Now, when the new panel of judges looked at
this case, how did they rule?
Judge Alito. They ruled the same way that we had, and we
had ruled the same way that the district court did.
Senator Hatch. OK. So let me just clarify this one more
time, and you tell me if this accurately describes the
situation. You did not believe that you were ethically or
legally required to recuse yourself in this case. All the
ethics experts agree with you. Yet you recused yourself anyway
when the issue was raised. The party raising the issue got an
entirely new hearing before a new and different panel of
judges, who ruled the same way that you did originally.
Does that about sum it up?
Judge Alito. That's correct, Senator.
Senator Hatch. Well, I have to say, Judge, that you went
above and beyond your ethical duties here, and I think you are
to be applauded, not to be criticized, for your rigorous
attention to judicial impartiality and integrity.
Now, let me just go into another matter here before I
finish here. Some Supreme Court nominees have had legislative
experience. The Justice you will replace, Justice O'Connor,
served in the Arizona State Senate. Justice Breyer was chief
counsel to Senator Kennedy when he chaired this Committee. I
have tremendous respect for both of them.
Judge Alito, you have had no legislative experience, and
there are those of us who are concerned that your many years of
experience in the executive branch may have biased you in favor
of Executive power, or at least some feel that way and that
that is a possibility.
Yesterday, one of my Democratic colleagues claimed that
your instincts are to defer to the Executive, to grant
prosecutors whatever power they seek, that sort of thing. I
suppose that in 15 years on the appeals court you have
participated in what I would estimate at nearly 5,000 cases.
You have had many opportunities to review challenges to
Executive power. Is that correct?
Judge Alito. I have, yes.
Senator Hatch. Well, I am thinking of cases such as United
States v. Kithcart, where you reversed a criminal conviction
because the police lacked probable cause for a search, or
Bolden v. Southeastern Pennsylvania Transportation Authority,
where you ruled for a former maintenance custodian for a public
transportation agency, concluding that the Fourth Amendment
barred a suspicionless drug test.
I want to make it clear that simply giving such examples of
results on the other side of the ledger does not by itself
prove that you are a good judge or a bad judge. Without also
talking about the facts and the law in each case, merely
tabulating winners and losers does not offer much. But since my
colleagues on the other side occasionally have their tally
sheets and actually some have even claimed that you may be
biased when certain results seem to suit them, could you give
me some more examples of cases where you voted against
Executive powers?
Judge Alito. Yes, certainly, Senator. Brinson v. Vaughn is
an example of that. That was a habeas case involving a murder
conviction, and I concluded and my panel concluded--and I wrote
the opinion saying that there had been racial discrimination,
or enough to have a hearing on the possibility of racial
discrimination in the selection of the jury in that case. And,
therefore, we reversed the decision of the district court.
Williams v. Price is another example. There we found--and
that was another murder case, and so what is involved here in
these cases is really the most important thing that is
litigated on the criminal side in the Federal courts. That was
a case where the district court had denied a writ of habeas
corpus, and we reversed because we found that there had been an
error in excluding testimony that showed racial bias on the
part of the jurors.
There was another murder case, United States v. Murray.
This was a Federal prosecution, and we had to reverse there
because we concluded--and I wrote the opinion there--that the
prosecutors had introduced evidence--
Senator Hatch. Well, you could go on and on, but my point
is that in approximately 5,000 cases, you can find just about
anything you want to, to pluck out and say, ``Oh, he didn't do
right here,'' or ``He did right here.'' I mean, the fact of the
matter is that you, as far as I can see, have always done your
utmost to live up to your responsibilities as a Federal court
judge and that you have done so throughout your 15 years on the
bench, even though members of this illustrious body, the United
State Senate, might differ with you on occasion, and others
might also. But I don't know a judge alive who has been on the
bench 15 years that does not have cases that some of our
illustrious members disagree with. So that is the point I am
trying to make.
Let me just shift here for a second. I am interested in
exploring the kind of judge you are. As you can see, some of
these questions have all been directed toward what kind of a
judge you are. But I am interested in what is often referred to
as a judicial philosophy, which means how you understand the
role that judges play in our system of Government in general
and how judges should go about deciding cases in particular.
I would like to explore this by giving you a chance to
expand on a few things that you have said or written. In your
hearing in April 1990, which my friend Senator Kennedy chaired,
he asked you what qualities are most important for an appellate
judge. You listed open-mindedness to litigants' arguments,
close attention to the particular facts and law in the case,
and trying not to import a judge's own view of the law that
should be applied in the case.
Now, in your statement yesterday, you said that your
experience on the appeals court has taught you a lot about, as
you put it, ``the way in which a judge should go about the work
of judging.'' What has that experience taught you? How has it
shaped the answer you gave before you went on the bench?
Judge Alito. My general philosophy is that the judiciary
has a very important role to play, and in speaking with Senator
Leahy, I highlighted some of that. But the judiciary has to
protect rights, and it should be vigorous in doing that, and it
should be vigorous in enforcing the law and in interpreting the
law, in interpreting the law in accordance with what it really
means and enforcing the law even if that's unpopular.
But although the judiciary has a very important role to
play, it's a limited role. It is not--it should always be
asking itself whether it is straying over the bounds, whether
it's invading the authority of the legislature, for example,
whether it is making policy judgments rather than interpreting
the law. And that has to be a constant process of re-
examination on the part of the judges. And that's the role that
the judiciary should play.
Now, my experience on the bench has really reinforced for
me the importance of the appellate process and the judicial
process that I described yesterday. And that is the process of
really engaging the arguments that are made, reading the
briefs, and approaching it with an open mind, always with the
possibility of changing your mind based on the arguments and
based on the facts of a particular case.
Senator Hatch. Well, another context in which you have
discussed your judicial philosophy is the questionnaire that
you received from this Committee, which asked for your views on
judicial activism. Now, the very first words of your answer
were as given here today, that the Constitution sets forth the
limited role for the judicial branch.
Now, to hear some of my colleagues describe it yesterday,
judges have virtually unlimited power to right all wrongs,
protect everyone from everything, and make sure that Government
officials everywhere behave themselves.
Now, as an appeals court judge, the decisions of the
Supreme Court add to the limitations or constraints you must
observe, in my opinion. I am wondering whether you believe this
notion of limited judicial power applies also the Supreme
Court, and if so, how it applies when there is no higher court
than the Supreme Court. Does that mean that the Supreme Court
should perhaps be even more cautious, even more self-restrained
since there is no appeal from any errors that they might make?
Judge Alito. I think that's a solemn responsibility that
they have. When you know that you are the Court of last resort,
you have to make sure that you get it right.
It is not true, in my judgment, that the Supreme Court is
free to do anything that it wants. It has to follow the
Constitution, and it has to follow the laws. Stare decisis,
which I was talking about earlier, is an important limitation
on what the Supreme Court does. And although the Supreme Court
has the power to overrule a prior precedent, it uses that power
sparingly, and rightfully so. It should be limited in what it
does.
Senator Hatch. Another place in which you have written
about what might be called judicial philosophy is in your
opinions--not that you have spent much time opining about such
matters in the abstract. Nevertheless, I would like you to
expand a little on a few of the things you have written in this
regard.
For instance, in New Jersey Payphone Association v. Town of
West New York--this was a 2002 case--for example, you wrote the
following: ``It is well established that, when possible,
Federal courts should generally base their decisions on non-
constitutional rather than constitutional grounds. The
rationale behind the doctrine of avoiding constitutional
questions except as a last resort are grounded in fundamental
constitutional principles.''
Can you explain those fundamental principles and whether
you think the Supreme Court as well as the appeals court should
follow this imperative to avoid constitutional decisions?
Judge Alito. I do. I think that's a very important
principle. As I recall, Justice Brandeis in the Ashwander case
was the one who articulated it most eloquently, and it's,
therefore, an important reason because a constitutional
decision of the Supreme Court has a permanency that a decision
on an issue of statutory interpretation doesn't have. So if a
case is decided on statutory grounds, there's a possibility of
Congress amending the statute to correct the decision if it's
perceived that the decision is incorrect or it's producing
undesirable results.
I think that it's--my philosophy of the way I approach
issues is to try to make sure that I get right what I decide,
and that counsels in favor of not trying to do too much, not
trying to decide questions that are too broad, not trying to
decide questions that don't have to be decided, and not going
to broader grounds for a decision when a narrower ground is
available.
Senator Hatch. You have addressed issues such as abortion
at different points in your career. You addressed it when you
worked for the Solicitor General. You might have addressed it
in several cases on the appeals court. It might be tempting to
say that if you came to one conclusion while in one role, you
will necessarily come to the same conclusion on the issue while
in a different role.
Now, I think you have explained it pretty well today, but
let me just ask one other question. Could you please explain
how judges address issues differently than advocates? And how
does the requirement of a case or a controversy or a limitation
such as a particular standard of review shape how judges
address these issues?
Judge Alito. The standards of review are very important,
and often they are prescribed by Congress. Congress gives us
authority, jurisdiction to decide certain questions, but it
says that you don't have the authority to go back and do what
the trial--what you would have done if you were the trial judge
or if you were the administrative agency; you have a limited
authority of review. And I think it's very important for us to
stay within the bounds of the authority that Congress gives us.
I think that's a very important part of our function.
Senator Hatch. Thank you, Judge.
Chairman Specter. Thank you, Senator Hatch.
We will now take a 15-minute break and reconvene at 11:20.
[Recess at 11:06 a.m. to 11:20 a.m.]
Chairman Specter. We will continue the hearing for Judge
Alito on confirmation to the Supreme Court of the United
States, and we now turn in sequence to Senator Kennedy. Let us
not forget to start the clock.
Senator Kennedy. Thank you very much, Mr. Chairman.
There was one interesting omission between the exchange of
yourself and Senator Hatch on the whole Vanguard issue in
question, and that was the promise and pledge that you gave to
this Committee when you were up for the Circuit Court. I have
it right here. It said: I do not believe that conflicts of
interest relating to my financial interests are likely to
arise. I would, however, disqualify myself from any cases
involving the Vanguard Companies, the brokerage firm of Smith
Barney or the First Federal Savings & Loan of Rochester, New
York. So you remember that response. That was a pledge and
promise to the Committee that you would recuse yourself, was it
not?
Judge Alito. Yes, it was, Senator. And as I said in
answering Senator Hatch's question, if I had it to do over
again, I would have handled this case differently. There were
some oversights--
Senator Kennedy. I am sure you might have, and we have had
a number of different explanations for this. I would like to
ask the clerk if they would take down and show the Judge, if
you would like to be refreshed, about the number of times the
name Vanguard appears on the brief, and the number of times
Vanguard appears on the opinion, which I believe you offer. I
would ask if I could get a clerk to show those two documents.
Judge Alito. Senator, I'm familiar with that. I don't
really need to see the document. Senator, the name Vanguard
certainly appears on the briefs, and it appeared in the draft
opinion that was sent to us by the staff attorney's office. I
just didn't focus on the issue of recusal when it came up, and
that was an oversight on my part, because it didn't give me the
opportunity to apply my personal policy in going beyond what
the code requires.
Senator Kennedy. Did the individuals that responded on the
ethical issues that were involved in this case, did they know
that you had pledged and promised to this Committee that you
would recuse yourself?
Judge Alito. I believe that they did. I believe that some
of them at least addressed that specifically--
Senator Kennedy. Do you know specifically whether they did
or not?
Judge Alito. I believe they addressed it in their letter,
so they must have been aware of it.
Senator Kennedy. They understood that you had promised this
Committee that you would recuse yourself? Your testimony now is
that those that made a comment upon your ethical behavior knew
as a matter of fact that you had pledged to this Committee that
you would recuse yourself from the Vanguard cases?
Judge Alito. Professor Hazard, I know, addressed that
directly in his letter. I think Professor Rotunda addressed it
in his letter, so, obviously, if the letters addressed the
issue, they were aware of what was said on the Senate
questionnaire.
Senator Kennedy. And the final answer--and we will move
on--is that you saw the name Vanguard on the briefs, and you,
obviously, saw them on the opinion. You are the author of the
opinion. But your testimony here now is even though you saw the
names on that, it did not come to mind at that moment that you
had made the pledge and promise to this Committee that you
would recuse yourself?
Judge Alito. I did not focus on the issue of recusal I
think because 12 years had gone by, and the issue of a Vanguard
recusal hadn't come up. And one of the reasons why judges tend
to invest in mutual funds is because they generally don't
present recusal problems, and pro se cases in particular
generally don't present recusal problems. And so, no light went
off. That's all I can say. I didn't focus on the issue of
recusal.
Senator Kennedy. This is important, when the lights do go
on and when the lights do go off, because, actually, the
accumulation of value of Vanguard had increased dramatically
during this period of time, had it not?
Judge Alito. It had, Senator, but I had nothing to gain
financially by--
Senator Kennedy. I am not asking you to get on to the
questions of gain or loss or whatever. I am just asking about
the pledge to the Committee which you had given, and the fact
that Vanguard was so obvious, both in the brief and in the
opinion which you wrote, and the fact that during this period
of time there had been a sizable increase in the total value of
Vanguard, and as all of us know, if you are dealing with a case
dealing with IBM, you cannot have even a single share in that.
The point about all of this is so interested parties that have
come before the courts, are going to believe not only in
reality, but in appearance that they are going to get a fair
shake. And that, you have said, was certainly your desire, and
I certainly commend you for at least that desire. But in this
case, this was something that we recognize and is extremely
important.
Judge, in just the past month, Americans have learned that
the President instructed the National Security Agency to spy on
them at home, and they have seen an intense public debate over
when the FBI can look at their library records, and they have
heard the President announce that he has accepted the McCain
amendment barring torture. But then just days later, as he
signed it into law, the President decided he still could order
torture whenever he believed it was necessary. No check, no
balance, no independent oversight. So, Judge, we all want to
protect our communities from terrorists, but we do not want our
children and grandchildren to live in an America that accepts
torture and eavesdropping on an American citizen as a way of
life. We need an independent and vigilant Supreme Court to keep
that from happening, to enforce the constitutional boundaries
on Presidential power and blow the whistle when the President
goes too far.
Congress passes laws, but this President says that he has
the sole power to decide whether or not he has to obey those
laws. Is that proper? I do not think so. But we need Justices
who can examine this issue objectively, independently and
fairly, and that is what our Founders intended and what the
American people deserve.
So, Judge, we must know whether you can be a Justice who
understands how to strike that proper balance between
protecting our liberties and protecting our security, a Justice
who will check even the President of the United States when he
has gone too far.
Chief Justice Marshall was that kind of Justice when he
told President Jefferson that he had exceeded his war-making
powers under the Constitution. Justice Jackson was that kind of
Justice when he told President Truman that he could not use the
Korean War as an excuse to take over the Nation's steel mills.
Chief Justice Warren Burger was that kind of Justice when he
told President Nixon to turn over the White House tapes. And
Justice O'Connor was that kind of Justice when she told
President Bush that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.
I have serious doubts that you would be that kind of
Justice. Your record shows time and again that you have been
overly deferential to Executive power, whether exercised by the
President, the Attorney General or law enforcement officials.
And your record shows that even over the strong objections of
other Federal judges, other Federal judges, you bend over
backwards to find even the most aggressive exercise of
Executive power reasonable. But perhaps most disturbing is the
almost total disregard in your record for the impact of these
abuses of power on the rights and liberties of individual
citizens.
So, Judge Alito, we need to know whether the average
citizen can get a fair shake from you when the Government is a
party, and whether you will stand up to a President, any
President, who ignores the Constitution and uses arguments of
national security to expand Executive power at the expense of
individual liberty, whether you will ever be able to conclude
that the President has gone too far.
Now, in 1985, in your job application to the Justice
Department you wrote, ``I believe very strongly in the
supremacy of the elected branches of Government.'' Those are
your words; am I right?
Judge Alito. They are, and that's a very inapt phrase, and
I--
Senator Kennedy. Excuse me?
Judge Alito. It's an inapt phrase, and I certainly didn't
mean that literally at the time, and I wouldn't say that today.
The branches of Government are equal. They have different
responsibilities, but they are all equal, and no branch is
supreme to the other branch.
Senator Kennedy. So you have changed your mind?
Judge Alito. No, I haven't changed my mind, Senator, but
the phrasing there is very misleading and incorrect. I think
what I was getting at is the fact that our Constitution gives
the judiciary a particular role, and there are instances in
which it can override the judgments that are made by Congress
and by the Executive, but for the most part our Constitution
leaves it to the elected branches of Government to make the
policy decisions for our country.
Senator Kennedy. I want to move on. Mr. Chairman, the clock
is off. There are a number of points I want to cover and be
timely, so I leave it up to the Chair.
Chairman Specter. Senator Kennedy, you are correct. We have
a timer over here. We are trying to get the time fixed.
Senator Kennedy. All right. If I would know when I have 10
minutes left?
Chairman Specter. Let us see if we cannot get the clock
within the view of Senator Kennedy so he can see it when he is
questioning the witness.
Senator Kennedy. Thank you, Chair.
Chairman Specter. And give Senator Kennedy two more
minutes.
Senator Kennedy. There you go.
[Laughter.]
Senator Kennedy. Be quiet over there, scurrilous dogs.
[Laughter.]
Senator Leahy. Seniority has privileges.
Senator Kennedy. Judge, quite frankly, your record shows
you still believe in the supremacy of the executive branch,
Judge Alito. I believe there is a larger pattern in your
writings and speeches and cases that show an excess of almost
single-minded deference to the Executive power without showing
a balanced consideration to the individual rights of people. So
let us discuss some of your opinions.
These cases deal specifically with one form or another of
Executive power, the power of authorities intruding in homes,
searching people who are not even suspected of committing a
crime. Mellott v. Heemer--where the U.S. Marshal Service
forcibly evicted a family of dairy farmers from their home and
their farm. These farmers had no criminal record, and were
suspected of no crime, but after they fell on very hard times,
property was sold at a public auction. U.S. Marshals were sent
to evict them. Remember, the marshals were sent to carry out a
civil action, not a criminal action, a civil action. These
farmers had committed no crime. Now, I respect the U.S.
Marshals. They have a tough job and they do it with great
professionalism. But in this case the marshals entered the
house with loaded guns. The family was unarmed, did not resist,
but still the marshals pointed loaded guns at their heads,
chests and backs. One marshal chambered a cartridge in his gun.
Twice they pushed the wife into her chair.
The trial judge held there was enough evidence in this case
to have a jury review the facts, hear the testimony and decide
whether the marshals used too much force to evict these
farmers. That did not sit well with you, Judge Alito. You
grabbed the case away from the jury. You would not let them
hear the testimony or make up their own mind about whether the
marshals had gone too far. No, you simply substituted your
judgment for the jury's, and decided that the marshals' conduct
was, as a matter of law, objectively reasonable. Judgment for
the marshals, no jury of their peers for the farmers.
Why, Judge Alito? Your colleague on the Third Circuit,
Judge Rendell, called the marshals' conduct ``Gestapo-like'',
``Gestapo-like''. She said that seven marshals terrorized a
family and friends, ransacked a home while carrying out an
unresisted civil eviction. The trial judge thought the decision
should be made by the jury. Why did you not let the jury
exercise an independent check on the marshals' actions?
Judge Alito. There was some additional information
regarding these people that was important, and that was that
they had threatened other people, as I recall, and there was
evidence about the possession of weapons and evidence that they
would be dangerous, and that was the basis on which the
marshals acted the way they did. This was a case in which they
were--the marshals were sued for civil damages, and they
asserted what's called the Qualified Immunity Defense, and that
means that if a reasonable person could have thought there was
a basis for doing what they did, then they are entitled not to
be tried. And that's the law. I didn't make up that law.
Senator Kennedy. No, the--
Chairman Specter. Let him finish, Senator Kennedy.
Judge Alito. That's not a legal standard that I made up,
and that was the way I saw the case, and that's the way the
other judge, who was in the majority, saw the case. Now, these
cases involve difficult line-drawing arguments at times, and I
respect Judge Rendell's view of this very much, but reasonable
people will view these things differently.
Senator Kennedy. The issue then was the actions of the
marshals, whether it was reasonable. And here you have a judge,
Judge Rendell, saying it was Gestapo-like to talk about
terrorizing a family and friends, ransacking a home while
carrying out an unresisted civil eviction. Aren't juries there
to make a judgment and determination whether it was reasonable
or not reasonable, and did you not, by your action, take that
away because you ruled as a matter of law that their conduct
was reasonable?
Judge Alito. The Supreme Court has told us how we have to
handle this issue, and it is for the judiciary to decide in the
first place whether a reasonable officer could have thought
that what the officer was doing was consistent with the Fourth
Amendment, and we have to make that decision. Now, if we decide
that there's an issue of fact. If there's a dispute in the
testimony about the evidence that the marshals had or about
what these individuals were doing at the time when the search
was taking place, or what the marshals did, and certainly those
factual issues have to be resolved by the jury.
Senator Kennedy. That is I think certainly the view of
Judge Rendell.
Let me move on, if I could, to Doe v. Groody. I know that
Senator Leahy has talked about this, and gone over the factual
situation about the strip searching of a 10-year-old girl. This
case, the police got the warrant to search the house. They
found the suspect outside, marched him inside where they
encountered wife and 10-year-old. The police took the wife and
daughter upstairs, told them to remove their clothing,
physically searched them, not as a protective frisk or search
for weapons, but in the hopes of finding contraband. And that
is when Judge Chertoff, the former Chief Federal Prosecutor for
New Jersey, the former head of the Criminal Division in the
Justice Department, President Bush's current Secretary of
Homeland Security, held that the police went too far. As Judge
Chertoff said, a search warrant for a premise does not
constitute a license to search everyone inside.
You differed. And you have reviewed with us your reasoning
for it, the fact that you felt that the affidavit which had
been filed by the police should be included in the search
warrant. Judge Chertoff takes strong exception to that, as does
the Fourth Amendment. As you mentioned yourself, the affidavit
represents the police, the police's view about this situation,
but the affidavit--the search warrant is what is approved by
the judge. Those are two different items. They come up every
time in many, many instances. Why did you feel that under these
circumstances, under these circumstances, that that affidavit
should be included, the result of which we have the strip
searching of a 10-year-old, 10-year-old that will bear the
scars of that kind of activity probably for the rest of her
life.
The Fourth Amendment is clear, we want to protect the
innocent. We want to have a search warrant that is precise so
that the police understand it and the person that it is being
served to understands it. That was all spelled out in the
judge's opinion. But you went further than that. You said,
well, in this case we are going to include the affidavit, and
as a result of your judgment in this case and the inclusion of
the affidavit, we have the kind of conduct against this 10-
year-old that she will never forget. Why? Why, Judge Alito?
Judge Alito. Senator, I wasn't happy that a 10-year-old was
searched. Now, there wasn't any claim in this case that the
search was carried out in any sort of an abusive fashion. It
was carried out by a female officer, and that wasn't the issue
in the case. And I don't think that there should be a Fourth
Amendment rule. But, of course, it's not up to me to decide
that minors can never be searched, because if we had a rule
like that, then where would drug dealers hide their drugs? That
would lead to greater abuse of minors.
The technical issue in the case was really not whether a
warrant can incorporate a search warrant--an affidavit. There's
no dispute that a judge or a magistrate issuing a warrant can
say that the affidavit is incorporated, and that was done here.
The issue was whether--and it was a very technical issue. Was
it incorporated only on the issue of probable cause or was it
also incorporated on the issue of who would be searched? If the
magistrate had said in the warrant, this warrant is
incorporated as to the people who may be searched, and then in
the affidavit it said, and it did say this very clearly, we
want authorization to search anybody who's on the premises,
then there would be no problem whatsoever.
The warrant said it was incorporated on the issue of
probable cause, and I thought that reading it in a common sense
fashion, which is what we're supposed to do, that necessarily
meant that the magistrate said there was probable cause to
search anybody who's found on the premises and that's what I'm
authorizing you to do.
Senator Kennedy. And that is what Judge Chertoff took
strong exception, in a very eloquent statement in talking about
the protections and the reasons for the strict interpretation
for the warrant. Let me move on.
Judge Alito, your Third Circuit decisions don't exist in a
vacuum. I'd like to, Mr. Chairman, at this point, since there
have been some questions about whether we are flyspecking these
cases, I would like to include in the appropriate place in the
record the Knight Ridder studies that concluded that Judge
Alito never found a government search unconstitutional; the
Yale Law School professors study that found that Judge Alito
ruled for the government in almost every case reviewed--this
was their conclusion; the Washington Post stories with regard
to the cases; and also Professor Cass Sunstein's conclusions
that Judge Alito rules against individuals 84 percent of the
time.
Chairman Specter. In accordance with our practices, if you
want them in the record, they will be there, without objection.
Senator Kennedy. So just looking at your writings and
speeches, Judge Alito, you have endorsed the supremacy of the
elected branch of government. You have clarified that today.
You argued that the Attorney General should have absolute
immunity, even for actions that he knows to be unlawful or
unconstitutional. You suggested that the Court should give a
President's signing statement great deference in determining
the meaning and the intent of the law and argued as a matter of
your own political and judicial philosophy for an almost all-
powerful Presidency. Time and again, even in routine matters
involving average Americans, you give enormous, almost total
deference to the exercise of governmental power. So I want to
ask you about some of the possible abuses of the Executive
power and infringement on individual rights that we are facing
in the country today.
Judge Alito, just a few weeks ago, by a vote of 90 to nine,
the Senate passed a resolution sponsored by Senator John McCain
to ban torture, whether it be here at home or abroad, and as a
former POW in Vietnam, John McCain knows a thing or two about
torture. For a long time, the White House threatened to veto
the legislation, and finally, Senator McCain met with the
President and convinced him to approve the anti-torture law.
Two weeks after that, the President issued a signing statement,
no publicity, no press release, no photo op, where he quietly
gutted his commitment to enforce the law banning torture. The
President stated, in essence, that whatever the law of the land
might be, whatever Congress might have written, the Executive
branch has the right to authorize torture without fear of
judicial review.
Now, I raise this issue with you, Judge, I raise this with
you because you were among the early advocates of these so-
called Presidential signing statements when you were a Justice
Department official. You urged President Reagan to use the
signing statements to limit the scope of laws passed by
Congress, even though Article I of the Constitution vests all
legislative powers in the Congress. You urged the President to
adopt what you described as a novel proposal, to issue
statements aimed at undermining the Court's use of legislative
history as a guide to the meaning of the law. You wrote these
words. The President's understanding of the bill should be just
as important as that of Congress.
With respect to the statement issued by President Bush
reserving his right to order torture, is that what you had in
mind when you said or wrote, the President's understanding of
the bill should be just as important as that of Congress?
Judge Alito. When I interpret statutes, and that's
something that I do with some frequency on the Court of
Appeals, where I start and often where I end is with the text
of the statute. And if you do that, I think you eliminate a lot
of problems involving legislative history and also with signing
statements. So I think that's the first point that I would
make.
Now, I don't say I'm never going to look at legislative
history, and the role of signing statements in the
interpretation of statutes is, I think, a territory that's been
unexplored by the Supreme Court and it certainly is not
something that I have dealt with as a judge.
This memo was a memo that resulted from a working group
meeting that I attended. The Attorney General had already
decided that as a matter of policy, the administration, the
Reagan administration, would issue signing statements for
interpretive purposes and had made an arrangement with the West
Publishing Company to have those published. And my task from
this meeting was to summarize where the working group was going
and where it had been, and I said at the beginning of the
meeting that this was a rough--at the beginning of the memo
that this was a rough first effort to outline what the
administration was planning to do and I was a lawyer for the
administration at the time. Then I had a big section of that
memo saying, and these are the theoretical problems and some of
them are the ones that you mentioned. And that's where I left
it, and all of that would need to be explored to go any
further.
Senator Kennedy. Well, Judge Alito, in the same signing
statement undermining the McCain anti-torture law, the
President referred to his authority to supervise the unitary
Executive branch. That's an unfamiliar term to most Americans,
but the Wall Street Journal describes it as the foundation of
the Bush administration's assertion of power to determine the
fate of enemy prisoners, jailing U.S. citizens as enemy
combatants without charging them. President Bush has referred
to this doctrine at least 110 times, while Ronald Reagan and
the first President Bush combined used the term only seven
times. President Clinton never used it.
Judge Alito, the Wall Street Journal reports that officials
of the Bush administration are concerned that current judges
are not buying into its unitary Executive theory, so they are
appointing new judges more sympathetic to their Executive power
claims. We need to know whether you are one of those judges.
In 2000, in the year 2000, in a speech soon after the
election, you referred to the unitary Executive theory as the
gospel and affirmed your belief in it. So, Judge Alito, the
President is saying he can ignore the ban on torture passed by
Congress, that the courts cannot review his conduct. In light
of your lengthy record on the issues of Executive power,
deferring to the conduct of law enforcement officials even when
they are engaged in conduct that your judicial colleagues
condemn, Judge Chertoff, Judge Rendell, subscribing to the
theory of unitary Executive, which gives the President complete
power over the independent agencies, the independent agencies
that protect our health and safety, believing that the true
independent special prosecutors who investigate Executive
wrongdoing are unconstitutional, referring to the supremacy of
the elected branches over the judicial branch and arguing that
the court should give equal weight to a President's view about
the meaning of the laws that Congress has passed, why should we
believe that you will act as an independent check on the
President when he claims the power to ignore the laws passed by
Congress?
Judge Alito. Well, Senator, let me explain what I
understand the idea of the unitary Executive to be, and I think
it's--there's been some misunderstanding, at least as to what I
understand this concept to mean. I think it's important to draw
a distinction between two very different ideas. One is the
scope of Executive power, and often Presidents or occasionally
Presidents have asserted inherent Executive powers not set out
in the Constitution. And we might think of that as how big is
this table, the extent of Executive power.
And the second question is when you have a power that is
within the prerogative of the Executive, who controls the
Executive? And those are separate questions. And the issue of,
to my mind, the concept of unitary Executive doesn't have to do
with the scope of Executive power. It has to do with who within
the Executive branch controls the exercise of Executive power,
and the theory is the Constitution says the Executive power is
conferred on the President.
Now, the power that I was addressing in that speech was the
power to take care that the laws are faithfully executed, not
some inherent power but a power that is explicitly set out in
the Constitution.
Senator Kennedy. Would that have any effect or impact on
independent agencies?
Judge Alito. The status of independent agencies, I think,
is now settled in the case law. This was addressed in
Humphrey's Executor way back in 1935 when the Supreme Court
said that the structure of the Federal Trade Commission didn't
violate the separation of powers. And then it was revisited and
reaffirmed in Wiener v. United States in 1958--
Senator Kennedy. So your understanding of any unitary
Presidency, that they do not therefore have any kind of
additional kind of control over the independent agencies that
has been agreed to by the Congress and signed into law at--
Judge Alito. I think that Humphrey's Executor is a well-
settled precedent. What the unitary Executive, I think, means
now, we would look to Morrison, I think, for the best
expression of it, and it is that things cannot be arranged in
such a way that interfere with the President's exercise of his
power on a functional, taking a functional approach.
Senator Kennedy. I want to just mention this signing of the
understanding of the legislation that we passed banning
torture, what the President signed on to. The Executive branch
shall construe the Title X in Division A relating to detainees
in a matter with the constitutional authority of the President
to supervise the unitary Executive branch as the commander in
chief, and consistent with the constitutional limitations on
judicial power. Therefore, it is the warning that the courts
are not going to be able to override the judgments and
decisions. That is certainly my understanding of those words,
which will assist in achieving the shared objective of the
Congress and the President.
That statement there, in terms of what was agreed to by
Congress 90-to-9, by John McCain, by President Bush, and then
we have this signing document which effectively just undermines
all of that, is something that we have to ask ourselves whether
this is the way that we understand the way the laws are to be
made. It is very clear in the Constitution who makes the laws,
and Congress and the Senate makes it. The President signs it,
and that is the law. That is the law. These signing statements
and recognizing these signing statements and giving these value
in order to basically undermine that whole process is a matter
of enormous concern.
Thank you.
Chairman Specter. Judge Alito, Senator Kennedy had noted
that there were substantial gains, as he put it, in the
Vanguard stock or the Vanguard asset during the period of time
that you held them, but he did not give you an opportunity to
answer that. I don't like to interrupt in the midst of a series
of questions, but you can respond to that if you care to do so
at this time.
Judge Alito. Mr. Chairman, I had additional holdings in
Vanguard during my period of service, but I think that the
important point as far as that is concerned is that nobody has
claimed that I had anything to gain financially from
participating in this case and I certainly did not.
Chairman Specter. Senator Grassley?
Senator Grassley. I have a much more positive view of you
than has just been expressed.
[Laughter.]
Senator Grassley. I can't be cynical about your judging. In
fact, maybe from what I have criticized the Supreme Court in a
long period of time, I might feel you are too cautious, too
willing to follow precedent.
But I think in regard to Vanguard, the point ought to be
made that you did nothing wrong. You didn't violate any law or
any ethics rule. And the point is being made that maybe you
didn't remember a promise that you had made to this Committee,
but let me assure you, don't lose any sleep over that. If
Senators kept every word they made to their constituents, there
wouldn't be any Senators left. There is always shortness of
memory and without ill intent, whether it is on the part of a
Senator or whether it is on the part of Judge Alito.
I hope the viewing public is impressed by your intellect
and your legal capabilities and your judicial record. Clearly,
they are seeing that you have the kind of background and
practical experience that it takes to be a Supreme Court
Justice. In addition, I think you have demonstrated now after
five or six of us asking you questions that you are very candid
in answering questions so far and being honest with our
Committee.
These nomination hearings that we are holding are, of
course, a unique opportunity for all of us, Senators and the
public, to explore more in depth how Supreme Court nominees
view the roles of justice, how a nominee approaches
constitutional interpretation and precedent, as well as a
nominee's appreciation of the separate branches of government,
and you have been involved in all of those discussions already
this morning. It is unfortunate that some extreme liberal
groups have attacked your commitment to the law as well as your
honesty and integrity, but now you are doing your best, and I
think doing a good job, of setting the record straight.
So before I ask you some questions, I want to bring up some
of these issues that have been brought up against you, and you
don't necessarily have to respond in any way. I just think it
is points that ought to be made as I see you. I am only one
Senator, but I think I have had a good opportunity to study you
and particularly your cases.
I would like to address these ethics charges that we have
seen generated by some of the left-wing liberal interest groups
and even my colleagues on the other side of the aisle. These
allegations are just plain absurd. You are going to see some
charts that hopefully will be held up that I am not going to
point to, but bring up some of these charges, because I think
we want to prove that these allegations are absurd. It is
puzzling to me that anyone would actually believe these claims,
especially when people who know Judge Alito the best, people
who have known him for a long period of time and who have
worked closely with him, better than any of our Senators would
know you, they all say that you are a man of honor, integrity,
and principle. They have no question about that.
The fact is that the ABA looks at issues such as integrity
and ethics when it evaluates a judicial nominee and it found
you, Judge Alito, to be unanimously well qualified, a rating
that Democrats have always claimed to be a gold standard. The
ABA didn't find a problem with Judge Alito's record.
Moreover, several leading ethicists from across the
political spectrum reviewed these allegations and they all
agreed that you, Judge Alito, acted properly and that none of
these charges have merit. It says in a letter from George Mason
University Law Professor Ronald Rotunda, already referred to by
members, and in a letter to Chairman Specter, quote, ``Neither
Federal statute nor Federal rules nor Model Code of Judicial
Conduct of the American Bar Association provide that a judge
should disqualify himself in any case involving a mutual fund
company,'' and they give as examples Vanguard, Fidelity, T.
Rowe Price, ``simply because a judge owns mutual funds that the
company manages and holds in trust for a judge,'' end of quote.
So basically, according to law, Judge Alito was not required to
recuse himself in the Vanguard case, but he did it anyway.
So let me repeat, five leading ethicists all say Judge
Alito did nothing wrong. Professor Thomas Morgan, quote, ``In
my opinion, Judge Alito's participation in the Vanguard case
was in no way improper, nor does it give any reason to doubt
that he would fully comply with his ethical responsibilities,
if confirmed.''
And Professor Steven Lubet and David McGowan wrote, ``You
do not need to be a fan of Alito's jurisprudence to recognize
that he is a man of integrity. Other judges and Justices would
do well to follow this example,'' end of quote.
In addition, no complaint filed against Judge Alito has
ever been validated, and to top it off, we have heard glowing
statement after glowing statement from folks closest to the
Judge, your law clerks, Republicans and Democrats alike, as
well as lawyers and judges who practiced before and worked with
the Judge on a daily basis. These people know this nominee best
and they all say that he is a man of humility, a man of
principle, and they don't have any question about the Judge's
integrity.
So it is patently unfair that some folks, intent on
torpedoing this nomination, are trying to give these
allegations weight that they don't deserve. It should be clear
to everyone that this is a blatant tactic to tar Judge Alito's
honorable and distinguished judicial record, and I hope this
puts to rest these outrageous claims that Judge Alito doesn't
have the integrity to be a Supreme Court Justice. It is
outlandish and should be rejected.
I am now getting to a question that I want to ask you about
Executive power. Some of your critics have questioned your
ability, and we have just heard it recently, to be independent
from the Executive branch. They pointed principally to your
work as a lawyer for the Department of Justice 20 years ago,
suggesting that you would just rubber-stamp administration
policy. I would like to give you an opportunity to address
this. So, Judge Alito, do you believe that the Executive branch
should have unchecked authority?
Judge Alito. Absolutely not, Senator.
Senator Grassley. Judge Alito, you do understand that under
the doctrine of separation of powers, the Supreme Court has an
obligation to make sure that each branch of government does not
co-opt authority reserved to the coordinate branch, and do you
understand that where constitutionally protected rights are
involved, the courts have an important role to play in making
sure that the Executive branch does not trample those rights?
Judge Alito. I certainly do, Senator. Each branch has very
important individual responsibilities and they should all
perform their responsibilities.
Senator Grassley. So clarify for me. Do you believe that
the President of the United States is above the law and the
Constitution?
Judge Alito. Nobody in this country is above the law, and
that includes the President.
Senator Grassley. Judge Alito, would you have any
difficulty ruling against the Executive branch of the Federal
Government if it were to overstep its authority in the
Constitution?
Judge Alito. I would not, Senator. I would judge the cases
as they come up and I think that I believe very strongly in the
independence of the judiciary. I have been a member of the
judiciary now for the past 15-and-a-half years and I understand
the role that the judiciary has to play, and one of its most
important roles is to stand up and defend the rights of people
when they are violated.
Senator Grassley. This first question is very general. It
is a new area. I would like to explore in detail what you
understand to be the proper role of a judge in a democratic
society. So could you generally give me what your views are on
this approach?
Judge Alito. Yes. Our Constitution sets up a system of
government that is democratic. So the basic policy decisions
are made by people who are elected by the people so that the
people can control their own destiny. But the Constitution
establishes certain principles that can't be violated by the
Executive branch or by the legislative branch. It sets up a
structure of government that everybody has to follow and it
protects fundamental rights. And it is the job of the judiciary
to enforce the provisions of the Constitution and to enforce
the laws that are enacted by Congress in accordance with the
meaning that Congress attached to those laws, not to try to
change the Constitution, not to try to change the laws, but to
be vigilant in enforcing the Constitution and in enforcing the
laws.
Senator Grassley. What do you think about judges allowing
their own political and philosophical views to impact on any
jurisprudence? Second, do you believe that there is any room
for a judge's own value or personal beliefs when he or she
interprets the Constitution?
Judge Alito. Judges have to be careful not to inject their
own views into the interpretation of the Constitution, and for
that matter, into the interpretation of statutes. That is not
the job that we are given. That is not authority that we are
given. Congress has the law-making authority. You have the
authority to make the policy decisions and it's the job of the
judiciary to carry out the policy decisions that are made by
Congress when it's enacting statutes.
Senator Grassley. Further explanation on that point, three
sub-parts. Do you believe that Justices should consider
political dimensions of controversial cases? Do you believe
that when faced with hard cases, the Supreme Court should look
at pleasing the home crowd or splitting the baby? And what is
the proper role of the Supreme Court in deciding highly charged
cases, meaning, I suppose in most cases, we would be talking
about politically charged cases?
Judge Alito. The Framers of the Constitution made a basic
decision when they set up the Federal judiciary the way they
set up it, and there's a reason why they gave Federal judges
life tenure, and that is so that they will be insulated from
all of the things that you mentioned. They will not decide
cases based on the way the wind is blowing at a particular
time, that at a time of crisis, for example, when people may
lose sight of fundamental rights, the judiciary stands up for
fundamental rights, that it is not reluctant to stand up for
the unpopular and for what the Court termed insular minorities,
that the Constitution--that the judiciary enforces the
Constitution and the laws in a steadfast way and not in
accordance with the way the wind is blowing.
Senator Grassley. Let us look at the Bill of Rights and
many other amendments that are often praised in broad, spacious
terms. If a judge was so inclined, he or she could expand on
the interpretation, use, and effect of many provisions of the
Constitution. Do you agree with the school of thought that
takes the position that when Congress and the Executive branch
are slow or do not act in a particular manner, act at all, let
us say, then the Supreme Court would have a license to create
solutions based on some of the broad wording contained in the
Constitution? Do you think that this is a proper role for the
Supreme Court, or do you take the position that judges have a
duty to respect constitutional restraints?
Judge Alito. Judges have to respect constitutional
restraints. They have to exercise what's called judicial self-
restraint because there aren't very many external checks on the
judiciary on a day-to-day basis. So the judiciary has to
restrain itself and engage in a constant process of asking
itself, is this something that we are supposed to be doing or
are we stepping over the line and invading the area that is
left to the legislative branch, for example. The judiciary has
to engage in that on a constant basis.
Senator Grassley. Well, just suppose that Congress had not
even acted in a certain area and there are people that are
bringing cases before the court that would give an opportunity
to fill in on something that Congress didn't do. What about
in--
Judge Alito. The judiciary is not a law-making body.
Congress is the law-making body. Congress has the legislative
power and the judiciary has to perform its role and not try to
perform the role of Congress or the Executive.
Senator Grassley. I don't know whether you have ever had a
case where the Framers--where you are dealing with the problems
that the Framers maybe in broad ways in the Constitution
couldn't provide for, but how would you apply the words of the
Constitution into problems that the Framers could not have
foreseen?
Judge Alito. There are very important provisions of the
Constitution that are not cast in specific terms, and I think
for good reason. They set out a principle, and then it is up to
the judiciary to apply that principle to the facts that arise
during different periods in the history of our country.
The example that I like to cite here is the prohibition
against unreasonable searches and seizures in the Fourth
Amendment. Now, this goes all the way back to the adoption of
the Fourth Amendment at the end of the 18th century and most of
the types of searches that come up today are things that the
Framers never could have anticipated. They couldn't foresee
automobiles or telephones or cell phones or the Internet or any
of the other means of communication that have prevented new
search and seizure issues. But they set out a good principle,
and the principle is that searches can't be carried out unless
they're reasonable, and generally, there has to be a warrant
issued by a neutral and detached magistrate before a search can
be carried out.
And so as these new types of searches have arisen and new
means of communication have come into practice, the judiciary
has applied this principle and the legislative branch has
applied the principle in statutes like the wiretapping statute
to the new situations that have come up.
Senator Grassley. What factors, if any, and there may not
be any, but what factors, if any, are there which can affect a
judge's interpretation of the text of the Constitution? Can
these factors be determined and applied without involving
personal bias of judges?
Judge Alito. I think they can. There would be no, I think,
basis for judges to exercise the power of judicial review if
they were doing nothing different from what the legislature
does in passing statutes. So judges have to look to objective
things, and if it's a question of absolutely first impression,
and there aren't that many constitutional issues that arise at
this point in our history that are completely issues of first
impression, you would look to the text of the Constitution and
you would look to anything that would shed light on the way in
which the provision would have been understood by people
reading it at the time.
You certainly would look to precedent, which is an
objective factor, and most of the issues that come up in
constitutional law now fall within an area in which there is a
rich and often very complex body of doctrine that has worked
out. Search and seizure is an example. Most of the issues that
arise concerning--freedom of speech is another example. There
is a whole body of doctrine dealing with that, and that's
objective and you would look to that and you would reason by
analogy from the precedents that are in existence.
Senator Grassley. Let me bring up the tension between
majority rule and individual freedoms. This involves the
tensions between the American ideal of democratic rule and the
concept of individual liberties, where neither the majority nor
the minority can be fully trusted to define the proper spheres
of our democratic authority and liberty. I assume that you
agree that there is tension that has to be resolved?
Judge Alito. There is tension because our system of
government is fundamentally a democratic system, as I said. The
authority to make the basic policy decisions that affect
people's lives, most of them, most of those decisions are to be
made by the legislature and by the Executive in carrying out
the law. But the judiciary has the responsibility to exercise
the power of judicial review. And so if something comes up that
violates the Constitution, then it's been established now going
all the way back to Marbury v. Madison, if that comes up in a
case, it is the duty of the judiciary to say what the law is
and to enforce the law in that decision, and if that means
saying that something that another branch of government has
done is unconstitutional, then that's what the judiciary has to
do.
Senator Grassley. How would you go about your duties as a
Justice in determining where the right of the silent majority
ends and where the right of the individual begins? What
principles of constitutional interpretation help you to begin
your analysis of whether a particular statute infringes upon
some individual right?
Judge Alito. I would look to the text of the provision. I
would look to anything that sheds light on what that would have
been understood to mean. I would look to precedent, and as I
mentioned a minute ago, I think in most of the areas now where
constitutional issues come up with some frequency, there is a
body of precedent. That would be--that shapes the decision.
That's generally what is going to dictate the outcome in the
case, and if it's a new question, then usually the judiciary
will see where it fits into the body of precedent and reason by
analogy from prior precedents.
Senator Grassley. Some judges and scholars believe that in
resolving this dilemma, the court's obligation to the intent of
the Constitution are so generalized and remote that judges are
free to create a Constitution that they think best fits today's
changing society. What do you think of such an approach?
Judge Alito. Judges don't have the authority to change the
Constitution. The whole theory of judicial review that we have,
I think is contrary to that notion. The Constitution is an
enduring document and the Constitution doesn't change. It does
contain some important general principles that have to be
applied to new factual situations that come up. But in doing
that, the judiciary has to be very careful not to inject its
own views into the matter. It has to apply the principles that
are in the Constitution to the situations that come before the
judiciary.
Senator Grassley. I think you heard in opening comments
some of the members of this Committee that they view the courts
as a place taking the lead in creating a more just society. Is
that a role for the courts, and I don't know whether you want
to call this judicial activism, but I would, is it ever
justified?
Judge Alito. Well, I think that if the courts do the job
that they are supposed to do, they will produce, we will
produce a more just society. I think if you take a position as
a Federal judge, you have to have faith that if you do your
job, then you will be helping to create a more just society.
The Constitution and the constitutional system that we have is
designed to produce a just society.
It gives different responsibilities to different people.
You could think of a football team or you could think of an
orchestra where everybody has a different part to play, and the
whole system won't work if people start playing--start
performing the role of someone else. Everyone in the system has
to perform their role, and I think you have to have faith, and
I think it's a well-grounded faith, that if you do that, if the
judiciary does what it is supposed to do, the whole system will
work toward producing a more just society.
Senator Grassley. I want to go back and expand on a point I
referred to as maybe Congress not acting some time and what the
Court should do about that. This was a line of questioning that
I also asked Chief Justice Roberts when he was before us. At
that time, I referred to the confirmation of Justice Souter,
and Justice Souter responded to my questions regarding the
interpretation of statutory law by speaking about the Court's
filling vacuums in law left by Congress. Do you believe that
the Supreme Court should fill in vacuums in the law left by
Congress, or is this a way for Justices to take an activist
role in that they get to decide how to fill in generalities and
resolve contradictions in law? If you are confirmed by the
Senate, do you believe that your job is to fill in vacuums?
Judge Alito. Well, I don't know exactly what Justice Souter
was referring to when he said that, but just speaking for
myself, I think that it is our job to interpret and to enforce
the statutes that Congress passes and not to add to those
statutes and not to take away from those statutes.
Senator Grassley. Further on judicial restraint, are there
any situations where you believe it is appropriate for a
Supreme Court Justice to depart from the issue at hand and
announce broad sweeping constitutional doctrine, and if you do,
could you please describe in detail what those circumstances
might be?
Judge Alito. I think that the judiciary should decide the
case--I think judges should decide the case that is before
them. I think it's hard enough to do that and get it right. If
judges begin to go further and announce--and decide questions
that aren't before them, or issue opinions or statements about
questions that aren't before them--from my personal experience,
what happens when you do that is that you magnify the chances
of getting something wrong. When you have an actual concrete
case of controversy before you, focus on that. It improves your
ability to think through the issue and it focuses your thinking
on the issue and it makes for a better decision if you just
focus on the matter that is at hand and what you have to decide
and not speak more broadly.
If you speak more broadly, I think there is a real chance
of saying something that you don't mean to say, or suggesting
something that you don't mean to say and deciding questions
before they have been fully presented to you, before you have
heard all the arguments about this other question that isn't
really central to the case that is before you.
Senator Grassley. You might sometime be faced with what
people might call a bad law or some unpopular law which
nonetheless might be constitutional. Do you believe that--I
guess the question should be, what do you believe would be the
court's role in that instance? Is the court ever justified in
correcting what might be a problem out there, presumably
created by a law Congress passed?
Judge Alito. Courts do not have the authority to repeal
statutes or to amend statutes, and so once a court has
determined what a statute means, then it's the obligation of
the courts to enforce that statute. Now, sometimes when a case
of statutory interpretation comes before a court and your first
look at the statute seems to produce an absurd result, let's
say, or a very unjust result, then I think the judiciary has
the obligation to go back and say, well, is this really what
the statute means, because the legislature generally is not
going to want to produce a result like that. So maybe our first
look at this statute has produced an interpretation that's it's
an incorrect statute. So I think we have to do that.
And occasionally, a statute will come along or an
administrative regulation will come along and the way it's
applied in a particular case shows that there's a problem with
the statute or the regulation that maybe Congress didn't
anticipate or the administrative agency didn't anticipate. And
in those instances, while I think it is the obligation of the
judiciary to apply the statute that is before the judiciary, I
think it is proper for us to say, look, this shows how this
statute or this regulation plays out in the real world in this
situation and maybe you didn't think about that and maybe
that's something that you want to take into account if you're
going to revise the statute or issue a new regulation. I think
those are proper roles for us.
Senator Grassley. What is your position regarding results-
oriented jurisprudence, where the rationale is made secondary
to the actual result reached? When, if ever, is results-
oriented jurisprudence justified?
Judge Alito. Results-oriented jurisprudence is never
justified because it is not our job to try to produce
particular results. We are not policymakers and we shouldn't be
implementing any sort of policy agenda or policy preferences
that we have.
Senator Grassley. In the past few decades, certain interest
groups and legal scholars and even some Members of Congress
have tried to convert the Supreme Court from a legal
institution into political, social, and cultural ones. Because
of this, the Court has morphed in that direction, I believe,
becoming a battlefield for warring interest groups who are
raising and spending millions of dollars on disinformation
campaigns and website blogs. There are even blogs going on all
the time about this hearing. Do you think it is because the
Supreme Court has injected itself into policy issues better
left to the elected branches of government, or has the Supreme
Court tried to act as kind of a roving commission, attempting
to solve perceived societal problems, or maybe it is none of
the above? What do you think can be done to restore the sense
of constitutional balance between the Supreme Court and the
Executive and legislative branches of government and
understanding all are co-equal?
Judge Alito. I think the branches are co-equal and I think
that the judiciary as a whole, including the Supreme Court,
must always be mindful of the role that it is supposed to play
in our system of government. It has an important role to play,
but it's a limited role and it has to do what it is supposed to
do vigilantly, but it also has to be equally vigilant about not
stepping over the bounds and invading the authority of Congress
or invading the authority of the Executive or other government
officials whose actions may be challenged. I think the
challenge for the judiciary.
Senator Grassley. Thank you, Judge Alito.
Chairman Specter. Thank you, Senator Grassley.
Senator Biden?
Senator Biden. Thank you, Mr. Chairman. I understand,
Judge, I am the only one standing between you and lunch, so I
will try to make this painless.
Judge, I would like to say a few very brief things at the
outset. I am puzzled, and I suspect you may be puzzled by some
of the questions. I don't think anybody thinks you are a man
lacking in integrity. I don't think anybody thinks that you are
a person who is not independent. I think that what people are
wondering about and puzzled about is not whether you lack
independence, but whether you independently conclude that the
Executive trumps the other two branches. They wonder when you
back--granted, it is back in 1985 or 1984 when you wrote, ``I
do not question the Attorney General should have this immunity,
has absolute immunity. But for tactical reasons,'' et cetera.
So people are puzzled, at least some are puzzled, and so I
don't want you to read any of this, at least from my
perspective, as I have read it so far, that people think that
this is a bad guy. What people are puzzled about with the
recusal issue was under oath you said, ``I will recuse myself
on anything relating to''--and then a case comes up. So they
are looking for an explanation. So it is not about whether you
are profiting or whether you are, you know, all this malarkey
about what you broke judicial ethics. It is a simple kind of
thing. You know, you under oath said, ``I promise if this ever
comes up, I will recuse myself,'' and then you gave an
explanation. You know, it slipped, you forgot, it had been
years earlier, et cetera.
So don't read it as, you know, this is one of these things
where we know you are--the people I have spoken to on your
court--and it is my circuit--have a very high regard for you,
and I think you are a man of integrity. The question is
sometimes some of the things you have said and done at least
puzzle me. And I would like to--and one of the things--this is
not part of the line of questioning I wanted to ask, but I did
ask you when you were kind enough to come to my office about
the Concerned Alumni of Princeton. Were you aware of some of
the other things they were saying that had nothing to do with
ROTC? Because there was a great deal of controversy.
I mean, I can remember--I can remember this. My son was--
well, anyway, he ended up going to that other university, the
University of Pennsylvania. But I remember, you know,
Princeton. I had spoken on campus in the early 1970s. This was
a big thing, up at Princeton at the Woodrow Wilson School. And
I remember--I didn't remember Bill Frist, but I remember that
there was this disavowing, that Bill Bradley, this great
basketball star and now U.S. Senator, was, you know,
disassociating himself with this outfit, that there was a
magazine called Prospect. I remember the magazine. And all I
want to ask is: Were you aware of the other things that this
outfit was talking about? Were you aware of this controversy
going on in 1972?
Judge Alito. Senator, I don't believe that I was, and when
it was mentioned that Senator Bradley had withdrawn from a
magazine, that didn't ring any bells for me. I did not recall
anything like that.
Senator Biden. It was a pretty outrageous group. I mean, I
believe you that you were unaware of it, but here I was,
University of Delaware graduate, a sitting U.S. Senator. I was
aware of it because I was up there on the campus. I mean, it
was a big deal. It was a big deal, at least in our area, the
Delaware Valley, if you know Princeton, Penn, the schools
around there had this kind of--because the big thing was going
on at Brown at the time as well.
And, by the way, for the record, I know you know. When you
stated in your application that you are a member--you said in
1985, ``I am a member''--they had restored ROTC. I mean, ROTC
was back on the campus. But, again, this is just by way of, you
know, why some of us are puzzled, because if I was aware of it
and I didn't even like Princeton.
[Laughter.]
Senator Biden. No, I mean, I really didn't like Princeton.
I was an Irish Catholic kid who thought it hadn't changed like
you concluded it had. I mean, you know, I admit, I have a
little--you know, one of my real dilemmas is I have two kids
who went to Ivy League schools. I am not sure my Grandfather
Finnegan will ever forgive me for allowing that to happen.
But all kidding aside, I was not a big Princeton fan, and
so maybe that is why I focused on it and no one else did. But I
remember at the time.
The other thing is, Judge, you know, the other thing you
should be aware of--and kind of don't take this personally what
is going on here--every nominee who comes before us is viewed
by all the Senators, left, right, center, Democrat, Republican,
at least on two levels, at least in my experience here. One is,
the first one, individual qualifications and what their
constitutional methodology, their views are, their philosophy.
But the other is--and it always occurs--whose spot they are
taking and what impact that will have on the Court. Everybody
wrote with Roberts after the fact--and a lot of people voted
for Roberts that were doubtful. I was doubtful. I voted no. But
he was replacing Rehnquist. So Roberts for Rehnquist, you know,
what is the worst that can happen, quote-unquote, or the best
that can happen?
Now, I am not being facetious. What is the best or worst?
If you are conservative, the best that can happen is he is as
good as Rehnquist. From the standpoint of someone who is a
liberal, the worst that can happen, he is as good as Rehnquist.
So, I mean, but you are replacing--I mean, we can't lose
this, and so people understand this. You are replacing someone
who has been the fulcrum on an otherwise evenly divided Court.
And a woman who most scholars who write about her and in a
retrospective about her say this is a woman who viewed things
from--the phrase you have used--a real-world perspective. This
was a former legislator. This was a former practitioner. This
was someone who came to the bench and applied--to her critics,
she applied too much common sense. Critics would say that she
was too sensitive to the impact on individuals, you know, what
would happen to an individual. So her focus on the impact on
individuals was sometimes criticized and praised. It is just
important you understand, at least for my questioning, that
this goes beyond you. It goes to whether or not your taking her
seat will alter the constitutional framework of this country by
shifting the balance, 5-4, 4-5, one way or another.
And that is the context in which at least I want to ask you
my questions after trying to get some clarification or getting
some clarification from you on Concerned Princeton--because,
again, a lot of this just is puzzling, not able to be answered,
just puzzling.
Judge, you and I both know--and clearly one of the
hallmarks, at least in my view, of Justice O'Connor's position
was she fully understood the real world of discrimination. I
mean, she felt it. Graduated No. 2 in her class from Stanford,
could not get a job, was offered a job by law firms. Granted,
she is a little older than you are, but could not get a job
because she was a woman. They offered her a job as a secretary.
And so she understood what I think everybody here from both
ends of the spectrum here understand, that discrimination has
become very sophisticated. It has become very, very
sophisticated, very much more subtle than it was when I got
here 34 years ago or 50 years ago. And employers don't say
anymore, you know, ``We don't like blacks in this company,'' or
``We don't want women here.'' They say things like, ``Well,
they wouldn't fit in,'' or, you know, ``They tend to be too
emotional,'' or, you know, ``a little high-strung.'' I mean,
there are all different ways in which now it has become so much
more subtle. And that is why we all, Democrat and Republican,
wrote Title VII. We wrote these laws to try to get at what we
observed in the real world.
What we observed in the real world is it is real subtle,
and so it is harder to make a case of discrimination, even
though there is no doubt that it still exists.
And so I would like to talk to you about a couple of anti-
discrimination cases. One is the Bray case. In that case, a
black woman said she was denied a promotion for a job that she
was clearly qualified for--there was no doubt she was
qualified--and she said, ``I was denied that job because I am a
black woman.'' And it was, as I said, indisputable she was
qualified. It was indisputable that the corporation failed to
follow their usual internal hiring procedures. And the
corporation gave conflicting explanations as to why they
reached a decision to hire another woman who they asserted was
more qualified than Ms. Bray.
Now, the district court judge said, you know, Ms. Bray had
not even made a prima facie case here--or she made a prima
facie, but she had not made a sufficient showing to get to a
jury, I am finding for the corporation here. And Ms. Bray's
attorney appealed, and it went up to the Third Circuit. And you
and your colleagues disagreed. Two of your colleagues said, you
know, Ms. Bray should have a jury trial here, and you said, no,
I don't think she should, and you set out a standard, as best I
can understand it. And I want to talk to you about it. And your
colleagues said that if they applied your standard in Title VII
cases, discrimination cases, that it would effectively, their
words, ``eviscerate Title VII,'' because, they went on to say,
it ``ignores the realities of racial animus.'' They went on to
say that ``Racial animus runs so deep in some people that they
are incapable of acknowledging that a black woman is qualified
for a job.''
But, Judge, you dismissed that assertion. You said that the
conflicting statements that the employer made were just loose
language, and you expressed your concern about allowing
disgruntled employees to impose costs of a trial on employers.
And so your colleagues thought you set the bar, I think it is
fair to say, pretty high in order to make the case that it
should go to a jury.
Can you tell me what the difference is between a business
judgment as to who is most qualified--because actually you said
this comes down to ``subjective business judgment''--and
discrimination? You said, ``Subjective business judgment should
prevail unless the qualifications of the candidate are
extremely disproportionate.'' What is the difference between
that in today's world and discrimination? I know you want to
eliminate discrimination. Explain to me how that test is
distinguishable from just plain old discrimination.
Judge Alito. Well, this case was one of quite a few that we
get that are on the line, and I think when you think about the
nature of the appellate system, it stands to reason that it is
going to work out that way. The really strong cases tend to
settle; the really weak cases are either dismissed and not
appealed, or they settle for modest amounts. So the ones that
are hotly contested on appeal tend to be the ones that are
close to the line, whatever the legal standard is.
Now, four Federal judges looked at the facts in this case.
One was Judge Maryanne Trump Barry, who was then the district
court judge and is now one of my colleagues on the Third
Circuit. I was one. And we thought the evidence was not quite
sufficient. And then my colleague, Theodore McKee, and Judge
Green, a district court judge from Philadelphia, a fine
district court judge, sitting by designation, thought that the
evidence was sufficient. And I think that division illustrates
this was a factual case on which reasonable people would
disagree. This was a case in which there was no direct evidence
of discrimination, and I could not agree with you more that we
can't stop there. There are subtle forms of discrimination, and
the judicial process has to be attentive to the fact that
discrimination exists and today a lot of it is driven
underground.
But all there was in this case were--all that the plaintiff
could point to to show that there were facts from which you
could infer discrimination were a very--what looked like a
really minor violation of the company's internal practices.
They had a policy under which if somebody was being considered
for a promotion, they would interview that person and they
would decide we are going to promote or we are not going to
promote. And if they decided they were not going to promote,
then they were supposed to tell that person, ``We've decided
we're not going to promote you,'' before they go on to
interviewing the next person. And in this instance, it appeared
that they interviewed Ms. Bray, and they decided they weren't
going to promote her. And then they interviewed the other
candidate, Ms. Real, before they told Ms. Bray that they
weren't going to promote her.
There was no--they had nothing to gain by doing that. So it
is a fact to be considered--
Senator Biden. Judge, I don't mean to interrupt. I want to
make sure I understand. I think the reason for that policy is
that that is the way people do discriminate. For example, you
get somebody in, a woman, a black, a Hispanic, whomever, who is
qualified but you don't want to hire them. And if you say, OK,
in your own mind, I am going to keep looking until I find
someone who is more qualified so that I don't have to hire--I
mean, just so we both understand. That is why that rule is
there. It is not just a little deal. It is the real world. That
is how people work. People don't say anymore, ``I am not going
to hire that man over there because he is black'' or ``he is
Jewish'' or ``she is a woman.'' They don't do that anymore.
What they do is they look around and they keep looking until
they find someone, aha, I got one here who is a Rhodes scholar,
I got one here who is a white male who happened to have
experience doing it. That is why they have that rule.
So, again, I am not questioning your commitment to civil
rights. What I do wonder about is whether or not you--it is
presumptuous of me to say this--whether you fully appreciate
how discrimination does work today. That is why the corporation
set that rule up: Interview the one inside the company, that
was our practice, hire inside, tell them they have the job or
not, so that the supervisor, who may not want to work with a
black woman, doesn't get a chance to go, ``I am going to keep
looking. Send me in''--``find me somebody who has some
experience somewhere else.'' That is why they have the rule,
right?
Judge Alito. Well, I think you make a good point, Senator,
but in this instance, my recollection is--and, in fact, I am
quite sure of this. These were both people who were from the
inside. They were both Marriott employees. And I think they
were both being considered for the position at the time. So it
wasn't an instance in which they interviewed Ms. Bray and then
they said, ``Well, she is qualified, but we really don't want
to hire her. Let's keep looking.''
If there had been evidence to that effect, then I would
certainly think for the reasons that you've outlined that you
could draw a pretty substantial inference of an intent to
discriminate from that.
Senator Biden. Well, Judge--
Judge Alito. But nothing like that was presented to us in
that case, as I remember it.
Senator Biden. Weren't the facts in that case also that
there was a Mr. Josten, who had held the very job--he was
leaving the job. That is the job being filled. He said, ``In my
opinion, which I let be known''--excuse me. I beg your pardon.
It wasn't Mr. Josten. The person who was giving up the job
said, ``In my opinion, I let it be known to Mr. Josten''--the
guy doing the hiring--``which Mr. Josten was aware of, that
Bray was more than qualified to take over my position as
Director of Services at Park Ridge. To this day''--this is a
quote--``I cannot understand why she was not offered the
position.'' That was in the record. It was in the record that
Josten had said in a deposition under oath she is not
qualified, when she clearly was qualified.
I mean, I guess what I am curious about is why in a close
case like this wouldn't you let the jury decide it? Why did you
become essentially the trier of fact? I mean, what was your
thinking?
Judge Alito. Well, my thinking was that the standard we
were to apply was could a reasonable jury find that
discrimination was proven here. And it was my view and it was
the view of the district judge that a reasonable jury couldn't
find that. The district judge actually looked at the
qualifications of the two candidates and said, ``This isn't
even close. Ms. Real is much better qualified than Ms. Bray.''
Now, I didn't say that and I didn't think that. I thought
that they had somewhat different qualifications, and a
reasonable person could view it either way. But there just
wasn't anything that I saw that a reasonable person could point
to as a basis for a reasonable inference of an intent to
discriminate.
Senator Biden. Well, again, I am puzzled by this, just
trying to understand your reasoning, because as you accurately
point out, you didn't say the one was more qualified. You said
they were equally qualified. And that is what puzzled me. And
what really got my attention in the case was you have a
collegial court, you know, the Third Circuit. I mean, that is
my observation. I don't follow it quite as closely as the man
who has appointed about everybody on that court, our Chairman.
But I follow it very closely, and I thought it was pretty
strong language that the majority of your panel said that your
standard would eviscerate the Ninth Amendment. That in Third
Circuit language is a pretty strong statement.
Let me move on to another case, if I may, the Sheridan
case, another discrimination case. Again, a little puzzling to
me. This is a case where you were the only judge in this
circumstance out of 11 judges on your circuit who heard the
appeal who ruled that a jury trial should have been overruled--
a jury verdict should have been overruled. In this case, a
woman alleged that she was constructively discharged. For the
non-lawyers listening to this, it means she basically was
demoted to the point where she was, as a practical matter,
forced to quit.
This woman alleged that she was constructively discharged,
and she argued that it occurred after she had brought a
discrimination claim and where the record showed that her
employer said, ``I am going to hound you like a dog.'' It was
in the record. ``I am going to hound you like a dog for
bringing this discrimination claim.''
Now, there was more than one issue. One was whether this
was vindictive--I forget the proper phrase--or whether or not
she should have been promoted. The third was whether she was
constructively discharged.
And the jury heard the case and said, ``We conclude she was
constructively discharged,'' i.e., she was basically forced
out, and she was forced out because she was being discriminated
against. And 10 out of 11 of your colleagues reached that same
conclusion.
But you said--and this is what I want you to explain to me.
You said, ``An employer may not wish to disclose his real
reasons for taking punitive action against someone or not
hiring someone or for his animosity toward someone.'' And you
went on to say, ``The reason for the animosity on the part of
the employer might be based on sheer personal antipathy,''
which is OK.
Now, again, this is a matter of real world versus, you
know, theoretically. Can you tell me how you can tell the
difference when an employer is saying, ``Ms. Feinstein, I am
not going to hire you because the person seeking the job has a
Rhodes scholarship and I like him better, and it turns out they
weren't a Rhodes scholar. The real reason is I just don't like
your glasses. I don't like the way you look.''
I am not being facetious. That is--
[Laughter.]
Senator Leahy. I like the way you look, Dianne. You look
OK.
Senator Biden. For the record, I am a fan of the woman from
California.
But all kidding aside, I mean, that is how it read to me,
that sheer personal antipathy is OK even when the employer's
reason for not hiring the person toward whom they showed sheer
personal antipathy wasn't true. How do you distinguish that
from discrimination, subtle discrimination? That is tough for
me.
Judge Alito. Well, this case concerned an issue that had
really divided the courts of appeals at the time when our court
addressed it. And the courts of appeals--this gets into a
fairly technical question involving a Supreme Court case called
the McDonnell Douglas case. But to put it in simple terms, the
courts of appeals have divided into three camps on this. There
was the pretext-plus camp, which was the one that was the least
hospitable to claims by employees. There was the pretext-only
camp, which was the camp that was most favorable to employees.
And there was the middle camp. And my position was in the
middle camp, and when the issue went to the Supreme Court--and
it did a couple of years later--in Reeves v. Sanderson
Plumbing, Justice O'Connor wrote the opinion for the Supreme
Court, and she agreed with my analysis of this legal issue,
that in most instances pretext is sufficient. In fact, in the
vast majority of instances if the plaintiff can show or could
point to enough evidence to show that the reason given by the
employer is a pretext, is incorrect, then that is enough to go
to the jury. In the vast majority of cases, that is sufficient,
but not in every case, and that is what I said in Sheridan and
that is what Justice O'Connor said when she wrote the opinion
for the Supreme Court in Reeves v. Sanderson Plumbing.
Senator Biden. Well, I went back and read Reeves and I
looked at O'Connor's statements, and with all due respect you
could argue she used the same standard, but it is clear to me
she would have reached a different conclusion. She would have
been with your ten colleagues.
Here is what she said. She said in the Reeves case that she
would not send the case to the jury if, and I am quoting,
``One, the record conclusively revealed some other non-
discriminatory reason for the employer's decision.'' I fail to
see how the record conclusively showed that, and I doubt
whether she would have seen that.
Or, two, continuing to quote, ``If the plaintiff created
only a weak issue of fact as to whether the employer's reason
was untrue and there was abundant uncontroverted evidence that
no discrimination had occurred.'' It seems to me she is much
more prepared to give the benefit of the doubt to the employee
in that situation and you are much prepared to give the benefit
of the doubt to the employer.
I mean, by her own language, I find it hard to figure how
she would have reached the same substantive conclusion that you
did that a jury trial wasn't appropriate, notwithstanding the
fact that I think you make a good point that the test she said
was more like the test you said. But the real-world outcome, I
think, she would have been--presumptuous of me to say it--I
think it would have been 11 to 1 and not 10 to 2 had she been
on the court, but who knows?
Judge Alito. Well, Senator, I think the vote on my court
was a reflection of the standard that they applied and they did
not apply the Reeves v. Sanderson Plumbing standard. Of course,
Reeves hadn't been decided at that point, but they applied the
standard that said if the plaintiff can create a fact issue as
to whether it was pretextual, then that alone is sufficient. So
they didn't get into an evaluation of the sort of evidentiary
points that you were mentioning.
Senator Biden. Well, they kind of did talk--you would know
better than I, Judge. I don't mean to suggest I am correcting
you, but as I read the case, they did get into the minutia
about--
Judge Alito. They did.
Senator Biden [continuing]. The factual minutia. And in the
Reeves case, O'Connor, not that it is--because there are two
different cases we are talking about here; we are talking about
a similar rule, two different cases. O'Connor reversed the
Fifth Circuit decision and here is what she said when she
reversed it. She said that she reversed the lower court
because, quote, ``It proceeded from the assumption that a prime
facie case of discrimination combined with sufficient evidence
for the trier of fact to disbelieve the defendant's legitimate
non-discriminatory reason for its decision is insufficient as a
matter of law to sustain a jury finding of intentional
discrimination.''
It seems to me that is what you did. In my view, that is
what you did--that is the conclusion you reached in the
Sheridan case. She overruled in Reeves, as I read it. But at
any rate, as someone once said, it is your day job and we do
this part-time. We have other things like wars and foreign
policy to deal with, so I am not presuming to be as
knowledgeable about this as you are.
Let me move on to a third case very quickly--I only have
two-and-a-half minutes left--and it is the Casey case, Planned
Parenthood. And I don't care what your position is on abortion.
This is not about your abortion position. It is about your
reasoning here. As a matter of fact, with 2 minutes and 30
seconds, I probably can't get into the case. maybe I should do
it in a second round, but I should tell you now I want to talk
to you about, again, the real world here and kind of the
effects test.
And so for me, Judge, where I am still remaining somewhat
puzzled is on whether or not you--whether it is applying the
unitary Executive standard and what you mean by that or whether
it is the assertions made relative to how to look at
discrimination cases, which are difficult, you seem to come
down--I am not associating myself with the studies done--I
don't know enough to know whether they are correct or not--by
Cass Sunstein or others. I don't disagree with them.
But as I have tried diligently to look at your record, you
seem to come down more often and give the benefit of the doubt
to the outfit against whom discrimination is being alleged. You
seem to lean--in close cases, you lean to the state versus the
individual. Now, again, a lot of constitutional scholars would
argue that is perfectly correct.
All I am suggesting is if I am right--and we will get a
chance to do this again--if I am right, that would be a change
that will occur, more than subtle, on the bench, on this Court,
on a closely divided Court, which would take it in a direction
that I am not as comfortable with as others may be.
But at any rate, you have been very gracious. I appreciate
you being responsive, and I thank the Chair. And I want to note
for maybe the first time in history, Biden is 40 seconds under
his time.
[Laughter.]
Chairman Specter. Thank you very much, Senator Biden. It is
greatly appreciated.
We are going to stay in session for just ten more minutes
and call now on Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Mr. Chairman, let me begin by just asking the witness if
you would like to comment again on the unitary Executive. I
have this specifically in mind because while I think I
understood your explanation of it, Senator Biden just referred
to it and I thought maybe it would be useful to draw the
distinction that I heard you draw with respect to your
discussion of the unitary Executive power, if you could do
that, please.
Judge Alito. Yes, certainly, Senator. As I understand the
concept, it is the concept that the President is the head of
the Executive branch. The Constitution says that the President
is given the Executive power and the idea of the unitary
Executive is that the President should be able to control the
Executive branch, however big it is or however small it is,
whether it is as small as it was when George Washington was
President or whether it is as big as it is today or even
bigger.
It has to do with control of whatever the Executive is
doing. It doesn't have to do with the scope of Executive power.
It does not have to do with whether the Executive power that
the President is given includes a lot of unnamed powers or what
is often called inherent power. So it is the issue--it is the
difference between scope and control. And as I understand the
idea of the unitary Executive, it goes just to the question of
control. It doesn't go to the question of scope.
Senator Kyl. Of who eventually has the last say about
Executive power, which would be the President?
Judge Alito. Right.
Senator Kyl. OK, thank you. Now, I want to also ask you a
question which was asked of Judge Bork in his confirmation
hearing, and his answer, as I understand it, was not well
accepted by some Members of the Senate, was expressed as one of
the reasons for their opposition to him. So it is more than
just a mundane question, although it is a simple question.
By accepting the President's nomination, you have obviously
expressed a willingness to serve on the U.S. Supreme Court. So
my question is why would you want to serve on the U.S. Supreme
Court?
Judge Alito. I think it is an opportunity for me to serve
the country using whatever talent I have. I think that the
courts have a very important role to play, but it is a limited
role. So it is important for them to do a good job of doing
what they are supposed to do, but also not to try to do
somebody else's job.
And I think that this is an area for--this is a way in
which I can make a contribution to the country and to society.
I have tried to do that on the court of appeals and I would
continue to do that if I am confirmed for the Supreme Court.
Senator Kyl. Thank you. Now, let me ask you a question that
I also asked now Chief Justice John Roberts, and it is obvious
from my question that I do not support the use of foreign law
as authority in United States court opinions.
I mentioned to him the 2005 case of Roper v. Simmons, in
which the Supreme Court spent perhaps 20 percent of its legal
analysis discussing the laws of Great Britain, Saudi Arabia,
Yemen, Iran, Nigeria and China. And I reminded the Committee of
Justice Breyer's 1999 dissent from denial of cert in Knight v.
Florida, in which he relied on the legal opinions of Zimbabwe,
India, Jamaica and Canada in arguing that a delay caused by a
convicted murderer's repeated appeals, appeals brought by the
convict, should be considered cruel and unusual punishment.
I expressed my view that reliance on foreign law is
contrary to our constitutional traditions. It undermines
democratic self-government and it is utterly impractical, given
the diversity of legal viewpoints worldwide. And I would add
that it is needlessly disrespectful of the American people, as
seen through the widespread public criticism of the trend.
Now, with my cards on the table, I turn to you. What is the
proper role, in your view, of foreign law in U.S. Supreme Court
decisions, and when, if ever, is citation to or reliance on
these foreign laws appropriate?
Judge Alito. I don't think that foreign law is helpful in
interpreting the Constitution. Our Constitution does two basic
things. It sets out the structure of our Government and it
protects fundamental rights. The structure of our Government is
unique to our country, and so I don't think that looking to
decisions of supreme courts of other countries or
constitutional courts in other countries is very helpful in
deciding questions relating to the structure of our Government.
As for the protection of individual rights, I think that we
should look to our own Constitution and our own precedents. Our
country has been the leader in protecting individual rights. If
you look at what the world looked like at the time of the
adoption of the Bill of Rights, there were not many that
protected human--in fact, I don't think there were any that
protected human rights the way our Bill of Rights did.
We have our own law, we have our own traditions, we have
our own precedents, and we should look to that in interpreting
our Constitution. There are other legal issues that come up in
which I think it is legitimate to look to foreign law. For
example, if a question comes up concerning the interpretation
of a treaty that has been entered into by many countries, I
don't see anything wrong with seeing the way the treaty has
been interpreted in other countries. I wouldn't say that that
is controlling, but it is something that is useful to look to.
In private litigation, it is often the case--I have had
cases like this in which the rule of decision is based on
foreign law. There may be a contract between parties and the
parties will say this contract is to be governed by the laws of
New Zealand or wherever. So, of course, there, you have to look
to the law of New Zealand or whatever the country is.
So there are situations in litigation that come up in
Federal court when it is legitimate to look to foreign law, but
I don't think it is helpful in interpreting our Constitution.
Senator Kyl. Thank you. Now, let me close with this
question. In the Judiciary Committee's questionnaire to you,
you were asked about your views of judicial activism, and as
part of your answer you said something intriguing to me. You
said some of the finest chapters in the history of the Federal
courts have been written when Federal judges, despite
resistance, have steadfastly enforced remedies for deeply
rooted constitutional violations.
How does one determine that a constitutional violation is
deeply rooted, and can you elaborate on what you meant by that
and when Federal courts should be especially aggressive in
their use of equitable powers?
Judge Alito. Well, what I was referring to were the efforts
of Federal judges, lower Federal court judges in the South
during the days after the decision in Brown v. Board of
Education to try to implement that historic decision, despite
enormous public resistance at times. But they--this was an
example of the Federal judiciary not swaying in the wind of
public opinion. There was a lot of opposition and I am sure
that it didn't make them popular.
I have read a number of books concerning the situation in
which they found themselves, but on the whole they behaved--
they did what a Federal judge is supposed to do, which is that
they enforced the decision of the Supreme Court of the United
States that, after a long delay, vindicated what the Equal
Protection Clause of the 14th Amendment was supposed to mean,
which was to guarantee equal rights to people of all races.
Senator Kyl. Are there other examples that come to your
mind of that same application of power? It seems counter
intuitive, but when you think about it, it is absolutely
essential for the courts sometimes to buck public opinion and
enforce what may be considered unpopular laws.
Judge Alito. Well, there were some examples cited earlier
today when the courts said that the Executive had overstepped
the bounds of its authority. The Youngstown Steel case was
cited, and that is certainly an example where President Truman
thought that it was necessary to seize the steel mills so as
not to interfere with the war effort in Korea. But the Supreme
Court said that this was an overstepping of the bounds of
Executive authority.
There was a reference to United States v. Nixon where the
Supreme Court said that the President of the United States had
to comply with grand jury subpoena for documents and they stood
up for what they understood the law to mean, despite the fact
that there must have been great pressure against them in
another direction. So when situations like that come up, it is
the responsibility of the judiciary to hold fast.
Senator Kyl. Mr. Chairman, since there are just about 30
seconds left here, rather than ask another question, let me
just close with quoting three sentences from the letter sent by
the American Bar Association to you dated January 9. I thought
this was especially interesting in view of the subjects that
they dealt with--the integrity of the nominee, as well as his
abilities and character.
They said, ``Fifty years ago, a Supreme Court Justice wrote
of the traits of character necessary to serve well on the
Supreme Court. He referred to the ability to put one's passion
behind one's judgment instead of in front of it and to
demonstrate what he called dominating humility. It is the
belief of the Standing Committee that Judge Samuel Alito
possesses those same qualities.''
I think that is quite a testament to your character and
your integrity, and I am sure you appreciate the Bar
Association reaching that conclusion.
Judge Alito. Thank you very much, Senator.
Chairman Specter. We will now recess until 2:15, at which
time Senator Kyl will be recognized for 20 minutes, which is
the balance of his 30-minute first round.
Recess until 2:15.
[Whereupon, at 1:04 p.m., a luncheon recess was taken.]
[AFTERNOON SESSION 2:15 p.m.]
Chairman Specter. We will turn now to Senator Kyl, who has
20 more minutes on his first round of 30 minutes.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. First let me ask
unanimous consent to put three items in the record, one of
these items related to--actually, two of them relate to the
matter of the CAP that we have heard something about. I would
like to enter into the record two letters by Democratic
attorneys that make clear that Judge Alito has been extremely
helpful in advancing the interest of women and minorities. One
letter notes that as U.S. Attorney, he put women and minorities
in supervisory positions. The other is from the President-elect
of the National Bar Association for Women.
And also a Washington Post article from January 9th, in
which criminal defense lawyer and Democrat, Alberto Rivas, who
served in the U.S. Attorney's Office when Judge Alito was in
charge said, speaking of the judge, ``While he opposed numeric
hiring quotas, he took steps to diversify an office that had
the reputation of something of a white boys' club.
Mr. Chairman, I hope that this will help address what I
think is almost getting to be a--
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Kyl. Thank you. Secondly, there has been some
discussion of this Knight-Ridder article that has, to be my
understanding, been rather completely discredited, and I ask
unanimous consent that the attached document analyzing that
article be added to the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Before the break, Senator Biden suggested
that--at least I understood him to suggest that there was no
reason to belong to this organization, CAP, in 1985 because
ROTC was safely on campus at that time.
Judge, let me ask you a question. Do you know what year you
joined the CAP?
Judge Alito. I don't know, Senator. I tried to rack my
memory about that, but as I said, if I had been active in my
membership, I think I certainly would have remembered that, and
if I had renewed the membership, I think I would remember that.
So my best reconstruction of this is that it probably was
sometime around the time when I wrote that statement.
Senator Kyl. Long after you were gone from the school.
Judge Alito. That's correct.
Senator Kyl. In that event, Mr. Chairman, I ask unanimous
consent to include in the record an article from the campus
newspaper, the Princeton Packet, dated February 12th, 1985,
which expressly explains that ROTC was a core motivation behind
the CAP in 1985.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Thank you. Mr. Chairman, I noted with interest
a comment that Senator Durbin made in his opening statement
because it referred to a good friend and former colleague of
ours, Senator Simon, who put forth a pretty good test about
courts. He said that the real test is, is the Court restricting
freedom or expanding it? I thought about that because it seems
to me that so many of these cases about expanding freedom or
restricting it are cases that boil down to the eye of the
beholder.
I specifically thought about the Ninth Circuit case,
because my State is from the Ninth Circuit, outlawing ``under
God'' in the Pledge of Allegiance, saying that that is
unconstitutional. I checked, according to the one survey that I
had access to, 93 percent of the American people support the
right to say ``under God'' in the Pledge of Allegiance. I know
that the plaintiff in the case, Michael Newdow, thought that he
was advancing his freedom or his daughter's freedom in
successfully getting the Court to strike it down, but it seems
to me that the majority of the people are having their freedom
restricted in such a case.
And I certainly will not ask you because that case could
well come before the Court again. I would not ask you how you
would rule on it. But as a general proposition, this matter of
restricting freedom, is it not the case that in many situations
you have two competing types of freedom or liberty involved and
it is a question of interpreting the Constitution rather than
specifically setting out to advance one sort of freedom as
opposed to another?
Judge Alito. I think that's exactly right, Senator. Often
there are conflicting freedoms and that makes the case
difficult.
Senator Kyl. Let me ask you too, there was a concern
expressed by Senator Biden that the big factor in your
nomination in his view was the fact that you would be replacing
Justice Sandra O'Connor, and that that might mean that you
would change the direction of the Court. That is the concern
expressed anyway. As has been famously said, I know Justice
O'Connor. I have been a friend of hers for at least 30 years,
and I do not think she is any kind of a liberal member of the
Court. She might properly be called moderately conservative. I
am not sure how she would characterize herself. But I noted
that of the 109 Justices to sit on the Supreme Court, nearly
half, 46 to be exact, have replaced judges appointed by another
political party, so it is not at all uncommon, indeed, it is
almost half the situations in which a different party nominates
the Justice replacing a sitting Justice, and one might expect,
therefore, some difference.
But I checked the record because this had been brought up
by Senator Brownback yesterday. I found in the nomination of
Justice Ginsburg and the confirmation hearings there, she
replaced Justice White, who I think rightly has been called a
centrist on the Court, certainly not a liberal, and yet I saw
not one expression of concern by any Senator, Democrat or
Republican, that Justice Ginsburg might be ruling quite a bit
differently than Justice White in decisions in the Court.
So it seems to me that that is not a test that is rightly
applied. That is a results-oriented test, exactly the same kind
of thing that you have said that judges should not do when they
approach cases.
Let me get to a point that Senator Kennedy made. He said
that you have been overly deferential to Executive power, and
criticized what he called--and I think I have this quotation
exactly--``your almost total disregard of the impact of these
powers on the rights of individuals.'' I would like to know
what your response is to that charge and whether you can cite
some specific cases that would refute what he said.
Judge Alito. Certainly, Senator. I have tried to decide
every case on its own merits, and sometimes that means siding
with the Government, and sometimes it means siding with the
party who's claiming a violation of rights, and I do it on an
individual basis. Cases that show that I do that are cases like
United States v. Kithcart, which was a case in which an
African-American man had been stopped by police officers
because he was--because there had been a description of some
robbery suspects, and they had been described as--the
perpetrator was described as a black man in a black car, and
Mr. Kithcart was a black man in a black car. And they thought
that was sufficient to stop the car, and I wrote an opinion
saying that that was insufficient, and that was basically
racial profiling and was not permitted.
Another example is Bolden v. Southeastern Pennsylvania
Transportation Authority, which had to do with a drug test, and
I found that the test there constituted a search and a seizure
and would be a violation absent consent on the part of the
party who was searched. There have been a number of criminal
cases in which I've sided with the person claiming a violation
of rights. Carpenter v. Vaughn was a case in which I wrote an
opinion reversing a death--I joined an opinion reversing a
death penalty. The Bronshtein case was another case that came
up fairly recently in which I joined an opinion reversing a
death penalty. There have been quite a few cases of this
nature, Senator.
Senator Kyl. I noted a tax case too, or a case involving
tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
Judge Alito. I do. That was the case in which there was a
search of a--I believe it was the office of a veterinarian, and
in a way that is a similar case to the Mellott case that I was
discussing earlier, although in Mellott I thought that the
search was carried out properly. In the Leveto case, on the
facts of that case, I thought the search was not carried out
properly, that the officers violated the Fourth Amendment in
the way they went about carrying out that search. They forced
the occupants of these premises to remain on the premises for a
very extended period of time while the search was being
conducted, and violated their Fourth Amendment rights, and
that's what I said in the opinion.
Senator Kyl. Do you have an idea of how many cases that
have gone to decision that you have participated in on your 15
years as a Circuit Court Judge?
Judge Alito. I think it's well over 4,000 on the merits.
Senator Kyl. I suspect that of those 4,000 cases there
might be one or two that I would disagree with your decisions
on, maybe even more than that. But the point here is there are
numerous cases in which you have found that the Government
acted improperly in criminal law context, in warrant context,
in discrimination context, in other cases in which you have
found either that the Government acted properly, or that at a
minimum, Government officials were entitled to some immunity
with respect to being privately sued; is that correct?
Judge Alito. That's correct, Senator.
Senator Kyl. Let me also address this question of
discrimination, especially racial discrimination. This is a
matter that was discussed in some prior questioning.
Specifically, in Senator Biden's questions, it dealt with the
Sheridan case in which you were the sole dissenter. In the
subsequent U.S. Supreme Court case, the Reeves decision, my
understanding from your answer is that the Supreme Court
addressed the same issue of law that you and your colleagues
had disagreed about, and that the U.S. Supreme Court voted
unanimously, and in an opinion written by Justice O'Connor,
that the test that you used in the Sheridan case was the
correct test to use; is that correct?
Judge Alito. Yes, Senator, that is correct.
Senator Kyl. Now, there are some other cases involving
employees claiming racial discrimination that I have looked at,
and one of the Senators seemed to suggest in a comment that he
made that you had never written opinions or decided cases for a
black plaintiff. Is that a fair statement?
Judge Alito. No, it's not accurate.
Senator Kyl. Do you recall cases in which you upheld the
discrimination claims of racial minorities?
Judge Alito. There was the case of Goosby v. Johnson &
Johnson, and that case could be considered together with the
Bray case that I was discussing before the break. Those were
both cases in which my colleague, Judge McKee wrote the
opinion, and in the Goosby case I agreed with him. It was a
similar case, but it was a case where I thought the facts fell
on the other side of the line.
There was a case called Smith v. Davis, which was another
case where I joined an opinion upholding the claim of an
African-American who was claiming racial discrimination. The
Robinson case involved claims of race and gender
discrimination, as I recall. There are a number of cases in the
criminal law context. I just mentioned the Kithcart case. There
was the Brinson case. There was Williams v. Price. There have
been many cases involving other forms of discrimination, age
discrimination, the Showalter case; disability case, the
Mondzelewski case; the case of Shapiro v. Lakewood Township.
There was Zubi v. AT&T, which was a case involving the statute
of limitations for a claim of racial discrimination.
Senator Kyl. And you were the lone dissenter in that case,
is that correct?
Judge Alito. I was the dissenter in that case.
Senator Kyl. And your position was what?
Judge Alito. My position was that--the majority's position
was that the claim had to be thrown out because the statute of
limitations had been violated, and my position was that the
claim should be allowed to go forward because the statute of
limitations was longer than the majority had recognized. And
that case--that issue later went to the Supreme Court in a case
called Jones v. Donnelley and the Supreme Court agreed with my
position, that the longer statute of limitations applied.
Senator Kyl. I note there is another case involving an
African-American woman who claimed that her coworkers had made
racial and sexual slurs against her, denied her training
opportunities and so on, and you ruled that she was entitled to
$124,000 in damages and attorneys' fees, a case called Reynolds
v. USX Corporation. Do you remember that case?
Judge Alito. That's right, Senator.
Senator Kyl. So the bottom line is there are numerous cases
in which you have ruled in favor of minorities, in particular,
African-Americans in discrimination situations, and also where
you have dissented in a situation which your position was to
support the claim of discrimination, and that it would be
inaccurate to say that you have not taken that position in the
4,000 plus cases that you have decided; is that correct?
Judge Alito. That's certainly correct, Senator.
Senator Kyl. There has been a lot of talk about precedent
and stare decisis. It is certainly something that we lawyers
are familiar with. We regard it as a key principle in deciding
cases. There was a case that was mentioned by a couple of my
Democratic colleagues that I am sure will be discussed further,
but I thought I would give you an opportunity to talk about it
because it certainly seemed to me to be a case in which you
were very--that you were trying to apply a Supreme Court
precedent, the precedent being the Lopez v. United States case,
a case, by the way, which I note that is one of those decisions
that Justice O'Connor was in the majority, a 5-4 decision,
which her position could be characterized as the swing vote.
Now you, in United States v. Rybar, agreed with Justice
O'Connor and the way that the law should be applied relative to
intrastate possession of a weapon. The Lopez case dealt with a
congressional Act that said that weapons should not be
possessed near schools. The Court struck that down, saying that
that went beyond the Commerce Clause capability of commerce to
legislate in matters of interstate commerce. In Rybar, what was
the issue? You dissented.
By the way, one of the reasons why this case is interesting
to me is because the Ninth Circuit Court of Appeals, again,
which is my circuit, has subsequently ruled--and this is not a
conservative court in most people's estimation--recently agreed
with your dissent in a case called U.S. v. Stewart, a 2003
case, in which the Court overturned the defendant's conviction
under the very same statute, holding that the law exceeded
Congress's commerce powers.
It seems to me that it would be hard to argue that your
position is per se unreasonable, but could you describe it in
your own words?
Judge Alito. My position in Rybar was really a very modest
position, and it did not go to the question of whether Congress
can regulate the possession of machine guns. In fact, I
explained in the opinion that it would be easy for Congress to
do that in a couple of ways that differed from the way in which
it was done in Rybar.
The statute in Rybar was very similar to the statute that
was at issue in Lopez. In fact, I think they are the only two
Federal firearm statutes that have been cast in that mold. They
simply prohibited the possession of firearms without either
congressional findings concerning the effect of the activity on
interstate commerce, or a jurisdictional element. And I knew
from my experience as a Federal prosecutor that most of the
Federal firearms statutes have a jurisdictional element right
in the statute. What that means is that when the prosecutor
presents the case in court, the statute that is used most
frequently is the statute that makes it a crime for someone
who's been convicted of a felony to possess a firearm.
And in that case, when the prosecutor presents the case in
court, the prosecutor has to show that the defendant has been
convicted of a felony, and that the firearm in question had
some connection with interstate commerce.
Under Supreme Court precedent, a case called Scarborough,
all that's necessary is to show that the firearm, at some point
in its history, passed an interstate or foreign commerce, was
manufactured in one State and then later turned up in another
State, or manufactured in a foreign country and brought to the
United States.
From my experience, this was never a practical problem, and
this was how all the Federal firearms statutes had been framed.
But for whatever reasons, the statute in Lopez and the statute
in Rybar were lacking that jurisdictional element. So an easy
way in would Congress could regulate the possession of a
machine gun would be to insert a jurisdictional element. And as
I pointed out, as I just pointed out, in my experience as the
U.S. Attorney in New Jersey, that was never a practical
problem.
The Supreme Court in Lopez said that there were three
reasons why there was a problem with the statute there, and
that case had been decided just the year before. And it was my
obligation as a lower-court judge to follow it. The first was
that it involved what the Court characterized as the
noncommercial activity, and that was the possession of a
firearm. And, of course, that was exactly the same activity
that was at issue in Rybar. The second was the absence of a
jurisdictional element, and there was no jurisdictional element
in either statute. And the third was the absence of a
congressional finding connecting the activity that was being
regulated with interstate commerce. And I pointed out in my
opinion that I would have viewed the Rybar case very
differently if there had been a congressional finding, or if
the Justice Department, in presenting its argument to us, had
been able to point to anything that showed that there was a
substantial effect on interstate commerce, which is what the
Supreme Court says is required.
Senator Kyl. So this is one of those situations in which,
if the result was not what was intended, you were willing to
point out in your decision what Congress could relatively
easily have done to get the result that it appeared that
Congress wanted to achieve?
Judge Alito. That's exactly correct.
Senator Kyl. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kohl?
Senator Kohl. Thank you very much, Mr. Chairman.
Judge Alito, we heard a lot of discussion yesterday about
the proper role of the judge in our system. Some said that a
judge should favor neither the ``big guy or the little guy, but
simply apply the law and not make the law.'' Based on what you
said yesterday, I believe that you would agree generally with
this characterization.
However, to me it is not quite so simple. Just as no two
umpires call the same game exactly, no two judges see a case in
exactly the same way. Laws and the Constitution are often
ambiguous and capable of many interpretations. Those
interpretations are the result of judges with different
judicial philosophies. Some judges have a more liberal judicial
philosophy, while others are more conservative, and we are here
trying to figure out what your judicial philosophy is. That is
probably the principal point of this hearing.
If the law were so simple, we would not have as many 5-4
decisions. It seems to me that many of the most fundamental
protections of civil rights and civil liberties that we take
for granted today, things such as school integration, the
principle of one person/one vote, the principle that the
accused have a right to a lawyer in criminal cases, and the
right of contraception, just to name a few, have come when
judges have been willing to look beyond rigid legal doctrines
that prevailed at the times of those rulings. The neutral
approach, that of the judge just applying the law, is very
often inadequate to ensure social progress, right historic
wrongs, and protect civil liberties so essential to our
democracy.
So isn't it true, Judge Alito, that a neutral judge would
never have reached these conclusions? In fact, for decades,
courts did not reach these conclusions. So would you agree that
these cases were rightly decided, No. 1, and required, No. 2,
that judges apply a more expansive, imaginative view of the
Constitution?
Judge Alito. I think that the Constitution contains both
some very specific provisions, and there the job of
understanding what the provision means and applying it to new
factual situations that come up is relatively easy. The
Constitution sets age limits, for example, for people who want
to hold various Federal offices, and there can't be much debate
about what that means or how it applies. But it also contains
some broad principles--no unreasonable searches and seizures,
the guarantee that nobody will be deprived of life, liberty, or
property without due process of law, equal protection of the
laws. And in those instances, it is the job of the judiciary to
try to understand the principle and apply it to the new
situations that come before the judiciary.
I think the judiciary has to do that in a neutral fashion.
I think judges have to be wary about substituting their own
preferences, their own policy judgments for those that are in
the Constitution. They have to identify the principle that is
to be applied under these broader provisions of the
Constitution and apply it, but I don't see that as being the
same thing as the judge's injecting his or her policy views or
preferences or ideas about the direction in which the society
should be moving into the decisionmaking process.
Senator Kohl. These decisions to which I just referred push
society into new directions, and they came about, didn't they,
as a result of the Supreme Court's willingness to look at the
Constitution in perhaps a different way, in a new way, and take
a new approach and a new avenue, which is not entirely
consistent with a neutral judge simply applying the law. The
law is the law. It is not hard to find that out. As you
somewhat suggested, if you are an umpire, a ball is a ball, a
strike is a strike. I am suggesting that it is--and I think I
would like to hope you would agree. It is somewhat, if not a
lot more complex and sophisticated. If it weren't true, we
could have a lot of views here today.
I think you are unique in many ways, and part of that is
your complexity, your sophistication, your ability to look at
the Constitution and, if necessary, see new meanings that
weren't seen there before. Isn't that true?
Judge Alito. Well, Senator, I would never say that it is an
easy process. There are some easy cases, but there are a lot of
very difficult cases. And once you have identified the
principle, the job of applying it to particular cases is often
not easy at all. But what the judge has to do is make sure that
the judge is being true to the principle that is expressed in
the Constitution and not to the judge's principle, not to some
idea that the judge has. And sometimes this results in ground-
breaking decisions. Sometimes that is because new issues come
up. Sometimes it is because the principle that is embodied in a
constitutional provision has long been neglected.
That was certainly true with respect to the Equal
Protection Clause. There was a long period between Plessy v.
Ferguson and Brown v. Board of Education when the true meaning
of the Equal Protection Clause was not recognized in the
decisions of the Supreme Court, and when Brown was finally
decided, that was not an instance of the Court changing the
meaning of the Equal Protection Clause. It was an instance of
the Court righting an incorrect interpretation that had
prevailed for a long period of time.
Senator Kohl. Judge Alito, one of the ways you get at a
person's judicial philosophy is to look at the people whom they
admire. In an interview that you gave in 1988, you were asked
about your thoughts about Judge Robert Bork's nomination, and
you said, and I quote, ``Judge Bork was one of the most
outstanding nominees of this century.''
Many Americans do not share Judge Bork's narrow views about
the Constitution, views that would undermine many of the rights
that we now take for granted, Judge Alito. Judge Bork thought
that Americans had no constitutional right to use
contraception, saying, and I quote, ``The right to procreate is
not guaranteed explicitly or implicitly by the Constitution.''
Judge Bork thought minorities had no constitutional right
to have their votes counted equally, saying that in
guaranteeing one man/one vote, the Court ``stepped beyond its
boundaries as an original matter.''
In 1981, Judge Bork called Roe v. Wade ``an
unconstitutional decision, serious and wholly unjustifiable
usurpation of State legislative authority.''
In addition, he had an unreasonably broad view of Executive
power, claiming that a law requiring the President to obtain an
order from a court before conducting surveillance in the United
States and against U.S. citizens for foreign intelligence
purposes was ``a thoroughly bad idea, and almost certainly
unconstitutional.''
Can we assume from your admiration of Judge Bork that you
agree with some of these statements or at least that you
support some of these beliefs if you were sitting on the
Supreme Court? Frankly, it is curious to me that someone like
yourself would consider someone with his views to be ``one of
the most outstanding nominees of this century.''
Judge Alito. Senator, when I made that statement in 1988, I
was an appointee in the Reagan administration, and Judge Bork
had been a nominee of the administration, and I had been a
supporter of the nomination. And I don't think the statement
goes beyond that.
There are issues with respect to which I probably agree
with Judge Bork, and there are a number of issues on which I
disagree with him. And most of the things that you just
mentioned are points on which I would disagree with him. I
expressed my view about Griswold earlier this morning. On the
issue of reapportionment, as I sit here today in 2006--and I
think that is what is most relevant--I think that the principle
of one person/one vote is a fundamental part of our
constitutional law. And I think it would be--I don't see any
reason why it should be re-examined, and I don't know that
anybody is asking for that to be done. Every legislative
district in the country and every congressional district in the
country has been reapportioned, has been redistricted numerous
times in reliance on the principle of one person/one vote. And
the old ways of organizing State legislatures have long been
forgotten. So I think that is very well settled now in the
constitutional law of our country.
Under the Fourth Amendment, I have no question about the
decision in United States v. United States District Court,
which held--and I think that is what you were referring to,
which held that a warrant is required for domestic security
surveillance, and that was the decision that led to the
enactment of the Foreign Intelligence Surveillance Act.
Senator Kohl. Of course. I was only referring to or trying
to refer to your quote with respect to him and the positions he
held, which I suggested were at variance with the positions I
thought you held, which you are affirming here in your answer.
So that the quote you are pointing out was something you made
as an employee of the Reagan administration?
Judge Alito. I was, and that was in--I saw that quoted in
the paper yesterday. I think that was in 19--
Senator Kohl. Not necessarily expressing your own real
views?
Judge Alito. I was a supporter of the nominee of the
administration, and he was the nominee of the administration.
He was and is an accomplished scholar. He had contributed a
great deal to constitutional debate with his writings. But I
don't agree with him on a number of issues, and I mentioned--
you hit some of the issues on which I would definitely disagree
with him.
Senator Kohl. Very good.
Judge Alito, in a document appended to your job
applications, you also wrote that, ``I disagree strenuously
with the usurpation by the judiciary of decisionmaking
authority that should be exercised by branches of Government
responsible to the electorate.'' The statement is especially
troubling given that elsewhere in this application you wrote,
``I developed a deep interest in constitutional law motivated
in large part by disagreement with Warren Court decisions,
particularly in the areas of criminal procedure, Establishment
Clause, and reapportionment.''
Judge Alito, what Warren Court cases were you specifically
talking about--Miranda, one person/one vote, any of the privacy
decisions? What in particular were you talking about?
Judge Alito. Well, Senator, I am happy to address that. The
statement was made in that 1985 form, and, of course, that was
written 20 years ago. And in the form, what I was doing was
sort of outlining the development of my thinking about
constitutional law, and I went so far as to go back to my
college days, which were before, of course, I had even attended
law school, much less practiced law or served as a judge.
I mentioned some of the leading areas that were covered by
decisions of the Warren Court, and the decisions of the Warren
Court really stimulated my interest in constitutional law. And
I mentioned a book that had been published the time, Alexander
Bickel's book ``The Supreme Court and the Idea of Progress,``
which was probably the first book about what you might call
constitutional theory that I had read. And he was someone who I
think most people would describe as a liberal, but he was a
critic of the Warren Court for a number of reasons. And he was
a great proponent of judicial self-restraint, and that was the
main point that I took from my pre-law school study of the
Warren Court.
I spoke a bit about the reapportionment decisions. I don't
believe that I--in fact, I am quite sure I never was opposed to
the one person/one vote concept. I do recall quite clearly that
my father's work at the time working for the New Jersey
Legislature and working on reapportionment had brought to my
attention the question of just how far that principle of one
person/one vote had to be taken in drawing legislative
districts.
The New Jersey Legislature and many other legislatures at
the time were trying to redraw their districts in accordance
with Reynolds v. Sims, which set out the one person/one vote
principle. But it wasn't clear how exactly equal the districts
had to be in population. And in some of the late Warren Court
decisions, the Court seemed to suggest--did say so for
congressional districts that they had to be almost exactly
equal in population. And this idea, if applied to the
legislatures and to the New Jersey legislative plan, would have
wiped the plan out because there were population deviations
which, although not very large, were much larger than the Court
had said they were going to tolerate in the case of
congressional districts. And I do remember that quite
specifically.
Professor Bickel made the argument that the Court had taken
the one person/one vote principle too far, and I know my father
had said that although he thought it was a good idea, the idea
of trying to get the districts to be exactly equal in
population at the expense of looking at other factors, such as
the shape of the district and respecting county lines or
municipal lines, was a bad idea.
Senator Kohl. Judge Alito, you stated in that same job
application that one element of the conservative philosophy
that you believe ``very strongly'' was the ``legitimacy of a
government role in protecting traditional values.'' What
traditional values were you referring to? And who decides what
is a ``traditional value'' ?
Judge Alito. Well, again, I'm trying to remember what I
thought about that 20 years ago, and I'm trying to reconstruct
it.
I think a traditional value that I probably had in mind was
the ability to live in peace and safety in your neighborhood,
and that was a big issue during the time of the Warren Court,
and it was still a big issue in 1985 when I wrote that
statement because that was a time of very high crime rates. I
think that is a traditional value.
I think the ability of people to raise a family and raise
their children in accordance with their own beliefs is a
traditional value. I think the ability to raise a family, raise
children in a way that they are not only subjected to--they are
spared physical threats but also psychological threats that can
come from elements in the atmosphere is a traditional value. I
think that the ability to practice your own conscience is a
traditional value.
That is the best I can reconstruct it now, thinking back to
1985.
Senator Kohl. Very good. Judge Alito, in Casey you argued
that the requirement that a woman notify her husband did not
impose an undue burden upon a woman. You reasoned in part that
the number of married women who would seek an abortion without
notifying their husbands would be rather small. In other words,
only some women would be affected. The majority in that case
disagreed with you and stated, ''Whether the adversely affected
group is but a small fraction of the universe, a pregnant woman
desiring an abortion seems to us irrelevant to the issue.''
This disagreement begs the question. Is a constitutional
right any less of a right if only one person suffers a
violation? Or should greater value be placed on that right if a
larger number of people had that right violated?
Judge Alito. Trying to apply the undue burden test at that
time to the provisions of the Pennsylvania statute that were
before the court in Casey was extremely difficult, and I can
really remember wrestling with the problem and I took it very
seriously and I mentioned that in my opinion and it presented
some really difficult issues. Part of the problem was that the
law just was not very clear at that time.
The undue burden standard had been articulated by Justice
O'Connor in several of her own opinions and there were just a
few hints in those opinions about what she meant by it. But
what she said was that an undue burden consisted of an absolute
obstacle or an extreme burden. Those may not be exact quotes,
but they're pretty close. And she did say that it was
insufficient to show simply that a regulation of abortion would
inhibit some women from going forward and having an abortion.
Those were the--that was the information that was available in
her opinions to try to understand what this test meant.
And so then the question became, how do you apply that to
the numerous provisions of the Pennsylvania statute that were
before us, and it was a difficult task. The plaintiffs argued
that all the provisions constituted an undue burden, and when
the case went to the Supreme Court, Justice Stevens agreed with
that. He said they all were an undue burden. Things like a 24-
hour waiting period, that was an undue burden because it would
inhibit some women from having an abortion. An informed consent
provision, Justice Stevens thought and plaintiffs argued that
would be an undue burden.
The majority on my panel and the joint opinion on the
Supreme Court found that most of the provisions of the statute
did not amount to an undue burden, the 24-hour waiting period,
the informed consent provision, and all of them. We disagreed
on only one, and that was the provision regarding spousal
notification with a safety valve provision there that no sort
of notification was needed if the woman thought that providing
the notification would present a threat of physical injury to
her. And I wrestled with that issue, but based on the
information that I had from Justice O'Connor's opinions, it
seemed to me that this was not what she had in mind. Now, that
turned out not to be a correct prediction about how she herself
would apply the undue burden standard to that statutory
provision, but that was the best I could do under the
circumstances.
Senator Kohl. Judge Alito, in your 1985 job application
memo again, you identified reapportionment as one of the three
issued decided by the Warren Court with which you disagreed.
You even stated that your disagreement was so strong that it
was one of the reasons that you became a lawyer. The Supreme
Court's Warren Court decisions on this topic, of course, stood
for the fundamental principle of one person/one vote, meaning
as a matter of constitutional law that each person's vote must
count equally and each electoral district must have the same
population.
These decisions were more than 20 years old by the time of
your 1985 job application and these decisions stand for a
fundamental principle of democracy. By 1985, virtually no
serious scholar or constitutional lawyer could be found to
disagree with the principle that each person's vote should
count equally. So what was your disagreement with the Warren
Court's decisions on this issue, Judge Alito, in 1985? Isn't
one person/one vote a basic principle of democracy? Wasn't it
in 1985?
Judge Alito. Senator, I don't believe that I disagreed with
the principle of one person/one vote in 1985. I was talking
about how I got interested in constitutional law back in
college and I was certainly stimulated at that time by my
consideration of the issue of one person/one vote. But the
issue that troubled me toward the end of the Warren Court, and
this was during the time when I was in college, was the
question of how far this principle went when it came to drawing
legislative districts. Did they have to be almost exactly equal
in population in accordance with the last census, or were
larger population variations permitted?
In a case called Kirkpatrick v. Preisler and another one
called Wells v. Rockefeller that were decided around 1969,
which was right at the end of Chief Justice Warren's tenure on
the Supreme Court, the Court held that in the case of
congressional districts, they had to be almost exactly equal in
population, and as I said, my father was deeply involved in
this. When the issue came up again in the context of
congressional districting in Carcher v. Daggett, which was
around 1985, that was the case where he had been an expert
witness and the Court struck down the New Jersey congressional
districting plan even though the population variations were
under 1 percent. Now, the Court also later said that when
you're talking about legislative districts, considerably larger
deviations are allowed and you can take into account municipal
lines and county lines and things of that nature.
But as of the time when I was in college, as in the time of
the two cases that I mentioned, it seemed likely--a lot of
people thought, and certainly I as a college student thought
that the rule was going to be the same for congressional
districts as it was for legislative districts and that seemed
to say that the districts would have to be almost exactly equal
in population based on the last census.
Now, a problem with that is that while the census is very
accurate, it's not perfect and it doesn't stay accurate
throughout the 10-year period from census to census. People
move around. The population grows. The population diminishes in
certain areas. So it didn't seem to make a whole lot of sense,
let's say in the middle of a decade, to insist on absolute
population equality based on the last previous census when
everybody knew that the census figures had changed, and in
doing that, in insisting on practically equal population
districts, districts of almost exactly equal population, you
disregard municipal lines, you disregard county lines. People
don't know which district they're going to be voting in. You
introduce the possibility of other factors figuring into the
districting plan.
Senator Kohl. OK. Family and Medical Leave Act, Judge
Alito. In my view, one of the most important pieces of social
legislation enacted in the last two decades was the Family and
Medical Leave Act in 1993. Among other things, it gives
employees the right to take up to 12 weeks of unpaid leave to
care for a newborn child or an ill parent or a spouse. The
statute also gives an employee the right to sue his or her
employer for damages if the employer violates the employee's
rights under this law.
I was disturbed to learn that in the Chittister case, Judge
Alito, your ruling denied a State employee the ability to sue
his employer for money damages. Your reasoning was directly
repudiated by the 2003 Supreme Court decision of Nevada
Department of Human Resources v. Hibbs. In that case, the
Supreme Court, in a decision written by Chief Justice
Rehnquist, held that the Family and Medical Leave Act was
congruent and proportional to Congress's interest in preventing
discrimination based on gender, and therefore States could be
sued for money damages under the law.
So we are concerned that your view shows a lack of
understanding of the problems of ordinary working Americans and
the right of women to be free of discrimination in the
workplace. Isn't it true that under your view, potentially
millions of working Americans would not get the protections
that they rely on under the Family and Medical Leave Act? Judge
Alito?
Judge Alito. Well, Senator, I'm happy to address that
because I think there's been some confusion about what the
issue was in Chittister and how it relates to the Supreme
Court's decision in Nevada v. Hibbs, and they're actually two
entirely different provisions of the Family and Medical Leave
Act.
The provision that was at issue in my case was not the one
in Hibbs and at last count, seven circuits had decided that
issue, the issue that was before my court in Chittister,
exactly the same way we did. I counted up the number of Court
of Appeals judges who endorsed that position and it's over 20.
I think it's 22. And they include some of the most
distinguished Court of Appeals judges in the country and judges
who have been appointed by Presidents of both parties.
The issue in Hibbs had to do with a provision of the Family
and Medical Leave Act that requires employers to provide
employees with a certain amount of leave for the purpose of
taking care of another family member. The provision--and that
was the one that the Supreme Court addressed in the Hibbs case.
The provision in the Chittister case is a provision that
requires employers to give employees a certain amount of leave
for personal illness. The standard that has to be applied here
is the one the Supreme Court has set out, and it's a
controversial standard, but as a lower court judge, it's the
one I had to apply, and that was whether what was done was
congruent and proportional to constitutional violations.
What the Court said in Hibbs was that there was a record of
constitutional violations, and remember, here we're talking
about the provision that has to do with leave to take care of
another person, and what they said was that there were many
instances in which employers, State employers, had plans that
provided more leave for that purpose for women than for men and
the reason was because of the stereotype that if somebody in
the family got sick, it would be the woman, not a man, who
would have to take off from work to take care of that person.
But the provision that was at issue in Chittister had to do
with leave for one's own personal illness and there was no
record that employers give--and a man was subjected to this,
and there was no record that State employers, or for that
matter any other employers, had plans that provided more sick
leave for men than for women or that any stereotypes were
involved in the situation. And so that was why I concluded, and
the unanimous panel that I sat on concluded, and all of these
seven other circuits concluded that that provision did not
satisfy the standard that the Supreme Court had established.
Senator Kohl. A last question. Judge Alito, I understand
that you're reluctant to comment on cases that you would likely
have coming before you in the future, but I'd like to ask you a
question about a case that the Supreme Court certainly will
never see again, the 2000 Presidential election contest between
President Bush and Vice President Gore. Many commentators see
the Bush v. Gore decision as an example of judicial activism,
an example of the judiciary improperly injecting itself into a
political dispute. Indeed, it appears to many of us who have
looked at your record that Bush v. Gore seems contrary to so
many of the principles that you stand for, that the President
has said you stand for when making your nomination in talking
about judicial restraint, not legislating from the bench and,
of course, respecting the rights of the States.
So, Judge Alito, I'd like to ask you, was the Supreme Court
correct to take this case in the first place?
Judge Alito. Well, Senator, I think you're probably right
and I hope you're right that that sort of issue doesn't come
before the Supreme Court again. Some of the--the Equal
Protection ground that the majority relied on in Bush v. Gore
does involve principles that could come up in future elections
and in future cases.
But as to that particular case, my answer has to be, I
really don't know. I have not had the opportunity--I have not
studied it in the way I would study a case that comes before me
as a judge and I would have to go through the whole judicial
process--
Senator Kohl. That was a huge, huge case and I would like
to hope, and I would bet, that you thought about it an awful
lot because you are who you are. And I would like for you to
give an opinion from the convictions of your heart, as a person
who's very restrained with respect to judicial activism, this
being a case of extreme judicial activism. Were they correct in
taking this case, in your opinion?
Judge Alito. Well, there's the issue of whether they should
have taken it and the issue of how it should be decided, and
Senator, my honest answer is I have not studied it in the way I
would study the issue if it were to come before me as a judge
and that would require putting out of my mind any personal
thoughts that I had on the matter and thinking about the--
listening to all the arguments and reading the briefs and
thinking about it in the way that I do when I decide legal
issues that are before me as a judge. That's the only--that's
the best answer I can give you to that question. It was
obviously a very important and difficult and controversial
case, and in a situation like that, the obligation of a judge
all the more is to be restrained and not to--is to go through
the judicial decisionmaking process, and only at the end of
that reach a conclusion about the issue.
Senator Kohl. Thank you, Judge. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Judge, you have almost turned the corner here, so that's
the good news. The bad news is, this is just the first round.
[Laughter.]
Senator DeWine. Let me respond, if I could, Judge, to three
things that I've heard so far during these hearings that have,
frankly, disturbed me. First, I am bothered by what I consider
to be distortions of your record, really in an effort to make
you look like something that you are not.
I just read a very interesting article by Stuart Taylor
from the National Journal about this issue, and I would like,
Mr. Chairman, to make this a part of the record, this article,
if I could.
Chairman Specter. Without objection.
Senator DeWine. Mr. Taylor describes the opinions of a,
quote, ''right-wing jurist.'' This judge has consistently ruled
against minorities, striking down affirmative action programs,
making it harder for victims of race and gender discrimination
to vindicate their rights.
Chairman Specter. Senator DeWine, your unanimous consent
request is granted.
Senator DeWine. Thank you, sir. This judge has struck down
a Federal law to protect kids from guns, ruled that State and
local governments cannot be sued under the Fair Labor Standards
Act, leaving 4.7 million workers without a remedy in court.
This judge has immunized the President from suit, even when he
illegally wiretaps political opponents. This judge approved a
police officer's fatal shooting in the back of an unarmed 15-
year-old African-American boy. Finally, this judge has called
abortion, and I quote, ``morally repugnant'' and declared Roe
v. Wade to be on, quote, ``on a collision course with itself.''
Based on such a record, no right-thinking Democrat could
ever support such a judge. But as Taylor tells us, this judge
is none other than Sandra Day O'Connor, the same Sandra Day
O'Connor who has been praised for the past few days as a model
of moderation.
Judge, the point Mr. Taylor made is clear. You can distort
and misrepresent anyone's record, and that, I believe,
unfortunately, is what some of your opponents are doing to you.
It is unfair, it is inaccurate, and it is just flat-out wrong.
Second, I would like to respond to the allegation that you
have not written an opinion in favor of plaintiff alleging race
discrimination on the job. You did a very good job a moment ago
when Senator Kyl was talking to you in describing some of these
cases. I think the facts of these cases are what is
particularly interesting. In Reynolds v. USX Corporation, you
ruled that an African-American woman whose coworkers and
supervisors regularly made racial and sexual slurs against her
and denied her training opportunities was, in fact, entitled to
$124,000 in damages and in attorney fees.
In Zubi v. AT&T Corporation, you dissented. You dissented,
arguing against a stringent limitations period which prevented
a civil rights plaintiff from filing a claim, and your position
was vindicated. You were vindicated by the United States
Supreme Court unanimously a few years later.
In Smith v. Davis, you disagreed with the district court,
which had dismissed an African-American employee's claim of
discrimination. Instead, you found that there was evidence to
support a finding that the employer's stated reasons for firing
the plaintiff were not genuine.
In Goosby v. Johnson & Johnson, you ruled that the
plaintiff, an African-American woman, was entitled to a trial
under claims of employment discrimination because you found
that there was evidence that the employer was treating white
male employees differently than it was treating the plaintiff.
There are more cases, as you have testified to, but I think we
make the point.
We would all be better off and this process, Mr. Chairman,
would be better off and would be more instructive if we could
evaluate your nomination, Judge, based on your full and
complete record.
Finally, let me add my two cents on this Vanguard issue. I
am going to take it from a little different perspective than
has been done so far. To me, this is really a non-issue. In the
so-called Vanguard lawsuit, two people were in a financial
dispute. The plaintiff sued to force the defendant to turn over
$170,000 held by him in some Vanguard accounts. The defendant
went to court to prevent Vanguard from turning over the money.
Now, while Vanguard was technically part of the suit and
was technically a defendant, it wasn't really a defendant in
any sense of the term that would be used by the public or
understood by the public. It was not accused of any wrongdoing,
it didn't stand to lose anything.
Really, the only question was whether Vanguard would
transfer some of the funds it held for one person over to
another. It was simply being asked, who do I pay the money to,
who do I give the money to. That is all Vanguard was being
asked to do, so nothing in the classic sense of being a
defendant. Nothing about this case could realistically have
affected Vanguard as a company, let alone affected your mutual
fund. It is a joke, it is ridiculous, it is absurd, and
everybody on this panel knows that.
Now, for the sake of the process, I hope we can put these
issues behind us. This hearing is really our opportunity to
fully and fairly evaluate your qualifications for the High
Court and to get some idea about how you think as a judge, how
you process things, what kind of a judge you will be on the
United States Supreme Court.
Now, let me turn to the substance. Judge Alito, I want to
turn to an issue that is very important to me. In a number of
recent cases, the Supreme Court of this country has restricted
congressional power in a way that I think is not required by
the Constitution.
In my opening statement, I mentioned the Supreme Court's
decision in Board of Trustees v. Garrett, a five-to-four
decision. To me, that case is the best example of this recent
trend, and it is not a good trend, in my opinion.
Garrett involved a woman who claimed that she had been
discriminated against because she was disabled. She was
employed by the State of Alabama and she sued the State under
the Americans with Disabilities Act. The Supreme Court threw
out the suit, however, holding that Congress lacked the power
to make the State subject to suit.
Now, Judge, as I see it, the problem with Garrett is that
the Court ignored findings made by Congress. While we were
considering the ADA, we held 13 hearings and even set up a task
force that held hearings in every State in the Union, attended
by more than 30,000 individuals. Based on these hearings, we
found hundreds of examples, hundreds of examples of people with
disabilities being discriminated against by the States in
employment decisions.
Further, we found that, and I quote, ``Two-thirds of all
disabled Americans between the ages of 16 and 64 were not
working at all, even though a large majority of them were
capable of doing so.'' And, finally, we found that this
discrimination flowed from, and I quote, ``stereotypic
assumptions about people with disabilities,'' as well as, and I
quote, ``purposeful unequal treatment,'' end of quote. Sadly,
however, in Garrett the Court said that this was just not
enough. In fact, it held that we had not pointed to any
evidence that the States discriminated in employment decisions
against people with disabilities.
Judge Alito, from a review of your decisions, it appears to
me that you tended to defer in close cases to the decisions of
those individuals closest to the problem at hand. I applaud you
for taking that approach.
Now, let me ask you, in your opinion, what role should a
judge play when reviewing congressional fact-finding, and how
can you assure us that you will show appropriate deference to
the role of Congress as the representatives of the people in
this democracy when we pass important legislation?
Judge Alito. I think that the judiciary should have great
respect for findings of fact that are made by Congress. And in
the Rybar decision that I was discussing earlier, although it
is controversial and it involved an application of the Lopez
decision, I stated that that decision would have been very
different from--that case would have been very different for me
if Congress had made findings, and that is because of two
things.
I am fully aware of the fact that the members of the
judiciary are not the only officers in the United States who
take an oath to support and defend the Constitution of the
United States. Members of Congress take an oath to support the
Constitution and officers of the Executive branch take an oath
to support the Constitution, and I presume that they go about
their work in good faith.
The second point--and this goes directly to the issue of
findings--is that the judiciary is not equipped at all to make
findings about what is going on in the real world, not this
sort of legislative findings. And Congress, of course, is in
the best position to do that. You have constituents. Members of
Congress hear from their constituents. Congress can have
hearings and examine complex social issues, receive statistical
data, hear testimony from experts, analyze that and synthesize
that and reduce that to findings. And when Congress makes
findings on questions that have a bearing on the
constitutionality of legislation, I think they are entitled to
great respect.
Senator DeWine. Well, Judge, I appreciate your response. We
can't ask you, obviously, to decide any particular case, but
what we are trying to do today is get a general idea of how you
approach cases. And we have, as I said, looked at your previous
cases. We have a good idea from that, but I appreciate this
exchange.
Let me followup with this. Garrett is the law of the land
today. Nonetheless, let me ask you whether, after Garrett,
Congress might still have a way to protect the disabled. Rather
than focus on the problem caused by Garrett, let me focus on
the solution. To me, even after Garrett, Congress still has the
power to protect the disabled under the Spending Clause of the
Constitution. I would like to explore maybe that with you, if I
could. Let me give you an example of how this might work.
You, of course, are very familiar with South Dakota v.
Dole. In that case, Congress had wanted to establish a national
drinking age of 21. As you know, we, of course, don't have the
power to require that under our Constitution. Therefore,
Congress used its power under the Spending Clause. We said to
the States, if you don't establish a 21-year-old drinking age,
you will lose 5 percent of your Federal highway dollars.
This left the States with a choice: adopt a 21-year-old
drinking age or lose 5 percent of their Federal money. When
presented with such a choice, the States kept the money and
changed their drinking age to 21. It seems to me that Congress
might be able to use this same approach to require the States
to waive their immunity from suit under statutes like the ADA.
Judge, based on your experience, could you give me your
understanding of what Congress can do and what it can't do
under its Spending Clause power, maybe just go back and look at
some recent cases and give me a little--
Judge Alito. Yes, certainly, Senator. Well, I think you
have pointed to the leading case in this area, and that is
South Dakota v. Dole. South Dakota v. Dole recognizes that
Congress has broad powers under the Spending Clause, and that
when Congress provides money to the States, Congress can attach
conditions to that money, to the receipt of the money, provided
that certain standards are met.
One thing that has to be done under the Supreme Court's
cases is that there has to be a clear statement that the
conditions are attached to the receipt of the money. And the
Supreme Court views this like a contract, so that the parties
need to have--the party receiving the notice has to have clear
and fair notice about what it is agreeing to by taking the
money. And then beyond that, the condition--if that is
satisfied, then the condition has to be germane to the purposes
of the funds.
And in South Dakota v. Dole, the Court found that the
drinking age and the 55-mile-an-hour speed limit were germane
to the purpose of the expenditures, and these, I believe, were
Federal highway funds. So those are the standards that would be
applied to any future legislation under the current precedents
if the future legislation invokes Congress's broad power under
the Spending Clause.
Senator DeWine. That is helpful. Thank you, Judge.
During the confirmation hearing of Chief Justice Roberts,
Chairman Specter showed us a chart stating that the Supreme
Court had the opportunity to overrule Roe v. Wade in 38 cases.
Because of this, the Chairman suggested that Roe was not only
super precedent, but super duper precedent. The Chairman has
made the same argument at the hearing today. In fact, he
brought the chart out again today.
Now, Judge, just to show you that not all members of this
panel are like-minded, I want to tell you that I disagree. To
me, Roe is not super precedent. I believe Roe is a precedent,
but I don't believe it is super duper precedent or super
precedent.
First, although the Court has applied Roe in 38 cases, it
has not directly taken up the issue of whether to overrule Roe
in every one of those cases. In fact, out of those 38 cases, I
have only found 4 in which the Court directly addressed the
status of Roe as binding precedent.
In Webster, the Court asked whether Roe should be
reaffirmed, but ultimately avoided the issue. In three cases--
City of Akron, Thornburgh and Casey--the Court did reaffirm
Roe. But the last of these, Casey, did so in a way that hardly
left Roe on firm footing. In fact, Casey altered Roe by
eliminating the strict scrutiny standard of review and
replacing it with a lesser undue burden test. The result has
been that many restrictions on abortion have been upheld.
Second, just because Roe has been applied and reaffirmed
does not make it a special form of precedent. Many other cases
have been applied for decades before eventually being
overruled. For example, Plessy v. Ferguson, the case
establishing the principle of separate but equal, was upheld
for nearly 60 years before it was overruled, and certainly
discredited today.
Lochner v. New York, a case that greatly limited the power
of the States to protect children and workers, was consistently
applied for more than 30 years before it was overruled. And
Swift v. Tyson, a case establishing the doctrine of Federal
common law, was a bedrock principle of American law repeatedly
applied and upheld for nearly 100 years before it too was
struck down. Thus, the mere fact that Roe has been upheld for
more than 30 years does not mean that it is entitled to special
deference.
Third, from the start, Roe has been criticized by lawyers,
scholars and judges, whether Democrats or Republicans and, to
date, it does remain controversial.
Fourth, much has happened over the last 30 years to
undermine the soundness of Roe. Senator Brownback has mentioned
how the facts of Roe have changed. We now know that the
plaintiff in Roe based her case on false statements and that
she wants the case overturned. We also know much about the life
of babies in utero that we did not know 30 years ago.
We even know something about the internal deliberations of
the Justices who decided Roe. In an internal Supreme Court
memo, Justice Harry Blackmun, the author of Roe, acknowledged
that the trimester framework established in his opinion was,
and I quote, ''arbitrary.'' And Justice Lewis Powell said that
he could not find a right to an abortion within the
Constitution and decided instead to rely on his gut.
Finally, whatever the term ``super precedent'' means, I do
not think that it describes Roe. In an article by William
Landis and Richard Posner, super precedent was defined this
way. It is a, and I quote, ``precedent that is so effective in
defining the requirements of the law that it prevents legal
decisions arising in the first place, or if they do arise,
induces them to be settled without litigation,'' end of quote.
In other words, super precedent is precedent that is so firmly
entrenched in our legal system that people simply don't
question it.
Marbury v. Madison, the case establishing the power of
judicial review, is super precedent. It is so well settled that
litigants do not challenge it in court. In fact, it is one of
the fundamental assumptions upon which our constitutional
system is built. Roe is hardly Marbury. Is Roe Supreme Court
precedent? Certainly, but in my view it is not super duper
precedent or even super precedent. It is precedent, nothing
more.
Judge, I want to turn now to another topic, to an issue
that several Federal judges in Ohio have brought up to me
during our conversations. As you know, the Supreme Court
currently decides about 75 cases a term. This number is down
dramatically from where it was just a generation ago. In 1976,
for example, the Court decided almost 400 cases on the merits,
more than five times what it does today.
This incredible shrinking Supreme Court docket has been the
focus of much attention over the past few years, a lot of
discussion. One result of the Court deciding fewer and fewer
cases is that more and more circuit splits are left unresolved,
which is what I want to talk to you about.
As we all know, a circuit split occurs when two or more
Federal Courts of Appeals disagree on an issue of Federal law.
As of late, circuit splits have become so pervasive that the
Seton Hall Law School came out last year with a new Law Review
dedicated exclusively to that issue. There is also a website
written by a law professor at the University of Richmond,
solely committed to identifying new circuit splits. Hardly a
week passes when at least one does not emerge.
To me, these pervasive and unaddressed circuit splits
create three problems: one, organizations that transact
business across State lines, get caught in the cross-hairs of
the his confusion, being subject to one interpretation of
Federal law in California and a different one in the State of
Ohio; second, Federal judges are placed in a difficult
situation trying to figure out what the law requires. In fact,
a number of Federal judges in Ohio have talked to me, as I
said, about this; and finally, circuit splits undermine the
goal of having uniformity in our Federal law.
Let me just ask what is your opinion about this issue? In
your experience has the Supreme Court's shrinking docket caused
problems for businesses, lower court judges, individuals? Is
there a problem with the number of unresolved circuit splits?
And if the Court takes more cases, do you think that will solve
the problem?
Judge Alito. Well, that's a difficult issue for me to
address from my current position as a judge of a court of
appeals because the Supreme Court is my boss, and I am
reluctant to suggest that I think they should be doubling their
workload.
[Laughter.]
Senator DeWine. Oh, go ahead.
[Laughter.]
Judge Alito. That's not the sort of--or even increasing it
at all. That's not the sort of thing that subordinates
generally do regarding superiors. But circuit splits are
certainly undesirable, and I think everybody recognizes that,
and that's one of the grounds for granting certiorari. I know
that when Justice White was on the Court he regularly would
dissent from denial of certiorari in cases where there was a
circuit split because he felt strongly that circuit splits
should be resolved by the Supreme Court.
I have friends, former colleagues from prior times in my
career, who are appellate attorneys who specialize in cases
before the Supreme Court and in appellate litigation generally,
and occasionally I hear them complain about unresolved circuit
splits that are difficult for their clients. So I'm aware of
their complaints.
I haven't personally kept track of the number of circuit
splits that exist, but certainly they are undesirable thing,
and it is a ground for granting certiorari, and I think one of
the jobs that the Supreme Court has is to iron out circuit
splits. There can be disagreements about whether there really
is a circuit split, obviously, in a particular case, and there
can be differences of opinion about the timing for resolving
circuit splits. Sometimes the Supreme Court thinks it's
advisable to wait and see how an issue plays out in a number of
circuits before the Supreme Court decides to take on the issue,
and that may improve their ability to resolve the issue when
the case generally--when the case eventually comes before them.
Senator DeWine. Judge, let me suggest that I think it is a
problem and I think the Supreme Court needs to deal with it.
Chief Justice Roberts indicated that he thought the Court could
take on more, and I would suggest that they could. I appreciate
your comments.
Judge Alito, let me ask you about Congress's power to
protect our children from the proliferation of pornography on
the Internet. This is an important issue. I raised it at the
last hearing. It is one that I think is very troubling.
Congress has tried several times to protect our children from
being exposed to pornography on the Internet. In 1996, we
passed the Communications Decency Act, but the Supreme Court
struck it down, citing the First Amendment. A few years later
we passed the Child Online Protection Act. Again, the Court
struck it down.
What bothers me about these cases is they fail to account
for something that to me seems relatively simple. At the core
of the First Amendment is the protection of political speech,
but it seems to me that pornography is altogether different.
Unlike political speech, pornography has very little value if
it has any value at all. It does not communicate a message
other than one that degrades women. It does not contribute to
the public debate, and actually causes harm to the victims who
take part in making it, and those who use it.
There are, of course, a number of cases that seem to
recognize that pornography is of lesser value speech. In Young
v. American Mini Theaters the Court upheld zoning regulations
on adult theaters. In doing so, Justice Stevens had this to
say, and I quote, ``Even though we recognize that the First
Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is
manifest that society's interest in protecting this type of
expression is of a wholly different and lesser magnitude than
the interest and untrammeled political debate.''
Let me ask you, Judge, what is your thinking on this
subject? Is pornography lesser value speech, as Justice Stevens
has seemed to suggest, and are there, or should there be,
different levels of speech under the First Amendment?
Judge Alito. I think that the problem of protecting
children from pornography on the Internet illustrates the fact
that although the task of the judiciary is to apply principles
that are in the Constitution and not make up its own
principles, to apply those to different factual situations when
the world changes, and in particular, in the First Amendment
context, when means of communication changes. The job of
applying the principles that have been worked out--and I think
in this area worked out with a great deal of effort over a
period of time--in the pre-Internet world, applying those to
the world of the Internet is a really difficult problem, and I
understand it. Congress has been struggling with it, and I know
the judiciary has been struggling with it.
The law, of course, as you know, constitutional law draws a
distinction between obscenity, which has no First Amendment
protection but is subject to a very strict definition, and
pornography, which is not obscenity but is sexually related
materials, with respect to minors, the Supreme Court has said
that it's permissible for a State to regulate the sale of
pornography to minors, has greater authority there. I think
that's the Ginsburg case. It has greater authority there than
it does with respect to the distribution of pornography to
adults.
Now, in the pre-Internet world, the job of preventing
minors from purchasing pornography was a lot simpler. If they
wanted to get it, I guess they would have to go to a store or
some place and buy it. But on the Internet, of course, it's
readily available from any computer terminal, and a lot of
minors today are a lot more sophisticated in the use of
computers than their parents, so the ability of parents to
monitor what they're doing and supervise what they're doing is
greatly impaired by this difference in computer aptitude. I
can't say much more about the question than that. It is a
difficult question. I think that there needs to be additional
effort in this area, probably by all branches of Government so
that the law fully takes into account the differences regarding
communication over the Internet and access to materials over
the Internet by minors.
Senator DeWine. Judge, I have one last question. If
confirmed to the Supreme Court, only part of your job will be
hearing arguments and issuing opinions. An equally important
part of the job will involve deciding which cases to hear in
the first place. Each year the Supreme Court receives
approximately 8,000 petitions for cert., cert. petitions, as
they are called. These are petitions by a party to a lawsuit
asking the Court to hear its case. Out of these 8,000 annual
requests, the Court decides to hear only about 75 to 80. For
many years individual Justices would review each cert. petition
and cast a vote on whether to hear the case. Today, however,
eight of the Justices are part of what is called the cert.
pool. Here is how it works. All petitions are put into a pool.
A single law clerk then picks up a petition, writes a memo
recommending for or against hearing the case. That memo is then
circulated to the eight Justices in the cert. pool who use it
to cast their vote on whether to hear the case. Justice Stevens
is the only one who does not participate in this pool. Instead
he has his staff prepare a memo on each case with a
recommendation tailored to his own thinking on an issue. It
would seem to me that the cert. pool greatly limits the
exchange of ideas among members of the Court.
I wonder if you could tell me how you would intend to
proceed, if you are going to use the pool or if you are going
to do what Justice Stevens does, or if you have thought about
it.
Judge Alito. I have--I'm aware of the issue, but I have not
thought past what might happen with these confirmation
proceedings. So it's not the kind of issue that I have really
thought through in my mind. If I'm fortunate enough to be
confirmed, I think I would assess the situation at that time
and talk to the Supreme Court Justices and see what their views
are, the reasons why they're proceeding in one way or another.
I know from my perspective as a lower court judge, that
there is a constant conflict between the obligation that we
have to deal with a very heavy caseload and the need for the
judge, as opposed to a law clerk or a staff employee of the
Court to deal with the cases. We cannot delegate our judicial
responsibility, but we do need to call on--we need to find
ways, and we do find ways, of using--of obtaining assistance
from clerks and staff, employees, so that we can deal with the
large caseload that we have.
Senator DeWine. Thank you, Judge.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Good afternoon, Judge. Because Sandra Day O'Connor was the
fifth vote on both Lopez and Morrison, I think I would like to
start with the Commerce Clause, and your views of federalism.
Do you agree with the direction the Supreme Court took in
Lopez?
Judge Alito. Well, Senator that really relates to the next
case in the Lopez-Morrison line of cases that might come before
the Supreme Court, and so I don't know how I can address that
question without knowing what that case is, and of course, my
resolution of it would--
Senator Feinstein. I was just asking you about Lopez, but--
Judge Alito. Well, Lopez is--
Senator Feinstein [continuing]. If you do not want to
answer, that is OK.
Judge Alito. Lopez is a precedent of the Court, and it's
been followed in Morrison, and then it has to be considered
within connection with the Supreme Court's decision in Raich,
and I think that all three of those have to be taken into
account together. I don't think there's any question at this
point in our history that Congress's power under the Commerce
Clause is quite broad, and I think that reflects a number of
things, including the way in which our economy and our society
has developed, and all of the foreign and intrastate activity
that takes place, we do still have a Federal system of
Government, and I think most people believe that that is the
system that's set up by our Constitution.
Senator Feinstein. Having said that, I pulled the Rybar
case and read it over the noon break. Let me just see if we
agree on the facts, and stop me if you think I am misquoting or
misstating anything. The Rybar case essentially took place the
year after Lopez. It involved Mr. Rybar, who was a federally
licensed gun dealer who went to a gun show in Pennsylvania and
bought a Chinese type 54, 7.62-millimeter submachine gun one
day, sold it to Mr. Baublitz, went back the next day and sold
him a military M-3, 45 caliber submachine gun. The grand jury
indicted him on two counts of unlawful possession of a machine
gun in violation of the law, and two counts of unlawful
transfer of an unregistered firearm. He changed his plea, pled
guilty to two counts. I think he pled conditionally guilty to
two counts.
When the case came before you, and I read with great
interest your dissenting opinion, you said, and I quote, ``If
Lopez, which happened the year before, does not govern this
case, then it may well be a precedent that's strictly limited
to its own peculiar circumstances, but our responsibility is to
apply Supreme Court precedent. That responsibility, it seems to
me, requires us to invalidate the statutory provision at issue
here in its present form.''
And then you went on to say that the present form ``might
be sustainable in its current form if Congress made findings
that the purely intrastate possession of machine guns has a
substantial effect on interstate commerce, or if Congress or
the Executive assembled empirical evidence documenting such a
link. If, as the Government and the majority boldly insist, the
purely intrastate possession of machine guns has such an
effect, these steps are not too much to demand to protect our
system of constitutional federalism.''
So if I understand this, you essentially said that you
wanted to follow precedent, newly established law in this area,
and you left a little hedge that if the Congress did make
findings in that law, then that might be a different situation.
If Congress did make findings, would you have agreed that that
statute would have been constitutional?
Judge Alito. Well, what I said in the opinion and what I
will reiterate this afternoon is that it would have been a very
different case for me. I don't think I can express an opinion
on how I would have decided a hypothetical case.
Senator Feinstein. It is not hypothetical. I am just asking
you if there were findings, as you said, you might have
sustained the law--
Judge Alito. And I read it like that. I think it would have
been--
Senator Feinstein. I am just asking you, would you have
sustained the law for findings--
Judge Alito. I don't think that I can give you a definitive
answer to the question because that involves a case that's
different from the case that came before me. But I repeat what
I said there, it would have been a very different matter if
Congress had made findings. I have the greatest respect for
findings. This is an area where Congress has the expertise and
where Congress has the opportunity to assemble facts and to
assess the facts. We on the appellate judiciary don't have that
opportunity. So if Congress had made findings--and I didn't
insist on findings. If the Executive branch, which was
defending the statute, had pointed to testimony at hearings--
and that's been done in other Commerce Clause cases--or
statements by responsible Government officials with expertise
in the area of firearms control, or any other evidence that
substantiated this, it would have been a very different case
for me, and of course, if there had been a jurisdictional
element, then I think it's perfectly clear under the precedents
that it would have been constitutional.
Senator Feinstein. I accept that with one exception. I
think most people know that guns, particularly machine guns, do
affect interstate commerce, and there is generally no question
about that. With one look at the gun trace, even before Mr.
Rybar had the gun, the likelihood was that it came across State
lines, particularly the Chinese model. So I think that is a
difficult extrapolation for me to understand, but that is not
necessarily dispositive.
Let me go on. At the conclusion of your dissent, you wrote
that, ``Even today, the normative case for federalism remains
strong.'' Now, federalism is often used to describe the
strengthening of State powers at the expense of the Federal
Government. What exactly did you mean by that statement?
Judge Alito. I meant that there are activities that--and I
think there is general agreement on this, and it goes beyond
what the Constitution requires into areas of policy that I
think Congress respects. I think there is general agreement
that there are some activities that have traditionally been
handled by the States and by local governments. Those are areas
in which they have taken the lead because the view has been
that they are in the best position to deal with that. And that
was the issue that was directly addressed by Justice Kennedy's
concurrence in Lopez. He relied in large part on the fact
that--he put heavy reliance on the fact that what was involved
in Lopez was a law relating to schools. And although the
Federal Government certainly has a role in education,
traditionally that has been regarded as something that is
primarily to be handled at the State and local level.
Senator Feinstein. OK. Now, you cited a law review article
by a professor named Stephen Calabrese. In that article, he
argues that Lopez was a revolution that shattered forever the
notion that after 50 years of Commerce Clause precedent, we
could never go back to the days of limited national power. Do
you agree with that?
Judge Alito. I agree that Lopez was a startling development
for a lot of people. When I was in law school, I think the
traditional wisdom was that the commerce power reached
everything, that there was no limit to the power, that nothing
could ever exceed the power. And Lopez and the Lopez line of
cases have not made huge inroads on that principle, but it was
the first time in a long time that a statute had been held to
exceed Congress's commerce power. So to that extent, yes, it
was a revolution, but how big of a one--
Senator Feinstein. See, I would say not yet has it made
that kind of a dent, and that is why your nomination is so
important, because you could be a decisive vote in this area.
Do you believe that the Supreme Court's Commerce Clause
decisions in the 50 years preceding Lopez are settled law?
Judge Alito. I think that--I'd have to talk about
individual cases, but I do think most of those are--the ones
that come to my mind I think are well-settled precedents.
Senator Feinstein. OK. Now, unlike the machine gun law in
Rybar, the Family and Medical Leave Act in Chittister did
include congressional findings of fact, as the Supreme Court
confirmed, and yet you authored the majority opinion to
invalidate the law.
Judge Alito. Well, in Chittister--
Senator Feinstein. Do you see a contradiction in that?
Judge Alito. I don't, Senator. I don't believe that there
were congressional findings in Chittister that went to the
issue in Chittister.
Senator Feinstein. OK. That is good. Now, let me ask you
some questions. Is it enough for Congress to provide findings
of fact in a statute, or do the findings of fact need to be
deemed sufficient by a court?
Judge Alito. Well, what the Supreme Court has said is that
findings of fact are very helpful when they are provided. And
the Court will certainly treat them with respect. But they are
neither--they are not necessarily definitive, and they also are
not necessary. Congress doesn't have to make findings. It is
helpful when it does it, and under the Supreme Court's cases,
the findings are not necessarily definitive. That is what the
Supreme Court has said about this.
Senator Feinstein. Yes, but you struck down Rybar.
Essentially, you said it would have a much better chance with
you if it had findings of fact. And this was a case where prior
laws had major findings of fact with respect to machine guns. I
mean, this wasn't a new thing.
Judge Alito. Senator, I looked very carefully at all of the
materials that were cited by the other judges in Rybar and that
were provided by the Government. And the things that were cited
from the legislative history of the prior statutes did not, in
my view, go to the issue in Rybar. All of those prior statutes
were statutes that had jurisdictional elements in them. All
that I was looking for was some evidence that the possession of
a machine gun--not the transfer of a machine gun or the sale of
a machine gun, but the mere possession had a substantial effect
on interstate commerce. That is what I understood the Supreme
Court precedent to require. And it is not a very heavy burden
to show that something has a substantial effect on interstate
commerce, but that is what I understood the Supreme Court
precedent to require and that is what I was looking for.
Senator Feinstein. OK. Let's move to the issue of a woman's
right to choose and Roe. This morning, Senator Specter talked
about how Casey reaffirmed the original soundness of Roe and
then put emphasis on precedent. And he then asked, ``How would
you weigh that consideration were this issue to come before
you, if confirmed? '' And in response, you said, and I would
like to quote, ``Well, I agree that in every case in which
there is prior precedent, the first issue is the issue of stare
decisis, and the presumption is that the Court will follow its
prior precedents. There needs to be a special justification for
overruling a prior precedent.''
Can you give us a few examples of a special justification,
not including Brown v. Board of Education, which you think
would qualify?
Judge Alito. There are a number of factors that figure in
the application of stare decisis in particular cases. There are
factors that weigh in favor of stare decisis, and there are
factors that weigh against stare decisis. Factors that weigh in
favor of stare decisis are things like what the initial vote
was on the case, the length of time that the case has been on
the book, whether it has been reaffirmed, whether it has been
reaffirmed on stare decisis grounds, whether there has been
reliance, the nature and the extent of the reliance, whether
the precedent has proven to be workable. Those are all factors
that have to be considered on an individual basis.
Senator Feinstein. But I am asking you what the special
justification would be, that you mentioned this morning, to
overcome precedence and reliance?
Judge Alito. Well, I think what needs to be done is a
consideration of all of the factors that are relevant. This is
not a mathematical formula. It would be a lot easier for
everybody if it were. But it is not. The Supreme Court has said
that this is a question that calls for the exercise of
judgment. They have said there has to be a special
justification for overruling a precedent. There is a
presumption that precedents will be followed. But it is not--
the rule of stare decisis is not an inexorable command, and I
don't think anybody would want a rule in the area of
constitutional law that pointed in that--that said that a
constitutional decision, once handed down, can never be
overruled.
So it's a matter of weighing all of the--taking into
account all of the factors and seeing whether there is a strong
case based on all the relevant--
Senator Feinstein. My question was a different one,
respectfully.
Judge Alito. I am sorry, Senator.
Senator Feinstein. It was, can you give me a few examples
of what you think would qualify as a special justification for
overruling prior precedent? And the reason I ask you this is in
our private conversation, you said to me that you did not think
there had been any case you could think of that had been more
tested than Roe.
Judge Alito. Well, Roe has--sorry.
Senator Feinstein. What special circumstance would there be
which would overcome this kind--whether you call it super
precedent or super duper or anything, but this kind of
protracted testing over a 33-year period of time?
Judge Alito. Senator, I'm sorry if I didn't understand your
question previously. One situation in which there is a special
justification for overruling a precedent is if the rule has
proven to be unworkable. An example where the Supreme Court
thought that a rule had proven to be unworkable is provided by
National League of Cities and San Antonio Transit Authority v.
Garcia. National League of Cities asked whether something was
traditionally a sovereign function. And that resulted in a
whole series of cases in the lower courts, a large number of
cases in the lower courts, and a number of cases in the Supreme
Court in which the courts had to decide whether something was
on one side of this line or not, and it proved in the view of
the Supreme Court to be a very difficult standard to work with.
And, finally, in Garcia, they said this is unworkable, and we
are going to overrule National League of Cities, and we are
going to leave it to Congress to deal with the federalism issue
that is presented here. This is an example of the Supreme Court
saying there is a federalism concern here, but it is one that
Congress rather than the Court would have to deal with.
Sometimes changes in the situation in the real world can
call for the overruling of a precedent. An example of that is
provided by Katz v. United States, which I was talking about
this morning in relation to wiretapping. The old rule under
Olmstead was that in order for there to be a search, you had to
look to property law. You had to see whether there was an
invasion of a property interest. And then with the development
of electronic communications and electronic surveillance,
wiretapping or other forms of electronic surveillance, which is
what was involved in Katz, the Supreme Court said this isn't a
sensible way to apply the Fourth Amendment principle under the
conditions of the modern world, and they said famously that the
Fourth Amendment protects people, not places. So they shifted--
they found the doctrinal underpinnings of the old Olmstead rule
to be undermined by developments in the society, and they
shifted the focus from property law to whether somebody had an
expectation of privacy.
So those are examples.
Senator Feinstein. Well, and you did say that you believe
the Constitution provides a right of privacy.
Judge Alito. I did say that. The 14th Amendment protects
liberty. The Fifth Amendment protects liberty. And I think it
is well accepted that this has a substantive component, and
that that component includes aspects of privacy that have
constitutional protection.
Senator Feinstein. Let me ask you about your dissent in
Casey. You reasoned that most women seeking abortions are
either unmarried or would tell their husbands and, therefore,
few would be harmed if spousal notification was required.
Justice O'Connor, on the other hand, ruled, and I quote, ``The
proper focus of constitutional inquiry is the group for whom
the law is a restriction, not the group for whom the law is
irrelevant.''
Why did you propose a different approach than Justice
O'Connor?
Judge Alito. Well, I mentioned the fact in my opinion that
this provision applied only to married women, but I don't think
that was really the focus of what I was getting at. I think--
and I agree with her that you look at the group that's
affected, not the group that's unaffected, and the standard
that she had--so that would be women who fell within this
provision of the Pennsylvania law. And the standard that she
had articulated in the earlier cases was, as I described it a
couple of minutes ago, that an undue burden in her view had to
be an absolute obstacle or an extreme obstacle, and it could
not be simply something that inhibited some women. The ``some
women'' phrase was her phrase, not my phrase.
Senator Feinstein. Now, I am going to ask you about one
other quote that some of my colleagues may disagree with what
Justice O'Connor said, but she said it, and that is, ``The
State may not give to a man the kind of dominion and control
over his wife that parents exercise over their children.'' Do
you agree with that?
Judge Alito. I never equated the situation of an adult
woman who fell within the notification provision of the
Pennsylvania statute with the situation of a minor who was
required to provide notice. There is an analogy, and the
earlier case that Justice O'Connor had decided, the Hodgson
case, was a minor notification statute. But I think I made it
quite clear in my opinion that this was nothing more than an
analogy and that there was no close--these situations were very
distinct, and I was aware of that, and I think I pointed that
out.
Senator Feinstein. Let me move on, if I might. One of the
core principles of Roe is that a woman's health must be
protected. In Casey, Justice O'Connor specifically wrote that
after viability, the State may, if it chooses, regulate and
even proscribe abortion, except where it is necessary in
appropriate medical judgment for the preservation of the life
of the mother. This requirement to protect a woman's health was
also reaffirmed in Stenberg v. Carhart, where it was said the
Court rejects Nebraska's contention that there is no need for
health exception.
Do you agree, if the statute restricts access to abortion,
that it must protect the health of the mother in order for it
to be constitutional?
Judge Alito. Well, I think that the case law is very clear
about protecting the life and the health of the mother is the
compelling interest throughout pregnancy. I think that's very
clear in the case law.
Senator Feinstein. Thank you. I appreciate that.
In 1985, at the time you wrote the strategy memo on
Thornburgh, the Court had already held in Roe, Akron, and
eventually 30 other cases, that a woman had a constitutional
right to choose whether to continue a pregnancy. In addition,
in your memo, you specifically wrote that in the Akron case,
the Supreme Court reaffirmed Roe. However, despite this, your
memo outlined a strategy to eventually overturn Roe.
My question is a little different from what you discussed
somewhat yesterday. What was your view of precedent at the time
you wrote that memo?
Judge Alito. Well, I think there are two things that I
should say in response to that. The first is that I did not
advocate in the memo that an argument be made that Roe be
overruled, and therefore, the whole issue, had the Government
proceeded with the argument that I recommended, the issue of
stare decisis wouldn't have been presented and so there wasn't
any occasion for me to talk about stare decisis in the memo and
I did not talk about it. I think there's a mention of it in a
footnote. So I didn't address it and there wasn't an occasion
to address it.
The second thing I would say is that stare decisis is a
concern for the judiciary much more than it is for an advocate.
An advocate is trying to achieve a result, and so an advocate
is--for an advocate, stare decisis can be either a great
benefit if it is in your favor or an obstacle to get over. But
it isn't the kind of issue that needs to be grappled with in
the way in which a court has to grapple with stare decisis.
Senator Feinstein. OK. In Casey, you wrote about the harms
caused by spousal notification to the practical effect that the
law will not amount to an undue burden unless the effect is
greater than the burden imposed on minors. Just to go back to
that, is this what you meant?
Judge Alito. Well, Senator, I don't--I do not equate the
situation of a married woman with the situation of a minor--
Senator Feinstein. I know you keep saying that, but I keep
going back to the words and they seem to say something else.
Judge Alito. Well, I think if you look at the words, I
actually said that I don't equate these two situations. I was
mindful of the fact that they are very different situations.
But often, the law proceeds on the basis--legal reasoning is
based on analogy, and so if you take a situation that's quite
different and yet has some relationship to a situation that
comes up later, you can draw some analogies while still
recognizing that the two situations are very different.
If you're talking about the potential for abuse, that
certainly is something that can come up in either of these two
contexts and it's a tragedy in either context. If a single
minor is abused as a result of notification, that's a tragedy.
If a single adult woman is abused as a result of notification,
it's a tragedy.
But what I think I'm getting at there is that this is what
we had. This is what I had. This was the information that I had
to work with to try to understand what this provision meant.
And so you work with what you've got and that's what I had and
I was trying to see to what degree the prior situation was
relevant and to what degree it wasn't relevant to the issue
that was before me.
Senator Feinstein. I'd like to quickly just switch subjects
for a moment just to clarify something you said this morning,
and this has to do with electronic surveillance of Americans.
As you know, in 1978, the Congress, after a lot of
introspection, passed a bill called the Foreign Intelligence
Surveillance Act, which we call FISA, which essentially set up
the parameters for all electronic surveillance within the
United States. It's very specific, if you read it. There is a
great concern right now because of what's been happening with
respect to electronic surveillance, quite possibly involving
Americans as well as foreigners.
You said something interesting this morning. You said,
generally, there has to be a warrant issued by a neutral and
detached magistrate before a search can be carried out. Now,
with respect to the FISA law, Senator Birch Bayh, the Chairman
of the Intelligence Committee at the time, spells out in the
Committee Report that this covers all surveillance in the
United States. And then President Carter, when he signed the
law, said this covers all surveillance within the United
States. So there is a burgeoning question as to whether the
President now has the authority to wiretap Americans without
going to the FISA court.
When you said, generally, there has to be a warrant, what
that said to me was you were providing for an exception. Is
that correct? Are you providing for an exception?
Judge Alito. I think that what I was addressing when I said
that was what the Fourth Amendment means, the general principle
that is set out in the Fourth Amendment, and the case law under
the Fourth Amendment says that a warrant is generally required,
but there are well-recognized situations in which a search can
be carried out without a warrant. Exigent circumstances is a
situation that comes immediately to mind if--
Senator Feinstein. Well, let me stop you here. Do you
recognize Justice Jackson's comment in the 1952 steel case
where he set up that tripartite framework--
Judge Alito. I do--
Senator Feinstein [continuing]. Of Presidential authority
and when it is at its weakest is when Congress has legislated?
And in 1978, Congress did legislate and covered the horizon, so
to speak?
Judge Alito. Yes, Senator, I recognize that and I think
that's a very useful framework for addressing issues of
Executive power. Now, there is a question about what the
meaning of what Congress did, and that would be a statutory
question. What is the meaning of the provision of FISA in
question, and maybe there's no substantial argument about what
was meant there, but maybe there would be an issue about what
was meant there, and certainly there could be an issue about
the meaning of the authorization on the use of military force.
How far was that intended to go?
And so the statutory question, I think, would--that
certainly would be an issue that could come up in this
situation and probably you would need to--I think you would
have to resolve the statutory question before you could figure
out which of the three categories that Justice Jackson set out
the case fell into.
Senator Feinstein. Thank you. I've run out of time. I'll
continue this next session. Thank you.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you, Senator Feinstein.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. We've got a good
hearing, I believe. A lot of exchanges have occurred. I will
agree with Senator Biden. I can't remember a nominee being this
forthcoming. You have gone into more detail about questions
that may come up before you without going too far, in my
opinion, than we have seen before. You have been very open and
I have been very impressed with your analytical spirit and your
ability to handle these cases.
We need an aggressive hearing. I agree with those who say
that questions need to be propounded to the nominee because
this is the only chance that, politically, that we will have,
that you will ultimately be on the bench for life,
unaccountable to the political process. So it is good to ask
questions.
My concern is similar to that of Senator DeWine, that many
of the accusations and allegations are unfounded or distortions
are really not fair, and some of the things that have been said
about you are not correct. If they were correct, you would not
receive the overwhelming support of your colleagues and have
that admiration so totally as you do.
Judge Alito, we talk about the role of a judge and how you
handle cases that come before you. You were asked, what is your
opinion on Lopez, and you said, well, I haven't studied that
case precisely, or at least the background of it. I didn't sit
on it. Would you explain to us, as an appellate judge, as you
do today, but also even more so as a Supreme Court Justice, how
cases come to you and what you should do before you make a
decision or express an opinion on the ultimate outcome of a
case, why you should be careful and what this great legal
system that we have arranges for before a judge makes that
final decision?
Judge Alito. Well, certainly, Senator. We have an adversary
system and that means that both sides get the opportunity to
present their arguments, and we have established judicial
procedures and they are time consuming and they are burdensome
and maybe some people would say that some of them are old
fashioned. But I think they work well and they are designed to
make sure that there's the vigorous presentation of both sides
of the issue that is presented in the case at hand, not some
abstract issue that might be addressed in a law review article
or a broad issue that might be addressed in a piece of
legislation, but an actual concrete case, a dispute between
real parties that comes before the court. Both sides have the
opportunity to present the arguments that they think have a
bearing on that case. The judges get the opportunity to read
the briefs, and then in--
Senator Sessions. Can I interrupt you there? And you are
talking about the appellate court.
Judge Alito. That's correct.
Senator Sessions. There has been a trial with jurors and
witnesses and trial judges and those kinds of things that has
already occurred. It is now on appeal. No witnesses are being
called, but the transcript is available and one side or the
other is alleging that they weren't treated fairly, is that
correct?
Judge Alito. That's correct.
Senator Sessions. So you decide whether or not a fair trial
occurred. Continue now with the process and how you ultimately
come to make a decision.
Judge Alito. Well, we receive briefs and the briefs are
well thought out by the attorneys and it provides, if the case
is well briefed, a strong presentation of the positions on both
sides of the question, and if it's an issue of great public
importance, there may be other people who file briefs, so
called friends of the court. On the Supreme Court now these
days, they get a lot of those on both sides of many of the big
issues that come before them. So that ensures that they have a
strong presentation of all the arguments that can be made on
both sides of the issue, both sides of the case.
The first step in the process would be to read all of those
and then there would be an oral argument. At that point, the
Justices of the Supreme Court or the judges of my court--
Senator Sessions. Now, oral argument means the lawyers for
each party come and orally argue the case before the court, is
that correct?
Judge Alito. That's right, and--
Senator Sessions. Now, you should not have made up your
mind even at that point, should you?
Judge Alito. You shouldn't. I think very often, I come into
an oral argument with a tentative idea about how the case
should be decided. I've thought through the issue as much as I
can, but my mind is open to the possibility that something will
happen during the oral argument or later in my discussion with
the other judges that might change my mind.
So we have the oral argument and the lawyers will make
their presentation. In that situation, I have the opportunity
to ask questions, unlike today. That's a better situation to be
in, but it gives me a chance to explore the issues in the case
that are troubling to me and I can pose hypotheticals to the
lawyers and try to explore how far their arguments go.
And after we have the argument, the judges get together in
what's known as the conference. That's a private meeting when
just the judges are present. And we each discuss the case, and
very often one of my colleagues will say something that makes
me think about the case differently than I did going into the
conference. But at the end of the conference, if we've all
voted, then we exchange our views and we come to a conclusion
about how a case should be decided.
And it's only at the end of that process that we actually
have a vote on the decision, and then somebody is given the job
of writing an opinion and sometimes things even change during
the opinion writing process. There have been numerous cases in
which I've had the opinion and I've been given the job of
writing an opinion to affirm and in the process of--or the
reverse, and in the process of writing the opinion, I see that
the position that I had previously was wrong. I changed my
mind. And then I will write to the other members of the panel
and I will say, I have thought this through and this is what I
discovered and now I think we should do the opposite of what we
agreed, and sometimes they'll agree with me and sometimes they
won't.
So it's a long process and it's only at the end of that
whole process that I think a judge is in the position, when the
opinion is actually going to be issued, the judge is in the
position to say, now I've done everything I can with this and
this is how I analyze the issue.
Senator Sessions. And you said in your opening statement
that one of the habits that a good judge should develop is the
habit of delaying reaching conclusions until everything has
been considered, and I suppose that's why you would be somewhat
reluctant to express an opinion on Lopez or Bush v. Gore or
some of these other great decisions, because you would know
before you rendered such an important decision in a case like
that that you've given it the most thorough analysis and you've
read all the briefs and considered all the arguments of the
parties involved, is that correct?
Judge Alito. That's an important part of the legal process.
If anybody has sat on a jury, they've probably been instructed
by the judge not to reach any conclusions about the case until
they've heard all the evidence, not to reach premature
conclusions, and judges have the same obligation. Now, it
doesn't mean you don't think about things. You do think about
them, but you don't reach your final conclusion until you've
gone through this entire process.
Senator Sessions. You said earlier that no person in this
country, no matter how high or powerful, is above the law, and
no person is beneath the law. Can you assure us that you have
the courage and the determination to rule according to your
best and highest judgment of the value of the case, regardless
of whether or not the person who appointed you or the Congress
who confirmed you or any other political pressures that may
fall upon you?
Judge Alito. I can, Senator. I would do that to the best of
my ability. That is what I've tried to do on the court of
appeals, and if I'm confirmed, that's what I would do on the
Supreme Court.
Senator Sessions. I believe you will. That is your
reputation. That is what other lawyers say about you. That is
what professionals who know you conclude. I think it is an
important commitment that you have made to us.
You know, we have arguments about a number of cases and the
Rybar case has come up a good bit. It involves the machine gun.
I was a United States Attorney, as you were, and I prosecuted
machine gun cases for years. The Supreme Court said, on Section
922, there is no jurisdictional element. Now, historically,
criminal statutes of Federal law have jurisdictional elements.
The most common statutes historically that were prosecuted were
interstate transportation of stolen motor vehicles. It is not a
stolen motor vehicle, it is the interstate transportation that
makes it a Federal crime, or the interstate transportation of a
stolen property, or kidnapping. Kidnapping within a State is
not a Federal crime, it is only kidnapping that goes
interstate.
So I guess I would ask you to explain for those who may be
listening today what this historical procedure is that requires
a jurisdictional element of an interstate nexus for the Federal
Government to be able to prosecute a crime in some State or
county in America.
Judge Alito. Yes, Senator. Certainly. Well, let me start
with the Constitution. The Constitution gives the legislative
branch certain powers, and they're enumerated in the
Constitution. One of those powers is the power to regulate
interstate and foreign commerce, and a great deal of
legislation that Congress passed during the 20th century was
regulation that was based on its power to regulate interstate
and foreign commerce, and many of the criminal statutes that
Congress has passed, the Federal criminal statutes, are based
on Congress's power to regulate interstate and foreign
commerce.
So it's necessary for each of these statutes to fall within
this power to regulate interstate and foreign commerce, and one
of the ways of ensuring that each exercise of this power falls
within Congress's authority under the Commerce Clause is to
require that the jurisdictional element be proven in the case.
In the case of firearms, as I mentioned earlier, the Supreme
Court has said it's enough to show that the firearm at some
point in its history traveled in interstate and foreign
commerce, and my experience as a U.S. Attorney and before that
as an Assistant U.S. Attorney was that this is not a difficult
burden for prosecutors to meet. I can't recall a case during
the time I was U.S. Attorney where anybody expressed the
slightest problem with satisfying this. So this is a very
simple way of satisfying the interstate commerce element in the
case of firearms offenses.
Senator Sessions. I couldn't agree more, and that is what
all the traditional firearms laws call for and that is how we
proved every case that I prosecuted. I approved it once because
it said, ``Made in Italy'' on the gun. But you prove that the
gun has been transported in interstate commerce and that is an
element that gives the Federal jurisdiction. As I understand
your opinion, you said if the Congress had simply put that in
the statute as an element of the offense, then it would have
met constitutional muster.
So I guess I would say to my colleagues on the other side
and others, maybe we ought to check this law out and write a
piece of legislation that puts in the jurisdictional element
like all the other historic criminal offenses have and we get
this thing done instead of fussing about it. I feel strongly
about that.
But when you don't make it a jurisdictional element, then
it is not a matter of proof, is that not right, Judge Alito,
and therefore, the defendant does not have all the elements of
the case proven beyond a reasonable doubt to the jury that here
is the case? That is why it is important.
Judge Alito. That is correct.
Senator Sessions. We talked about a lot of these cases. I
would just generally like to express my disagreement with those
who criticize the Garrett case. It did involve the University
of Alabama. I believe that the Attorney General of Alabama was
correct to assert that the plaintiff could sue, could get back
wages, could get their job back, but under the Sovereign
Immunity Doctrine that protects States from lawsuits, that
under the way that statute was passed, they could not get money
damages against the State of Alabama. I think that was the core
issue in it.
I also would like to join with Senator DeWine in his very
cogent analysis of precedent and super precedent. I think that
was insightful for us and would like to be on the record as
joining with that.
Judge Alito, back 20 years ago, you wrote a memorandum to
Solicitor General Charles Fried, who was a law professor, I
guess, before he became Solicitor General and went back to
Harvard and is there now, a brilliant legal mind. He was the
Solicitor General. You worked for him. You submitted a
memorandum on a Pennsylvania case, a case that came out of
Pennsylvania, and it seemed to me to be a preliminary analysis
of that issue and the question of whether or not that case
should be--whether the Department of Justice should intervene
in that case and file a friend of the court brief. Was it a
preliminary overview of the issue and not the final brief or
final summary of argument for the appeal?
Judge Alito. And that's the Thornburgh case that you're
referring to, Senator.
Senator Sessions. Thornburgh.
Judge Alito. Yes. It wasn't a brief. It was a memorandum
about whether the government should file a brief as a friend of
the court.
Senator Sessions. And you pointed out a number of points in
that decision that was being questioned that I thought were--
the court had overreached and gone too far. A number of them
are quite erroneous, it appeared to me, and you analyzed that
very carefully. But before you concluded your argument, you
suggested, and not suggested, you stated that you did not think
a frontal assault on Roe v. Wade would be appropriate, is that
correct?
Judge Alito. Yes, that's correct.
Senator Sessions. And was it not the position of President
Reagan and the Attorney General of the United States at that
time that Roe v. Wade was wrongfully decided and they would
seek the opportunity at some point to seek the overruling of
it?
Judge Alito. That was the express position of President
Reagan himself. He had spoken on the issue and he had written
on the issue.
Senator Sessions. So your opinion to the Solicitor General
as a young staff attorney in the Solicitor General's office
was, in some ways, contrary to that of the President of the
United States?
Judge Alito. Well, I was doing what I thought my job was as
an advocate, which was to outline the litigation strategy that
would be in the best interests of my client, given what my
client was interested in, and it seemed to me that the strategy
that I recommended was the best strategy to be followed.
Senator Sessions. And did they follow your suggestions?
Judge Alito. No, they did not. They argued that Roe v. Wade
should be overruled and the Supreme Court rejected that--
Senator Sessions. They, in fact, carried out a frontal
assault and it was not approved by the Court. So I think that,
to me, plus your other decision in which you ruled that Health
and Human Services funds could be utilized to fund an abortion
for those who qualified was a closed question, that case was, I
thought. There was a dissent in it, but you ruled in favor of
the pro-choice, the pro-abortion side of that case even though
a dissent argued that it was in error, is that correct?
Judge Alito. That is correct. That's what I thought the law
required. I thought we were required to defer to the Department
of Health and Human Services's interpretation of the statute
and so that's how I voted. And if I'd been out to implement
some sort of agenda to strike down--to uphold any abortion
regulation that came along, then I would not have voted the way
I did in that Elizabeth Blackwell case.
Senator Sessions. Back in your memorandum in 1985 on the
question of abortion, one of the provisions of the Pennsylvania
law that was struck down by the court of appeals simply said
that there must be a humane and sanitary disposal of aborted
fetuses, and you thought that was unwise and you pointed out
that there's a Federal statute already on the books that
mandates the humane disposal of excess wild free-roaming horses
and burros, did you not?
Judge Alito. Yes, that's correct. That was the statute.
Senator Sessions. So this idea that every time a court
rules on a pro-abortion opinion, that they're always correct, I
think is not true. I think the court has been awfully arrogant
and dismissive of the States' rights and legitimate concerns in
some of these questions that we're dealing with.
Judge Alito, you know the salary that a Federal judge
makes, is that right?
Judge Alito. I do, all too well.
[Laughter.]
Senator Sessions. You know what it would be on the Supreme
Court?
Judge Alito. I actually don't know exactly, no.
Senator Sessions. It's a little more, I think, not much. Do
you think you can live on that?
Judge Alito. I can. I've lived on a Federal judge's salary
up to this point.
Senator Sessions. You've been accused of favoring an all-
powerful Executive a couple of times in this Committee. Can the
President cut your pay?
Judge Alito. No, he can't do that. That's in--the
Constitution says that, fortunately. Well, nobody can. The
President certainly can't and Congress can't, either.
[Laughter.]
Senator Sessions. Have a sigh of relief there. They can
increase it, though, right?
Judge Alito. They can, yes.
[Laughter.]
Senator Sessions. Well, we have a tight budget. Senators
and Congressmen feel, sometimes privately they will tell you
they think they need to be paid more, but we are paid pretty
generously, in my view, and maybe we need to set some examples
about financial management. Maybe we would like to do more, but
it is difficult.
But I raise that point because a Supreme Court can declare
null and void a legislative enactment by the Congress, can it
not, if it violates the Constitution--
Judge Alito. Yes. Yes, it can.
Senator Sessions [continuing]. In their opinion?
Judge Alito. Yes.
Senator Sessions. Does anybody review the Supreme Court's
review?
Judge Alito. No. No.
Senator Sessions. And Congress can cut off money for any
program they want to. In fact, the Anti-Deficiency Act says it
is a crime for any agency of government to spend money that has
not been appropriated by Congress. Is that a reviewable Act by
anyone, for Congress not to fund a program or agency of the
U.S. Government?
Judge Alito. No, I don't think that's reviewable.
Senator Sessions. And aren't there things that the
Executive branch can do that are not reviewable?
Judge Alito. There are certainly some things that are not
reviewable. Vetoes are not reviewable. Pardons are not
reviewable.
Senator Sessions. So the mere allegation that an act of the
President is unreviewable may not be as disastrous as it sounds
or as bad as it sounds, because certain branches are given
certain powers.
Judge Alito. That's correct.
Senator Sessions. I would like to talk a little bit about
this question of activism, and I want to be frank about it.
Some of our liberal colleagues have correctly made the point
that conservatives can be activists, too. And if you take the
definition of activism as an action by a judge who allows their
personal, political, or social or moral values to override
their commitment to the law, do you believe that a judge who is
conservative can be an activist just as easily as one who is
liberal?
Judge Alito. Yes, I do. I don't think that activism has
anything to do with being a liberal or being a conservative. It
has to do with not following the proper judicial role. It has
to do with a judge's substituting his or her own views for what
the Constitution means and for what the laws mean.
Senator Sessions. Now, if a statute passed by Congress
plainly violates the Constitution, is it an activist decision
if the Court strikes it down, in your opinion?
Judge Alito. No, I think that's been settled since Marbury
v. Madison back at the beginning of the 19th century, that when
a case is presented to the Supreme Court and there is a
question raised about the constitutionality of a statute and
the Court concludes that the statute is unconstitutional, it's
the obligation of the Court to follow the Constitution and not
the statute.
Senator Sessions. Well, if you take the definition of
activism I think that Senator Hatch and others have used that
indicates, as we just discussed, that it is departing from the
faithful application of the law, I think you can have liberal
and conservative activists. But I would just say to you the
mere striking down of a statute that is unconstitutional is not
activism, not if you are faithful to the Constitution and to
the laws of the land.
And I would say this: I believe on our side of the aisle,
the deep concern that we have about judicial activism is a
legitimate one. We believe that there has been a liberal social
agenda being promoted too often by the courts that is foreign
to our history and contrary to the wishes of the American
people. I believe your philosophy is not one to enforce a
conservative activism. I believe your philosophy is simply to
follow the law and let the political branches debate these
issues and decide them through the proper political process.
Is that fair to say?
Judge Alito. That's exactly correct. The judiciary should
do what it is supposed to do, but it has to have respect for
the political process. And our constitutional system sets up a
Government under which most of the decisions, the policy
decisions, the things that affect people in their daily lives--
the spending of money, taxing, decisions about foreign policy,
and many other areas--are to be made by the political branches
of the Government, and the judiciary's role is confined to
enforcing the Constitution and enforcing the laws and not going
beyond that.
Senator Sessions. As you analyze how to interpret the
Constitution of the United States or a statute passed by the
U.S. Congress, do you believe that authoritative insight can be
obtained by reading the opinions of the European Union?
Judge Alito. I don't. I don't think that it's very
helpful--in fact, I don't think it is helpful to look at the
decisions of foreign courts for the interpretation of our
Constitution. I think we can do very well with our own
Constitution and our own judicial precedents and our own
traditions. And I don't say that with disrespect to the other
countries. But I don't think that there are insights to be
provided on issues of American constitutional law by examining
the decisions of foreign courts.
I think that it's very interesting from a political science
perspective to see what they've done, and I've personally been
interested in this over the years. And I think it's flattering
to us that so many other countries have followed our judicial
traditions. But on issues of interpretation of our
Constitution, I don't think that that's useful.
Senator Sessions. Judge Alito, this is a big deal in our
country today. Millions of Americans believe that the Court is
losing discipline, that it is not remaining faithful to the
Constitution. And, in fact, I share many of those views. A lot
of people do.
Do you think that if a court, in fact, is not faithful to
the law but allows personal or political or social views to
influence their decisions, that this could in the long run
endanger public respect for law and even undermine the great
heritage of the rule of law that we have in this country?
Judge Alito. I think that everybody who holds a public
office under the Constitution has a solemn responsibility to
follow the Constitution and the laws that define the role that
that person, that officer is supposed to play. And I think that
the continued success of our constitutional system and public
respect for the constitutional system are dependent on people
who have the public trust doing that, making a really strong
effort to follow the provisions of the Constitution and other
laws that define the role that they are supposed to play.
Senator Sessions. I would like to just once more touch on
this Groody case in which there was a search of a young girl. A
warrant was issued, was it not, by a Federal magistrate? Was it
a Federal magistrate?
Judge Alito. It was a State magistrate.
Senator Sessions. A State magistrate. And the police
officers go to the State magistrate, and they get a warrant,
and the magistrate says that the affidavit is made a part of
the search warrant. And the officers take it, and in their
search warrant, they made affidavit that the individuals in
this house known for distributing drugs often had drugs on
their persons. And they then went and executed the warrant
after going to the court and getting approval. And they find
people on the premises, and there were two females, and a
female officer took the two females into an upstairs bedroom
and did a quick search by asking them to pull down their outer
garments--not all their garments--pull up their blouse, and
determined they had no contraband or weapons on them. And that
was that. And the case came before you, years later, I suppose,
on a lawsuit against the police officers. And that is what you
were ruling on, were you not?
Judge Alito. That's right, whether they were liable for
money damages. And under the law, if they had a reasonable
belief that they were authorized by the warrant to search
people who were found on the premises, then they should not be
liable for civil damages. The warrant had been--the warrant had
incorporated the affidavit for purposes of establishing
probable cause, and the officers had said in the affidavit that
there is probable cause to believe that people on the premises
may have drugs on their possession, and the magistrate judge
had accepted that by incorporating the affidavit for purposes
of probable cause. And under those circumstances, I thought
that at a minimum it was reasonable for the officers to believe
that the judicial officer, the magistrate, had said that they
were to do exactly what they did.
Senator Sessions. I agree.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions. Thank you,
Judge Alito.
At this point we will take a break until 5 minutes to 5.
[Recess 4:39 p.m. to 4:55 p.m.]
Chairman Specter. We now turn to Senator Feingold for 30
minutes.
Senator Feingold. Judge, thank you for all your patience
today and throughout this process.
Judge Alito. Thank you, Senator.
Senator Feingold. There has already been a lot of
discussion of this topic today, but I would like to be sure I
understand your opinion about whether the President, as
Commander in Chief, can ignore or disobey an express
prohibition that Congress has passed. The Torture Statute is
one example, but, obviously, I could imagine a variety of
others as well, as I am sure you could.
So here is the question: what are the limits, if any, on
the President's power to do what he thinks is necessary to
protect national security regardless of what laws Congress
passes?
Judge Alito. Well, when you say regardless of what laws
Congress passes, I think that puts us in that third category
that Justice Jackson outlined, the twilight zone, where
according to Justice Jackson, the President has whatever
constitutional powers he has under--he possesses under Article
II, minus what is taken away by whatever Congress has done, by
an implicit expression of opposition or the enactment of a
statute. And to go beyond that point, I think we need to know
the specifics of the case. We need to know the constitutional
power that the President--the type of Executive power the
President is asserting and the situation in which it's being
asserted, and exactly what Congress has done.
Senator Feingold. Then let us take a more concrete example.
Does the President, in your opinion, have the authority, acting
as Commander in Chief, to authorize warrantless searches of
Americans' homes and wiretaps of their conversations in
violation of the criminal and Foreign Intelligence Surveillance
statutes of this country?
Judge Alito. That's the issue that's been framed by the
developments that have been in the news over the past few
weeks, and as I understand the situation, it can involve
statutory questions, the interpretation of FISA, and the
provision of FISA that says that no wiretapping may be done
except as authorized by FISA or otherwise authorized by law,
and the meaning of the authorization for the use of military
force, and then constitutional questions. And those would be--
those are issues, as I said this morning, that may well result
in litigation. They could come before me on the Court of
Appeals for the Third Circuit. They certainly could come before
the Supreme Court. And before--those are weighty issues
involving two of the most important considerations that can
arise in constitutional law, the protection of a country and
the protection of people's fundamental rights, and I would have
to know the specifics and the arguments that were made.
Senator Feingold. They are indeed important questions, and
that is why it is so important for me to try to figure out
where you would be heading on this kind of an issue, and in
fact, the question I just asked you was not something I
formulated right now. It is the question that I asked word for
word of the Attorney General of the United States at his
confirmation hearing in January 2005. He answered as follows:
``Senator, the August 30th memo--that's the memo that we
sometimes refer to as the torture memo--has been withdrawn. It
has been rejected, including that section regarding the
Commander in Chief authority to ignore the criminal statutes.
So it's been rejected by the Executive branch. I categorically
reject it. And in addition to that, as I've said repeatedly
today, this administration does not engage in torture and will
not condone torture. And so what you're really discussing is a
hypothetical situation,'' was the end of his quotation.
Well, we now know, of course, that it was not a
hypothetical situation at all, and when the Attorney General
said he categorically rejected the torture memo, including the
section regarding the Commander in Chief's authority to ignore
criminal statutes, he was also not being straight with this
Committee. So I would like you to try to answer this question.
Can the President violate or direct or authorize others to
violate the criminal laws of the United States?
Judge Alito. The President has the obligation, under
Article II of the Constitution, to take care that the laws are
faithfully executed. And the laws mean, first and foremost, the
Constitution of the United States. That applies to everybody.
It applies to the President. And the President, no less than
anybody else, has to abide by the Constitution. And it also
means that the President must take care that the statutes of
the United States that are consistent with the Constitution are
complied with, and the President has an obligation to follow
those statutes as well.
Those are the important general principles, and the
application of them in a particular case depends on the facts
of the case and the arguments, and a judge needs to know the
arguments that are being made on both sides before reaching a
conclusion about the result. Those are the overriding
considerations.
Senator Feingold. I take that answer--and, obviously, you
may not be able to comment on it because of the possibility of
it coming before you--I take that to be a pretty serious answer
in terms of the President's responsibilities to uphold and make
sure that the laws are followed, including the criminal laws of
the United States. So given the fact that this interpretation
of the FISA law may well come before you at some point, I take
it, as you have indicated, that would not only be an initial
part of your analysis, but an awfully important analysis of
whether the President has the power to override these criminal
statutes. I certainly want to say for the record I do not
believe the President has the ability to do that in this case,
and in fact, I think, it would be almost impossible to
interpret the FISA law in any other way than it clearly states,
that it is the exclusive authority with regard to wiretapping
outside of the criminal law.
You said earlier today, Judge, in response to Senator
Leahy, that these types of gravely important constitutional
questions very often do not end up being resolved by the
judiciary, but rather by the other two branches. So what is the
proper role of the judiciary in resolving a dispute over the
President's power to disobey an express statutory prohibition?
Judge Alito. Well, the judiciary has the responsibility to
decide cases and controversies that are presented to the
judiciary, and that means that there has to be a concrete
dispute between parties, and the parties have to have standing
under the Constitution, and there's a whole doctrine that's
called the Political Question Doctrine, but it's a very
misleading term for people who are not lawyers. It doesn't mean
that a dispute has something to do with politics or anything
like that, it means that the dispute--in the sense in which
people usually use the term ``politics''--it means that it's a
kind of dispute that the Supreme Court has outlined as being
not a proper dispute to be resolved by the judiciary, involving
a constitutional issue that should be resolved often between
the branches of Government.
And I was talking earlier about some things that the
President does that are not reviewable, vetoes, pardons, et
cetera. There are things that Congress does that are not
reviewable, impeachment, et cetera. In Baker v. Carr, Justice
Brennan's opinion outlined a whole list of factors that inform
the analysis of whether something is a justiciable dispute, and
sometimes these disputes between the branches of Government are
held by the Supreme Court to fall into that category of being
disputes that can't properly be resolved by the courts.
Senator Feingold. Do you expect that this matter of the
warrantless searches is likely to be resolved with regard to
the initial political question doctrine, or do you think it
would be likely to be resolved on the merits with regard to the
statute and the Constitution?
Judge Alito. I don't think I could answer that without
providing sort of an advisory opinion about something that
could well come up. If this does come up in litigation, then
the courts have an obligation to decide whether it's a
justiciable dispute.
The Political Question Doctrine, this doctrine of issues
that are not justiciable, often involves conflicts between the
branches of the Government, and when a person is asserting the
person's individual rights are violated, that is the type of
case that is often resolved, I mean typically resolved by the
judiciary.
Senator Feingold. Judge, are we not going to be in kind of
a tough spot if we find out the Supreme Court cannot help us
figure out whether the FISA law is an exclusive authority or
not? Is that not going to be hard to resolve between the
Executive and the Congress?
Judge Alito. Well, Senator, when I was--when I referred--
when I said in reference to Senator Leahy's question that often
disputes between the two branches are resolved without
resorting to the courts, I don't think I was referring
specifically to this issue, and if I gave that impression, that
was a false impression.
I think I was--what I meant to say, and what I hope that I
did say, was that separation powers disputes in general
sometimes fall within this doctrine.
Senator Feingold. You noted a few times today that the
questions of the President's power in the wiretapping area and
other areas will likely come before the courts, including the
Supreme Court. You just did that. As I understand it, you have
prepared for these hearings over the past few months with a
variety of practice sessions. Some have called them moot courts
or murder boards. Was the question of the President's power in
time of war to take action contrary to a Federal statute ever
raised in any way during any of the practice sessions for these
hearings?
Judge Alito. I have had practice sessions on a great
variety of subjects, and I don't know whether that specific
issue was brought up. It may have been. But what I can tell
you--
Senator Feingold. You do not recall whether this issue or
the question of--
Judge Alito. Well, exactly--no, the issue of FISA certainly
has been something that I have studied, and FISA is not
something that has come before me as a judge.
Senator Feingold. But you do not recall whether or not this
was covered in the practice session?
Judge Alito. No, no. The specific question that you raised
about the conflict between the President's authority to say
that a statute enacted by Congress should not be followed, but
the general area of wiretapping and foreign intelligence
surveillance wiretapping--
Senator Feingold. And in fact, the recent events that have
led to this dispute--
Judge Alito. And the recent--
Senator Feingold [continuing]. And the possibility--
Judge Alito. And the recent events.
Senator Feingold [continuing]. That it may come before you,
right, Judge?
Judge Alito. That's correct, but--
Senator Feingold. OK. Who was present at these practice
sessions where these questions were discussed, and who gave you
feedback or suggestions or made any comment whatsoever on the
answers you gave?
Judge Alito. Nobody at these sessions or at any of the
sessions that I had has ever told me what to say in response to
any question, and--
Senator Feingold. I just asked--were there no comments or--
Judge Alito. The comments that I've received--
Senator Feingold. No advice?
Chairman Specter. Let him answer the question, Senator
Feingold.
Judge Alito. The advice that I've received has gone
generally to familiarizing me with the format of this hearing,
which is very different from the format of legal proceedings in
which I have participated either as a judge or previously when
I was arguing a legal issue as a lawyer. But nobody has told me
what to say. Everything that I have said is an expression of my
own ideas.
Senator Feingold. And I do not question that. Judge, I
asked you though whether anybody gave you any feedback or
suggestions or made any comment whatsoever on the answers you
gave in the practice session?
Judge Alito. In general, yes, they've given me feedback,
mostly about the form of the question--the form of the answers.
Senator Feingold. Have you received any other advice or
suggestions, directly or indirectly, from anyone in the
administration on how you should answer these questions?
Judge Alito. Not as to the substance of the question, no,
Senator.
Senator Feingold. Only as to the style?
Judge Alito. That's correct, as to the format, not as to
the--not as to what I should say I think about any of these
questions, absolutely not. I've been a judge for 15 years, and
I've made up my own mind during all that time, and--
Senator Feingold. And again, I am not suggesting that. I am
asking whether or not--
Judge Alito. No, I just want to make that clear.
Senator Feingold [continuing]. Somebody talked about the
possible legal bases that the President might assert with
regard to the ability to do this wiretapping outside of the
FISA statute. Was that kind of a discussion held?
Judge Alito. Nobody actually told me the bases that the
President was asserting. I found the letter that was released
last week or the week before by an Assistant Attorney General,
setting out arguments relating to this, on the Internet myself,
and printed it out, and I studied it to get some idea of some
of the issues that might be involved here. And I looked at some
other materials that legal scholars have put out on this issue,
but nobody in the administration actually has briefed me on
what the administration's position is with respect to this
issue.
Senator Feingold. Does it strike you as being inappropriate
for members of the Department of Justice or the White House
staff, who are currently defending the President's actions and
the NSA domestic spying program, to be giving you advice on how
you might handle questions about that topic in the hearing?
Judge Alito. It would be very inappropriate for them to
tell me what I should say, and I wouldn't have been receptive
to that sort of advice, and I did not receive that kind of
advice.
Senator Feingold. Thank you, Judge. I want to come back to
Mitchell v. Forsythe, in which you participated in the
Solicitor General's Office. As we have already heard, that case
considered the Government's argument that President Nixon's
Attorney General, John Mitchell, should be granted absolute
immunity for authorizing warrantless wiretaps, and you signed
the Government's brief, making that argument. The Supreme Court
rejected the claim of absolute immunity, noting that the
Attorney General, acting in the inherently secretive national
security context, has few built-in restraints. Justice White,
writing for the Court in Mitchell, said, ``The danger that high
Federal officials will disregard constitutional rights in their
zeal to protect national security is sufficiently real to
counsel against affording such officials an absolute
immunity.''
Now, that statement still has a lot of relevance today,
does it not?
Judge Alito. Yes, it does. Absolute immunity is quite
restricted under our legal system, but there are some high-
ranking officials in all three branches of the Government, who
do have absolute immunity just from civil damages, not from
criminal liability or from impeachment, or removal from office,
but for--or for injunctive relief, they can be ordered to
comply with the Constitution, but as far as civil damages are
concerned.
Senator Feingold. But when you were at the Solicitor
General's Office you wrote this memo about the case, saying,
``I do not question the Attorney General should have this
immunity for authorizing warrantless wiretap.'' Why did you not
question the Attorney General's absolute immunity?
Judge Alito. First of all, because it was the position that
our client, whom we represented in an individual capacity, and
it was his money that was at stake here, wanted to make. So we
had an obligation that was somewhat akin to the obligation of a
private attorney representing a client.
Second, it was an argument to which the Department was
committed. It has been made in Kissinger v. Halperin in the
Carter administration. It was repeated in Harlow v. Fitzgerald
in the Reagan administration. In Harlow v. Fitzgerald, the
Supreme Court, while rejecting the idea that cabinet officers
in general should have absolute immunity from civil damages,
had said something like, and I'm not going to be able to
provide an exact quote, but something like, but the situation
could well be different for people who are involved in
sensitive national security matters or foreign matters.
Senator Feingold. But you said in your memo that, quote,
``I do not question the Attorney General's absolute immunity.''
You did not say it is, quote, ``it is the position of our
office,'' or as you were just saying, this administration has
argued this in the past. You, in effect, injected yourself into
the statement. Clearly, you were expressing your personal
opinion on this legal issue, were you not?
Judge Alito. Senator, I actually don't think I was
expressing a personal opinion. I was saying that in my capacity
as the writer of this memo who was recommending that the
argument not be made, even though it was one that our client
wanted to have made, I wasn't disputing the general argument to
which the Department was committed. But I thought that we
should take a different approach, that we should just argue the
issue of appealability. But that was not the approach that was
taken.
Senator Feingold. Let us go on to the Solicitor General's
brief in the Mitchell case, which you signed. That brief argues
strongly for the need for absolute immunity, arguing that it is
far more important to give the Attorney General as much
latitude as possible in the national security context than to,
as the brief puts it, quote, ``defer the occasional malevolent
official,'' from violating the law. Now, I find this statement
particularly troubling today in light of the current
administration's warrantless wiretapping in the name of
national security. Do you agree with that statement in the
brief, that broad deference is warranted even if some Attorneys
General may abuse their power?
Judge Alito. I think the issue of the scope of the immunity
that the Attorney General has is now settled by Mitchell v.
Forsythe. That is the law. It was considered--the argument was
considered by the Supreme Court and they decided the question.
Judges have absolute immunity for their judicial decisions.
Members of Congress and their staff have absolute immunity for
things that they do that are integral to the legislative
process. The President has absolute immunity from civil damages
for the President's official acts. But absolute immunity is
used very sparingly because of just the considerations that
you're referring to. But the consideration on the other side is
that people who are involved in lots of things that make other
people angry--judges deciding cases, Members of Congress
passing legislation, Presidents doing all sorts of things--
would otherwise be subjected to the threat of so many political
reprisals that they would be driven from office. It's a policy
judgment that our law has made that some people should have
absolute immunity, but it's used very sparingly.
Senator Feingold. I find your comments interesting because,
of course, the argument is often fairly made that after 9/11,
we have to recognize the important role that our Executive
plays in protecting the American people. But I would also argue
that it is a particularly compelling time to make sure there
isn't undue deference, given the types of powers that the
Executive may seek to use in trying to fight this threat.
In your class notes from a seminar you gave at Pepperdine
Law School on ``Civil Liberties in Times of Emergency,'' you
repeatedly raised the question of whether the judiciary has the
capability to review certain types of determinations made by
the Executive branch in national security cases in particularly
factual issues, and we have recently seen an example of a court
evidently expressing its frustration at a national security
case when the facts presented to it by the Executive, which it
had accepted, apparently did not hold up. Of course, I am
talking about the Fourth Circuit's serious concern it hadn't
been told that Jose Padilla needed to be held militarily as an
enemy combatant because he had plotted to use a dirty bomb in
the United States, and then finding out that three-and-a-half
years later, the Justice Department wanted to transfer him to
law enforcement authorities to stand trial for entirely
different and much less serious crimes. In Padilla, the Fourth
Circuit was originally willing to defer to the Executive's
assertion that it needed to hold Padilla militarily. It was
quite upset, and justifiably, I think, to find out that it
might not have deserved such deference.
I am not going to ask you about that case because I know
that case is coming before the Supreme Court, but I do want you
to say something about the role of the judiciary in evaluating
the facts presented to it in national security cases by the
Executive branch. How does a court decide whether to rely on
the facts presented to it by the Executive in a national
security case?
Judge Alito. What I was doing in that talk at Pepperdine
was framing that question, and it's a lot easier to frame the
question and to ask students to think about it and give me
their reactions than it is to answer it. We've had examples of
instances in which the judiciary in the past has had to
confront this issue of reviewing factual presentations of the
Executive in times of national crisis and there have been
instances in which the judiciary has accepted--and I'm thinking
of the Japanese internment cases, has accepted, which were one
of the great constitutional tragedies that our country has
experienced--has accepted factual presentations by the
political--by the Executive branch that turned out not to be
true, and from my reading of what went on, were not believed to
be true by some high-ranking Executive officials at the time.
But there is the problem of judicial fact finding, which I
was talking about earlier, and the context of things that may
be taking place on the battlefield, for example, or things that
are taking place in wartime probably are more difficult for the
judiciary to evaluate than other factual questions. So that's
the dilemma and I can't say that I can provide a clear answer
to it.
Senator Feingold. I do appreciate your referencing the
Korematsu case and the problem there and how this is going to
become an even more serious issue.
I want to switch to something else, the matter of the
Vanguard case and the recusal. This has been characterized
today as a non-issue. One Senator said it is a joke, it is
ridiculous. Another one said it is an absurd, just plain
absurd. And another, the same Senator said it was a blatant
tactic to torpedo your nomination.
Well, Judge, I was the Senator that asked Judge Roberts
very searching questions about whether or not he should have
recused himself in the Hamdi case. I am sure he didn't enjoy
it. I didn't particularly enjoy asking the questions, but in
the end, I voted for him.
So let me just say to my colleagues, I reject this idea
that when we come here to do our job of examining a nominee,
that asking questions about an ethical issue is somehow a
political game or an attempt to torpedo a nomination. You know,
this idea of insulating yourselves and insulating the nominee
before we even ask questions about a subject really is not
conducive to the kind of process that this Chairman and this
Ranking Member have made possible on the first nomination and
this one, as well. So I think this is our job and I ask you
these questions in this spirit. I might add, although my time
is limited, that when you hear the actual facts of it, whatever
conclusions we draw, it is certainly not a trivial matter. It
is something that I think we ought to cover.
So let me begin by following up on Senator Kennedy's
question regarding the promise you made to the Committee. In
1990, in your Senate questionnaire at the time of your
nomination to the Third Circuit, you were asked how you would
handle potential conflicts of interest. You told the Committee
that you did not believe conflicts of interest relating to your
financial interests were likely to arise. Nevertheless, you
wrote, quote, ``I would, however, disqualify myself from any
cases involving the Vanguard Companies, the brokerage firm
Smith Barney, or the First Federal Savings and Loan of
Rochester, New York.'' You also wrote that you would disqualify
yourself from any case involving your sister's law firm and
from any case in which you participated or that was under your
supervision in the United States Attorney's Office. Now,
whether or not such recusals were required under the Federal
recusal law, your statement to the Committee was clear,
unambiguous, and not time limited. Now, I think for that reason
alone, it is more than legitimate to ask some questions in
front of this Committee about this.
This morning, Senator Hatch read from a letter from the
ABA, apparently received yesterday, although we did not see it
until today. That letter talked about what you told the ABA
when you asked about Vanguard and the other ethics issues. You
also answered a number of questions from Senator Hatch about
the case.
But your responses to both the ABA, as far as we can tell
from the letter, and Senator Hatch did not say anything at all
about your promise to this Committee. Instead, you responded by
saying that you didn't notice the recusal issue because you did
not get so-called clearance sheets in this case because it was
a pro se case and that you didn't, quote, ``focus'' on the
issue of recusal. You also didn't mention something that the
clerk of your court told us in a letter, that all judges have
standing recusal lists that all cases--all cases--both pro se
cases and cases where the parties are represented by counsel
are checked against before they are sent to judges.
So my first question is this. After you were sworn in as
judge, did you notify the court of your commitments to the
Senate and request that the Vanguard Companies, Smith Barney,
and First Federal Savings and Loan be included on your standing
list of parties whose involvement in a case would require your
recusal?
Judge Alito. Senator, I don't have a copy of the initial
computer list, so I can't answer that question. At some point,
Vanguard--the computer lists that are available from, I think,
1992 and 1993 do not have Vanguard on it and I don't know why
that is so--
Senator Feingold. So you don't recall whether you notified
them or not?
Judge Alito. I do not know.
Senator Feingold. Judge, we know you notified the court in
1990 that the U.S. Attorney's Office and your sister's law firm
should be on your standing recusal list because you recused
yourself from a number of such cases in the first several years
you were on the bench. And we also finally received additional
documents just yesterday from the court. These documents show
that the Vanguard Companies and the other financial entities
you listed in 1990 were not on your standing recusal list,
which you approved in 1993, 1994, 1995, or 1996. Do you
remember removing them from your standing recusal list, or is
it fair to assume--or is it your belief that they were never
put on your recusal list?
Judge Alito. Senator, I don't know. I don't know whether
I--whether they were removed. I don't think I ever told the
clerk's office, take them off. It may be that at some point, I
submitted a new list and they were not on the list. I do think
it's important to keep in mind that this list is just an aid
for the judge. This is not a comprehensive list of everything
that will cause a judge to recuse himself.
Senator Feingold. I understand. I just want to get the
facts down. So to be clear on the facts, there is no evidence
that you requested that Vanguard appear on your standing
recusal list before 2003 when you informed the clerk that
Vanguard and apparently also Smith Barney should be added, and
you don't have any independent recollection of adding them to
the list before then, either--
Judge Alito. That's correct.
Senator Feingold [continuing]. Isn't it?
Judge Alito. That's correct.
Senator Feingold. Now, you explained to the ABA that the
problem in these cases was that the conflict screen system was
not working in these cases and you told Senator Kennedy and
Senator Hatch this morning that there were some oversights in
this case, and you wrote in a November 10 letter to Senator
Specter, due to an oversight, it did not occur to you that
Vanguard's status might call for your recusal. But it seems
that the problem was not that the screening program was not
working or that there was a computer glitch, as you and the
White House originally suggested, but either that Vanguard was
not on your recusal list and you didn't remember your promise,
or that you did not recognize that Vanguard was a party in the
case. Isn't that a fair characterization?
Judge Alito. Well, there was an oversight and the oversight
was on my part in not focusing on the issue of recusal when I
first received the case.
Senator Feingold. So there wasn't--so the problem really--
you can admit now, can't you, that this was not a computer
glitch or a failure of the screening system. You are really
saying something very different at this point.
Judge Alito. I am not saying something different as to the
screening system. The screening system was exactly what I
described this morning, and I described that to the ABA,
involving--
Senator Feingold. But you don't think it was a computer
glitch anymore, do you?
Judge Alito. It was not a complete computer glitch, and if
I could just explain, the origin of that was that when I was
down here shortly after the President announced his intention
to nominate me, I started to be--I started to receive questions
about this Vanguard issue and I was receiving information from
our clerk's office, and that based on the information that I
received, it was my impression that there had been a computer
glitch and that was the origin of that statement and that
information that constitutional--
Senator Feingold. Let me ask you this in my last few
seconds. When you wrote to Judge Scirica indicating that you
would recuse yourself from the Monga v. Ottenburg case, why did
you feel the need to argue that you weren't, in fact, required
to do so? Why not just admit you made a mistake, agree to
recuse, and move on? Why didn't you just do that when the issue
was raised here instead of coming up with these different
explanations that in some cases, I think, have become
unconvincing?
Judge Alito. Well, Senator, when the recusal motion came
in, I was disturbed by it and I wanted to see what the Code of
Conduct exactly required in this context. Twelve years had gone
by and no Vanguard case had come up and I hadn't had an
occasion to look at this issue. And when I looked at it, it--
the recusal motion was very harsh and it accused me of
unethical conduct and I took it seriously and I wanted to see
what the Code required, and I researched it and it was my
conclusion that I was not required by the Code to recuse, but
then I went on and said, but I still don't want to participate
in this case and I would like to have the initial decision
vacated and make sure that Ms. Maharaj had an entirely new
appeal, and that's what I asked for and that's what was done.
Senator Feingold. Thank you, Judge.
Senator Hatch. Mr. Chairman?
Chairman Specter. Senator Hatch?
Senator Hatch. On this particular issue, could I take just
2 minutes out of my next round?
Chairman Specter. If you want to comment, you may, and
Senator Feingold can have an opportunity to respond.
Senator Hatch. Sure. On your form that you filled out, the
question was, explain how you will resolve any potential
conflict of interest, including the procedure you will follow
in determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts of interest during your initial
service in the position to which you have been nominated. Now,
this case arose 12 years later, didn't it?
Judge Alito. Yes, it did, Senator.
Senator Hatch. That is hardly your initial service. To be
held to that type of a standard, especially in a case that
every ethics professor I know of says you didn't do anything
wrong in, seems to me is going a little bit beyond the pale
here and it is overblown. Frankly, I think you have got to read
the whole thing. You are a good lawyer and you have agreed to
do it, but it was during your initial service. Now, I guess you
could interpret initial service to be a year or two or 3 years,
but 12 years? I don't think so.
Senator Feingold. Mr. Chairman?
Chairman Specter. Senator Feingold, do you care to--
Senator Feingold. Yes. I mean, the fact is the nominee
continues to have the holdings in Vanguard. They have
appreciated in value. The time hasn't changed that. I think the
Judge here was at least trying to suggest there might have been
some mistake made here and instead we are getting sort of
after-the-fact justifications that put some kind of a time
limit on the promise he made to this Committee, and there was
no time limit on the promise that was made to the Committee.
Senator Hatch. I still have 30 seconds left. Judge, No. 1,
you have researched it and you didn't have to recuse yourself.
You concluded that?
Judge Alito. Yes, I did.
Senator Hatch. No. 2, these ethics professors have
concluded that, right?
Judge Alito. That is right.
Senator Hatch. No. 3, you have tried to comport with the
highest standards of ethics during your whole 15 years on the
bench, right?
Judge Alito. I have tried to do that and to go beyond
what--
Senator Hatch. No. 4, I believe we will have judges from
that court who will say that you have.
Chairman Specter. Senator Feingold?
Senator Feingold. Mr. Chairman, I am curious if this isn't
a situation where he felt the need to recuse himself why he
wouldn't have put Vanguard on the list as something he should
recuse himself from--
Senator Hatch. Because he was mistaken, that is why.
Chairman Specter. We are going to move on now. I think that
this slight exchange is permissible as an exception to our
general rules. It livens up the afternoon.
[Laughter.]
Senator Hatch. I want my 2 minutes back.
Chairman Specter. Anything at about 5:30 in the afternoon
is welcome.
[Laughter.]
Chairman Specter. Senator Graham?
Senator Graham. That was an interesting exchange. I guess
there is no rule against beating a dead horse or we would all
have quit a long time ago, so--
[Laughter.]
Senator Graham [continuing]. So in the next 30 minutes, I
am going to ask you the same questions you have been asked for
a whole day, and I hope you will understand if any of us come
before a court and we can't remember Abramoff, you will tend to
believe us.
[Laughter.]
Senator Graham. Now I know why they give you a lifetime
appointment for doing this. I was skeptical before, but I think
once is enough in a lifetime.
For what it is worth, I think you have done a great job.
You have been very forthcoming. You have seldom used--I may
have to decide that you have answered a lot of questions and I
particularly enjoyed Senator Feingold's questions about
Executive power and I will pick up on that.
No. 1, from a personal point of view, do you believe the
attacks on 9/11 against our Nation were a crime or an act of
war?
Judge Alito. That is a hard question to answer and--
Senator Graham. Good.
Judge Alito. That is a way of buying 30 seconds while I
think about the answer. Senator, I think that what I think
personally about this is really not something that would be--
that would inform anything that I would have to do as a judge.
Senator Graham. Well, Judge, I guess I disagree because I
think we are at war and the law of armed conflict in a wartime
environment is different than dealing with domestic criminal
enterprises. Do you agree with that?
Judge Alito. It certainly is.
Senator Graham. We have laws on the books that protect us,
the Fourth Amendment included, from our own law enforcement
agencies coming against our own citizens. But we also have laws
on the books during a time of war to protect or country from
being infiltrated by foreign powers and bodies who wish to do
harm to us. That is a totally different legal concept. Is that
correct?
Judge Alito. I am reluctant to get into this because I
think that things like act of war can well have particular
legal meanings in particular contexts and, you know, under the
Constitution.
Senator Graham. Do you doubt that our Nation has been in an
armed conflict with terrorist organizations since 9/11, that we
have been in an undeclared state of war?
Judge Alito. In a lay sense, certainly we have been in a
conflict with terrorist organizations. I am just concerned that
in the law all these phrases can have particular meanings that
are defined by the cases.
Senator Graham. That is very important, and let's have a
continuing legal education seminar here about the law of armed
conflict in the Hamdi case. The Hamdi case is precedent. Is
that correct? It is a decision of the Supreme Court.
Judge Alito. It certainly is, yes.
Senator Graham. And it tells us at least two to three
things. No. 1, it tells us something that I find reassuring
that the Bill of Rights, the Constitution, survive even in a
time of war.
Judge Alito. That is certainly true.
Senator Graham. So there is a holding in that case that I
want to associate myself with, and I think Senator Feingold
does, that even during a time of war when your values are
threatened by an enemy who does not adhere to those values,
they will not be threatened by your Government unless there is
a good reason. Do you agree with that?
Judge Alito. Senator, I agree that the Constitution was
meant to deal with all of the contingencies that our country
was going to face. And I think the Framers hoped that we would
not get involved in many wars, but they were students of
history and I am sure they realized that there would be wars.
They provided for war powers for the President and for
Congress, and the structure is meant to apply both in peace and
in war.
Senator Graham. And you said in your previous testimony
that no political figure in this country is above the law, even
in a time of war.
Judge Alito. That is correct.
Senator Graham. There is another aspect of the Hamdi case
that no one has picked up upon, but I will read to you. ``In
light of these principles, it is of no moment that the
authorization to use military force does not use specific
language of detention, because detention to prevent a
combatant's return to the battle field is a fundamental
incident of waging war. In permitting the use of necessary and
appropriate force, Congress has clearly and unmistakably
authorized detention in the narrow circumstances considered
here, and those circumstances were a person alleged by the
Executive branch to be an enemy combatant.''
And one of the principles we found from the Hamdi case is
that because we are, in my opinion, at war and Congress has
authorized the President to use force against our enemies, the
Executive branch, according to the Hamdi case, inherent to his
power of being Commander in Chief, can detain people who have
been caught on the battle field.
Does that make sense to you? Do you agree that is the
principle of the Hamdi case?
Judge Alito. That is the principle of the Hamdi case.
Senator Graham. And it makes perfect sense because if we
catch someone in Afghanistan or Iraq or any other place in the
world who is committing acts of violence against our troops or
our forces, or we catch people here in the United States who
have infiltrated our country for the purpose of sabotaging our
Nation, there is no requirement in the law to catch and release
these people, is there?
Judge Alito. Well, Hamdi speaks to the situation of an
individual who was caught on the battlefield.
Senator Graham. In the history of our Nation, when we
captured German and Japanese prisoners, was there ever a legal
requirement anybody advanced that after a specific period of
time you have to let them go?
Judge Alito. It is my understanding that the prisoners of
war who were taken in World War II were held until the conflict
was over.
Senator Graham. It would be an absurd conclusion for a
court or anyone else to tell the executive branch that if you
caught somebody legitimately engaged in hostile activities
against the United States that you have to let them go and go
back and fight us again. That makes no sense, does it?
Judge Alito. Well, I explained what my understanding is
about how this matter of holding prisoners was handled in prior
wars. This issue was addressed in Hamdi, in what was discussed
in Hamdi in the context of--
Senator Graham. In the Padilla case, they held an American
citizen who was engaged in hostile activities against the
United States allegedly as an enemy combatant and the Fourth
Circuit said the President, during a time of hostility, has the
ability to do that.
Do you agree that that is a part of our jurisprudence?
Judge Alito. That was the holding in Padilla.
Senator Graham. Yes.
Judge Alito. Yes, that was the holding of the lower court
in--of Padilla, yes.
Senator Graham. Now, the point I am trying to make is that
when you are engaged in hostilities, there are some things that
we assume the President will do. If we don't kill the enemy, we
capture the enemy. The President, as the Commander in Chief,
will make sure they don't go back to the battle.
No. 2, if we catch someone and there is a question to their
status, whether or not you are prisoner of war under the Geneva
Conventions, are you an enemy combatant, who traditionally in
our constitutional democracy determines whether or not--the
status of a person engaged in hostilities?
Judge Alito. Well, Padilla--I am sorry--Hamdi said that a
person who is being detained, an unlawful person who is
asserted to be an unlawful combatant and who is being detained,
has the right--has due process rights. And the issue of the
type of tribunal--and they explained to some degree how that
would be handled, but the identity of the particular tribunal
that would be required to adjudicate that was not an issue that
was decided in Hamdi or any of the other cases.
Senator Graham. Can you show me an example in American
jurisprudence where the question of status, whether a person
was a lawful combatant or an unlawful combatant, was decided by
a court and not the military?
Judge Alito. I can't think of an example. I can't say that
I am able to survey the whole history of this issue, but I
can't think of one.
Senator Graham. Can you show me a case in American
jurisprudence where an enemy prisoner held by our military was
allowed to bring a lawsuit against our own military regarding
their detention?
Judge Alito. I am not aware of such a case.
Senator Graham. Is there a constitutional right for a
foreign non-citizen enemy prisoner to have access to our courts
to sue regarding their condition of confinement under our
Constitution?
Judge Alito. Well, I am not aware of a precedent that
addresses the issue.
Senator Graham. Do you know of any case where an enemy
prisoner of war brought a habeas petition in World War II
objecting to their confinement to our Federal judiciary?
Judge Alito. There may have been a lower court case. I am
trying to remember the exact status of the individual and it
was--
Senator Graham. Well, let me help you. There were two
cases. One of them involved six saboteurs, the In Re Quirin--
Judge Alito. Quirin case, yes.
Senator Graham. Would you agree with me that that case
stood for the proposition that in a time of war or declared
hostilities, an illegal combatant, even though they may be an
American citizen--the proper forum for them to be tried in is a
military tribunal and they are not entitled to a jury trial as
an American citizen in a non-wartime environment?
Judge Alito. Well, those were a number of German saboteurs
who landed by submarine in the United States and they were
taken into custody and they were tried before a military
tribunal and the case went up to the Supreme Court. The Supreme
Court sustained their being tried before a military tribunal.
At least one of them claimed to be an American citizen, and
most of them--I think all but one or two actually were
executed.
Senator Graham. And our Supreme Court said that is the
proper forum during a wartime environment to try people who are
engaged in illegal combat activities against our country. Is
that correct?
Judge Alito. Well, they sustained what was done under the
circumstances that I described.
Senator Graham. Well, that would be a precedent, then,
wouldn't it?
Judge Alito. It is the precedent, yes.
Senator Graham. OK. There was a case involving six German
soldiers captured in Japan and transferred to Germany, and they
brought a habeas petition to be released in the Eisen--I can't
remember the--
Judge Alito. Eisentrager.
Senator Graham. Well, you know it. Tell me what the court
decided there.
Judge Alito. Well, they were--as I recall, they were
Germans who were found in China assisting the Japanese--
Senator Graham. China and not Japan. You are right.
Judge Alito [continuing]. Assisting the Japanese after the
termination of the war with Germany, and they were unsuccessful
in their habeas petition. And that was interpreted prior to the
Supreme Court's decisions a couple of years ago to mean that
there was a lack of habeas jurisdiction over them because they
were being held in territory that was not U.S. territory.
Senator Graham. For those who are watching who are not
lawyers, generally speaking in all of the wars that we have
been involved in, we don't let the people trying to kill us sue
us, right? And we're not going to let them go at an arbitrary
time period if we think they are still dangerous because we
don't want to go have to shoot at them again or let them shoot
at us again.
Is that a good summary of the law of armed conflict?
Judge Alito. The precedent--I don't know whether I would
put it quite that broadly, Senator.
[Laughter.]
Judge Alito. The precedent that you--Johnson v.
Eisentrager, of course, has been substantially modified, if not
overruled. Ex Parte Quirin, of course, is still a precedent.
There was a lower court precedent involving someone who fought
with the Italian Army and I can't remember the exact name of
it, and that was the case that I thought you were referring to
when you first framed the question. But those are the
precedents in the area.
Then if you go back to the Civil War, there is Ex Parte
Milligan and a few others. Now, in Hamdi--
Senator Graham. We don't have to go back that far.
Judge Alito. Well, in this area, I think it is actually
instructive to do it. But in Hamdi, the Court addressed this
question of how long the detention should take place and they
said--because they were responding to the argument that this
situation is not like the wars of the past which had a more or
less fixed--it was not anticipated that they would go on for a
generation and they said we will get to that if it develops
that way.
Senator Graham. Who is better able to determine if an enemy
combatant, properly held, has ongoing intelligence value to our
country? Is it the military or a judge?
Judge Alito. On intelligence matters, I would think that is
an area where the judiciary doesn't have expertise. But we do
get into this issue I was discussing with Senator Feingold
about the degree to which--the balance between the judiciary's
performing its function in cases involving individual rights
and its desire not to intrude into areas where it lacks
expertise particularly in times of war and national crisis.
Senator Graham. So having said that, if we have a decision
to make as a country when to let someone go who is an enemy
combatant, I guess we have got two choices: we can have court
cases, or we can allow the military to make a determination if
that person still presents a threat to the United States, and
whether or not that person has an intelligence value by further
confinement.
Do you feel the courts possess the capabilities and the
competence to make those two decisions better than the
military?
Judge Alito. The courts do not have expertise in foreign
affairs or in military affairs, and they certainly should
recognize that. And that is one powerful consideration in
addressing legal issues that may come up in this context. But
there is the other powerful consideration that it is the
responsibility of the courts to protect individual rights in
cases that are properly before the Court, cases where they have
jurisdiction in one way or another, cases that are fit for
judicial resolution.
Senator Graham. I totally understand that, but our courts
have not by tradition gotten involved in running military jails
during time of war. I can't think of one time where a prisoner
of war housed in the United States during World War II, a
German Nazi or a Japanese prisoner was able to go and sue our
own troops about their confinement. I think there is a reason
there is none of those cases. It would lead to chaos.
Now, when it comes to treating detainees and how to treat
them, I think the Congress has a big, big role to play, and I
think that the courts have a big role to play. Are you familiar
with the Geneva Convention?
Judge Alito. I have some familiarity with it.
Senator Graham. Do you believe it has been good for our
country to be a signatory to that convention?
Judge Alito. I think it has, but it's not really my area of
authority. That's Congress's area of authority.
Senator Graham. Well, just as an American citizen, are you
proud of the fact that your country has signed up to the Geneva
Convention and that we have laid out a system of how we treat
people who fall into our hands and how we will engage in war?
Judge Alito. I think the Geneva Convention--and I'm not an
expert on the Geneva Conventions, but I think they express some
very deep values of the American people, and we have been a
signatory of them for some time, and I think that--
Senator Graham. Now, let's go back to the legal application
of the Geneva Convention. If someone was captured by an
American force and detained, either at home or abroad, would
the Geneva Convention give that detainee a private cause of
action against the U.S. Government?
Judge Alito. Well, that's an issue, I believe, in the
Hamdan case, which is an actual case that's before the Supreme
Court. It goes to the question of whether a treaty is self-
executing or not. Some treaties are self-executing.
Senator Graham. Has there ever been an occasion in all the
wars we have fought where the Geneva Convention was involved
whether the courts treated the Geneva Convention as a private
cause of action to bring a lawsuit against our own troops?
Judge Alito. I'm not familiar with such a case, but I can't
say whether there might be some case or not.
Senator Graham. Now, when it comes to what authority the
Executive has during a time of war, we know the Supreme Court
has said it is implicit from the force resolution that you can
detain people captured on the battlefield. Hamdi stands for
that proposition. Is that correct?
Judge Alito. That's what was involved in Hamdi.
Senator Graham. The problem that Senator Feingold has and I
have and some of the rest of us have is does that force
resolution--does it have the legal effect of creating the
exception to the FISA court? And I know that may come before
you, but let's talk about generally how the law works.
You say that the President has to follow every statute on
the books unless the statute allows an exception for the
President. Is that a fair statement? Just being President, you
cannot set aside the law.
Judge Alito. The President has to follow the law, and that
means the Constitution and the laws that are enacted consistent
with the Constitution.
Senator Graham. There is a statute that we have on the
books against torture. Are you familiar with that statute?
Judge Alito. The Convention Against Torture, well, the
statutes implementing the Convention Against Torture.
Senator Graham. And the statute provides the death penalty
for somebody who violates the conventions as a possible
punishment.
Judge Alito. That's right. If death results, the death
penalty is available.
Senator Graham. So this idea that Senator McCain somehow
banned torture is not quite right. The Convention on Torture
and the statute that we have implementing that convention were
on the books long before this year. Is that correct?
Judge Alito. Yes, they were.
Senator Graham. Do you believe that any President, because
we are at war, could say, ``The statute on torture gets in the
way of my ability to defend the United States, therefore, I
don't have to comply with it''?
Judge Alito. The President has to comply with the
Constitution and the laws of the United States that are enacted
consistent with the Constitution. That is the principle. The
President is not above the Constitution and the laws.
Now, there are issues about the interpretation of the laws
and the interpretation of the Constitution, but--
Senator Graham. Are you a strict constructionist?
Judge Alito. I think it depends on what you mean by that
phrase, and if you--
Senator Graham. Well, let's forget that. We will never get
to the end of that.
[Laughter.]
Senator Graham. Have you heard the term used?
Judge Alito. I have heard the term used.
Senator Graham. Is it fair to say that when it is used by
politicians, people like me, we are trying to tell the public
we want a judge who looks at things very narrowly, that does
not make a bunch of stuff up? Is that a fair understanding of
what a strict constructionist may be in the political world?
Judge Alito. Well, if a strict constructionist is a judge
who doesn't make things up, then I'm a strict constructionist.
Senator Graham. There you go.
[Laughter.]
Judge Alito. I agree with that, Senator.
Senator Graham. Now, if there is a force resolution that
Congress passes to allow any President to engage in military
activity against someone trying to do us harm, and the force
resolution says the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks on September 11,
2001, or just make it generic, if someone argued that that
declaration by Congress was a blanket exemption to the warrant
requirement under FISA, would that be a product of strict
constructionist legal reasoning?
Judge Alito. I think that a strict constructionist, as you
understand it, would engage in a certain process in evaluating
that question, and a strict constructionist, a person who
interprets the law--and that's how I would put it. A person who
interprets the law would look at the language of the
authorization for the use of military force and legislative
history that was informative, maybe past practices--were there
prior enactments that are analogous to that? What was the
understanding of those? And a host of other considerations that
might go into the interpretive process.
Senator Graham. I guess what I am saying, Judge, is I can
understand when the Court ruled that the President has it
within his authority to detain people on the battlefield under
this force resolution, that makes sense. I understand why the
President believes he has the ability to surveil the enemy at a
time of war. And the idea that our President or this
administration took the law in their own hands and ignored
precedent of other Presidents or case law and just tried to
make a power grab I don't agree with. But this is really not
about you, so you don't have to listen. I am talking to other
people right now.
[Laughter.]
Senator Graham. The point I am trying to make is what
Justice Jackson made, that when it comes to issues like this,
when we surveil our enemy and we cross our own borders and we
have information about our own people, we need, in my opinion,
Judge, to have the President at the strongest. And that would
be when Congress through collaboration with the President comes
up with a method of dealing with that situation, and that it
could be very dangerous in the long run if we overinterpret war
resolutions, because I have got a problem with that. And I
believe that if we don't watch it and we overinterpret these
resolutions, we will have a chilling effect for the next
President. The next President who wants to use force to protect
us in a justifiable manner may be less likely to get that
resolution approved if we go too far.
And, Judge, you are likely to rule on these issues, and my
hope is before you rule that we all sit down between the
Executive and the legislative and we talk about this. Because
as you said before, our Nation, not only our legal system, is
strongest when we work together. Executive power, the
Constitution allows the President to nominate judges. If
Congress tried to change that by statute and say that we would
like to pick the judges, what would happen, hypothetically?
Judge Alito. I have a certain self-interest in the answer
to that question.
Senator Graham. I thought you might.
[Laughter.]
Judge Alito. I think that--
Senator Graham. Clearly--clearly--the statute would fall to
the Constitution. A veto is not reviewable by courts because
that is basically a political decision. Under the Constitution,
what is the vote requirement to get confirmed to the Supreme
Court?
Judge Alito. It is a majority.
Senator Graham. Hypothetically speaking, what if the Senate
passed a statute or had a rule that said you cannot get a vote
to be on the Supreme Court unless you get 60 votes? How does
that sit with you?
Judge Alito. Speaking in my personal capacity or in my
judicial capacity?
[Laughter.]
Senator Graham. Your judicial capacity.
Judge Alito. Senator, I just don't think I should answer
questions like--constitutional questions like that. I need to
know--
Senator Graham. What if the Senate said during an
impeachment that we don't want a two-thirds vote of the Senate,
we want a majority vote, would the Senate's action fall to the
Constitution?
Judge Alito. Well, when--there are certain questions that
seem perfectly clear, and I guess there is no harm in
answering--
Senator Graham. Is there any doubt in your mind the
Constitution requires a majority vote to be on the Supreme
Court or any other Federal judicial office?
Judge Alito. You know what? I remember this phrase from law
school--
Senator Graham. Is that a super duper precedent?
Judge Alito. I think it's what we call in law school ``the
slippery slope,'' and if you start answering the easy
questions, you're going to be sliding down the ski run and into
the hard questions, and that's what--
Senator Graham. Well, then--
Judge Alito.--I'm not too happy to do.
Senator Graham. That is what I tried to get you to do, and
I am glad you didn't do it.
The bottom line to this exercise is you have got a job, I
have got a job, and what disturbs me a bit is that we are
beginning to hold the lawyer responsible for the client. And in
my remaining time here, what damage could be done to the legal
profession or the judiciary if people in my profession start
holding your client's position against the advocate?
Judge Alito. Well, I think it has been traditionally
recognized that lawyers have an obligation to their clients.
That's how our legal system works. Some lawyers have private
clients. Some lawyers work for Government agencies, and the
lawyer-client relationship there is not exactly the same. But,
still, there is a lawyer-client relationship. And I think our
whole system is based on the idea that justice is best served--
Senator Graham. If you were an Attorney General
representing a State that passed a ban on partial-birth
abortion, would it be fair to that Attorney General if they
came before this Committee to hold that against them if you
disagreed with them on the subject matter?
Judge Alito. I think that Attorneys General--I can speak to
the issue of the Attorney General of the United States because
I know there's a statute and there's an understanding about
what the Attorney General of the United States will do when an
Act of Congress is called into question, and the obligation of
the Attorney General is to defend the constitutionality of the
Act of Congress unless no reasonable--
Senator Graham. A lawyer's obligation is to defend their
client's interest. Is that an accurate statement of what a
lawyer is supposed to do?
Judge Alito. It certainly is, yes.
Senator Graham. No matter whether that client is popular or
not or the position is popular or not. Is that correct?
Judge Alito. Consistent with ethical obligations and
professional responsibility, yes, indeed.
Senator Graham. What has this process been like for you and
your family? And in a short period of time, could you tell us
how to improve it?
Judge Alito. Well, it's been a combination of--at times
it's been a thrill and at times it's been extremely
disorienting. I spent the last 15 years as a judge on the court
of appeals, and you probably could not think of a more
cloistered existence than a judge on the court of appeals. Most
of the time nobody other than the parties pays attention to
what we do. When an article is written in the paper about one
of our decisions, it's ``a Federal appeals court in
Philadelphia'' or in whatever city. And this has been a strange
process for me. I made some reference to that yesterday, but I
understand the reason for it. And I am reluctant in my current
capacity as a nominee to offer any suggestions about the
process. I think that's--you're carrying out your
responsibility. I spoke about the fact that different people
under the Constitution have different obligations, and you have
the advice and consent function, Congress, the Senate does. And
I think it's for the Senate to decide what it should do in this
area.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Senator Specter. And I want to
thank you, Judge Alito. It has been a long day.
Judge Alito, in 1985 you wrote that the Constitution--these
are your words--does not protect a right to an abortion. And
you said to Senator Specter a long time ago, I think it was
about 9:30 this morning, 9:45, that those words accurately
reflected your view at the time.
Now let me ask you, do they accurately reflect your view
today? Do you stand by that statement? Do you disavow it? Do
you embrace it? It is OK if you distance yourself from it and
it is fine if you embrace it. We just want to know your view.
Judge Alito. Senator, it was an accurate statement of my
views at the time. That was in 1985, and I made it from my
vantage point as an attorney in the Solicitor General's Office,
but it was an expression of what I thought at that time. If the
issue were to come before me as a judge, if I am confirmed and
if this issue were to come up, the first question that would
have to be addressed is the question of stare decisis, which I
have discussed earlier, and it's a very important doctrine and
that was the starting point and the ending point of the joint
opinion in Casey. And then if I were to get beyond that, if a
court were to get beyond the issue of stare decisis, then I
would have to go through the whole judicial decisionmaking
process before reaching a conclusion.
Senator Schumer. But sir, I am not asking you about stare
decisis. I am not asking you about cases. I am asking you about
this, the United States Constitution. As far as I know, it is
the same as it was in 1985 with the exception of the 27th
Amendment, which has nothing to do with what we are talking
about. Regardless of case law, in 1985, you stated--you stated
it proudly, unequivocally, without exception--that the
Constitution does not protect a right to an abortion. Do you
believe that now?
Judge Alito. Senator--
Senator Schumer. I am not asking about case law. I am not
asking about stare decisis. I am asking your view about this
document and whether what you stated in 1985 you believe today,
you have changed your view, you have distanced your view. You
can give me a direct answer. It doesn't matter right now which
way you answer, but I think it is important that you answer
that question.
Judge Alito. The answer to the question is that I would
address that issue in accordance with the judicial process as I
understand it and as I have practiced it. That is the only way
I can answer that question.
Senator Schumer. Sir, I am not asking for the process.
Obviously, you would use a judicial mindframe. You have been a
judge for 15 years. I am asking you, you stated what you
believed the Constitution contained. You didn't say the
Constitution as interpreted by this or that. You didn't say the
Constitution with this exception or that exception. It was a
statement you made directly. You made it proudly. You said you
are particularly proud of that personal belief that you had. Do
you still believe it?
Judge Alito. And Senator, I would make up my mind on that
question if I got to it, if I got past the issue of stare
decisis, after going through the whole process that I have
described. I would need to know the case that was before me and
I would have to consider the arguments, and they might be
different arguments from the arguments that were available in
1985--
Senator Schumer. But sir, I am not asking you about case
law. Now, maybe you read a case and it changed your view of the
Constitution. I am asking you, and not about the process you
would use. I am asking you about your view of the Constitution,
because as we all know, and we are going to talk about stare
decisis in a few minutes, that if somebody believes, a judge,
especially a Supreme Court Justice, that something is
unconstitutional, even though stare decisis is on the books,
governs the way you are and there is precedent on the books for
decades, it is still important to know your view of what the
Constitution contains.
And let me just say, a few hours ago, in the same memo, I
can't remember who asked the question, but you said you backed
off one of the statements you had written. You said it was
inapt, which taught me something. I didn't know that there was
a word that was inapt, but you said that it was inapt to have
written that the elected branches are supreme. So you discussed
that, your view on that issue, without reference to case law
because there was no reference to case law when you wrote it.
There was no reference to case law when you wrote this.
Can you tell us your view, just one more time, your view
about the Constitution not protecting the right to an abortion,
which you have talked about before and you said you personally
proudly held that view. Can you?
Judge Alito. The question about the supremacy--the
statement about the supremacy of the elected branches of
government went to my understanding of the constitutional
structure of our country, and so certainly that's a subject
that it is proper for me to talk about. But the only way--you
are asking me how I would decide an issue--
Senator Schumer. No, I am not. I am asking you what you
believe is in the Constitution.
Judge Alito. You are asking me my view of a question that--
Senator Schumer. I am not asking about a question. I am
asking about the Constitution, in all due respect, and
something you wrote about before--
Judge Alito. The Constitution contains the Due Process
Clause of the Fifth Amendment and the 14th Amendment. It
provides protection for liberty. It provides substantive
protection. And the Supreme Court has told us what the standard
is for determining whether something falls within the scope of
the protection--
Senator Schumer. Does the Constitution protect the right to
free speech?
Judge Alito. Certainly, it does. That is in the First
Amendment.
Senator Schumer. So why can't you answer the question of
does the Constitution protect the right to an abortion the same
way, without talking about stare decisis, without talking about
cases, et cetera?
Judge Alito. Because answering the question of whether the
Constitution provides a right to free speech is simply
responding to whether there is language in the First Amendment
that says that the freedom of speech and freedom of the press
can't be abridged. Asking about the issue of abortion has to do
with the interpretation of certain provisions of the
Constitution.
Senator Schumer. Well, OK. I know you are not going to
answer the question. I didn't expect really that you would,
although I think it would be important that you would. I think
it is part of your obligation to us that you do, particularly
that you stated it once before. So any idea that you are
approaching this totally fresh without any inclination or bias
goes by the wayside.
But I do have to tell you, Judge, your refusal, I find
troubling. It is sort of as if I asked a friend of mine 20
years ago, if a friend of mine 20 years ago said to me, he
said, ``You know, I really can't stand my mother-in-law,'' and
a few weeks ago I saw him and I said, ``Do you still hate your
mother-in-law?'' He said, ``Well, I'm now married to her
daughter for 21 years, not 1 year.'' I said, ``No, no, no. Do
you still hate your mother-in-law?'' And he said, ``Mmm, I
can't really comment.'' What do you think I would think?
Judge Alito. Senator, I think--
Senator Schumer. Let me just move on. You have a very nice
mother-in-law. I see her right here and she seems like a very
nice person.
[Laughter.]
Senator Schumer. OK.
Judge Alito. I have not changed my opinion of my mother-in-
law. That's a question--
Senator Schumer. I am glad you haven't. She seems nice.
Judge Alito.--I can answer that question.
Senator Schumer. Let me go now to stare decisis, because
what you have said is you start out with stare decisis,
although I think a lot of people would argue you start out with
the Constitution upon which stare decisis is built. OK. Now,
you have tried to reassure us that stare decisis means a great
deal to you. You point out that prior Supreme Court precedents
like Roe will stand because of the principle. While you are on
the Third Circuit, of course, you can't overrule precedents of
the Supreme Court, but when you are on the Supreme Court, you
have a little bit more flexibility.
I just want to ask you this. Stare decisis is not an
immutable principle, right? You have said that before in
reference to Senator Feinstein. When Chief Justice Roberts was
here, he said it was discretionary. So it is not immutable, is
that right? You have told us it is not an inexorable command.
It doesn't require you to follow the precedent.
Judge Alito. It is a strong principle--
Senator Schumer. Correct.
Judge Alito [continuing]. And in general, courts follow
precedents. They need a special--the Supreme Court needs a
special justification for overruling a prior case.
Senator Schumer. But they have found them, and I think you
went over this. I can't recall if it was Senator Kohl or
Senator Feinstein, but you went through some cases. In recent
years, the Court has overruled various cases in a rather short
amount of time. You mentioned, I think it was, National League
of Cities about fair labor standards and it was overruled just
9 years later by Garcia. Stanford v. Kentucky was overruled by
Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence
v. Texas. And, of course, Brown v. Board was overruled by
Plessy. So the bottom line, I mean, we can go through this--
Senator Hatch. Plessy was overruled by Brown.
Senator Schumer. I mean, Plessy was overruled by Brown. I
apologize.
So the only point I am making is that despite stare
decisis, it doesn't mean a Supreme Court Justice who strongly
believes in stare decisis won't ever overrule a case, is that
correct? You can give me a yes or no on that. It is pretty
easy.
Judge Alito. Yes.
Senator Schumer. Of course. OK. So now let us try this
another way. Here is a quote: ``Stare decisis provides
continuity to our system. It provides predictability, and in
our process of case-by-case decisionmaking, I think it is a
very important and critical concept.'' The statement sounds
reasonable to me. It sounds to me like it is something you said
to Senator Specter and others, right?
Judge Alito. I agree with the statement.
Senator Schumer. Yes. Let me show you who said that
statement. It was Justice Thomas. Justice Thomas came before us
and stated that, and yet when he got on the Supreme Court, he
voted to overrule, or expressed a desire to overrule, a whole
lot of cases, including some very important ones on the Court.
Here are some quotes. ``Casey must be overruled.'' ``Buckley v.
Valeo should be overruled.'' ``Bacchus,'' just last year,
``should be overruled.'' And as you can see, it is a very large
number of cases, and these aren't all of them. In fact, Justice
Thomas said that a 1789 unanimous case by the Supreme Court,
Calder v. Bull, which no one talked about for centuries, should
be overruled. So what do you think of Justice Thomas's theory
of stare decisis and how he applies it?
Judge Alito. Well, Senator, I have explained my
understanding of the doctrine of stare decisis and it is
important to me. I think it is an important part of our legal
system. It is--
Senator Schumer. How about what Justice Thomas--what do you
think of what he is doing?
Judge Alito. Well, I don't think I should comment on all of
those cases.
Senator Schumer. OK. Let me just say this. You may not want
to comment, but his fellow Justice, Justice Scalia, did. Here
is what Justice Scalia said about Justice Thomas and stare
decisis, and remember what he said when he was sitting in the
same chair you are sitting in. He pledged fealty to stare
decisis.
Justice Scalia said, Justice Thomas, quote, ``doesn't
believe in stare decisis, period. If a constitutional line of
authority is wrong, he would say, let us get it right.'' Then
Justice Scalia said, ``I wouldn't,'' speaking of himself, ``I
wouldn't do that.'' And it is particularly relevant, because if
you believe something is not in the Constitution, at least the
way Justice Thomas talks about stare decisis, he would let the
Constitution overrule it and stare decisis would go by the
wayside, and I am not saying Justice Thomas was disingenuous
with the Committee when he was here. I am just saying that
stare decisis is something of an elastic concept that different
judges apply in different ways.
So let me go to another one here. I think I have covered
everything I want to do with Justice Thomas. Here is another
quote. ``There is a need for stability and continuity in the
law. There is a need for predictability in legal doctrine and
it is important that the law not be considered as shifting
every time the personnel of the Supreme Court changes.'' That
again sounds reasonable to me, quite a lot like what you said.
You don't have any dispute with that statement, do you?
Judge Alito. No, I don't.
Senator Schumer. OK. Well, let us see who said that one. It
was Robert Bork when he came before this Committee to be
nominated. Now, here is what Judge Bork wrote in the National
Review Online just a few weeks ago. He wrote, quote,
``Overturning Roe v. Wade should be the sine qua non of a
respectable jurisprudence. Many Justices have made the point
that what controls is the Constitution itself, not what the
Court has said about it in the past.'' And even before his
hearing, by the way, he sort of cut back on what he said at the
hearing, I guess. It may have been in a different context, but
here is a quote that he said a year, I think, before he came
before us. He said, ``I don't think that in the field of
constitutional law precedent is all that important.'' He said,
in effect, that a Justice's view of the Constitution trumps
stare decisis. That is not an unrespectable view. It is
probably not the majority view of Justices, but it is there.
So, for example, it was his view, similar to Justice
Thomas, that the Constitution does not protect a right to--that
if the Constitution does not protect the right to an abortion,
as you wrote in 1985, but we are not talking about how you feel
today, it would be overruled. It should be overruled despite
stare decisis. And one of the things I am concerned about here
is that what you wrote, and I think Senator Kohl went over it a
little bit, is what you wrote about Judge Bork in 1988. And by
the way, this was not when you were working for someone or
applying for a job. As I understand it, you were the U.S.
Attorney in New Jersey, well ensconced, a very good U.S.
Attorney, and it was with some New Jersey news outlet. I saw
the cite, but I didn't know what it was. You said that, about
Justice Bork, ``I think he was one of the most outstanding
nominees of this century. He's a man of unequaled ability,''
and here's the key point, ``understanding of constitutional
history, and then someone who has thought deeply throughout his
entire life.''
Now, first, one of the most outstanding of the 20th century
with Oliver Wendell Holmes and Benjamin Cardozo, and people you
have expressed admiration for, Frankfurter, and Brennan and
Harlan, I find it disconcerting that you would say that he is a
great nominee of the 20th century in his understanding of
constitutional law, and yet he so abjectly rejects stare
decisis.
Judge Alito. Well, I certainly was not aware of what he had
said about stare decisis when I made those comments. I have
explained those comments. They were made when I was an
appointee of President Reagan, and Judge Bork was President
Reagan's--
Senator Schumer. Excuse me. You were not working in the
White House. You were a U.S. Attorney prosecuting cases. There
was no obligation for you to say what you said, right?
Judge Alito. No, but I had been in the Department of
Justice at the time of--
Senator Schumer. I know, but it was a voluntary interview
with some New Jersey news outlet, is that correct?
Judge Alito. And I was asked a question about Judge Bork,
and I had been in the Department at the time of his nomination,
and I was an appointee of President Reagan, and I was a
supporter of the nomination.
Senator Schumer. Let's go to the next line of questioning
here, but again, the point being judges, Justices, overrule
cases despite stare decisis, particularly when they think the
Constitution dictates otherwise. And now I want to turn to your
own record in the Third Circuit, something you mentioned
yesterday and today. When you have been on the Third Circuit,
of course, you had to follow Supreme Court precedent, and you
professed a whole lot of times your desire to do that, and I am
not disputing that here. But it is also true that when you were
on the Third Circuit, a more apt analogy in terms of stare
decisis would be about Third Circuit precedents, because if you
should get on the Supreme Court, stare decisis will apply to
Supreme Court decisions the way stare decisis to a Third
Circuit Judge applies to Third Circuit decisions. That is
pretty fair, right?
Judge Alito. Yes, and I've tried to follow Third Circuit
precedents while I've been--
Senator Schumer. Although you have dissented more than most
of your fellow judges, but we will leave that aside. What I
want to show here is how many times, when you were on the Third
Circuit, your fellow judges on the Third Circuit--who I am sure
have high respect for you. I know a lot of them are coming here
in a few days, and I think that is nice, I do not have any
problem with that.
[Laughter.]
Senator Schumer. Well, there has been some criticism about
it, not by me.
I just want to show you what they have said when it comes
to their view of your respect for Third Circuit precedent,
stare decisis, as relevant as we can find it to you. So I am
going to read a few. There are a whole bunch. But in Dia v.
Ashcroft--they are all on this chart I guess. There are too
many so the print is not large enough for most people to see. I
wish there were fewer. In Dia v. Ashcroft the majority of your
court said that your opinion ``guts the statutory standard and
ignores our precedent.'' In LePages, Inc. v. 3M your opinion
was criticized as ``being contrary to our precedent and that of
the Supreme Court.'' In RNS Services v. Secretary of Labor you
again dissented, and the majority again argued that, ``Your
dissent overlooks our holding in the instant case and prior
cases.'' In Riley v. Taylor, the en banc majority argued that
your view ignored case after case relied by the majority, and
``accords little weight to those authorities.'' In Texas
Eastern Transmission Corp., a panel criticized your opinion
because, ``It does not comport with our reading of the relevant
case law.'' In Bray v. Marriott Hotels, the majority noted that
binding circuit precedent made your analysis improper in a
discrimination case.
And the list goes on and on. I do not have to--but other
cases that are mentioned here, United Artists v. Warrington,
Beauty Time v. VU Skin Systems. Here is a final one, Rappa v.
New Castle County, Judge Garth, the man I think you clerked for
and is regarded as a mentor to you, wrote that your majority
opinion was ``unprecedented'' in its ``disregard of established
principles of stare decisis.'' ``Nothing,'' Judge Garth wrote,
``in the jurisprudence of the Supreme Court or in ours suggests
that a three-judge panel of a court of appeals is free to
substitute its own judgment for that of a four-justice
plurality opinion, let alone that of the entire court.''
So those are just some of the cases in which your own
colleagues said you did not follow stare decisis. Now, there
may have been good reason. I am not--you are much more expert
on these cases than I am. There may have been good reason for
you to do it, but I think it shows something, and that is, you,
if we have to project as to what kind of a Supreme Court
Justice you will be, are not going to be as reluctant as some
to overturn precedent even by the rules of stare decisis. And
so you wonder if you are as willing as you are to depart from
precedent on the Third Circuit, what is going to happen if you
should get on the Supreme Court? Your response because I
mentioned a whole lot of cases here.
Judge Alito. You did, Senator, and I think that you need to
examine each of the cases to see whether what I did was
justified. Let me just take one that struck me when you read
from it, and that was the United Artists case. What I said
there was that a Supreme Court decision that had come up, that
had been handed down after the most recent Third Circuit
decision relating to the issue, superseded what our court had
said. So I was following an aspect of stare decisis there. I
was following what we call horizontal--I'm sorry--vertical
stare decisis following the Supreme Court, and I don't think
there's any dispute that when the Supreme Court hands down a
decision that's in conflict with one of our earlier cases, we
have to follow the Supreme Court.
Senator Schumer. Yes, but there is no question that in that
situation, Judge Cowen said your opinion was, ``wrong to
revisit an issue that has already been decided and failed to
give respect and deference to the circuit's well-established
jurisprudence employing the improper motive test in the
substantive due process land use context. It is rather
complicated, but he is sure saying you did not follow, in his
view, you did not follow court precedent.
Judge Alito. And, Senator, there was this body of Third
Circuit precedent, and then--and it said that it's proper for a
Federal court to get involved in a zoning dispute, which is
traditionally a local matter, if there is simply an improper
motive, whatever that might be. And in the--after that the
Supreme Court, in an opinion by Justice Souter, emphasized that
the test under substantive due process in an area like this, an
area that the other judge in the majority and I thought was
like this, is whether what was done shocks the conscience.
And so you have a Supreme Court decision intervening, and
in that situation I thought it was our obligation--and I wrote
the majority opinion there--to follow what the Supreme Court
had said.
Senator Schumer. But my only point being here is one
judge's view of what stare decisis requires, and another
judge's view of what stare decisis requires, are not always the
same. The concept has some degree of elasticity, and when, in
reference to questions by people, you say, well, how do you
feel about this case--and particularly Roe, which has been
where we started off here--``I believe in stare decisis,'' it
means that you are going to take precedent into account, but it
certainly does not necessarily mean where you would come out.
Let me tell you where I conclude where you would come out,
just sort of summarizing this argument. First, again, greatly
disturbing I think to many Americans would be that you will not
distance yourself from your 1985 view that the Constitution
does not protect a right to a woman's right to choose, that
that view has not changed, that you have refused to say, unlike
you did in another part of that 1985 memo, that you think it is
wrong now, which would lead one to think that you probably
believe in it.
Second, you have told us you respect precedent and stare
decisis, but we have seen that the stated respect for stare
decisis hardly determines whether a Supreme Court Justice will
vote to uphold precedents, not because when they come here they
are being disingenuous with us. I do not think that at all. But
because the concept is somewhat elastic, because it does not
guarantee that you will uphold precedent, and particularly does
not guarantee it when the Constitution conflicts with stare
decisis, with the precedents of the Court.
And finally, to top it off, we have seen that your Third
Circuit record can hardly provide a great deal of comfort in
this area either, that many of your fellow judges criticized
you for ignoring, abandoning, or overruling precedent.
Taken together these pieces are very disturbing to me. Your
blanket 1985 statement, not distanced from, that the
Constitution does not protect the right to an abortion; the
fact that respect for precedent and stability does not prevent
overruling of a past decision; and your own record of reversing
or ignoring precedent on the Third Circuit lead to one
inevitable conclusion.
We can only conclude that if the question came before you,
it is very likely that you would vote to overrule Roe v. Wade.
I yield back my time.
Judge Alito. Well, Senator, could I just respond to that--
Senator Schumer. Please, the time is yours.
Judge Alito [continuing]. To that question. My Third
Circuit record, in looking at abortion cases, provides the best
indication of my belief that it is my obligation to follow the
law in this area and in all other areas. If I had had an agenda
to uphold any abortion regulation that came along, I would not
have voted as I did in my Third Circuit cases.
Now, I've testified here today about what I think about
stare decisis. I do think it's a very important legal doctrine,
and I've explained the factors that figure into it. It would be
the first question that I would consider if an issue like this
came before me.
Senator Schumer. Let me just say though, you have ruled on
certain cases. Many of them were on technicalities. And in all
of them as a Third Circuit Judge, you were bound by Supreme
Court precedent. You never, in the Third Circuit, were squarely
presented with the question that I asked, which is a decisive
question, which is whether the Constitution protects a woman's
right to choose. You were never asked in the court, you were
never asked to overturn Roe v. Wade. And even if you were in
the Third Circuit, you could not, because you were bound by the
precedent of the Court. I do not think your Third Circuit
rulings are dispositive on what you would do should you become
a U.S. Supreme Court Justice.
Thank you, Mr. Chairman.
Judge Alito. If the matter were to come up before me on the
Supreme Court, I would consider the issue of stare decisis, and
if the case got beyond that, I would go through that entire
judicial decisionmaking process that I described. That's not a
formality to me. That is the way in which I think a judge or a
Justice has to address legal issues, and I think that is very
important, and I don't know a way to answer a question about
how I would decide a constitutional question that might come up
in the future, other than to say I would go through that whole
process.
I don't agree with the idea that the Constitution always
trumps stare decisis--
Senator Schumer. Does not always, but sometimes--
Chairman Specter. Let him finish his answer, Senator
Schumer.
Senator Schumer. I am sorry.
Judge Alito. I don't agree with the theory that the
Constitution always trumps stare decisis. There would be no
need for the--there would be no room for the doctrine of stare
decisis in constitutional law if that were the case.
Senator Schumer. But, sir, it can trump stare decisis, does
not always, but can. Is that correct?
Judge Alito. It certainly can, and I think that is a good
thing because otherwise, Plessy v. Ferguson would still be on
the books.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Judge Alito, are you familiar with the question that
lawyers sometimes pose to demonstrate how unfair a question can
be: ``When did you stop beating your wife? ''
Judge Alito. I am familiar with that question.
Senator Cornyn. And I suppose the reason why--
[Laughter.]
Senator Cornyn. Since someone was picking on your mother-
in-law, I thought we would inject your wife into this. But the
point is this: it is an unfair question because it implies,
regardless of what your response has been, that at one time you
did, when, in fact, you have not.
And I just want to explore, to start with, Senator
Schumer's questions about what is written in this Constitution
about abortion. Does the word abortion appear anywhere in the
Constitution?
Judge Alito. No. The word that appears in the Constitution
is ``liberty.''
Senator Cornyn. And outside of, let's say, the Fourth
Amendment, perhaps, does a right to privacy appear, explicitly
stated, in the Constitution?
Judge Alito. There is no express reference to privacy in
the Constitution, but it is protected by the Fourth Amendment
and in certain circumstances by the First Amendment and in
certain circumstances by the Fifth and the 14th Amendments.
Senator Cornyn. And the reason it is protected is because
the Supreme Court has so interpreted the Constitution. Isn't
that correct, sir?
Judge Alito. That is correct. It is a question of
interpretation rather than simply looking at what is in the
text of the document.
Senator Cornyn. So to ask you whether the right to free
speech, which is explicitly protected under the First Amendment
of the Constitution--to ask you whether that is in there and
then just ask you in the same question, or at least same series
of questions, whether the right to abortion on demand is in the
Constitution, one is explicitly stated in the First Amendment;
the other is the product of Court interpretation. Isn't that
accurate, sir?
Judge Alito. Yes, that is my view of it.
Senator Cornyn. And to be more specific, it is what the
courts have called penumbral rights. In other words, Griswold,
I believe it was, talked about this being the penumbra of the
emanations from stated rights in the Constitution. Can you
clarify that for us so we can get it right?
Judge Alito. Yes. Griswold talked about emanations and
penumbras, and Griswold has later been understood by the
Supreme Court as being based on the protection of liberty under
the Fifth Amendment and the 14th Amendment.
Senator Cornyn. Well, I was particularly troubled by the
exchange of questions and answers because the suggestion is
that you have somehow been unresponsive. And as I said in my
opening statement, I do think that there are those who have
already decided to vote against your nomination and are looking
for some reason to do so. And I think one of the reasons that
they may claim is that you have been nonresponsive. But I
thought it was telling that Senator Schumer said he didn't
expect you to answer that question.
I would like to refer back to Senator Biden's comments
where he praised you at the close of his remarks. He said, ``I
appreciate you for being responsive.''
I agree with him. I cannot remember a nominee being this
forthcoming. I appreciate that you have answered nearly every
question put to you. Thank you for being so responsive. And
indeed, according to one count, you have answered more than 250
questions thus far today.
So I think in all fairness, the question is not a fair one
to ask you whether the right to an abortion is written in this
document. The fact is, and the reason why you apply the
doctrine of stare decisis is because you recognize the
precedential effect, the authoritative effect of the Supreme
Court's interpretation of this document as the law of the land,
do you not, sir?
Judge Alito. That is correct.
Senator Cornyn. And you mentioned Plessy v. Ferguson. I
think it was Daniel Patrick Moynihan, a Democrat Senator from
Senator Schumer's State, who said if it weren't for the ability
of the courts to go back and revisit these decisions, how would
you ever correct a mistake? And I think the fact is that you
have mentioned one of the instances where, thank goodness, the
Court has gone back and revisited a terrible decision which has
been a scar on our country and our jurisprudence, Plessy v.
Ferguson.
And if the Court, in Brown v. Board of Education, had felt
prohibited from revisiting that mistake, then we would still be
living under that scar and I think we can all agree that that
would be a terrible thing. And thank goodness, we have a
Supreme Court that has had the courage to go back, in
accordance with the principles of stare decisis, and revisit
terribly wrong decisions and to correct them and to bring us
where we are today.
You know, it must be strange to have people listen to the
questions and answers here because on one hand, you will hear
rather complimentary comments. On the other hand, even Senators
who are still at least for the record undecided--I hate to
think what it would be like if they had actually determined to
vote against you already--making rather strong critical
statements.
But it means a lot to me to know that the people who know
you best, the people who have worked with you on the Third
Circuit Court of Appeals, are very complimentary. I happen to
believe that we ought to look to the people that know you best
as being in the best position to judge your character, your
integrity, your competence, and not this caricature that
happens during these confirmation proceedings by the attack
dogs, the interest groups who pay a lot of money, spend a lot
of time trying to tear down that reputation for integrity and
competence that you have worked so hard to build during your
lifetime.
But I was struck--and we will hear more about the judges
who have served with you on the Third Circuit--but I was struck
by a quote that I read from your former colleague, the late
Judge Leon Higginbotham.
Who is Judge Higginbotham, by the way, or who was he?
Judge Alito. Well, he was the former Chief Judge of the
Third Circuit and he was a Federal judge for many years and
greatly respected.
Senator Cornyn. Well, this is what the Harvard Journal of
African-American Public Policy--how it described him, in part.
They said, ``Higginbotham was appointed to the Federal circuit
bench by President Jimmy Carter in 1977. Higginbotham is also
former president of the Philadelphia Chapter of the NAACP.''
And would it be fair to say that you and Judge
Higginbotham, while you served together, you tended to look at
the Constitution differently? In other words, could he fairly
be described as a liberal?
Judge Alito. I think probably most people would describe
him that way. I thought we got along very well, and we
generally agreed. There were cases in which we disagreed and
cases in which I dissented from an opinion that he wrote. And I
think there were cases in which he dissented from opinions that
I wrote.
Senator Cornyn. Well, I wonder if you are aware of one
thing that he was quoted as having said. This is out of the Los
Angeles Times, comments he made about you to Judge Timothy
Lewis, quoted in the Los Angeles Times, ``Sam Alito is my
favorite judge to sit with on the court. He is a wonderful
judge and a terrific human being. Sam Alito is my kind of
conservative. He is intellectually honest, he doesn't have an
agenda, he is not an idealogue.''
Were you aware that Judge Higginbotham had said that about
you?
Judge Alito. No, I wasn't. I was not.
Senator Cornyn. Well, I am pleased to tell you he did say
it, according to the Los Angeles Times, and I think it is a
high compliment that someone who would have perhaps such a
divergent view and perhaps different political beliefs than you
would say those sorts of things about you and your record on
the Third Circuit Court of Appeals.
Now, I have some charts, too, like Senator Schumer. I like
my charts better than his, but we will let others be the judge.
But I want to ask you a little bit about Justice Sandra Day
O'Connor. You had some very high compliments about her
yesterday. Senator Kyl, her fellow Arizonan, said some
wonderful things about her, and I am confident that all of
those accolades are well deserved. Some have called her the
model Supreme Court Justice, and that is high praise, it really
is.
And I would like to submit for my colleagues' consideration
that if Sandra Day O'Connor was in the mainstream, then Sam
Alito is, too, and this is why. For example, Justice O'Connor
and Judge Sam Alito both set limits on Congress's commerce
power. Sandra Day O'Connor and Sam Alito both struck down
affirmative action policies that had strict numerical quotas,
and both--this ought to be a shocker to some based on what we
have heard here today--both Justice Sandra Day O'Connor and
Judge Sam Alito have criticized Roe v. Wade.
In fact, this is pretty astonishing to me. According to the
Harvard Law Review, over the last decade Justice O'Connor
agreed more often with Chief Justice Rehnquist, 80 percent of
the time, than with any other Justice. And let's go through
these individually.
First of all we talk about whether it can be a Federal
crime to possess a machine gun that doesn't implicate
trafficking or some aspect of interstate commerce. But, you
know, all we have to do is go back to a little bit of the
history we all learn in high school to remember the Articles of
Confederation and the fact that the States were all-powerful.
The national Government was crippled because it really had no
power and was subject to the unanimous vote of the states
before it could do things that were very important.
And so then in Philadelphia, the delegates there wrote, and
ultimately ratified, a Federal Constitution. But you already
alluded to this earlier. This Constitution takes into account
that not only will the national Government have certain powers,
but there will also be some powers still reserved to the
States.
It is a fact, is it not, sir, that when we talk about
federalism, really what we are talking about is the fact that
our Federal Government, our national Government is one of
enumerated powers that are set out in the Constitution and all
powers that are not enumerated or necessary and proper to the
execution of those enumerated powers as a general rule are
reserved to the states?
Judge Alito. Yes, that is the structure of the
Constitution. The Federal Government has certain--has
enumerated powers. Some of them are broad, but those are the
powers the Federal Government has and the theory--and the
structure is that everything else was reserved for the States.
Senator Cornyn. And so when someone suggests that you are
taking a crabbed or cramped or unorthodox view toward
congressional power because you say that it is not clear from
the statute or the crime with which an individual is charged
that interstate commerce is implicated, aren't you enforcing
that original understanding of what powers were expressly or
otherwise delegated to the Federal Government and what powers
were reserved to the States?
Judge Alito. Well, that is what Lopez, as I understand it,
tried to do. It said that although the commerce power is broad,
it is not all-encompassing. It involves the regulation of
interstate and foreign commerce, and this statute that we have
in Lopez goes beyond that. And my case, the Rybar case, seems
to me to be as close to the situation in Lopez as any case that
I was aware of.
Senator Cornyn. Well, I know my constituents back in Texas,
and I suspect people all across the country would be glad to
know that you don't believe that all wisdom and all power is
centered in Washington, D.C., but that under our Federal system
the State and Federal governments are partners, and that
enforcing this structure that is a product of our history and a
product of our Constitution is an important thing for judges to
do.
But it is interesting because if Sandra Day O'Connor was in
the mainstream on the interpretation of the Commerce Clause,
then so is Judge Sam Alito. As a matter of fact, I believe in
Rybar you said the question before the court is whether Lopez
is a constitutional freak, or words to that effect, because as
you pointed out, it was a little bit of a shock to everyone's
system to see the Supreme Court was actually serious about
recognizing the authority of the States and that there are
limits to congressional power. But Lopez reestablished or
perhaps restated that understanding.
Judge O'Connor joined the majority in the Lopez decision,
did she not, sir?
Judge Alito. Yes, she did.
Senator Cornyn. And so she shared at least to that extent
your conviction that there is some limit to congressional power
and that there was some point beyond which Congress's authority
could not reach unless it was made clear that it was pursuant
to one of the powers enumerated under the Constitution. Did I
say that roughly correctly?
Judge Alito. I agree with that she said that Congress's
power under the Commerce Clause is not all-encompassing. And my
job as a court of appeals judge is not to say that a decision
of the Supreme Court should be limited to its facts; in other
words, not applied as a precedent in any other comparable
situation that comes along. My job is to take those precedents
seriously and that is what I tried to do.
Senator Cornyn. So when Justice O'Connor held in Lopez that
Congress could not prohibit the possession of handguns near
schools because mere possession is not commerce, you were doing
your very best to stick to that precedent established by the
U.S. Supreme Court when you wrote your opinion in Rybar. Is
that correct?
Judge Alito. That's correct. In Lopez, the Supreme Court
said that possession of a firearm, mere possession is not a
commercial activity, and the interstate commerce--the Commerce
Clause authorizes the regulation of interstate commerce, and
the activity involved in Rybar was the possession of a firearm.
So it followed that if it was a noncommercial activity in
Lopez, it must be a noncommercial activity in Rybar. That's how
I saw it.
Senator Cornyn. And you didn't say the State couldn't
criminalize possession of a machine gun, did you?
Judge Alito. No. The State could, and I think a great
majority of States, if not--the great majority certainly have
legislation of that nature.
Senator Cornyn. And you pointed out here that if the
Congress had been a little more careful in showing the basis
upon which mere possession could affect interstate commerce,
that that would be a different case, and perhaps the outcome
might have been different in Rybar.
Judge Alito. Yes, that was a strong point that I made in
the dissent, that if Congress had made findings, it would have
been a very different case for me.
Senator Cornyn. You know, the interesting thing to me about
Rybar as well, you have been accused of always ruling for the
big guy or the government. But in Rybar you decided for the
person accused of illegally possessing the machine gun.
Judge Alito. Well, that's correct. He was a criminal
defendant.
Senator Cornyn. You didn't rule for the government?
Judge Alito. No, I did not. I thought the government had
not come forward with evidence to support the position that
they were arguing.
Senator Cornyn. Well, there is another question about
affirmative action cases. We have alluded a little bit to that.
And Justice Sandra Day O'Connor, the model Supreme Court
Justice who is clearly in the mainstream, you and Justice
O'Connor both agreed to strike down affirmative action policies
which set numerical quotas which resulted in reverse
discrimination. She did in Wygant v. Jackson Board of Education
in 1986. You did in Taxman v. Board of Education in 1996. Would
you agree with that, sir?
Judge Alito. I would. Taxman was a case that our court
considered en banc, that is, all the judges were sitting, and I
sit on a very moderate court that is certainly not unreceptive
to the concept of affirmative action in general. But the vote
in that case was 8-4. It wasn't a close vote. And I joined the
opinion that was written by my late colleague, Judge Mansmann,
holding that that particular affirmative action plan was in
violation of Title VII.
Senator Cornyn. Let's talk again about Roe v. Wade. Now,
this is going to be a shocker for some people based upon what
has gone on before, because it has been suggested that but for
Sandra Day O'Connor, Roe v. Wade may be overruled; that this is
really what lies in the balance here during your confirmation
proceedings. But the fact is that Justice Sandra Day O'Connor,
the model Supreme Court Justice, wrote in The City of Akron v.
Akron Center for Reproductive Health, ``The trimester three-
stage approach adopted by the Court in Roe cannot be supported
as a legitimate or useful framework.'' Roe, she said, ``is
clearly on a collision course with itself.''
And in the memorandum for which you have been disparaged
many a time when you were in the Solicitor General's office,
you recommended, ``Don't mount a frontal attack on Roe v. Wade
but instead use the opportunity to nudge the Court toward the
principles in Justice O'Connor's Akron dissent.''
So when you had an opportunity to urge the reversal of Roe
v. Wade, even as a lawyer for the administration, you urged a
more cautious approach and one consistent with Justice
O'Connor's opinion at the time. Isn't that correct, sir?
Judge Alito. Yes, Justice O'Connor's opinion in Akron,
which was the last previous big Supreme Court decision at that
time, was one of the things that influenced me in the memo that
I wrote in Thornburgh. She analyzed Roe, and I was quite
persuaded by the points that she made in the Akron decision.
And the general approach--the arguments that I was recommending
that the Government make in the Thornburgh case were along the
lines of the undue burden standard I think that was later--that
she later adopted. I was arguing that the particular provisions
should be challenged on their own terms. One of the provisions
was an informed consent provision that was virtually identical
to the informed consent provision that later came up in Casey,
and in Casey it was upheld.
Senator Cornyn. Well, let's talk about Casey. That was a
1992 decision by the U.S. Supreme Court. Isn't that correct,
sir?
Judge Alito. Yes.
Senator Cornyn. And in Casey, Justice Kennedy, Justice
Souter, and Justice O'Connor, the model Supreme Court Justice,
essentially scuttled the principal argument in favor of the
right to abortion based on this trimester approach, which
Justice O'Connor criticized and which has also been criticized
by people like Justice Ginsburg, former counsel to the American
Civil Liberties Union, who now serves on the Court; Laurence
Tribe, a well-known liberal legal scholar at Harvard. The fact
is Roe v. Wade, the writing itself, the justification for the
decision has been widely criticized by legal scholars all
across the spectrum, has it not, sir?
Judge Alito. It certainly had been at the time of the 1985
memo, and although I wasn't recommending that the Government
get into that issue, I mentioned in the memo some of the
authors who had criticized Roe's reasoning.
Senator Cornyn. Well, and in 1992, the only thing that
really survived in Roe v. Wade, which was written 33 years ago,
was the essential holding--I guess you could call it that--and
there have been some quotes about the importance of reliance
interests in terms of observing--giving it the benefits of
stare decisis or precedent. But essentially the whole legal
scheme or basis upon which abortion was protected was changed
to an undue burden standard. Isn't that right, sir?
Judge Alito. In Casey, the Supreme Court moved away from
the trimester approach, and they adopted the undue burden
standard, which had been set out in some earlier opinions by
Justice O'Connor and the joint opinion in Casey made it clear
that that was now the governing standard under Supreme Court
law.
Senator Cornyn. But the plurality opinion--Justice
O'Connor, Justice Kennedy, Justice Souter--did not say you can
have abortion without limitation. It did recognize the right of
the States to pass laws which regulate abortion as long as it
did not create an undue burden on a woman's right to have an
abortion, according to that decision. Isn't that roughly what
the plurality said?
Judge Alito. Yes, that's what they held.
Senator Cornyn. Let's get the other chart.
My point is that if on at least three counts, on the basis
of does Congress's commerce power, limitations on congressional
authority in the affirmative action area, and in terms of
criticizing the basis upon which Roe v. Wade was decided 33
years ago, you and Justice O'Connor bear a lot of similarities.
I would just ask that if Justice O'Connor is a model Supreme
Court Justice and, therefore, by definition is not outside the
mainstream, then it strikes me that Sam Alito is not outside
the mainstream, either.
Another thing you have been criticized for is your
unlimited view of Presidential power, that is the way it has
been phrased, the suggestion that somehow you are always going
to defer to the President and the Executive branch when the
legislative branch and the Executive branch vie for authority,
whether it is in the intelligence gathering area, the National
Security Agency and this electronic eavesdropping, which is
really an early warning system to try to identify terrorists so
we can protect ourselves against another 9/11, or other acts of
Presidential power.
Senator Graham talked a little bit about the Hamdi
decision, where the U.S. Supreme Court interpreted the use of
force authorization that was issued by Congress after the 9/11
attack authorizing the President to use necessary force to
defeat the Taliban and al Qaeda, the supposed perpetrators of
the 9/11 attacks. The question came up in Hamdi whether that
included an authorization by Congress to detain terrorists
without charging them with a crime. My understanding is in that
case that the Supreme Court, it was fractured, but the
plurality opinion that Justice O'Connor wrote said that that
authorization of use of force was a congressional Act which
trumped the statutory limitation that Congress had previously
passed about detaining American citizens without charging them
with a crime. Did I get that roughly correct?
Judge Alito. Yes, that's exactly correct. Eighteen U.S.C.
4001, which is called the anti-detention statute, says that
nobody may be detained without authorization, and in Hamdi,
Justice O'Connor's opinion concluded that the authorization for
the use of military force constituted statutory authorization
to detain a person who had been taken prisoner as an unlawful
combatant in Afghanistan.
Senator Cornyn. Well, I appreciate you pointing out that
one of the other important statements in Hamdi was that people
who are detained have certain due process rights and that the
President cannot exercise his powers as Commander in Chief
without judicial review or without anyone else looking at it,
including a court or military tribunal under appropriate
circumstances. But the fact is, Justice O'Connor took a view of
Presidential power there that some might consider to be rather
broad, the power to detain an American citizen who is a
suspected terrorist without actually charging them with a crime
for the reasons that Senator Graham stated, that if that person
who was actually captured in Afghanistan and brought to
Guantanamo Bay, if they were released, then they likely would
return to the battlefield and plot and plan and execute lethal
attacks on American citizens.
Interestingly, people like to characterize judges as
conservative or liberal. One interesting thing to me about that
is Justice Scalia, who you have been likened to, actually
dissented and held that it was unconstitutional for the
President to detain these individuals without charging them
with some crime, like treason or something else, isn't that
correct, sir?
Judge Alito. Yes, that's correct. This is a case where
Justice O'Connor's view of the scope of Executive power was
broader, considerably broader, than Justice Scalia's. Justice
Scalia's position was that unless habeas corpus is suspended,
and there are only limited circumstances in which that can take
place, then there would have to be a criminal trial.
Senator Cornyn. Judge Scalito, my--Alito, excuse me. After
talking about Judge Scalia--you know what I was thinking in the
back of my mind, a nickname that you have acquired sometimes,
and I apologize.
But the fact is that people try to characterize judges as
being somewhere on the political spectrum or making results-
oriented decisions based on some ideology. But the fact is, and
I will just ask you if you agree with this, whether good judges
who try to apply the law to cases and facts that come before
them on an individual basis without regard to who wins and who
loses, their decisions could be characterized as liberal,
conservative, and anywhere in between. Has that been your
experience?
Judge Alito. I think that is correct, Senator. I think that
all these labels when you are trying to describe how judges
behave, how they do their work, have their limitations and
different people use them in different ways.
Senator Cornyn. Thank you very much.
Chairman Specter. Well, thank you very much, Senator
Cornyn, for that round of questions. When Senator Cornyn
misstates even one word, with his competency, you know it is
getting late.
[Laughter.]
Chairman Specter. Thank you, Judge Alito, for your--we can
all agree, there may be some areas of controversy among the 18
of us, but I think we can all agree about your stamina and your
poise and your good humor and even some subtle humor.
Your family has shown the same kind of stamina. The crowd
has pretty well emptied out, but the Alitos are all still here
and they have provided not only support but occasion for a
comment or two. I noticed a big smile on your wife's face when
you were asked if you stopped beating your wife.
[Laughter.]
Judge Alito. I wasn't asked whether she had stopped beating
me.
[Laughter.]
Chairman Specter. Now that is some of that subtle humor
that your profiles talk about. We would like to see a little
more of it, Judge. Perhaps if we went 11 hours instead of 10
hours, we would get to that.
Senator Leahy. Oh, please don't.
[Laughter.]
Chairman Specter. I have been vastly--
Senator Leahy. I will certify that he is very, very funny.
Just don't do the other two hours.
[Laughter.]
Chairman Specter. That raises the question as to what else
you will certify to, Senator Leahy.
Senator Leahy. That is enough for today.
[Laughter.]
Chairman Specter. I want to make one comment, which I have
been pondering as to whether I ought to make it, but there is a
story which is inapplicable to you, Judge Alito, so I think I
can make it. The question is always raised, who is behind a
successful man, and the answer is a surprised mother-in-law.
[Laughter.]
Chairman Specter. But you have negated that infrequently
told story.
So I want to thank you for your testimony today and I want
to thank my colleagues for what we are proceeding to do here in
accordance with our commitment to have a full, fair, and
dignified hearing. I think we are on the way. These proceedings
are being very broadly covered. You can't pick up the front
page of any newspaper in America without seeing your smiling
face, Judge. In an era where the media is filled with criticism
about the Congress, I think it is a good day for the U.S.
Congress to have these proceedings because people have been
watching them and they see long hours and they see seriousness
and they see important issues and they see the kind of dignity
which we have had here today. I thank my colleagues and I thank
you, Judge Alito.
We will resume this hearing tomorrow morning at 9:30.
[Whereupon, at 7:03 p.m., the Committee was adjourned, to
reconvene on Wednesday, January 11, 2006, at 9:30 a.m.]
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 11, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room 216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The Judiciary Committee will now proceed
with the confirmation hearing for Judge Alito for the Supreme
Court of the United States.
Welcome back, Judge Alito.
We have three members who have not had their first round of
questioning of 30 minutes, and we will proceed there, and then
we will have a second round of questioning for 20 minutes each.
I expect we will need to work a long day today. It is my hope
that we might finish the questioning of Judge Alito. That might
be overly optimistic, but we will see how things go.
Senator Durbin, you are recognized for 30 minutes.
Senator Durbin. Thank you very much, Mr. Chairman.
Senator Leahy. Before we start the clock on Senator Durbin,
if I might say on the questions, one, I admire the stamina both
of the nominee and his family, but a number of us have been
troubled by what we see as inconsistencies in some of the
answers, and we are going to want to go into those in some
depth, on the issue of one person/one vote, Vanguard recusal,
unitary theory of Government, CAP and so on.
I want to clear up in my mind and in the minds of many over
here what we see as inconsistencies. I know many have announced
up here exactly how they are going to vote before they even ask
questions. I am one of the one who likes to make up my mind
after asking the questions, so there will be a number more.
Chairman Specter. Thank you, Senator Leahy. I appreciate
the comment. There are many issues. Judge Alito has responded
for about 7\1/2\ hours so far, and we are going to have another
hour and a half on opening statements, and then with each
Senator having 20 minutes on a second round, six more hours. So
we will see if he has covered the waterfront, and this will be
a full and fair hearing. We will give every opportunity to ask
the questions.
Senator Leahy. Mr. Chairman, with you as Chairman, I know
it will be a full and fair hearing, and that is one thing that
every single Democrat on this side is aware of.
Chairman Specter. I think that is very important for the
nominee, for the Committee and for the country, and we will do
that. The adjunct to full, fair is dignified, and I think so
far we are on track.
OK, Senator Durbin, keep us on track. Senator Durbin is
recognized. We will start the clock at 30 minutes.
Senator Durbin. Thank you very much, Mr. Chairman.
Judge Alito, thank you for coming for the second day and
not quite the end of the first round. I thank your family for
their patience, listening to all of our questions, and I hope
that at the end of the day we will feel that we have really
added something to the process of choosing a person to serve in
a lifetime appointment to the highest Court in our land.
I listened to you carefully yesterday address an issue
which is very important to me, the Griswold case, because I
think that it is a starting point for me when it comes to
appointments to the Supreme Court. If I had any doubt in my
mind that a Supreme Court nominee recognized the basic right of
privacy of American citizens as articulated in Griswold, I
could not support the nominee. And I listened as you explained
that you supported that right of privacy and that you found the
Griswold decision grounded in the Fifth Amendment as well as
the 14th Amendment.
I would ask you at this point--you obviously support Brown
v. Board of Education, do you, and the finding of the Court in
that?
Judge Alito. Certainly, Senator.
Senator Durbin. Do you believe that the Constitution
protects the right of children in America to be educated in
schools that are not segregated?
Judge Alito. Absolutely, Senator. That was one of the
greatest, if not the single greatest thing that the Supreme
Court of the United States has ever done.
Senator Durbin. As you read that Supreme Court decision,
that historic decision, they find the basis for that decision
was the Equal Protection Clause of our Constitution.
Judge Alito. Yes, they did, and that was, I think--of
course, we fought a Civil War to get the 14th Amendment and to
adopt the constitutional principle of equality for people of
all races.
Senator Durbin. The reason I ask you about those two cases
is that neither of those cases referred to explicit language in
the Constitution. Those cases were based on concepts of
equality and liberty within our Constitution, and the Griswold
case took that concept of liberty and said it means privacy,
though the word is not in our Constitution, and the Brown v.
Board of Education case took the concept of equality, equal
protection, and said, that means public education will not be
segregated. I raise that because I listened carefully as
Senator Schumer asked you yesterday about Roe v. Wade, and I
could not understand your conclusion. You conceded the fact
that we have free speech because it is explicit in our
Constitution, a protected constitutional right, and yet, when
Senator Schumer asked you repeatedly, ``Do you find that Roe v.
Wade established and recognized a constitutional protection for
a woman to make this most private decision,'' you would not
answer. You would not give a direct answer. On two Supreme
Court cases, Griswold and Brown now, you have said, just as we
started this hearing, that you believe there is a
constitutional basis for this protection and for this right,
and yet when it came to Roe v. Wade you would not.
Most of us are troubled by this 1985 memo. You said
yesterday you would have an open mind when it came to this
issue. I am sorry to report that your memo seeking a job in the
Reagan administration does not evidence an open mind. It
evidences a mind that, sadly, is closed in some areas.
Yesterday when you were asked about one man/one vote, you
clarified it, said those were my views then, they are not my
views now. When Senator Kohl asked you about the power and
authority of elected branches as opposed to others, no, you
said, I want to clarify that is not my view now.
And yet, when we have tried to press you on this critical
statement that you made in that application, a statement which
was made by you that said the Constitution does not protect the
right to an abortion, you have been unwilling to distance
yourself and to say that you disagree with that. I think this
is critically important, because as far as I am concerned,
Judge Alito, we have to rely on the Supreme Court to protect
our rights and freedoms, especially our right to privacy. For
you to say that you are for Griswold, you accept the
constitutional basis for Griswold, but you cannot bring
yourself to say there is a constitutional basis for the right
of a woman's privacy when she is making a tragic, painful
decision about continuing a pregnancy that may risk her health
or her life, I am troubled by that.
Why can you say unequivocally that you find constitutional
support for Griswold, unequivocally you find constitutional
support for Brown, but cannot bring yourself to say that you
find constitutional support for a woman's right to choose?
Judge Alito. Brown v. Board of Education, as you pointed
out, is based on the Equal Protection Clause of the 14th
Amendment, and the 14th Amendment, of course, was adopted and
ratified after the Civil War. It talks about equality. It talks
about equal protection of the law, and the principle that was
finally recognized in Brown v. Board of Education, after nearly
a century of misapplication of the 14th Amendment, is that
denying people the opportunity, people of a particular race the
opportunity to attend schools, or for that matter, to make use
of other public facilities that are open to people of a
different race, denies them equality. They're not treated the
same way. An African-American is not treated the same way as a
white person when they're treated that way, so they're denied
equality, and that is based squarely on the language of the
Equal Protection Clause and on the principle, the principle
that was--the magnificent principle that emerged from this
great struggle that is embodied in the Equal Protection Clause.
Griswold concerned the marital right to privacy, and when
the decision was handed down, it was written by Justice
Douglas, and he based that on his theories of--his theory of
emanations and penumbras from various constitutional
provisions, the Ninth Amendment and the Fourth Amendment, and a
variety of others, but it has been understood in later cases as
based on the Due Process Clause of the 14th Amendment, which
says that no person shall be denied due process--shall be
denied liberty without due process of law. And that's my
understanding of it.
And the issue that was involved in Griswold, the possession
of contraceptives by married people, is not an issue that is
likely to come before the courts again. It's not likely to come
before the Third Circuit, it's not likely to come before the
Supreme Court, so I feel an ability to comment, a greater
ability to comment on that than I do on an issue that is
involved in litigation.
And what I have said about Roe is that if the issue were to
come before me if I am confirmed, and I'm on the Supreme Court,
and the issue comes up, the first step in the analysis for me
would be the issue of stare decisis, and that would be very
important. The things that I said in the 1985 memo were a true
expression of my views at the time from my vantage point as an
attorney in the Solicitor General's Office, but that was 20
years ago, and a great deal has happened in the case law since
then. Thornburgh was decided, and then Webster and then Casey
and a number of other decisions. So the stare decisis analysis
would have to take account of that entire line of case law.
And then if I got beyond that, I would approach the
question--and of course in Casey, that was the beginning and
the ending point of the analysis in the joint opinion. If I
were to get beyond that, I would approach that question the way
I approach every legal issue that I approach as a judge, and
that is to approach it with an open mind, and to go through the
whole judicial process which is designed--and I believe
strongly in it--to achieve good results, to achieve good
decisionmaking.
Senator Durbin. This is what troubles me, that you do not
see Roe as a natural extension of Griswold, that you do not see
the privacy rights of Griswold ended by the decision in Roe,
that you decided to create categories of cases that have been
decided by the Court that you will concede have constitutional
protection, but you have left in question the future of Roe v.
Wade.
Yesterday, Senator Specter asked you, as he asked John
Roberts before you, a series of questions about whether or not
you accept the concept that this is somehow a precedent that we
can rely on, that is embedded in our experience, that if it
were changed it would call into question the legitimacy of the
Court, and time and time again he brought you to the edge,
hoping that you would agree, and rarely if ever did you
acknowledge that you would agree. You made the most general
statement that you believe reliance was part of stare decisis.
But let me just ask you this. John Roberts said that Roe v.
Wade is the settled law of the land. Do you believe it is the
settled law of the land?
Judge Alito. Roe v. Wade is an important precedent of the
Supreme Court. It was decided in 1973, so it has been on the
books for a long time. It has been challenged on a number of
occasions, and I discussed those yesterday, and the Supreme
Court has reaffirmed the decision, sometimes on the merits,
sometimes in Casey based on stare decisis, and I think that
when a decision is challenged and it is reaffirmed that
strengthens its value as stare decisis for at least two
reasons. First of all, the more often a decision is reaffirmed,
the more people tend to rely on it, and second, I think stare
decisis reflects the view that there is wisdom embedded in
decisions that have been made by prior Justices who take the
same oath and are scholars and are conscientious, and when they
examine a question and they reach a conclusion, I think that's
entitled to considerable respect, and of course, the more times
that happens, the more respect the decision is entitled to, and
that's my view of that. So it is a very important precedent
that--
Senator Durbin. Is it the settled law of the land?
Judge Alito. It is a--if settled means that it can't be re-
examined, then that's one thing. If settled means that it is a
precedent that is entitled to respect as stare decisis, and all
of the factors that I've mentioned come into play, including
the reaffirmation and all of that, then it is a precedent that
is protected, entitled to respect under the doctrine of stare
decisis in that way.
Senator Durbin. How do you see it?
Judge Alito. I have explained, Senator, as best I can how I
see it. It is a precedent that has now been on the books for
several decades. It has been challenged. It has been
reaffirmed, but it is an issue that is involved in litigation
now at all levels. There is an abortion case before the Supreme
Court this term. There are abortion cases in the lower courts.
I've sat on three of them on the Court of Appeals for the Third
Circuit. I'm sure there are others in other courts of appeals,
or working their way toward the courts of appeals right now, so
it's an issue that is involved in a considerable amount of
litigation that is going on.
Senator Durbin. I would say, Judge Alito, this is a painful
issue for most of us. It is a difficult issue for most of us.
The act of abortion itself is many times a hard decision, a sad
decision, a tragic decision. I believe that for 30 years we
have tried to strike a balance in this country to say it is a
legal procedure, but it should be discouraged. It should be
legal but rare, and we should try to find ways to reduce the
incidence of abortion. But as I listen to the way that you have
answered this question this morning and yesterday, and the fact
that you have refused to refute that statement in the 1985 job
application, I am concerned. I am concerned that many people
will leave this hearing with a question as to whether or not
you could be the deciding vote that would eliminate the
legality of abortion, that would make it illegal in this
country, would criminalize the conduct of women who are seeking
to terminate pregnancies for fear of their lives and the
conduct of doctors who help them. That is very troubling,
particularly because you have stated that you are committed to
this right of privacy.
If I could move to another issue that came up yesterday, I
did not understand your answer to one question and I want to
clarify it. This so-called Concerned Alumni of Princeton. You
noted in your application for a job with the Department of
Justice you belonged to two organizations, the Federalist
Society and the Concerned Alumni of Princeton. I will not get
into Federalist Society, because every time I say those words
they go into a rage that I am somehow guilty of McCarthy-like
tactics, asking who are these people in the Federalist Society?
I will not touch it.
Let me just go to the Concerned Alumni of Princeton. I did
not understand your answer. Your answer said something about
ROTC being discontinued at Princeton University. I know you
were involved in ROTC. I am told that by the time you filled
out this application, ROTC had been restored. I do not believe
you were suggesting that bringing more women and minorities to
Princeton would somehow jeopardize the future of ROTC. I do not
know that that is the case.
But there is a woman named Diane Weeks, who was a colleague
of yours in the New Jersey U.S. Attorney's Office, and she said
that she was troubled by your membership in this group. She
said you had a first-rate legal mind, but here is what she went
on to say. ``When I saw Concerned Alumni of Princeton on that
1985 job application, I was flabbergasted,'' she said. ``I was
totally stunned. I couldn't believe it. CAP made it clear to
women like me that we were not wanted on campus, and he is
touting his membership in this group in 1985, 13 years after he
graduated? He's not a young man by this point,'' she said,
``and I don't buy for a second that he was doing it just to get
a job. Membership in CAP gives a good sense of what someone's
personal beliefs are. I'm very troubled by this, and if I were
in the Senate, I would want some answers.''
I don't think explaining discontinuing ROTC at Princeton is
an answer. What is your answer? Why did you include this
controversial organization as one of your qualifications for
being part of the Reagan administration? As you said, with your
background, with your immigrant background and the fact that
Princeton had just started allowing people of your background
as students, how could you identify with a group that would
discriminate against women and minorities?
Judge Alito. Well, Diane Weeks was an Assistant U.S.
Attorney in the U.S. Attorney's Office in New Jersey, and
somebody that I hired, and one of many women whom I hired when
I was U.S. Attorney, and I think that illustrates my attitude
toward equality for women.
I've said what I can say about what I can recall about this
group, Senator, which is virtually nothing. I put it down on
the `85 form as a group in which I was a member. I didn't say I
was anything more than a member. And since I put it down, I'm
sure that I was a member at the time, but I'm also sure--and I
have racked my memory on this--that if I had participated in
the group in any active way, if I had attended meetings or done
anything else substantial in connection with this group, I
would remember it, and if I had renewed my membership, for
example, over a period of years, I'm sure I would remember
that. So that's the best I can reconstruct as to what happened
with this group.
I mentioned, in wracking my memory about this, I said, what
would it have been, what could it have been about the
administration of Princeton that would have caused me to sign
up to be a member of this group around the time of this
application? And I don't have a specific recollection, but I do
know that the issue of ROTC has bothered me for a long period
of time. The expulsion of the units at the time when I was a
student there, struck me as a very bad thing for Princeton to
do.
Senator Durbin. Do women and minorities have anything to do
with that?
Judge Alito. No, and I did not join this group, I'm quite
confident, because of any attitude toward women or minorities.
What has bothered me about--what bothered me about the
Princeton administration over a period of time was the
treatment of ROTC, and after the unit was brought back, I know
there's been a continuing controversy over a period of years
about whether it would be kept on campus, whether in any way
this was demeaning to the university to have an ROTC unit on
campus, whether students who were enrolled in ROTC could
receive credit for the courses, whether the members of--whether
the ROTC instructors could be considered in any way a part of
the faculty. All of this bothered me, and it is my recollection
that it continued over a period of time.
Senator Durbin. Let me ask you, if I might, to reflect on a
couple other things. You are a Bruce Springsteen fan?
Judge Alito. I am to some degree, yes.
Senator Durbin. I guess most people in New Jersey would be,
they should be.
Judge Alito. There was the movement sometime ago--we don't
have an official State song, and there was a movement to make
``Born to Run'' our official State song, but it didn't quite
make it.
Senator Durbin. We will stick with Lincoln in Illinois, but
I can understand your commitment to Bruce Springsteen. They
once asked him, ``How do you come up with the songs that you
write and the characters that are in them?'' And he said, ``I
have a familiarity with the crushing hand of fate.'' It is a
great line.
I want to ask you about the crushing hand of fate in
several of your decisions. Riley v. Taylor. This cas involved
the murder conviction of an African-American defendant, and the
question was raised as to whether he had a fair trial, and the
people who argued in his defense said that when we take a look
at the various people who were involved in these jury pools in
the murder cases here, we find that the local prosecutors had
eliminated all the African-Americans in four murder trials that
had taken place during the year that led up to his trial. And
they raised the question in his case whether there had been a
conscious effort to eliminate African-American jurors in this
case involving an African-American defendant.
And you dismissed the statistical evidence of these all-
white juries, and you made a statement that said the
significance of an all-white jury was as relevant as the fact
that five of the past six Presidents of the United States have
been left-handed.
That is a troubling analogy, and I am not the only one
troubled. Your colleagues on the Third Circuit were troubled as
well. Here is what they said: ``The dissent''--your dissent--
``has overlooked the obvious fact that there is no provision in
the Constitution that protects persons from discrimination
based on whether they are right-handed or left-handed. To
suggest any comparability to striking of jurors based on their
race is to minimize the history of discrimination against
prospective black jurors and black defendants.''
Why did you use that analogy that apparently is so
inappropriate?
Judge Alito. Well, the analogy went to the issue of
statistics and the use and misuse of statistics and the fact
that statistics can be quite misleading. Statistics are very
powerful, but statistics can also be very misleading, and
that's what that was referring to. There's a whole--I mean,
statistics is a branch of mathematics, and there are ways to
analyze statistics so that you draw sound conclusions from them
and avoid erroneous conclusions from them. Sometimes when you
see a pattern, it's the result of a cause, and sometimes when
you see something that looks like it might be a pattern, it's
the result of chance.
Riley was a very, very difficult case, and I can tell you I
struggled over that case because the issue of racial
discrimination in the criminal justice system is an issue of
enormous importance. Obviously, it's very important for the
defendant. It's important for the society so that everybody
knows that everyone in this country is treated equally
regardless of race. And it's important for law enforcement,
because I know from years as a prosecutor that nothing is a
greater poison for law enforcement than even the slightest hint
of unfairness.
The issue of racial discrimination in the jury had to be
viewed by our court and by me under the habeas corpus statute
that Congress passed, and that gave us an important role to
play, but a very limited role. The Pennsylvania--and what the
habeas corpus statute is that if the State courts have decided
a question on the merits and they've applied the correct legal
standard, the correct constitutional standard, we can't
authorize a granting of a writ of habeas corpus unless they
were unreasonable. It's not enough for us to say, ``We don't
agree with it.'' We have to say, ``You were unreasonable.''
Now, I think seven members of the Pennsylvania judiciary--
well, I think there were more. There was the judge who heard
the State habeas case and the Pennsylvania Supreme Court, and
the Pennsylvania Supreme Court, as I recall, was unanimous on
the issue that there hadn't been racial discrimination in the
selection of the jury in the case.
Then the case came up to us, and the issue was whether the
State courts were unreasonable in finding that the particular
peremptory challenges at issue in this case were not based on
race. And it was a tough question, but I didn't see how we
could overturn what they had done under the habeas standard.
Now--
Senator Durbin. I would just say, Judge, in many of these
tough questions as I read through your cases, you end up ruling
in favor of established institutions and against individuals.
Let me tell you another one, Pirolli v. World Flavors. Remember
this case? A mentally retarded individual, Kenneth Pirolli,
physically harassed at his workplace, subjected to a hostile,
abusive work environment, and sexually assaulted by his
coworkers. According to his deposition testimony, he said they
attempted to rape him.
I could read to you what is in that record here, but it is
so graphic and it tells in such detail the sexual assault that
he was subjected to that I am not going to read it into the
record. But I bet you remember it.
And when it came to whether or not he should have a trial,
as to whether he was entitled to bring his case before a jury,
you said no, stand by the summary judgment, don't take this to
a jury. You dissented from the majority position here. And the
reason you dissented was, I think, significant. It wasn't about
Kenneth Pirolli or the merits of his case. It was about the
conduct and efforts of his lawyer.
You noted the fact that his lawyer had not adequately
provided citations in his brief to places in the record
describing the harassment. So you held Kenneth Pirolli
responsible for the fact that his lawyer didn't do a good job--
at least in your view--and denied him his day in court. How do
you explain that crushing hand of fate on this man who was a
victim of sexual harassment?
Judge Alito. Well, Senator, the district court thought that
the defendant in that case was entitled to summary--was
entitled to summary judgment, and so I think that says
something about the facts of the case and whether it was a
particularly strong case.
There's a very important principle involved in the
appellate practice, and I think it goes with the idea of
judicial self-restraint. It is that certain things are to be
decided at certain levels in the court system, and that
requires that parties raise issues in the trial court; and that
if they do not raise the issue in the trial court, then absent
some extraordinary circumstances, they shouldn't be able to
raise the issue on appeal. And that was the principle there.
Now, this was not a criminal case. In a criminal case,
there's a constitutional right to counsel, and so a person can
claim ineffective assistance of counsel. And we treat that
issue differently in criminal cases than we do in civil cases.
Senator Durbin. I would just say that you are arguing on
the merits of the district court decision. Your statement in
dissent criticized his lawyer for the brief that they presented
to your court. That seems to me to be an unfair treatment of a
man who I think deserved a day in court.
Let me ask you about another group looking for a day in
court, the RNS Services v. Secretary of Labor case that I
referred to in my opening statement. It is a timely case. It is
about mine safety. You know what happened in West Virginia a
few days ago and yesterday in the State of Kentucky where there
are serious questions being raised about whether there is
adequate mine safety. And in this case, there was a question as
to whether or not the Federal and State mine safety provisions
applied to a company in a certain activity. And you concluded
they did not apply. You concluded that you would narrowly
construe the statute passed by Congress, and in construing it
in that way, that the requirements of inspecting this mine
location would not be subject to Federal law.
Again, you dissented and you ruled on the side of the
company, on the side of the established institution, against
the coal miners and against the workers in this circumstance.
It is a recurring pattern. The crushing hand of fate here seems
to always come down against the workers and the consumers and
in favor of these established institutions and corporations.
How would you explain the fact that you would so narrowly
construe a statute when you knew that the lives and safety of
coal miners were at stake?
Judge Alito. The facility that was involved in that case
was not a mine as a lay person would think of a mine. It wasn't
an underground facility. It wasn't like the facility in West
Virginia where the terrible accident occurred a few days ago.
It was basically a pile of coal that was being loaded onto
trucks to be transported to another place. The definition of a
mine under the Federal law is very broad, and it's not limited
to what ordinary people would think of as a mine. And there was
an argument that this facility, which, as I said, as I recall,
was basically a big pile of coal on top of the ground and coal
was being hauled away to a cogeneration facility. Is that a
mine? An ordinary person would look at that and say that's not
a mine, that's a pile of coal.
But the issue in the case was the kind of technical issue
of interpretation that we get all the time, and the question
was is this a mine in the sense of the law, and I thought it
was not a mine in the sense of the law.
Now, that conclusion, I don't believe, would mean that this
facility would be spared safety regulation at either the
Federal or local level. It's been a long time since I worked on
that case, but I would imagine that if the facility is not
governed by the Federal mining laws, it would be covered by
OSHA, by the Occupational Safety and Health Administration, and
perhaps by State law. So the issue would not be whether this
facility would be allowed, which was not a mine in the ordinary
sense, would be allowed to operate in an unsafe fashion. It was
which body of laws and regulations would govern the facility.
Senator Durbin. Judge, I would say that your opinion did
not prevail. The two other judges, both Reagan appointees, who
saw this case on the side of the workers, understood that the
wording of the law is as follows: ``Congress declares that the
first priority and concern of all in the coal or other mining
industry must be the safety and health of its most precious
resource--the miner.'' And instead of taking the obvious
interpretation that these were people working in the mining
industry, even if they were outside of the underground mine and
the danger that it presents, you drew this statute as narrowly
as you could--construed it as narrowly as you could to take the
company position here that the Federal Mine Safety and Health
Administration did not have jurisdiction.
I find this as a recurring pattern, and it raises a
question in my mind whether the average person, the
dispossessed person, the poor person who finally had their day
in court and may make it all the way through the process to the
Supreme Court, are going to be subject to the crushing hand of
fate when it comes to your decisions. They have been many times
at the Third Circuit, and that is a concern which I will
continue when we have further questions in the next round.
Thank you, Mr. Chairman.
Chairman Specter. Do you care to respond, Judge Alito?
Judge Alito. Yes, could I just say a couple of words? That
case was a case of statutory interpretation and applying the
statute, and that's how I thought it came out. There have been
many other cases that I have worked on on the court of appeals
where I have come out in favor of the small person who was
challenging a big institution, and I could mention a number of
them.
Let me just mention Shore v. Regional High School because I
think it has some relation to the Pirolli case, which you
mentioned. This was a case in which a high school student had
been bullied unmercifully by other students in his school
because of their perception of his sexual orientation. He had
been bullied to the point of attempting to commit suicide, and
his parents wanted to enroll him at an adjacent public high
school, and the school board said, no, you can't do that. And I
wrote an opinion upholding their right to have him placed in a
safe school in an adjacent municipality.
That is just one example, but all of these cases involve
what judges are supposed to do, which is to take the law and
apply it to the particular facts of the case that is before
them.
Chairman Specter. Thank you very much, Judge Alito.
Senator Brownback?
Senator Brownback. Thank you very much, Mr. Chairman.
Good morning, Judge Alito, Mrs. Alito, family members. Good
to have you here.
I have got a number of areas I would like to ask you
questions about, and I am hopeful we can get through them and
maybe reduce the need of time in a second round, which would
probably be pleasing to your ears.
I want to first go at this area, because it seems to keep
coming up, that I think is really not applicable and not
reflective of your record that you always take the side of the
big institution and against the little guy, as you just stated.
But then I want to get into a number of areas of constitutional
law, some of which you have written on, religious freedom type
cases, takings cases. I would like to get into some of these
areas.
But I want to enter into the record, Mr. Chairman, a letter
from a former law clerk of yours, David Walk, dated January 6,
2006. David worked with you in the New Jersey U.S. Attorney's
Office. I don't know if you remember David or not.
Judge Alito. I do. He was a fine--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Thank you.
He is a lifelong Democrat, former member of the ACLU, and
talks about how fair you were to everybody's rights. But then
he cites the case of Franklin Igbonwa. This was a Nigerian set
to be deported for drug dealing who had testified against other
Nigerian drug dealers and was fearful of being deported, that
he would be killed once back in Nigeria. The other two judges
said his case--he shouldn't be believed on the face of it, and
you said he should and that the trial court should have given
more deference to this Nigerian to be deported. This was
somebody that David Walk represented. Talk about a little guy
in a case, and that is one that is cited in this particular
record and letter that I would hope my colleague from Illinois
could take a chance at, because it is a legitimate point of
view. And saying, well, it looks like you always take one side
or the other, here is where another side was taken.
And then here is a letter from another individual who
worked with you, Cathy Fleming, lifelong Democrat, president-
elect, National Women's Bar Association, gives an unqualified
endorsement of you. She says, ``By providing my credentials as
an outspoken women's rights advocate and liberal-minded
criminal defense attorney, I hope you will appreciate the
significance of my unqualified and enthusiastic recommendation
of Sam Alito for the Supreme Court.''
I think one can kind of look in the past and try to say,
well, OK, there is this problem, there is that, but then when
people that know you well put their names to letters saying
differently, I think that's also something we should consider,
and I would ask that that letter be put into the record as
well.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Thank you.
Judge Alito, the Supreme Court has gotten a number of
things wrong at times, too. That would be correct, and the
answer when the Court gets things wrong is to overturn the
case. That is the way it works. Isn't that correct?
Judge Alito. Well, when the Court gets something wrong and
there's a prior precedent, then you have to analyze the
doctrine of stare decisis. It is an important doctrine, and I
have said a lot about it, but--
Senator Brownback. Wait, let me just ask you, was Plessy
wrong, Plessy v. Ferguson?
Judge Alito. Plessy was certainly wrong.
Senator Brownback. OK, and you have gone through this.
Brown v. Board of Education, which is in my hometown of Topeka,
Kansas. I was there last year at the dedication of the
schoolhouse. Fifty years ago, that overturned Plessy. Plessy
had stood on the books since 1896. I don't know if you knew the
number. And I have got a chart up here. It was depended upon by
a number of people for a long period of time. You have got it
sitting on the books for 60 years, twice the length of time of
Roe v. Wade. You have got these number of cases that considered
Plessy and upheld Plessy to the dependency. And yet Brown comes
along, 1950s case, poor little girl has to walk by the all-
white school to go to the black school in Topeka, Kansas. And
the Court looks at this and they say unanimously that is just
not right.
Now, stare decisis would say in the Brown case you should
uphold Plessy. Is that correct?
Judge Alito. It certainly would be a factor that you would
consider in determining whether to overrule it.
Senator Brownback. But obviously--
Judge Alito. A doctrine that you would consider.
Senator Brownback. Obviously, Brown over turned it, and
thank goodness it did. Correct?
Judge Alito. Certainly.
Senator Brownback. It overturned all these super duper
precedents that had been depended upon in this case because the
Court got it wrong in Plessy. Is that correct?
Judge Alito. The Court certainly got it wrong in Plessy,
and it got it spectacularly wrong in Plessy, and it took a long
time for that erroneous decision to be overruled.
One of things I think that people should have understood is
that separate facilities, even if they were absolutely equal in
every respect, even if they were identical, could never give
people equal treatment under the law.
Senator Brownback. They don't.
Judge Alito. I think they should have recognized that. But
one of the things that was illustrated in those cases--and
Sweatt v. Painter, the last one on the list brought that out--
was that, in fact, the facilities, the supposedly equal
facilities were never equal, and the continuing series of
litigation that was brought by the NAACP to challenge racial
discrimination illustrated--if the illustration was needed, the
litigation illustrated that, in fact, the facilities that were
supposedly equal were not equal. And that was an important
factor, I think, in leading to the decision in Brown v. Board
of Education
Senator Brownback. I want to give you another number, and
that is, in over 200 other cases, the Court has revisited and
revised earlier judgments. In other words, in some portion or
in all of the cases, the Court got it wrong in some 200 cases.
And thank goodness the Court is willing to review various
cases.
I want to give you an example of a couple, though, that the
Court hasn't reviewed yet that I think are spectacularly wrong.
The 1927 case of Buck v. Bell, I don't know if you are familiar
with that case. The Court examined a Virginia statute that
permitted the sterilization of the mentally impaired. Carrie
Buck, a patient at the so-called Virginia State Colony for
Epileptics and Feeble Minded, was scheduled to be sterilized
after doctors alleged she was a genetic threat to the
population due to her diminished mental capacity. Buck's
guardian challenged the decision to have Carrie sterilized all
the way to the Supreme Court, but in an 8-1 decision, the Court
found that it was in the State's interest to have her
sterilized.
The majority opinion written by Justice Oliver Wendell
Holmes said, ``We have seen more than once that the public
welfare may call upon the best citizens for their lives. It
would be strange if it could not call upon those who already
sap the strength of the State for these lesser sacrifices,
often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence.''
Clearly, some precedents are undeserving of respect because
they are repugnant to the Constitution. Isn't Plessy repugnant
to the Constitution?
Judge Alito. It certainly was repugnant to the Equal
Protection Clause.
Senator Brownback. And the vision of human dignity, isn't
Buck and those sort of statements by Oliver Wendell Holmes
repugnant to the Constitution?
Judge Alito. I think they are repugnant to the traditions
of our country. I don't think there is any question about that.
Senator Brownback. I will give you another case, the
Korematsu v. United States case, a 1944 case. World War II
broke out following Japanese attacks on Pearl Harbor. Feelings
spread that Japanese-Americans, both naturalized and those born
in the United States, might not be loyal to the United States
and should be removed from the West Coast. So great was the
fear that even the esteemed writer Walter Lippmann stated that,
``Nobody's constitutional rights include the right to reside
and do business on a battlefield. There is plenty of room
elsewhere for him to exercise his rights.''
President Roosevelt signed an Executive order removing
them. Korematsu contested the constitutionality, Fred Korematsu
did, of his internment. In Korematsu v. the United States, the
Supreme Court held that military necessity justified the
internment program and that Fred Korematsu had no protection
against relocation under the Constitution.
Of course, that was later overturned--excuse me, that was
never overturned. In 1948, Congress enacted the Japanese
American Evacuation Claims Act to provide some monetary
compensation. In 1980, Congress again revisited the case. In
1988, Congress passed legislation apologizing for the
internment and awarded each survivor $20,000. In 1999, Fred
Korematsu was awarded the Presidential Medal of Freedom, the
highest civilian honor that anyone can receive. Justice has not
been done because Korematsu remains on the books. It is still
on the books.
Roe v. Wade. You have had every question on that, but I
want to point out its difficulty. My colleagues on the other
side look at this as completely settled law, but let's see what
the legal experts say about how settled it is.
Laurence Tribe, who will be here to testify, I believe,
probably against you in a little bit. Let's see what he says, a
professor of law at Harvard: ``One of the most curious things
about Roe is that, behind its own verbal smokescreen, the
substantive judgment on which it rests is nowhere to be
found.'' Settled law? Super duper precedents? Laurence Tribe
has some questions about it.
Justice Ruth Bader Ginsburg: ``Roe, I believe, would have
been more acceptable as a judicial decision if it had not gone
beyond a ruling on the extreme statute before the Court. Heavy-
handed judicial intervention was difficult to justify and
appears to have provoked, not resolved, conflict.'' Provoked,
not resolved, conflict--one of your potential colleagues says.
Edward Lazarus, former clerk to Chief Justice Harry
Blackmun, who wrote Roe: ``As a matter of constitutional
interpretation and judicial method, Roe borders on the
indefensible. I say this as someone utterly committed to the
right to choose, as someone who believes such a right was
grounded elsewhere in the Constitution, instead of where Roe
placed it, and as someone who loved Roe's author like a
grandfather.'' Settled law? Edward Lazarus has some questions
about it being settled.
Let's look at John Hart Ely, former Dean of Stanford Law
School, excellent law school in the country, one of the top law
schools in the country: Roe v. Wade ``is not constitutional law
and gives almost no sense of an obligation to try to be. What
is frightening about Roe is that this super-protected right is
not inferable from the language of the Constitution, the
Framers' thinking respecting the specific problem in issue, any
general value derivable from the provisions they included, or
the Nation's governmental structure.'' John Hart Ely. Do you
think he thinks Roe is settled law? Not constitutional and
gives no sense of an obligation to try to be.
Alan Dershowitz, professor of law, Harvard Law School, one
of the top law schools in the country. It is not Princeton,
but... Roe v. Wade and Bush v. Gore ``represent opposite sides
of the same currency of judicial activism in areas more
appropriately left to the political process. Judges have no
special competency, qualifications, or mandate to decide
between equally compelling moral claims, as in the abortion
controversy. Clear governing constitutional principles are not
present in either case.'' Settled law? Super duper precedents?
I think there are places where the Court gets it wrong, and
hopefully they will continue to be willing to revisit it.
Now I want to look at a couple of areas of law in addition
to this. Your view of the Constitution--and yesterday you hit
at this, I thought, on some of the edges, but I just want to
get your thoughts of how you view the Constitution, how you
would review it. There are these different schools of thought
on this of strict constructionist, living document,
originalist, and there are several others that float around out
there. How do you generally look at the Constitution? And I am
aware yesterday you were saying that some provisions are very
clear and some are not, and you seem to apply a different set
of viewpoints on those of the Constitution. Could you
articulate your view of how you look and interpret the
Constitution?
Judge Alito. First of all, Senator, I think the
Constitution means something, and I don't think it means
whatever I might want it to mean or whatever any other member
of the judiciary might want it to mean. It has its own meaning,
and it is the job of a judge, the job of a Supreme Court
Justice, to interpret the Constitution, not distort the
Constitution, not add to the Constitution or subtract from the
Constitution.
In interpreting the Constitution, I think we should proceed
in the way we proceed in interpreting other important legal
authorities. In interpreting statutes, for example, I think we
should look to the text of the Constitution and we should look
to the meaning that someone would have taken from the text of
the Constitution at the time of its adoption. But I think we
have to recognize that the Constitution is very different from
statutes in some important respects. Statutes are often very
detailed, and they generally don't exist without revision for
very long periods of time. The Constitution was adopted to
endure throughout the history of our country, and considering
how long our country has existed, it's been amended relatively
few times. And the magic of that, I think, is that it sets out
a basic structure for our Government and protects fundamental
rights. But on a number of very important issues, I think the
Framers recognized that times would change, new questions would
come up, and so they didn't purport to adopt a detailed code,
for example, governing searches and seizures. That was the
example I gave yesterday, and I will come back to it. They
could have set out a detailed code of search and seizure. They
didn't do that. They said that the people are protected against
unreasonable searches and seizures, and they left it for the
courts--and, of course, the legislative body can supplement
this--to apply that principle to the new situations that come
up.
Now, when that is done, that doesn't amount to an amendment
of the Constitution or a changing of the Constitution. It
amounts to--it involves the application of a constitutional
principle to the situation at hand.
Senator Brownback. Let me go to a specific area you have
written quite a bit about, and that is on religious liberties
and free exercise. And I have looked at these cases, and this
is going to be an active area of law in front of the Supreme
Court. It has been for the last 40 years.
You wrote the case of ACLU v. Schundler, a Third Circuit
case, considered--it is an ACLU challenge to religious displays
erected by Jersey City on the Plaza of City Hall. Jersey City
for decades had had holiday displays of a menorah and Christmas
tree. Litigation resulted in permanent pulling of this. The
city came back and said, OK, if that is not good enough, we
will put a nativity scene, a menorah, a Christmas tree, Frosty
the Snowman, Santa Claus, Kwanzaa symbols, and signs explaining
the display. So, OK, if two is not enough, we will add more
into it, and they were again challenged by the ACLU. The
district court found no constitutional violation.
A panel of the Third Circuit, not including you, reversed
that decision. The panel found no basis for the demystification
approach, as they put it, and expressed skepticism as to
constitutional display.
On remand, the district court held that there was a
constitutional violation. The city appealed. You sat on the
panel that heard that appeal. In a 2-1 decision, you upheld the
constitutionality of the modified display.
In your decision, you specifically cited Justice O'Connor
and two particular issues regarding excessive entanglement with
religious institutions and Government endorsement or
disapproval of religion. Because Justice O'Connor used these
factors to uphold similar displays in prior cases, you applied
them to your upholding in that case. That is a correct
interpretation. Is that correct, Judge Alito?
Judge Alito. Yes, it is, Senator.
Senator Brownback. Because these are coming up so much in
front of the Court, are these types of displays, you feel,
generally constitutionally permissible?
Judge Alito. Well, this is an area in which the Supreme
Court has handed down several decisions, and like a lot of
the--like a number of the issues that the Court has addressed
under the Establishment Clause, it has drawn some fairly fine
lines. The first case involving a display of this nature was
the Pawtucket, Rhode Island, display that was involved in Lynch
v. Donnelly, and it was a display that was similar to the
display in Jersey City. It included both religious and secular
symbols. And they found that that was not a violation.
Senator Brownback. I want to jump in here because I have
got several ways I want to. When I read your opinions, what I
hear you to write is you would rather have a robust public
square than a naked public square, that you think there is room
for these sorts of displays in the public square.
Judge Alito. Well, that was exactly what Jersey City had
decided in that case, and Jersey City said: We are one of the
most religiously diverse, ethnically diverse, racially diverse
communities you will find anywhere in the country. This is
right across the New York harbor from the Statue of Liberty and
from Ellis Island, and it is still an entry point for a lot of
people coming into the country. And so they had--over the
course of the year, at the appropriate time, they had a
Christmas display, they had a display of a menorah--on that
particular year, Hanukkah was early in the month of December,
so the display, the menorah was up at a different point. They
had a display--they had celebrations for Muslim festivals, for
Hindu festivals, for Buddhist festivals, for Latino festivals,
for festivals concerning the many ethnic groups in the
community. And their view was that this is the way we should
show that all of these groups are valuable parts of our
community and express our embracing of them. And this display,
they said, reflected that philosophy and applying the
precedents that the Supreme Court had provided in this area,
the Pawtucket case and a later case involving a display in
Pittsburgh, Judge Rendell and I, who were the judges in the
majority on that case, said this is constitutional, this is
consistent with the Establishment Clause.
Senator Brownback. Well, and that is what--as we have had
this 40 years of cases, I really hope we can have a public
square that celebrates and not that it has got to be completely
naked to views, and I appreciate that.
You wrote in a free exercise case, C.H. v. Olivia, a case
in which a child sued through his parents for violation of his
free speech and free exercise rights, when his school removed
and repositioned a poster he had made of a religious figure
that was important to him. It was a picture of Jesus. The
poster was part of an assignment which students were instructed
to show something for which they were thankful. The district
court granted judgment on the pleadings in favor of the
defendant, the school district. The Third Circuit affirmed. You
dissented in that opinion. Can you elaborate on your reasoning
in that particular opinion? Do you remember the case?
Judge Alito. Yes, Senator, I do. Justice O'Connor pointed
out something that's very critical in this area. She said there
is a big difference between Government speech endorsing
religion and private religious speech, and this case--and
private religious speech can't be discriminated against. It has
to be treated equally with secular speech. And in this case,
this involved a student who--and there were two incidents. One
involved reading. The students in the class were told that if
they could read at a certain level, they would have--their
reward would be to be able to read their favorite story to the
class. And this student satisfied those requirements, and the
student wanted to read a very simplified version of the story
of Jacob and Esau to the class. And the teacher said, ``No, you
can't read that to the class. You can read that privately to me
off in a corner.''
And then Thanksgiving was coming along, and the students
were told, ``Draw a picture of something that you're thankful
for,'' and I guess the teacher expected they were going to draw
pictures of football games and turkeys and things like that.
But this student drew a picture of Jesus and said, ``That's
what I'm thankful for.'' And the teacher put all the other
pictures up in the hall, but would not put this student's
picture up in the hall because of its religious content.
And that, we found, was a violation of this principle that
you have to treat religious speech equally with secular speech.
If you ask a student to say something about a topic, what are
you thankful for, and the student says something that fits
within the topic that the student was asked to talk about, then
you can't discriminate against one kind of speech or another.
Senator Brownback. I thought it was a very interesting
stance, and I think appropriate, that you took, and I wanted
to--obviously very active areas of the law that we have.
I want to look at the issue of checks and balances on the
Federal court. It is a very active area here in Congress as a
lot of people across the country and certainly Members of
Congress have grown the feeling that we can rule however--we
can do whatever we want to here, but wait until the Court
decides, that it is the Court that have moved beyond judicial
restraint. I asked this of John Roberts, and I asked what is--
the checks and balances on Congress are obvious, the President
can veto a bill, a court can declare something
unconstitutional, checks and balances executive branch are
clear, they can be challenged, their actions, in the court, the
court can say the President can't do that, we cannot
appropriate the money from here. We have got checks and
balances, and people are well known. Any high school government
student would know that.
Checks and balances on the Court. When I talked with John
Roberts about this, he said basically the only check and
balance is judicial restraint. It is what the Court restrains
itself in. And yet you have within the Constitution a provision
that is there that I asked him about that I want to ask you
about. Article III, Section 2 goes, ``In all cases''--excuse
me. ``In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and
fact,'' and then it goes on with this interesting Exceptions
Clause, ``with such exceptions, and under such regulations as
the Congress shall make.'' The last phrase known as the
Exceptions Clause.
What do you believe is Congress's power to define the
jurisdiction of the Supreme Court under the Exceptions Clause?
Judge Alito. Well, the Exceptions Clause obviously gives
Congress the authority to define the appellate jurisdiction of
the Supreme Court, and it can provide for various avenues by
which cases get to the Supreme Court, and that has changed over
the years.
There's been a controversy, never resolved, about the exact
scope of the authority. It came up in Ex Parte McCardle in the
post-Civil War era, and it has been raised by--it has been
discussed by scholars in subsequent years, and there are
several schools of thought in the question about whether it
would be consistent with the Constitution for Congress to
eliminate jurisdiction in the Supreme Court over a particular
type of case, that's an unresolved issue that the scholars have
addressed, and some argue that that falls within the Exceptions
Clause, and some argue that it would be inconsistent with other
provisions of the Constitution.
Senator Brownback. What I see taking place in this country,
as the Court gets more and more involved in tough political
issues, is you are going to be pressing other bodies then to
say, ``Look, we believe these decisions should be here. We
believe the issues on the competing interests of an abortion,
the mother and the child, should be decided by legislative
bodies,'' but the Court said no. Issue of marriage is coming
through the court system right now. As the Court keeps getting
involved in these areas, I think you are going to see these
sorts of constitutional issues being explored more and more.
Marriage case I want the take you to because that is making
its way through the Federal Court. Forty-five of our 50 States
have deemed marriage being between the union of a man and a
woman. The State of Nebraska passes a State constitutional
amendment, 70 percent of the people voting for it, saying that
marriage is the union of a man and a woman. Yet a Federal judge
in that case threw out the State constitutional amendment on
novel constitutional grounds, and it is now making its way up
through the system. The Congress has passed the Defense of
Marriage Act, DOMA, passed overwhelmingly, signed into law by
President Clinton, basically did two things. First establishes
for purposes of Federal law marriage would be defined as the
union of a man and a woman, and second, it would provide that
no State would be forced to recognize a marriage entered into
in another State. A number of legal scholars believe that this
second part violates the Full Faith and Credit Clause of the
Constitution.
Judge Alito, this case is coming forward, and will probably
be resolved in the Federal courts if it is not resolved by the
Congress through constitutional amendment. What is your
understanding of the meaning of the Full Faith and Credit
Clause, and does this apply to the institution of marriage
which has been traditionally an issue and an area left up to
the States?
Judge Alito. Well, several constitutional doctrines seem to
be implicated by the matters that you discussed. The Full Faith
and Credit Clause in general means that one State must honor
judgments that are issued by a court of another State, and it's
an important part of the process. It is an important part of
the Federal system, so that we don't have worrying decisions in
different States. It is not my--I have not had cases involving
this, but there are--the doctrine has a certain, has certain
boundaries to it. There are exceptions, and it covers certain
areas and doesn't cover other areas, and a challenge to the
Defense of Marriage Act under the Full Faith and Credit Clause
would call into question the precise scope of the doctrine.
And I believe that scholars have expressed differing views
about how it would apply in that situation, and that's an issue
that may well come up within the Federal courts, almost certain
to do so.
Senator Brownback. Yes. And I know you cannot express on
it. One last thing I would like to get into just very briefly
is the Takings Clause in the Kelo case that was in a
neighboring circuit to yours, Kelo v. City of New London, where
private property was taken by a private--another private
group--private property was taken by a public group and given
to another private group. Judge O'Connor wrote eloquently in
her dissent, ``Nothing is to prevent the State from replacing
any Motel 6 with the Ritz Carlton, or any home with a shopping
mall, or any farm with a factory now.''
I just conclude by putting that in front of you, saying
that this is one that people have relied upon for a long time,
that you could not take private property to another private
individual for public use, and I hope that is one that the
Court will end up reviewing at some point in time.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Brownback.
Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman. Good morning, long
day.
I would like to put a few things into the record if I may.
One is just a list of cases where Judge Alito ruled for the
little guy. There has been a lot made, and here is a list of
nine cases with specifics where he in fact--one of these I
think he mentioned, but not the others. And I would like
unanimous consent to--
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Coburn. Actually, there are 15 cases.
I also want to go back and quote from somebody who was a
member of CAP, and this is a Judge Napolitano. He is a
commentator on one of the news shows. I would like his
statements put into the record from yesterday, where he
clarified what CAP was about, and clarified the interest of
ROTC at Princeton, and the fact that that was one of the
leading reasons that that organization was formed, so I would
like for those to be admitted as well.
As you know, I am not an attorney. Sometimes it is very
disadvantageous on this panel, but at times it is advantageous.
I have this little thing that I have to depend on, and I kind
of read it for what it says. As you talk about stare decisis--
is that mentioned anywhere in here?
Judge Alito. It is not expressly mentioned in the
Constitution.
Senator Coburn. It is actually a procedure of common
English law, correct?
Judge Alito. That's its origin, yes.
Senator Coburn. That is its origin, and we use that as a
tool for working with the Constitution. Can you recall the
number of times that precedents have been reversed by the
Supreme Court?
Judge Alito. I don't know the exact figure, Senator.
Senator Coburn. I think it is around 170 some times,
affecting some 225 cases, I believe. That is close. That may
not be exactly accurate. So, in fact, it is a tool used to help
us with the law, but our Founders did not say you have to use
stare decisis in this, did they?
Judge Alito. No, they didn't. They conferred the judicial
power on the judiciary, and I think that contemplated that the
Federal judiciary would be permitted to proceed with--in
accordance with fundamental judicial procedures as they had
been known--
Senator Coburn. At the time.
Judge Alito. At the time.
Senator Coburn. And Article III, section 2 really
delineates the scope for the courts in this country, and what
it says is, ``All cases in law and equity arising under this
Constitution, the laws of the United States and treaties made,
or which shall be made under their authority.'' So that really
gives us the scope under Article III, section 2. I was
interested when Senator Kyl asked you yesterday about foreign
law. That is something extremely disturbing to a lot of
Americans, that many on the Supreme Court today will reference
or pick and choose the foreign law that they want to use to
help them make a decision to interpret our Constitution, where
in fact, the oath of office mentions no foreign law. Matter of
fact it says the obligation is to use the United States law,
the Constitution and the treaties, and that is exactly what
Article III, section 2 says. So there is no reference at all to
foreign law in terms of your obligations or your
responsibility, and matter of fact, the absence of it would say
that maybe this ought to be what we use, and the codified law
of the Congress and the treaties rather than foreign law.
The question I have for you--and I could not get Judge
Roberts to answer it because of the conflict that might occur
afterwards, but I have the feeling that the vast majority of
Americans do not think it is proper for the Supreme Court to
use foreign law. I personally believe that that is an
indication of not good behavior by a Justice, whether it be a
Justice at a appellate division, or a magistrate, or a Supreme
Court Justice. I just wondered if you had any comments on that
comment.
Judge Alito. Well, I don't think that we should look to
foreign law to interpret our own Constitution. I agree with you
that the laws of the United States consist of the Constitution
and treaties and laws, and I would add regulations that are
promulgated in accordance with law. And I don't think that it's
appropriate or useful to look to foreign law in interpreting
the provisions of our Constitution. I think the Framers would
be stunned by the idea that the Bill of Rights is to be
interpreted by taking a poll of the countries of the world. The
purpose of the Bill of Rights was to give Americans rights that
were recognized practically nowhere else in the world at the
time. The Framers did not want Americans to have the rights of
people in France or the rights of people in Russia, or any of
the other countries on the continent of Europe at the time.
They wanted them to have the rights of Americans, and I think
we should interpret our Constitution--we should interpret our
Constitution. I don't think it's appropriate to look to foreign
law.
I also don't think that it's--I think that it presents a
host of practical problems that have been pointed out. You have
to decide which countries you are going to survey, and then it
is often difficult to understand exactly what you are to make
of foreign court decisions. All countries don't set up their
court systems the same way. Foreign courts may have greater
authority than the courts of the United States. They may be
given a policymaking role, and therefore, it would be more
appropriate for them to weigh in on policy issues. When our
Constitution was being debated, there was a serious proposal to
have members of the judiciary sit on a council of revision,
where they would have a policymaking role before legislation
was passed, and other countries can set up their judiciary in
that way. So you'd have to understand the jurisdiction and the
authority of the foreign courts.
And then sometimes it's misleading to look to just one
narrow provision of foreign law without considering the larger
body of law in which it's located. That can be--if you focus
too narrowly on that, you may distort the big picture, so for
those reasons, I just don't think that's a useful thing to do.
Senator Coburn. It actually undermines democracy because
you get a pick and choose, and the people of this country do
not get a pick and choose that law, as people from a different
country. So it actually is a violation of the Constitution, and
to me, I very strongly and adamantly feel that it violates the
good behavior, which is mentioned as part of the qualifications
and the maintenance of that position.
I am sorry Senator Durbin left. I wanted to razz him a
little bit. You have taken quite a bit of criticism on what
things that you have written and said in 1985, but I want to
put forward, for 45 years Senator Durbin was adamantly pro-
life, and he wrote multiple, multiple letters expressing that
up until 1989. He is a very strong advocate for the abortion
stance and a free right to choose, but I think it is important
that the American people--if he has the ability to change his
mind on something, something he wrote in 1989, certainly you
have the ability to say something was ineptly put. This is just
Senator Durbin, I am teasing him a little bit, but I think it
is important that people recognize people can change their
mind. I continue to believe the Supreme Court's decision in Roe
v. Wade should be reversed. There are other Members that are
adamantly pro-abortion, pro the destruction of human life today
that have changed their mind, changed their position. So it is
hard to be critical of you and on something you had written in
1985, when many of us have backtracked on things that we have
said through the years. So I think it puts a little bit of
perspective into where we are going.
I want to spend just a minute, if I can, yesterday during
Senator Feinstein's questioning there was some discussion about
the Health Exception to any regulations pertaining to abortion.
And on January 22nd, when Roe was decided, the Court also
decided Doe v. Bolton, and in that case the Court ruled that a
woman's right to abortion cannot be limited by the State if
abortion was sought for reasons of maternal health. As a
practicing physician, I agree with that. I have actually
performed abortions on women who were going to die if they did
not have an abortion, so the choice was somebody alive versus
losing both.
The Court defined health as all factors, physical,
emotional, psychological, familial, and a woman's age relevant
to the well-being of the patient. This exception effectively
expanded the right to abortion for any reason through all the
entire pregnancy. Since that time, States have been trying to
find ways to effectively regulate abortion without intruding on
this health exception, but it has proven nearly impossible. The
absence of knowledge is something that Roe v. Wade, which I
believe was wrongly decided, has hurt us immensely in this
country, and the absence of informed consent on abortion has
hurt us immensely.
Mr. Chairman, I would like to enter into the record a study
published, a 35-year longitudinal study, which was just
released this January from New Zealand, that followed women,
600 women for 35 years from the time of the abortion, that
studied the ill health effects of--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Coburn. I would also like to enter into the record
a Breast Cancer Institute study and analysis of a Lancet 3/25/
04 article, and also the testimony of Dr. Elizabeth Shadigian,
University of Michigan, Clinical Associate Professor,
Department of Obstetrics and Gynecology, as to the
complications.
Chairman Specter. All of those documents, without
objection, will be made a part of the record.
Senator Coburn. It is amazing what we do not know, and as I
explained in my opening statement, once we go down a path, the
complications associated--the rulings that you make have major
impact. I understand the questions that you cannot answer on
things that are going to come before us, and I cannot pretend
to know what is in your heart about those issues. But what I do
know is you were pretty aggressively approached on positions in
terms of Justice O'Connor and Executive power. There seemed to
be a blinding contradiction during some of your questions that
were presented by my colleagues yesterday that raised concerns
that you are too close to the Executive and too supportive of
Executive power. They wanted to be sure that you respect the
role of the judiciary and are free from the influences of the
political branches. However, they then argue that you should
have the same ideology of Justice O'Connor to maintain the
balance on the Court. I have trouble figuring out how they can
have it both ways. That is an inherently political desire.
Is there anything in the Constitution, this little
document, that says what the ideology ought to be of one
Supreme Court Justice replacing another one?
Judge Alito. The Supreme Court simply gives the President
the authority to nominate Justices of the Supreme Court and
other Federal judges, and gives Congress the advice and consent
responsibility, and doesn't go further than that.
Senator Coburn. And the President, by being elected, the
only person in this country who is elected by the whole
country, is given that honor and that privilege as well as that
responsibility, and then we have the responsibility to advise
and consent to that; is that correct?
Judge Alito. That's correct.
Senator Coburn. But nowhere in the Constitution, nor by
precedent--matter of fact, the precedents are just exactly the
opposite of that--is it stated that somebody has to have the
same philosophy as somebody that is coming off the Court.
Judge Alito. I think that every Supreme Court Justice is an
individual, and I think every nominee is an individual, and no
nominee can ever be a duplicate of someone who retires, and
particularly when someone retires after such a distinguished
career and such a historic career as Justice O'Connor. Nobody
can be expected as a nominee to fit that mold.
Senator Coburn. So the fact that you have to fit the Sandra
Day O'Connor mold is really a misapplication of--there is no
precedent that would say that.
Judge Alito. The only--if I'm confirmed, I'll be myself.
I'll be the same person that I was on the Court of Appeals.
That's the only thing that I can say in answer to that.
Senator Coburn. Let me repeat some facts that one of my
colleagues mentioned yesterday. Of the 109 Justices to sit on
the Supreme Court, nearly half have replaced Justices appointed
by another political party. President Clinton replaced Justice
White, who dissented on Roe v. Wade, with Justice Ginsburg, who
argued for a right to abortion. Justice Ginsburg was, I think,
three votes against her in the Senate when she was approached,
and she took it completely opposite, but she was well
qualified. She had integrity, and she was voted onto the Court
even though many people knew that her philosophy was very
different from theirs; is that true?
Judge Alito. She was--the vote was 90 something to a small
number. I know that, yes.
Senator Coburn. A lot of times in these hearings, you do
not get a chance to say, why would you want to be a Justice of
the Supreme Court of the United States? Why would you want that
responsibility? Why do you want to go through this process to
be able to achieve that position? Can you tell the American
people why?
Judge Alito. I think it's a chance to make a contribution.
I think it's a chance to use whatever talent I have in the most
productive way that I can think of. There are a lot of things
that I can't do and a lot of things that I couldn't do very
well if I was given the assignment of doing them, but I've
spent most of my career as an appellate attorney. Well, I spent
most of my career before becoming a judge as an appellate
attorney and now I've spent 15 years as an appellate judge and
I think this is what I do best. I think this gives me an
opportunity to make a contribution to the country and to the
society, because the Supreme Court has a very important role to
play and it's important that it do the things that it's
supposed to do well and I would do my very best to further
that.
And it is also important for the Supreme Court, and for
that matter, all of the Federal courts, to exercise restraint.
As you were referring to earlier, that has turned out to be the
principal check on the way the judiciary does its work on a
day-to-day basis. The judiciary is not checked in its day-to-
day work in the same way as the Congress and the President. The
Congress can pass a law or pass a bill and the President can
veto it. One House can pass a bill, the other House may not go
along. The President has to propose legislation to Congress if
the President wants legislation. Congress can pass laws that
the President doesn't like. There are checks and balances that
are worked out in the ordinary processes of government.
But when it comes to the judiciary in deciding
constitutional cases, the judiciary is checked on a daily basis
primarily by its own discipline, its own self-restraint. And so
it's important for--the judiciary has these twin
responsibilities that are in intention at times, doing what it
is supposed to do and doing those things well and vigorously
and courageously, if it comes to that, but at the same time,
constantly monitoring its own activities and asking, are we
doing what we are supposed to be doing as judges? Are we
functioning as judges, or are we stepping over the line? Are we
turning ourselves into legislators? Are we turning ourselves
into members of the executive branch or administrators? And the
judiciary has to maintain its independence. That's of critical
importance, and that's an important part of the role and that
also has to be informed by this sense of self-restraint.
Senator Coburn. Thank you. During Judge Roberts's hearing,
Senator Feinstein tried to get him to talk and speak out of his
heart and I thought it was a great question so that the
American people can see your heart. This booklet is designed to
protect the weak, to give equality to those who might not be
able to do it themselves, to protect the frail, to make sure
that there is equal justice under the law. You know, I think at
times during these hearings you have been unfairly criticized
or characterized as that you don't care about the less
fortunate. You don't care about the little guy. You don't care
about the weak or the innocent. Can you comment just about Sam
Alito and what he cares about and let us see a little bit of
your heart and what is important to you and why?
Judge Alito. Senator, I tried to--in my opening statement,
I tried to provide a little picture of who I am as a human
being and how my background and my experiences have shaped me
and brought me to this point. I don't come from an affluent
background or a privileged background. My parents were both
quite poor when they were growing up. I know about their
experiences, and I didn't experience those things. I don't take
credit for anything that they did or anything that they
overcame, but I think that children learn a lot from their
parents and they learn from what the parents say, but I think
they learn a lot more from what the parents do and from what
they take from the stories of their parents' lives.
And that's why I went into that in my opening statement,
because when a case comes before me involving, let's say,
someone who is an immigrant, and we get an awful lot of
immigration cases and naturalization cases, I can't help but
think of my own ancestors because it wasn't that long ago when
they were in that position. And so it's my job to apply the
law. It's not my job to change the law or to bend the law to
achieve any results, but I have to, when I look at those cases,
I have to say to myself, and I do say to myself, this could be
your grandfather. This could be your grandmother. They were not
citizens at one time and they were people who came to this
country.
When I have cases involving children, I can't help but
think of my own children and think about my children being
treated in the way the children may be treated in the case
that's before me. And that goes down the line. When I get a
case about discrimination, I have to think about people in my
own family who suffered discrimination because of their ethnic
background or because of religion or because of gender, and I
do take that into account. When I have a case involving someone
who's been subjected to discrimination because of disability, I
have to think of people who I've known and admired very greatly
who had disabilities and I've watched them struggle to overcome
the barriers that society puts up, often just because it
doesn't think of what it's doing, the barriers that it puts up
to them.
So those are some of the experiences that have shaped me as
a person.
Senator Coburn. Thank you. Mr. Chairman, I think I will
yield back the balance of my time at this time and if I have
additional questions, I will get them in the next round.
Chairman Specter. Thank you very much, Senator Coburn.
We will now proceed to the second round of questioning,
with each Senator having 20 minutes, and we will take 20
minutes more and then we will take a break.
Is it appropriate for the Court to declare Acts of Congress
unconstitutional because of our, quote, ``method of
reasoning''? Does the Court have some superior insights on a
method of reasoning? Is it appropriate for the Court to declare
Acts of Congress unconstitutional, functioning as a taskmaster
to make sure that Congress does its homework? There have been a
series of decisions which have seriously undercut congressional
power where, in my opinion, the Court has usurped the authority
of Congress, and this moves into the often-criticized range of
congressional legislation--judicial legislation and derogation
of the congressional power.
We are seeking, Judge Alito, to have an appropriate
equilibrium in our system and the beauty of the American system
is that no one has too much power. We call it separation of
power. Although not specifically mentioned in the Constitution,
we call it checks and balances. We have looked into the issue
of tremendous importance. Regrettably, we haven't plumbed it,
only scratched the surface, but our time is limited on the
authority of the President under War Powers Article II
contrasted with Congress's authority to legislate for privacy
under the Foreign Intelligence Surveillance Act, and I want to
move into two other analogous areas, Congress versus the Court
and the Court versus Congress, as Congress has taken away the
jurisdiction of the Court, notably very recently by stripping
habeas corpus jurisdiction on detainees.
When the Congress legislated to protect women against
violence, the Congress did so with a very expansive record. It
wasn't like Lopez, which was a revolution where the Court upset
60 years of congressional power under the Commerce Act, but in
the case of U.S. v. Morrison involving the legislation to
protect women against violence, there was a record which
included gender bias from task forces in 21 States, five
separate reports. Notwithstanding a, quote, ``mountain of
evidence,'' as noted by four dissenters, the Court declared the
Act unconstitutional because of our method of reasoning.
Now, you are a judge. You may be a Supreme Court Justice.
Is there something we are missing? Do you judges have some
method of reasoning which is superior to the method of
reasoning of the Congress?
Judge Alito. I think the branches of government are equal
and everybody, all the officers in all the branches of
government take an oath to the same Constitution--
Chairman Specter. Equality on method of reasoning?
Judge Alito. I would never suggest that judges have
superior reasoning power than does Congress. I think what the
Court was getting at when it made that statement in Morrison,
and yesterday, I looked at something that I had written and
said that was not well phrased, I think that what the Court was
getting at there in Morrison was that it was applying a certain
standard, a certain legal standard as to whether something
substantially affected commerce, and I think that is what they
were getting at, but--
Chairman Specter. It is hard to figure out what they were
getting at. We do know what they said. They said our method of
reasoning was defective. But I take it from your statement you
wouldn't subscribe to overturning congressional Acts because of
our method of reasoning?
Judge Alito. I think that Congress's ability to reason is
fully equal to that of the judiciary and I think Congress--
Chairman Specter. And you think that even after appearing
here for a day and a half?
[Laughter.]
Judge Alito. I have always thought that and nothing has
changed my mind about that.
Senator Hatch. I am starting to worry about you.
[Laughter.]
Chairman Specter. That is on Senator Hatch's time.
[Laughter.]
Chairman Specter. Let me take up the Americans with
Disabilities Act on two decisions within a couple of years of
each other, one where the Supreme Court declared
unconstitutional the Americans with Disabilities Act because it
applied to employment, upholding the Act as it applied to
access to facilities. Justice Scalia had a ringing dissent when
the Court imposed the standard of congruence and
proportionality, a very difficult standard which you wrestled
with in the family leave case.
The congruent and proportional standard came to the Court
in the Boerne case in 1997, so it is very recent origin and it
has all the earmarks of having been pulled out of the thin air.
Justice Scalia said that it was a thinly veiled invitation to
judicial arbitrariness and policy-driven decisionmaking.
Justice Scalia criticized the majority opinion for functioning
as a taskmaster to see to it that Congress had done its
homework. Here again, there was a voluminous record, 13
congressional hearings. Thirty-thousand people were surveyed.
Do you think, Judge Alito, that a test like congruence and
proportionality is fair notice to the Congress on what we can
do by way of legislation? Here, we are dealing--and it is maybe
worth just a little explanation. When Congress legislates on
constitutional issues under Article V of the 14th Amendment,
the Court then makes a comparison to State immunity under the
11th Amendment. But do you think that is a fair test as to what
we are to try to figure out what the Supreme Court is later
going to say is congruent and proportionate?
Judge Alito. Well, like many tests in the law, it is not a
mathematical or a scientific formula that can produce a
particular result with certainty as it is applied to particular
situations. It addresses--
Chairman Specter. How about just fair notice? Never mind
mathematical certainty.
Judge Alito. It addresses a difficult problem the Court has
grappled with over the years and that is the scope of
Congress's authority under Section V of the 15th Amendment--of
the 14th Amendment to pass legislation enforcing the provisions
of the 14th Amendment, and one argument that has been made
which would represent a very narrow interpretation of
congressional power, and this is basically the argument that
Justice Scalia--the position that Justice Scalia took in the
dissent that you mentioned, is that Congress' authority doesn't
extend any further than remedying actual violations of the 14th
Amendment, that there is no--Congress doesn't have additional
authority to enact prophylactic measures outside of the area of
race, which Justice Scalia would treat differently and
recognize broader authority because of the historical origin of
the 14th Amendment.
Chairman Specter. Judge Alito, what is wrong with the test
of Maryland v. Wirtz and Gonzales v. Raich, because you take a
look at power under the Commerce Clause and to be applicable to
our legislation under the Americans with Disabilities Act? That
test is where the Court has gone into some length to say what
you have gone into repeatedly, that judges have no expertise.
It is up to the Congress to have hearings. It is up to the
Congress to find facts. It is up to the Congress to find out
what goes on in the real world.
In Wirtz in 1968 and reaffirmed recently in Gonzales v.
Raich after Morrison, after Lopez, quote, ``where we find the
legislators have a rational basis for finding a chosen
regulatory scheme necessary for the protection of commerce,''
could apply as well to disability, ``our investigation is at an
end.'' What is wrong with that? Would you subscribe to that
test over the proportionate and congruence test?
Judge Alito. There are a number of tests that have been
used and proposed over the years in this area and this is the
subject, I think, of continuing litigation in the Supreme
Court. There is the Maryland v. Wirtz approach and then the
City of Boerne approach, and you mentioned that the City of
Boerne is a relatively recent decision and it's been followed
by a number of subsequent decisions--
Chairman Specter. Where did it come from? Where did the
Boerne test on proportionate and congruence come from if not
thin air?
Judge Alito. Well, I think it was an effort by the majority
in that case to identify a standard that would not strictly
limit congressional power to remedying established violations
of the 14th Amendment without going--while still, in their
view, retaining the necessary remedial connection to Section V
of the 14th Amendment. It is an approach that they have used in
a number of cases and the cases have not come out--sometimes
the results in the cases have not been predictable.
You mentioned the contrast between the two decisions under
the Americans with Disabilities Act. I think Nevada v. Hibbs
was a decision that some people--that surprised some people
based on the Court's prior precedents. So there is, I think,
still some ferment in this area and I am sure it is a question
that's going to be--that will come up in future cases.
Chairman Specter. Well, we are speaking not only to you,
Judge Alito, but to the Court. The Court watches these
proceedings and I think they ought to know what the Congress
thinks about making us schoolchildren per challenging our
method of reasoning. We are considering legislation which would
give Congress standing to go into the Supreme Court to uphold
our cases. Right now, the Solicitor General does that, but he
is in the executive branch. We don't want to derogate the
Solicitor General in your presence, Judge Alito, but the
thinking that we have had was to speak about the decisions, the
Court's decisions on the floor in the Senate, nobody pays
attention to that. Maybe we would try to come in as amicus. Why
do that? We have the power to grant standing. We can grant
standing to ourselves and come into Court and fight to uphold
constitutionality.
Let me move at this point to the recent legislation which
takes away the jurisdiction of the Federal bench to hear habeas
corpus decisions. It is in the context of the detainees.
Justice O'Connor in Hamdi laid out the law in flat terms.
All agree that absent suspension, the Writ of Habeas Corpus
remains available to every individual detained within the
United States, every individual, not just citizens. And then
she spells out the way you suspend the writ, and you do it only
by rebellion or invasion. Then this recent legislation says the
District Columbia Court of Appeals shall have the exclusive
jurisdiction to determine the validity of any final decision by
the Combatant Status Review Tribunal. If it means what it says,
and judges like to look to the statute as opposed to going to
congressional intent, if it means what it says, that there is
exclusive jurisdiction, there is no jurisdiction of the Supreme
Court.
This may come before the Court, but what factors would you
consider to be relevant in making the analysis as to again
maintaining equilibrium between the Court and the Congress of
our authority to take away Federal court jurisdiction on this
important item?
Judge Alito. In the area of habeas corpus, there are a
number of important principles that have to be considered in
reviewing any legislation that is argued to--that someone
contends has altered habeas jurisdiction. The first is that the
Court said in a case called INS v. Cyr that if there is an
attempt to--that habeas jurisdiction can't be taken away unless
it's clear in the statute that that's what was intended. Habeas
jurisdiction is not to be repealed by implication. That's one
important principle.
And then in Felker v. Turpin, which involved the Anti-
Terrorism and Effective Death Penalty Act of 1996, Congress--
I'm sorry, the Supreme Court considered arguments about whether
provisions of that legislation which restructured Federal
habeas review violated the Constitution and they found that
there wasn't a violation because the essentials of the writ
were preserved. And so if other legislation is challenged, it
would have to be reviewed under standards like that.
Chairman Specter. Judge Alito, I want to move now to a
subject on efforts to have television in the Supreme Court of
the United States, a subject very near and dear to my heart. I
have been pushing it for a long time. I am personally convinced
that it is going to come some day. I am not sure whether it
will come during my tenure in the Senate, more likely to come
during the tenure of Chief Justice Roberts in the Supreme
Court, or your tenure, if confirmed.
The Supreme Court said in the Richmond Television case
that, quote, ``the rights of a public trial belong not just to
the accused, but to the public and the press, as well. Such
openness has long been recognized as an indispensable attribute
in the Anglo-Saxon trial.'' There are many other lines of
authority, but only a few moments left to set the stage here,
but the Supreme Court has the final word.
We can talk about the President's war power under Article
II and the congressional authority under the Foreign
Intelligence Surveillance Act, but the Court makes the
decision. We can talk about taking away habeas corpus
jurisdiction, but the Court decides whether we can do it or
not. We can talk about the insult of declaring Acts of Congress
unconstitutional because of our method of reasoning, but the
Court can do that. And the Court has made these decisions on
all the important subjects. The Court decided who would be
President of the United States in Bush v. Gore. The Court
decides who lives on a woman's right to choose, who dies on the
right to die, on the death penalty, on every critical decision.
The Congress has the authority to do many things on the
administrative level, such as we set the starting date for the
Court, the first Monday in October. We set what is a quorum for
the Court, six members. Congress sets the size of the Court,
the effort made by President Roosevelt to increase the number
from nine to 15. We put provisions in on speedy trial, time
limits on habeas corpus matters.
In recent times, some of those who have objected to
televising the Court have been on television quite a bit
themselves. When Justice Scalia and Justice Breyer come on TV,
it is a pretty good show. There is not much surfing when that
happens, like surfing when my turn comes to question.
[Laughter.]
Chairman Specter. But this proceeding on confirmation of
Supreme Court Justices has attracted a lot of attention. As I
said to you yesterday, I am tired of picking up the front page
everywhere and seeing your picture on it. Fred Hume was on Fox
News talking about going to a Redskins game in 1991 when
Justice Thomas was being confirmed and how he had his earsets
on to listen to the proceedings. I think Senator Leahy was
questioning Professor Hill at that particular time.
But how about it? Why shouldn't the Supreme Court be open
to the public with television?
Judge Alito. Well, I had the opportunity to deal with this
issue actually in relation to my own court a number of years
ago. All the courts of appeals were given the authority to
allow their oral arguments to be televised if they wanted and
we had a debate within our court about whether we would, or
whether we should allow television cameras in our courtroom and
I argued that we should do it. I thought that it would be a
useful--
Chairman Specter. You have taken a position on this issue?
Judge Alito. Well, I did, and this is one of the matters on
which I ended up in dissent in my court.
[Laughter.]
Judge Alito. I think the majority was fearful that our
Nielsen numbers would be in the negatives.
Chairman Specter. Could you promise the same result?
[Laughter.]
Chairman Specter. Could you promise the same result, if
confirmed, to be a dissenter for the Court to allow TV?
Senator Grassley. Be careful how you answer.
Chairman Specter. Be careful how you answer everything, as
you have been.
Judge Alito. The issue is a little bit different on the
Supreme Court and it would be presumptuous for me to talk about
it right now, particularly since I think at least one of the
Justices has said that a television camera would make its way
into the Supreme Court courtroom over his dead body, so I
wouldn't want to comment on it.
Chairman Specter. Justice Souter. But quite a few of his
colleagues have been on television.
Let me ask you this, Judge Alito. I know what the answer
will be, with 7 seconds left. Will you keep an open mind?
Judge Alito. I will keep an open mind despite the position
I took on the Third Circuit.
[Laughter.]
Chairman Specter. Thank you, Judge Alito.
We will now take a 15-minute break and we will reconvene at
11:35.
[Recess 11:18 a.m. to 11:35 a.m.]
Chairman Specter. The hearing will resume. Turning to the
distinguished ranking member, Senator Leahy, for 20 minutes.
Senator Leahy. Thank you, Mr. Chairman.
Judge Alito, welcome back. If the past is any prologue, you
probably do not have more than another day or so of this to go
through. I am concerned. I want to just state this right out,
concerned that you may be retreating from part of your record.
I think that some of the answers that--I have expressed this
concern, mentioned to the Chairman I am concerned that some of
your answers were inconsistent with past statements. All of us
want to know your legal and constitutional philosophy.
So let's go back to the questions that I was asking
yesterday about checking Presidential power, and we spoke about
Justice Jackson's opinion in Youngstown. Justice Jackson, as
you know, is a hero of mine, and I point often to the
Youngstown case. But when Congress acts to strain the
President's power, as we did with the anti-torture statutes and
the Foreign Intelligence Surveillance Act, I believe the
President's power then is at its lowest ebb. You seemed to be
saying yesterday that fell into the second category of Jackson,
the twilight zone. Actually, I believe you were mistaken on
that. Justice Jackson spoke of the twilight zone area, or as he
said, zone of twilight, where Congress had not acted.
So let us go to the landmark decision in Hamdi, and Justice
O'Connor's decision. The issue there was whether due process
required that a U.S. citizen, should have a meaningful chance
to challenge the factual basis for his detention by the
Government.
Now, Justice O'Connor wrote that the President does not
have a blank check even in time of war. Yesterday you told
Senator Specter that you agreed with Justice O'Connor's general
statement. A very different view was in the dissent. Justice
Thomas would have upheld the extreme claims with the all
powerful and essentially unchecked President. He argued the
Government's powers could not be balanced away by the Court,
and there is no occasion to balance a competing interest. Which
one is right, Justice O'Connor or Justice Thomas? They are
quite a bit different.
Judge Alito. Justice O'Connor wrote the opinion of the
Court. The first question that she addressed in Hamdi was
whether it was lawful to detain Hamdi, and it was a statutory
question, and it was a question whether--it was whether he was
being detained in violation of what is often referred to as the
anti-detention statute, which was passed to prevent a
repetition of the Japanese internment that occurred during
World War II, and she concluded that the authorization for the
use of military force constituted authorization for detention.
And then she went on to the issue of the constitutional
procedures that would have to be followed before someone could
be detained, and she looked to standard procedural due process
law in this area, and identified some of the requirements that
would have to be followed before someone could be detained.
And now issues have arisen about the identity of the
tribunal that is to make a determination about detaining people
who are taken into custody during the war on terrorism, and
that's one of the issues that's working its way through the
court system.
Senator Leahy. No, I am not talking about things working
their way through, but just on Hamdi, which has already been
decided. Would you say that Justice O'Connor basically applied
the Jackson test, not the twilight zone test, but the test of
where the President's power is at its lowest ebb?
Judge Alito. In addressing the statutory question I don't
think she had any need to get into Justice Jackson's framework
as well.
Senator Leahy. Would you say it would be consistent with
what Justice Jackson said?
Judge Alito. I think it certainly is consistent with what
Justice Jackson said.
Senator Leahy. Which decision do you personally agree with,
hers or the dissent by Justice Thomas?
Judge Alito. I think that the war powers are divided
between the executive branch and Congress. I think that's a
starting point to look at in this area. The President is the
Commander in Chief, and he has authority in the area of foreign
affairs, and is recognized in Supreme Court decisions as the
sole organ of the country in conducting foreign affairs.
Senator Leahy. But you are not going to say which of the
two decisions you agree with.
Judge Alito. Well, I'm trying to explain my understanding
of the division of authority in this area, and I think that
it's divided between the executive and the Congress. I
certainly don't think that the President has a blank check in
time of war. He does have the responsibility as the Commander
in Chief, which is an awesome responsibility.
Senator Leahy. And we all understand that and appreciate
that. I understood, listening to Chief Justice Roberts, when he
was here sitting where you are, that he felt that Justice
O'Connor's decision most clearly tracked the Jackson standards
in Youngstown.
But I want to get more into this unitary Executive theory
because I really had questions listening to you yesterday. You
have said as recently as five years ago, that you believe the
unitary Executive theory best captures the constitutional role
of Presidential power. You were a sitting judge when you said
that. And do you still adhere to that constitutional view that
you were expressing 5 years ago?
Judge Alito. I think that the considerations that inform
the theory of the unitary Executive are still important in
determining, in deciding separation of powers issues that arise
in this area. Of course, when questions come up involving the
power of removal, which was the particular power that I was
talking about in the talk that you're referring to, those are
now governed by a line of precedents from Myers going through
Humphrey's Executor and Wiener and Morrison, where the Court
held 8-1 that the removal restrictions that were placed on an
independent counsel under the Independent Counsel Act did not
violate separation of powers principles. So those would be
applied. Those would be the governing precedents on the
question of removal, but my point in the talk was that the
considerations that underlie this theory are relevant, should
inform decisionmaking in the area going beyond the narrow
question of removal.
Senator Leahy. But in the past you criticized Morrison. Are
you saying now that you are comfortable with Morrison, that you
accept it?
Judge Alito. Morrison is a settled--is a precedent of the
Court. It was an 8-1 decision. It's entitled to respect under
stare decisis. It concerns the Independent Counsel Act, which
no longer is in force.
Senator Leahy. So do you hold today that the Independent
Counsel statute was beyond the congressional authority to
authorize--to enact?
Judge Alito. No. I don't think that was ever my position.
Senator Leahy. All right. Under the theory of unitary
Executive that you have espoused, what weight and relevance
should the Supreme Court give to a Presidential signing
statement? I ask that because these are real issues. I mean we
passed the McCain-Warner, et al. statute against torture, when
the President did a separate signing statement. After he signed
it into law, he did not veto it. He had the right and, of
course, the ability to veto it. He did not veto it. He signed
it into law, and then he wrote a sidebar, a signing statement
basically saying that it will not apply to him or those acting
under his order if he does not want it to.
Under the unitary Executive theory, one could argue that he
has an absolute right to ignore a law that Congress has
written. What kind of weight do you think should be given to
signing statements?
Judge Alito. I don't see any connection between the concept
of a unitary Executive and the weight that should be given to
signing statements in interpreting statutes. I view those as
entirely separate questions. The question of the unitary
Executive, as I was explaining yesterday, does not concern the
scope of Executive powers. It concerns who controls whatever
power the Executive has. You could have an Executive with very
narrow powers and still have a unitary Executive. So those are
entirely different questions.
The scope of Executive power gets into the question of
inherent Executive power.
Senator Leahy. Let's go into that a little bit because back
in the days when I was a prosecutor, I mean I was very shocked
what happened in the Saturday Night Massacre. A President
orders certain things to be done. The Attorney General says,
no, I won't do it. Fires him. The Deputy Attorney General,
said, ``OK, you do it,'' and Deputy Attorney General would not,
saying it violated the law. Fires him. They keep on going down
to finally find one person, a person you have praised, Robert
Bork, who says, ``Fine, I'll fire him. I'll do what the
President says.''
You have criticized Congress for allowing these independent
agencies to refine and apply policies passed by Congress. You
said that insofar as the President is the Chief Executive, he
should follow their policies, not Congress.
So let's take one, for example, the Federal Election
Commission, independent agency. They make policies. Suppose the
President, whoever was the President, did not like the fact
they were investigating somebody who had contributed to him.
Could he order them to stop that investigation?
Judge Alito. Senator, I don't think I have ever said that--
I don't think I've ever challenged the constitutionality of
independent agencies. My understanding--
Senator Leahy. No, but you have said--my understanding is
that you chastised Congress for giving so much power to them
when the power should be in the President or in the Executive.
Judge Alito. Senator, I don't think I've ever said that
either. I said that I thought that there was merit to the
theory of the unitary Executive, and I tried to explain how I
thought that should play out in the post-Morrison world,
accepting Morrison as the Supreme Court's latest decision in a
resounding 8-1 decision on the issue of removal. How should the
issue of--how should the concept of the unitary Executive play
out in the post-Morrison world?
On the issue of removal, my understanding of where the law
stands now is that Myers established that there are certain
officers of the executive branch whom the President has the
authority to remove as he sees fit. There are--and there are
those--
Senator Leahy. Of course, he could fire his whole cabinet
today if he wanted to. We all accept that.
Judge Alito. Well, that was the issue that was presented by
the Tenure in Office Act that led to the impeachment of the
first President Johnson, and in Myers, Chief Justice Taft,
although the Act of that controversy was long past, Chief
Justice Taft opined that the Tenure in Office Act had been
unconstitutional.
Senator Leahy. But let us not go off the subject of these
independent agencies that we have set up. Use as an example the
FEC, the Federal Election Commission. Could the President, if
he did not like somebody they were investigating, a contributor
or something, could he order them to stop?
Judge Alito. What Morrison says is that Congress can place
restrictions on the removal of inferior officers, provided that
those removal restrictions don't interfere with the President's
exercise of Executive authority. So they adopted a functional
approach, and that was the Court's latest word on this
question. They looked back to Humphrey's Executor, and Wiener,
which had talked about categories, and they--categories of
quasi-judicial and quasi-legislative officers, and they
reformulated this as a functional approach, and that's the
approach that would now be applied.
Senator Leahy. Do you believe the President has the power
to curtail investigations, for example, by the Department of
Justice?
Judge Alito. I don't think--
Senator Leahy. The Department of Justice is under him.
Judge Alito. I don't think the President is above the law,
and the President is the head of the executive branch, and I've
explained my understanding of the removal restrictions that can
and cannot be placed on officers of the executive branch.
Senator Leahy. But could he order them to stop an
investigation?
Judge Alito. Well, you'd have to look at the facts of the
case and the particular officer that we're talking about.
Senator Leahy. Could he order the FBI to conduct
surveillance in a way not authorized by statute?
Judge Alito. The President is subject to constitutional
restrictions, and he cannot lawfully direct the FBI or anybody
in the Justice Department or anybody else in the executive
branch to do anything that violates the Constitution.
Senator Leahy. Could he--I am speaking now of statute--
could he order our intelligence agencies to do something that
was specifically prohibited by statute?
Judge Alito. My answer to that is the same thing. He has to
follow the Constitution and the laws of the United States. He
has to take care that the laws are faithfully executed. If a
statute is unconstitutional, then the President--then the
Constitution would trump the statute. But if a statute is not
unconstitutional then the statute is binding on the President
and everyone else.
Senator Leahy. Does the President have unlimited power just
to declare a statute, especially if it is a statute that he had
signed into law, to then declare it unconstitutional or say he
is not going to follow it?
Judge Alito. 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. It's
emphatically the duty of the courts to say what the law is when
constitutional questions are raised in cases that come before
the courts.
Senator Leahy. That is an answer I agree with. Thank you.
In other areas, SEC, can he order them to stop an investigation
if it is somebody he does not want investigated?
Judge Alito. Well, the independent agencies are governed by
Humphrey's Executor and cases that follow that, and there have
been restrictions placed on the removal of commissioners of the
independent agencies, and they have been sustained by the
Supreme Court. That's where the Supreme Court precedent on the
issue stands.
Senator Leahy. Is that settled law?
Judge Alito. It is a line of precedent that culminated, I
would say--there have been a few additional cases relating to
this, the Edmond case and the Freitag case, but I would look to
Morrison, which was an 8-1 decision involving a subject of
considerable public controversy, the removal of an independent
counsel, removal of restrictions on that independent counsel.
Senator Leahy. I am still having some difficulty with
statements you have made about the unitary Executive and how
you would apply it. You said yesterday, in answer to a question
I asked, that when people's rights are violated, they should
have their day in court. The courts are there to protect the
rights of individuals. I do not think anybody in this room
would disagree with that. It is the practice we look at in PIRG
v. Magnesium Electron. You concluded the Congress did not have
the constitutional authority to authorize citizens to bring a
suit against polluters under the Clean Water Act, whether the
people had justiciable claims or not, there were a number of
people downstream from Magnesium Electron. They said the water
had been polluted. They brought a suit. You threw it out. Judge
Lewis dissented, said it should have gone back to the lower
court on the question of facts.
I will give you a two-part question. One, why did you send
that case back to the lower court? And do you accept Laidlaw as
being settled law?
Judge Alito. Well, Magnesium Electron presented the
question of whether we had a case or controversy under Article
III, and that's the fundamental limit on our jurisdiction. The
Supreme Court has said that we do not have a case or
controversy before us if we do not have a party that has
constitutional standing which requires injury in fact. And the
issue was whether the plaintiffs in that case had established
injury in fact. There was a plant that was discharging certain
things into a creek, which eventually emptied into the Delaware
River, and the plaintiffs in the case alleged that they enjoyed
the Delaware River in a variety of ways. They ate fish from the
river. They drank water from the river. They walked along the
river.
But there was no--there was nothing in the evidence--and
Judge Lewis agreed on this. Judge Roth wrote the opinion and I
agreed with Judge Roth, and Judge Lewis agreed with us on this
point, there was nothing in the record.
Senator Leahy. But didn't Judge Lewis agree with you on the
legal point, but he suggested sending it back to the lower
court to determine whether there were facts to give standing? I
mean, we all agree you can't be in a case if you don't have
standing, but didn't Judge Lewis say, send it back to the lower
court so they can determine on the facts whether there might be
standing?
Judge Alito. The evidence that was before us did not show
that there was any standing on the part of the plaintiffs.
There was no evidence of harm to the Delaware River in any way
from the discharges and that was the basis of Judge Roth's
opinion which with I agreed. As I recall, Judge Lewis's point
was that the case should go back to the district court so that
the plaintiffs could have an opportunity to present additional
evidence. But as I recall, they were not even arguing before us
that they had additional evidence. They were not arguing before
us, as I recall, that we have additional evidence and we'd like
the opportunity to go back to the district court to present it.
That's my recollection of the matter.
Senator Leahy. And the other part of my question is
Laidlaw, is it settled law?
Judge Alito. Well, Laidlaw is a precedent on the Supreme
Court and my answer to the question there is the same. It's
entitled to the respect of stare decisis.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. Judge Alito, I just want to clarify a few
matters. In his questioning this morning, Senator Durbin from
Illinois I think apparently misstated what Chief Justice
Roberts said during his confirmation hearing. Senator Durbin
claimed that now the Chief Justice said that Roe was the
settled law of the land. In fact, that exchange that Senator
Durbin referred to was made during the confirmation process for
Judge Roberts to the Circuit Court of Appeals for the District
of Columbia, where he would have to admit that that would be
settled law for him in that court. It is beyond question that
for a circuit court nominee, the Supreme Court's pronouncements
on specific questions are binding precedents and will be the
settled law of the land.
Moreover, contrary to the distinguished Senator from
Illinois's suggestion, then-Judge Roberts's testimony in his
recent confirmation hearing, and Judge, your testimony today
and yesterday, you have both been entirely consistent in this
particular matter. I just wanted to clarify that because there
is a difference between a nominee for the circuit court of
appeals saying that something is settled law that he or she has
to be bound by than by somebody who is a nominee for the
Supreme Court, and that is just a matter of clarification that
I would like to make at this time.
Now, yesterday, you were asked, I think, some 340 questions
by 15 Senators and you are getting a bunch today. I am told
that you felt that you had to decline to answer only about 5
percent of them. That is even lower than previous Supreme Court
nominees, by far in most cases. This hearing has hopefully
provided an opportunity for you to address our concerns and
answer some of the criticisms from members of this Committee.
But, of course, there is always a battle waged outside of this
Committee room by the special interest groups, who are also
making charges and launching really unfair attacks on you. Now,
these attacks typically go directly across the airwaves or the
Internet with hardly a chance to even catch them, let alone
address them or rebut them or correct them. So I want to give
you a chance to respond to some of these attacks by some of
these left-wing groups, many of which are certainly less than
responsible and, in my view, pretty reprehensible in what they
do in these matters.
One group says in a press release that in the Chittister
case and at other times in your career on the bench, you go out
of your way to rule against workers. This group claims what it
calls your views and biases are strong evidence that you would,
in their words, quote, ``rarely rule in favor of those seeking
justice in the courts.'' I think that is a good example of how
misleading some of these groups can actually be, where they are
looking only for results in certain cases rather than upholding
of the law itself in those particular cases. In that particular
case, they are apparently willing to ignore two things about
the cases they discuss. The ignore the facts, they ignore the
law, and that is all, just the facts and the law. But they also
ignore what you have written and they ignore what you have said
here today.
How about that criticism, Judge? In Chittister, did you go
out of your way to rule against workers? What were the facts
and the law in the case and why did you think that they
required the result that you finally upheld in that case?
Judge Alito. I felt the result was dictated by Supreme
Court precedent, and I wasn't the only one who thought that.
That was a unanimous decision of our panel. Judge McKee and, I
believe, Judge Fulham from the District Court in Philadelphia
were on that panel. They all agreed, and it is my recollection
that seven other courts of appeals have decided the case the
same way. More than 20 court of appeals--that issue the same
way. More than 20 court of appeals judges, including judges
appointed by all recent Presidents, have reached that decision.
I think when you look at the law and the facts of the case,
it becomes clear why there is so much unanimity on the
question. Whether one likes the test or not, the test that we
in the lower courts have to apply in this area is the
congruence and proportionality test from City of Boerne, and
therefore, what we had to do was to see whether there was a
record of discrimination relating to the particular provision
that was at issue in Chittister, which had to do with leave for
personal illness. So there would have to be some evidence that
State employers had given more leave for personal illness to
men than women, or more leave for personal illness to women
than men, and there was no evidence whatsoever on this issue.
That's why all of these courts of appeals reached the
conclusion that they did in Chittister.
Senator Hatch. When somebody takes an unfair crack at me, I
can come back at them as a Member of the U.S. Senate. But
because you are a judge and not a politician, you really don't
have the opportunity, really, to address fully these
misrepresentations of your views, and there have been plenty of
them in this process that you have had to undergo. So I wanted
to give you some opportunity here.
For example, one liberal group sent an e-mail around just
yesterday that claimed you were not responsive to a question
about whether the President can immunize executive branch
officials who directly violate the law. Now, is it an accurate
representation of your views to suggest that you argued that
executive branch officials should be fully immunized for their
violations of the law?
Judge Alito. No, it is not a correct expression of my
views. The President, like everybody else, has to follow the
Constitution and the laws. He has to follow the Constitution at
all times and he has to follow all the laws that are enacted
consistent with the Constitution. That's clear.
Now, on the Mitchell v. Forsythe case, which they may be
referring to, that was simply--I was simply saying that a
certain argument relating to immunity from civil damages was an
argument that had been made before and it was an argument that
was being requested by our client in the case who was being
sued in his individual capacity, and I recommended that we not
make the argument, but I said, I don't dispute this argument,
and that's all that was involved there.
Senator Hatch. Let me just say this. I want to allow you to
respond to a tactic that has been used by several of our
colleagues here in these hearings. They observed results in
some past cases and then they expressed concerns that entire
groups or categories of litigants might not be able to get a
fair shake by you in the court. One of them yesterday wondered
whether the average citizen, quote, ``can get a fair shake from
you when the government is a party.'' Another did the same
thing this morning. It is one thing to express disagreement
with your decisions, and, of course, as I said before, to look
only at results and ignore the facts and the law is
fundamentally misguided and it is a misleading way of
evaluating judicial decisions.
But let us be clear what is being floated around here with
this type of tactic. Those who say, because you ruled this way
in the past, litigants cannot get a fair shake in the future,
are saying, Judge, that you are biased, that you prejudge these
cases, that you are less than fair and impartial, something
that virtually everybody who knows you, including all of the
people who testified before the American Bar Association, say
is false, that you prejudge these cases, you are less than fair
and impartial. That is a very serious charge, even if it is
cloaked in suggestions and innuendo.
Judge, you previously mentioned you oath of office, an oath
before God to do equal justice to everyone without regard to
who the parties are. How do you react to this suggestion that
the way you have ruled in the past shows or even suggests that
you are biased and that entire categories of litigants may not
get a fair shake before you?
Judge Alito. Well, I reject that. I believe very strongly
in treating everybody who comes before me absolutely equal. I
take that oath very seriously and I have tried to do my very
best to abide by that during my 15 years on the bench.
Now, I don't think a judge should be keeping a scorecard
about how many times the judge votes for one category of
litigant versus another in particular types of cases. That
would be wrong. We are supposed to do justice on an individual
basis in the cases that come before us. But I think that if
anybody looks at the categories of--looks at the cases that I
have voted on in any of the categories of cases that have been
cited, they will see that there are decisions on both sides. In
every type of employment discrimination case, for example,
there are decisions on both sides.
Senator Hatch. Most employment discrimination cases really
are decided at the lower level.
Judge Alito. Most of them are, yes.
Senator Hatch. And when they get up to your level, it is
generally decided on technical or procedural bases. Am I wrong
in that?
Judge Alito. No, that is correct, Senator.
Senator Hatch. And sometimes you have to uphold the law,
even though you may be uncomfortable with the law yourself.
Judge Alito. We have to decide the cases on the facts that
are in the record and the law that applies.
Senator Hatch. That is right. Let me just ask you about a
few of your cases, because it is easy to cherry-pick these
cases and find a sentence here you don't like and a sentence
there you don't like and criticize you in the process as though
you are not being fair when, in fact, everybody who knows you
knows your impeccable reputation for fairness, dignity,
decency, honor, and capacity, and that is why you got the
highest rating from the American Bar Association and deserve
it, and you twice got that, and I know how tough they can be.
But let me just give you a couple of illustrations. Zubi v.
AT&T. You were the lone dissenter in that case. What did you
dissent from?
Judge Alito. I dissented from a majority decision that held
that Mr. Zubi, who was claiming racial discrimination, would
not have his day in court because of the statutory--
Senator Hatch. You would have given him his day in court,
right--
Judge Alito. I would have, yes--
Senator Hatch [continuing]. If it had been up to you?
Judge Alito. Yes.
Senator Hatch. All right. How about U.S. v. Kithcart? I
don't expect you to remember all these cases, and if you don't,
just raise your hand and I will try and recite them, but this
was a Fourth Amendment case. You held that the Fourth Amendment
does not allow police to target drivers because of the color of
their skin, is that right?
Judge Alito. That is right. That was essentially a case of
racial profiling and I wrote an opinion holding that that was a
violation of the Fourth Amendment.
Senator Hatch. And that was even after a police officer
received a report that two black men in a black sportscar had
committed three robberies, and she pulled over the first black
man in a black sportscar, or the first black sportscar she saw.
But you ruled for the defendant and against racial profiling in
that case.
Judge Alito. That's correct, Senator.
Senator Hatch. OK. In Thomas v. Commissioner of Social
Security, just to mention a few of these cases to show that you
are going to do what is right, regardless. Sometimes in these
employment cases and even other cases, when they get up on
appeal, they are fairly technical in nature and you have got to
do what is right under the law. But in Thomas v. Commissioner
of Social Security--do you recall that case?
Judge Alito. I do, yes.
Senator Hatch. What did you do there?
Judge Alito. Well, that was a case where I think that the
Supreme Court thought that my opinion had gone too far in favor
of the little guy who was involved there. That was a--
Senator Hatch. This was a woman with disabilities, right?
Judge Alito. That's right, a woman who was trying to get--
Senator Hatch. And she sought Social Security benefits.
Judge Alito.--Social Security disability benefits, and in
order to be eligible for those, she had to be unable to perform
any job that existed in substantial numbers in the national
economy.
Senator Hatch. She had a job as an elevator operator, if I
recall.
Judge Alito. That's right. As the case was presented to us,
the only job that she could perform was her past job, which was
as an elevator operator, and what I said was that you can't
deny somebody Social Security benefits because the person is
able to do a job that no longer exists in any substantial
numbers in the national economy. You can't deny benefits based
on a hypothetical job. It has to be based on a real job. And
the Supreme Court didn't see it that way, but it seems to me
that the way we ruled was consistent with what I thought--
Senator Hatch. So in other words, you stood up for the
person seeking rights here. The Supreme Court overruled you.
Judge Alito. That's right.
Senator Hatch. Oh my goodness. In the landmark case of, how
do you pronounce it, Fatin v. INS?
Judge Alito. ``Fatten,'' I think.
Senator Hatch. This involved an Iranian woman--Iranian
women who refused to conform to their government's gender-
specific laws and social norms, whether or not they should be
granted asylum in America. How did you rule in that case?
Judge Alito. I think that was one of the first cases in the
Federal courts to hold that requiring a woman to be returned to
a country where she would have to wear a veil and conform to
other practices like that would amount to persecution if that
was deeply offensive to her and that subjecting a woman to
persecution in Iran or any other country to which she would be
returned based on feminism would be persecution on the basis of
political opinion.
Senator Hatch. I have got another nine or ten cases and
perhaps even more than I could go through, but the point is
that whenever they deserve to win, they win, regardless of
whether they are rich or poor, whether they are powerful or
not. You basically upheld the law in these cases, is that
correct?
Judge Alito. That is what I've tried to do.
Senator Hatch. And where you have been in dissent, you have
tried to do it to the best of your ability.
Judge Alito. That's right, Senator.
Senator Hatch. OK. Let me just mention one other thing.
This business of Vanguard, when you signed that back in 1990,
12 years before the matter for which you are being criticized,
not by anybody who has any ethical, professorial, or other
knowledge, not by the American Bar Association, not by the vast
majority of lawyers who look at these matters, that particular
statement said, will you during your, quote, ``initial
service.'' It seems to me those are important words. You
haven't tried to hide behind that. You have just honestly
explained that, basically, you made a mistake, which really
wasn't a mistake according to all the ethics people and
according to the American Bar Association. And now, instead of
the original accusation and the original implication, you are
being accused of not being forthcoming because of that original
statement on your application form, to the Committee
questionnaire.
But the fact of the matter is that, quote, ``initial
service'' doesn't mean 12 years away, does it, when there is no
chance in the world that you had ever received any monetary
benefit from Vanguard?
Judge Alito. Well, I don't think initial service means 12
years away--
Senator Hatch. Neither do I and neither does anybody who
cares about justice and about what is right in this matter. So
to blow that out of proportion like your adversaries have done
is really pretty offensive. I could go on and on and be
stronger on that, but the fact of the matter is, I just wanted
to make that statement. ``Initial service,'' unquote, is pretty
clear.
Let me just say that, sometimes, I just can't make sense
out of what some of your critics are saying. On the one hand,
they want to portray you as some sort of a robotic patsy for
big government who does not think for himself. Yesterday, one
of my Democratic colleagues even suggested that the Bush
administration was trying to manipulate you to give responses
favorable to them in this hearing. Now, you quite rightly said,
and I think you were fairly restrained about saying it, that
you have been a judge for 15 years and are quite capable of
thinking for yourself.
On the other hand, then your critics then turn it around
and attack you for supposedly dissenting too much, as if you
should actually stop doing all that thinking for yourself and
just fall in line with the majority in all of your cases.
Now, Judge, I know that appeals court judges--that the
appeals courts themselves are collegial bodies, but how do you
view dissenting from your colleagues? How do you decide when to
do it? How do you know how often you dissent in your court, or
do you know how often you dissent in your court and whether it
is out of step with your colleagues? Could you give us some
answers there?
Judge Alito. Yes. I think that it is important for a multi-
member court to issue a judgment and to speak clearly to the
lower courts and the parties. And so when I've been in a
position where taking an independent position would result in
the absence of a judgment. I had gone out of my way to make
sure that there was a judgment, that there was a majority
opinion. An example of that is the Rappa case where we were
really divided three ways, and my position was close to Judge
Becker's opinion, and Judge Becker had the opinion-writing
assignment, and I issued an opinion saying, ``I don't
completely agree with the way Judge Becker analyzed this issue.
I would analyze it differently. But I'm joining his opinion so
that there is a majority opinion, so that there is a clear
statement of the law for the guidance of the parties.'' I think
that's the first principle.
Second is that judges should be respectful of each other's
views, and I don't have any--I have tried never to write a
dissenting opinion or respond in a majority opinion to a
dissenting opinion in a way that was not completely respectful
of the views of the other members of the court.
It's useful to dissent if there's a chance that the case
may go en banc, and that's happened in a number of cases where
I've dissented. It's useful to dissent if there is a chance
that the case may go to the Supreme Court and so that the
Supreme Court will have the benefit of a different expression
of views, and there have been cases--
Senator Hatch. Well, would it surprise you to know that you
have dissented only 79 times in nearly 5,000 cases in which you
have participated? That comes to about 1.6 percent, which is
considerably lower than most others who have been on the
appellate courts. And I would observe that the Washington Post
concluded in an editorial that your dissenting opinions ``are
the work of a serious and scholarly judge whose arguments
deserve respect.'' I certainly agree wholeheartedly with that
assessment.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
Judge Alito, I hadn't planned to get into Vanguard on this
particular round, but I chaired those hearings when you were
promoted to the circuit court, and I was also the one that
filed those questions which you responded to. And you responded
under oath when you promised the Committee that you would
recuse yourself on Vanguard issues.
Now I am just hearing from you that you believe that that
pledge was somehow conditioned. Unlike my friend--and he is my
friend--from Iowa that says, well, a pledge is just a pledge,
it is like any political pledge around here. It is a political
promise and doesn't carry much weight.
That is not my opinion, and I don't think it is the opinion
of most of the Members of this body. You made a pledge to the
Senate, effectively to the American people, that you were going
to recuse yourself. Now you say, well, it was just for an
initial time, and I think 12 years is more than I really had in
mind, or you just qualified your answer.
How long, when you made that pledge and that promise to the
Committee, how long did you intend to keep it?
Judge Alito. Well, Senator--
Senator Kennedy. And when that time was up, did you ever
imagine that you might get back to the Committee and say, ``I
believe my time is up on Vanguard''?
Judge Alito. Well, Senator, the statement that I--the
nature of the question that I was responding to did not figure
in the way the Monga case was handled, and I thought I made
that clear yesterday. I was following throughout my time on the
bench the practice of going beyond the code, and had I focused
on this issue when the matter came before me, I would have
recused myself at that time, as I later did.
But in answer to Senator Hatch's question, looking at that
question today and looking at the answer, the question was:
What do you intend to do during your initial period of service?
And I think that that's what the answer has to be read as
responding to. But just to be clear, that was not--I'm not
saying that that's why this played out the way it did. I'm just
saying that's how I think the question and the answer--that's
how I think the question and any response to the answer by any
nominee needs to be interpreted.
Senator Kennedy. Well, if there is someone that can just
understand what you just told us, I would be interested in it,
because I don't.
Senator Hatch. Well, I will be glad to explain it.
Senator Kennedy. Well, if--Mr. Chairman.
[Laughter.]
Senator Kennedy. You in response to Senator Hatch did not
believe you were bound by the promise because you said in your
mind you felt that it was just for the initial period of it.
That is another issue, because initially it was meant to
include the investments that you had at that particular time.
You might have those investments and then discard an investment
and, therefore, no longer have a conflict. That is what--as the
asker of the question had intended. But you have added another
wrinkle to it. You have just indicated that when you made a
pledge to the Committee that you were going to recuse yourself,
that you thought that at some time you were going to be
released. And I would just like to know how long that was going
to be. Was that going to be 2 years? Was it going to be 3
years? Was it going to be 5 years? When did you feel that you
were going to be released if that--
Judge Alito. Well, Senator, I--
Senator Kennedy [continuing]. If we followed your
interpretation?
Judge Alito. Senator, I did not rely on that time
limitation in relation to what I did in the Monga case, and I
hope I have made that clear. If I didn't in my previous answer,
I do want to make it clear. I did not rely on that in my
handling of the Monga case.
Looking at the question now, where it says ``initial period
of service,'' I would say that 12 years late is not the initial
period of service. But that was not--
Senator Kennedy. When did it stop, then? When did you think
that your pledge to the Committee halted, after how many years?
Six months?
Judge Alito. Well, Senator, I don't--
Senator Kennedy. What did you intend at the time that you
made the pledge? What was in your mind at that time? I am not
interested in what is in your mind at this time, but what was
in your mind at that time.
Judge Alito. I can't specifically recall what was in my
mind at that time, but I'll tell you what I'm pretty sure I had
in mind. I was not a judge, and I was being considered for a
judicial position. And what I was trying to express was
basically the policy that I followed during all my years on the
bench, which is to bend over backwards to make sure that I
didn't do anything that came close to violating the code of
conduct or give anybody the impression that I was doing
anything that was improper.
Senator Kennedy. The last question on this is: How long,
then, when you made the promise under oath to the Committee
that you were going to recuse yourself--and you understand that
now to be--in your own interpretation just to be the initial
time--how long did you think that that pledge and promise
lasted?
Judge Alito. Senator, as I said--
Senator Kennedy. That is my question.
Judge Alito. And, Senator, as I said, I can't tell you 15
years later exactly what I thought when I read that question.
It refers to the initial period of service, and looking at it
now, it doesn't seem to me that 12 years later is the initial
period of service.
Senator Kennedy. Well, my question to you, which I guess
I'm not going to get an answer to, is: When did it? Is 10
years--how about 3 years, is that--
Judge Alito. Well, I don't know exactly what the time
limitation would be, but 12 years does seem to me not to be the
initial period.
Senator Kennedy. We will come back. I just want to mention,
in fairness to my friend and colleague--both my friends,
Senator Hatch and Senator Durbin, in Senator Hatch's quoting of
Senator Durbin that you responded on the question of the Roe v.
Wade in the--when you were in the circuit court, I have here
the record that said--of the hearings of Roberts, and the
question was asked by Senator Specter to Judge Roberts during
the time of his consideration for the Supreme Court. So I want
that to be--Senator Durbin can clarify the record, but I wanted
that to be clarified so that there wasn't a confusion about it.
Now, in the time that I have, Judge Alito, I listened
carefully to responses that you gave to Senator Leahy about the
CAP organization at Princeton. And I listened to other
responses that you gave to our colleagues, and again to Senator
Durbin earlier today. But I have just some questions on this to
at least try to finalize, at least in my mind, and it might be
useful in the Committee's mind as well.
You had indicated in your 1985 job application that you
were a member of the Federalist Society for Law and Public
Policy and a regular participant at its luncheon and a member
of the Concerned Alumni of Princeton University, a conservative
alumni group. And you said yesterday that you racked your
memory about the issue and really had no specific recollection
of the organization. Is that correct?
Judge Alito. I have no specific recollection of joining the
organization.
Senator Kennedy. And you also said yesterday and today to
Senator Durbin that you very likely joined CAP because of your
concern over the ROTC program being kicked off campus. Is that
correct?
Judge Alito. Well, what I said specifically was that I
racked my memory as to why I might have joined, and the issue
that had bothered me for a period of time as an undergraduate
and in the 1980s, around the time of this--when I made this
statement, was the issue of ROTC. This was the issue about the
administration of Princeton that bothered me. I had a high
regard for Princeton in many respects in general and had
participated in a lot of their activities. But this issue
bothered me a great deal at various times. That's what I said.
Senator Kennedy. And, finally, you said yesterday that you
very likely joined CAP around 1985 just before you were
applying to the high-level job in the Justice Department under
President Ronald Reagan. I think that is correct.
Judge Alito. Senator, what I specifically said, as I
recall, is that if I had done anything substantial in relation
to this group, including renewing my membership, I would
remember that. And I do not remember that.
Senator Kennedy. So I want to ask a few things that I hope
can clear this up. You have no memory of being a member. You
graduated from Princeton in 1972, the same year CAP was
founded. You call CAP a conservative alumni group.
It also published a publication called Prospect, which
includes articles by CAP members about the policies that the
organization promoted. You are familiar with that?
Judge Alito. I don't recall seeing the magazine. I might--
Senator Kennedy. But you know that they had a magazine?
Judge Alito. I have been--I have learned of that in recent
weeks.
Senator Kennedy. So a 1983 Prospect essay titled ``In
Defense of Elitism'' stated, ``People nowadays just don't seem
to know their place. Everywhere one turns, blacks and Hispanics
are demanding jobs simply because they're black and Hispanic.
The physically handicapped are trying to gain equal
representation in professional sports, and homosexuals are
demanding that Government vouchsafe them the right to bear
children.''
Did you read that, that article?
Senator Feinstein. Finish the last line.
Senator Kennedy. Finish the last line. ``And homosexuals
are''--
Senator Feinstein. ``And now here come women.''
Senator Kennedy. If the Senator would let me just--
Senator Feinstein. Yes, I--
[Laughter.]
Senator Kennedy. Can I get 2 more minutes from my friend?
Just to continue along--I apologize, Judge. Did you read this
article?
Judge Alito. I feel confident that I didn't. If that--I am
not familiar with the article, and I don't have a context in
which those things were said. But they are antithetical to--
Senator Kennedy. Well, could you think of any context that
they could be--
Judge Alito. It's hard to imagine. If that's what anybody
was endorsing, I disagree with all of that. I would never
endorse it. I never have endorsed it. Had I thought that that's
what this organization stood for, I would never associate
myself with it in any way.
Senator Kennedy. The June 1984 edition of Prospect magazine
contains a short article on AIDS. I know that we have come a
long way since then in our understanding of the disease, but
even for that time, the insensitivity of statements in this
article are breathtaking. It announces that a team of doctors
has found that the AIDS virus in Rhesus monkeys was similar to
the virus occurring in human beings. And the article then goes
on with this terrible statement: ``Now the scientist must find
humans--or, rather, homosexuals to submit themselves to
experimental treatment. Perhaps Princeton's Gay Alliance may
want to hold an election.''
You didn't read that article?
Judge Alito. I feel confident that I didn't, Senator,
because I would not have anything to do with statements of that
nature.
Senator Kennedy. In 1973, a year after you graduated, and
during your first year at Yale Law School, former Senator Bill
Bradley very publicly disassociated himself with CAP because of
its right-wing views and unsupported allegations about the
university. His letter of resignation was published in the
Prospect, garnered much attention on campus and among the
alumni.
Were you aware at the time of that, at the time that you
listed the organization in your application?
Judge Alito. I don't think I was aware of that until recent
weeks when I was informed of it.
Senator Kennedy. And in 1974, an alumni panel including
now-Senator Frist unanimously concluded that CAP had presented
a distorted, narrow, hostile view of the university. Were you
aware of that at the time of the job application?
Judge Alito. I was not aware of it until very recently.
Senator Kennedy. In 1980, the New York Times article about
the coeducation of Princeton, CAP is described as an
organization against the admittance of women. In 1980, you were
working as an Assistant U.S. Attorney in Trenton, New Jersey.
Did you read the New York Times? Did you see this article?
Judge Alito. I don't believe that I saw the article.
Senator Kennedy. And did you read a letter from CAP mailed
in 1984--this is the year before you put CAP on your
application--to every living alumni--to every living alumni, so
I assume you received it--which declared Princeton is no longer
the university you knew it to be. As evidence, among other
reasons, it cited the fact that admission rates for African-
Americans and Hispanics were on the rise while those of alumni
children were falling, and Princeton's president, at the time,
had urged the then-all-male eating clubs to admit females.
And in December 1984, President William Bowen responded by
sending his own letter. This is the president of Princeton--he
responded by sending his own letter to all of the alumni in
which he called CAP's letter callous and outrageous. This
letter was the subject of a January 1985 Wall Street Journal
editorial, congratulating President Bowen for engaging his
critics in a free and open debate. This would be right about
the time that you told Senator Kyl you probably joined the
organization. Did you receive the Bowen letter or did you read
the Wall Street Journal, which was pretty familiar reading for
certainly a lot of people that were in the Reagan
administration?
Judge Alito. Senator, I testified to everything that I can
recall relating to this and I do not recall knowing any of
these things about the organization, and many of the things
that you've mentioned are things that I have always stood
against. In your description of the letter that prompted
President Bowen's letter, there is talk about returning the
Princeton that used to be. There is talk about eating clubs,
about all-male eating clubs. There is talk about the admission
of alumni children. There is opposition to opening up the
admissions process.
None of that is something that I would identify with. I was
not the son of an alumnus. I was not a member of an eating
club. I was not a member of an eating facility that was
selective. I was not a member of an all-male eating facility
and I would not have identified with any of that. If I had
received any information at any point regarding any of the
matters that you have referred to in relation to this
organization, I would never have had anything to do with it.
Senator Kennedy. Do you think that these are conservative
views?
Judge Alito. Senator, whatever I knew about this
organization in 1985, I identified as conservative. I don't
identify those views as conservative. What I do recall as an
issue that bothered me in relation to the Princeton
administration as an undergraduate and continuing into the
1980s was their treatment of the ROTC unit and their general
attitude toward the military, which they did not treat with the
respect that I thought was deserving. The idea that it was
beneath Princeton to have an ROTC unit on campus was an
offensive idea to me.
Senator Kennedy. Just moving on, you mentioned--and I only
have a few minutes left--you joined CAP because of your concern
about keeping ROTC on campus. Now, ROTC was a fairly
contentious issue on Princeton's campus in the early 1970s. The
program was slated to be terminated in 1970, when you were an
undergraduate. By 1973, 1 year after you graduated, ROTC had
returned to campus and was no longer a source of debate. And
from what I can tell, by 1985, it was basically a dead issue.
In fact, my staff reviewed the editions of Prospect from 1983
to 1985 and could find only one mention of ROTC, and it appears
in a 1985 issue released for homecoming that year that says,
``ROTC is Popular Once Again.'' Here is the Prospect, 1985,
``ROTC is Popular Once Again.'' This is just about the time
that you were submitting this organization in your job
application.
Judge Alito. Senator--I'm sorry.
Senator Kennedy. Briefly, please.
Judge Alito. It's my recollection that this was a
continuing source of controversy. There were people on the
campus, members of the faculty, as I recall, who wanted the
unit removed from the campus. There was certainly controversy
about whether students could get credit for courses, which I
believe was a military requirement for the maintenance of the
unit. There was controversy, as I recall, about the status of
the instructors, whether they could be given any kind of a
status in relation to the faculty. I don't know the exact
dates, but it's my recollection that this was a continuing
source of controversy.
Senator Kennedy. Mr. Chairman, my time is running out. I
had wanted to just wind up on a few more brief questions on
this. But I have to say that Judge Alito, that his explanations
about his membership in this sort of radical group and why you
listed it on your job application are extremely troubling. In
fact, I don't think that they add up.
Last month, I sent a letter to Senator Specter asking a
number of questions about your membership in CAP and I asked
Senator Specter to make a formal Committee request for the
documents in the possession of the Library of Congress as part
of the William Rusher papers. Mr. Rusher was the publisher of
the National Review, was an active founder and leader of CAP.
Do you have any hesitation or reason for us not to look at
those documents?
Judge Alito. They're not my documents, Senator, and I have
no--
Senator Kennedy. Do you think they would be helpful to us?
Judge Alito [continuing]. Opinion about it whatsoever.
Senator Kennedy. Do you think they would be helpful?
Judge Alito. Senator, I don't believe I had any active
involvement with this group.
Senator Kennedy. Well--
Judge Alito. I have racked my memory and I can't recall
anything, and if I had been involved actively in any way in the
group, I'm sure that I would remember that.
Senator Kennedy. Mr. Chairman, if I could have your
attention, I think we ought to vote on issuing a subpoena to
the custodian of those CAP records. I want to do that at an
appropriate time. I move that the Committee go into executive
session for the purpose of voting on the issuance of the
subpoena of those records.
Chairman Specter. We will consider that, Senator Kennedy.
There are many, many requests which are coming to me from many
quarters. Quite candidly, I view the request, if it is really a
matter of importance, you and I see each other all the time.
You have never mentioned it to me. I do not ascribe a great
deal of weight. We actually didn't get a letter, but--
Senator Kennedy. You did get a letter, are you saying?
Chairman Specter. Well, now wait a minute. You don't know
what I got. I am about to--
Senator Kennedy. Of course, I do, Senator, since I sent it.
Chairman Specter. Well, the sender--
Senator Kennedy. I have got it right here.
Chairman Specter [continuing]. Doesn't necessarily know
what the recipient gets, Senator Kennedy.
Senator Kennedy. I have got it right here.
Chairman Specter. You are not in the position to say what I
received. If you will bear with me for just one minute--
Senator Kennedy. But I am in a position to say what I sent
to you on December 22, so I renew my--
Chairman Specter. You are in a position to tell me what you
sent.
Senator Kennedy. I renew my request, Senator, and if I am
going to be denied, then I would appeal the decision of the
Chair. I think we are entitled to this information. It deals
with the fundamental issues of equality and discrimination.
This nominee has indicated he has no objection to us seeing
these issues. We have gone over the questions and we are
entitled to get that kind of information. And if you are going
to rule it out of order, I want to have a vote on that here on
our Committee.
Chairman Specter. Well, don't be premature, Senator
Kennedy. I am not about to make a ruling on this state of the
record. I hope you won't mind if I consider it, and I hope you
won't mind if I give you the specifics that there was no letter
which I received. I take umbrage at your telling me what I
received. I don't mind your telling me what you mailed. But
there is a big difference between what is mailed and what is
received and you know that.
We are going to move on now. Senator Grassley?
Senator Kennedy. Mr. Chairman, I would appeal the ruling of
the Chair on this. I want--
Chairman Specter. There has been no ruling of the Chair,
Senator Kennedy.
Senator Kennedy. But my request is that we go into
executive session for the sole purpose of voting on a subpoena
for these records that are held over at the Library of
Congress, for that purpose and that purpose only, and if I am
going to be denied that, I would want to give notice to the
Chair that you are going to have it again and again and again
and we are going to have votes of this Committee again and
again and again until we have a resolution. I think that--
Chairman Specter. Well, Senator Kennedy, I am not concerned
about your threats to have votes again, again, and again, and I
am the Chairman of this Committee and I have heard your request
and I will consider it, and I am not going to have you run this
Committee and decide when we are going to go into executive
session.
We are in the middle of a round of hearings. This is the
first time you have personally called it to my attention and
this is the first time that I have focused on it and I will
consider it in due course.
Now, we will move to Senator Grassley for 20 minutes.
Senator Grassley. We have gone over this same ground many
times. I suppose, maybe to some extent, both sides are guilty
of that. We have an old saying in the Midwest about if a horse
is dead, quit beating it, and I think several horses have been
beaten to death, particularly on the other side, and you have
been very consistent in your answers and I thank you. I think
that that speaks to the intellectual honesty of your positions.
It is kind of like we are in the fourth quarter of a
football game and you are the quarterback and your team is way
ahead here in the fourth quarter. Opponents are very desperate,
trying to sack you, and aren't doing a very good job of it.
They haven't hit you all day now for 2 days. You are going to
keep getting these last-minute ``Hail Marys'' thrown at you, so
just bear with us.
I want to compliment you, first of all, before I ask some
questions, and I just did to some extent about the consistency
of your testimony, but I think it has been good. I think under
very difficult circumstances, you have handled yourself very
well, being responsive, forthright, thoughtful. I sense in you
a person that is very sincere, and obviously, I don't know you
except this appearance here and the small period of time we
spent in my office. It seems like you have modesty. That is a
breath of fresh air, demonstrating a command of and very much a
respect for the law and the Constitution, of course.
This is all stuff that we ought to be looking for in the
tradition of Alexander Hamilton saying the role of the Senate
is to make sure that only competent people get on the Court and
that political hacks don't get on the Court. You are surely no
political hack and you are very competent, and that has been
demonstrated with your fair and open-minded approach to your
being a judicial person.
It is too bad that we are getting this misconstruing of
your record or the answers, the claim that you have not written
a single opinion on the merits in favor of a person of color
alleging race discrimination on the job in your 15 years on the
bench. I have looked at a lot of opinions you have given and it
is just not true. Your record shows that you ruled in favor of
minorities making allegations of racial discrimination in
employment, not once but in a number of cases.
The claim that you acted unethically in the Vanguard case
just is not true. You did nothing improper and actually went
beyond the rule to ensure compliance. The claim that you would
support an unchecked Executive is just not true. Your record
shows that you have repeatedly ruled against the government and
that you have told us no one, including the President, is above
the law.
The claim that you have ruled the vast majority of the time
against the claims of individual citizens in favor of the
government and large corporations is just not true. The
reality, as I see it, is that you have found in favor of the
little guy in numerous cases, but because of who was right and
who was wrong, not just because you have got a bias one way or
the other. Your critics are, I think, grasping at any straw to
tarnish your record, and that is unfortunate.
Judge Alito, in your opening statement, you said, and I
hope I quote you accurately, no person in this country, no
matter how high or powerful, is above the law, and no person in
this country is beneath the law. You didn't go into detail
about what you meant. I think it is quite clear, above the law,
but give us that diverse opinion, above the law versus beneath
the law.
Judge Alito. Every person has equal rights under the law in
this country, and that involves people who have no money--that
includes people who have no money. That includes people who do
not hold any higher or prestigious position. It includes people
who are citizens and people who are not citizens. Everybody is
entitled to be treated equally under the law, and I think
that's one of the greatest things about our country and about
our legal system.
Senator Grassley. You have been criticized for being
hostile to voting rights based upon a statement that you wrote
20 years ago when you were applying for a job with the Justice
Department during the Reagan years. In fact, yesterday, some of
my colleagues repeated that assertion, but it is apparent to me
that it is off the mark.
Specifically, in your 1985 statement, you wrote that you
became interested in constitutional law and went to law school
in part because you had some disagreements over Warren Court
decisions, including some regarding reapportionment. Of course,
that is understandable because the Warren Court had handed down
very many decisions on reapportionment and they had been
criticized as unworkable and that, in fact, the Supreme Court
backed away from some. So there was disagreement, there was
debate over those issues at that time, probably a lot less
today but still recently there is going to be a case going to
the Court.
Some have questioned your 1985 statement regarding
electoral reapportionment, that is how districts are drawn.
They have suggested that you are hostile to the principle of
one person/one vote. Clarify for me. Nowhere in your 1985
statement did I find that you wrote that you ever disagreed
with the principle of one person/one vote, did you?
Judge Alito. I never disagreed with that principle,
Senator. What I disagreed with when I was in college was the
application of the principle in some of the--the elaboration of
the principle in some of the late Warren Court decisions, and
this grew out of my father's work with the New Jersey
legislature. He had been the Secretary to the State
Constitutional Convention in 1966, which redrew the provisions
of the State Constitution relating to the composition of the
legislature in an effort to bring it into compliance with the
one person/one vote standard.
These provisions, however, because they tried to respect
county and municipal lines, as I recall, resulted in population
deviations of under 10 percent, but those deviations were much
higher than the ones that the Supreme Court said in the late
decisions that I'm talking about would be tolerated regarding
congressional districts. There was a belief that that principle
would be applied across the board, both to congressional
districts and to legislative districts, and that would have
wiped out the plan that had been adopted. And I was quite
familiar with all of this, and it seemed to me an instance of
taking a good principle, which is one person/one vote, and
taking it to extremes, requiring that districts be exactly
equal in population, which did not seem to me to be a sensible
idea.
Senator Grassley. Isn't it true that the words ``one
person/one vote'' weren't even in your statement?
Judge Alito. Those words are not in my statement.
Senator Grassley. Just to make--go ahead.
Judge Alito. Just to add, Senator, that this issue of how
nearly exact the districts had to be was an issue that was
working its way to the Supreme Court or maybe it had actually
been there--I've forgotten the exact chronology--at the time of
the 1985 statement in Karcher v. Daggett, which involved the
New Jersey Congressional districting plan.
Senator Grassley. Well, just to make sure that there is no
lingering confusion then, let me ask you straight out: Do you
believe in the principle of one person/one vote?
Judge Alito. I do. I think it's a fundamental part of our
constitutional law.
Senator Grassley. I find it curious that the same people
who are questioning your integrity are either asserting or
implying that you took a position against the principle of one
man or one person/one vote when it is demonstrably false that
you ever did.
Further, on another point, some have suggested that you are
hostile to women and minorities. Obviously, I don't think that
is the case. I think you have demonstrated that sincerity in
just very recent statements today.
Now, in the Washington Post article, Alberto Rivas, a
criminal defense lawyer and a Democrat, said you ``took steps
to diversify an office''--this is when you were U.S. Attorney.
You ``took steps to diversify an office that had a reputation
as something of a white boys' club.'' Rivas said that when you
hired him at the U.S. Attorney's Office in New Jersey, he was
the only Latino lawyer in the office, and by the time you left
that office, Rivas said there were four Latino lawyers as well
as African-American lawyers. Your commitment also included
advancing women attorneys and promoting them into senior
positions during your tenure as U.S. Attorney. And I understand
that when you started in that office, only two of the 15
divisional leadership attorneys, chiefs or deputy chiefs, or
attorneys in charge were women, and 2 years later you had more
than doubled that number, and 5 of the 17 divisional leadership
attorneys were women.
Now, on the Federal bench, you have hired many women and
minorities to serve as law clerks, and you had a discussion
with Senator Brownback earlier mentioning some very
complimentary things that Cathy Fleming, your former deputy
chief and acting chief of the Special Prosecutions Unit in the
New Jersey office, and David Walk, a former lawyer in that
office, had to say about you and your treatment of women and
minorities. They both, being lifelong Democrats, vouched in
those statements for your qualities as a judge and your respect
for individual rights.
And, Mr. Chairman, if these letters--and they may have
already been put in the record, but if they aren't in the
record, I would like to have those put in the record.
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Grassley. Several of your dissents have been
referred to today, or in the last 2 days, and so I wanted to
comment on this suggestion that you are way out of the
mainstream because you have written a lot of dissenting
opinions. I don't find that you have written so many as a
percentage of your total thing, but whatever reason you did it,
you did it with good reason.
But judges disagree all the time, and that is to be
expected, and obviously there is nothing wrong with that. And,
in fact, the Supreme Court has agreed with your dissents on
several occasions, I recall from reading a synopsis of your
opinions, and the reality is, as I see it, you don't disagree
with majority opinions more frequently than most Federal
appeals judges do in similar cases. And of more than 4,800
cases--and that we got from the Washington Post. But of more
than 4,800 cases that you decided during your tenure on the
Third Circuit, you dissented only in 79 cases, which would be
only 1.6 percent of all those cases.
So, you know, I don't think that there is anything very
extraordinary about the number of dissents or the dissents, and
particularly when the Supreme Court has agreed with your
opinion in reversing the Third Circuit.
I would like to go to the issue of some historical basis
for our constitutional law. The role of historical precedent in
constitutional laws I find very interesting. For example, qui
tam lawsuits have been a feature of Anglo-American law since
the Middle Ages and have been a common feature of Federal
statutory law even since the 1st Congress. Yet their
constitutionality has never been clearly adjudicated by the
Supreme Court.
What role does longstanding, historical practice play in
assessing the constitutionality of a Government act or
practice?
Judge Alito. Well, it can be very relevant in many
instances. One place where this has come up is when a statute
was passed by the 1st Congress--and this has happened on a
number of occasions. The 1st Congress, which was responsible
for the Bill of Rights, passed a number of statutes relating to
provisions of the Bill of Rights, and the Supreme Court has
often looked to those and said this is the same Congress that
proposed the Bill of Rights, and they did this in enacting a
statute, so that gives us a good indication of what they had in
mind. And when there has been a legal practice that has existed
for--that predated the Constitution, then that certainly is
relevant in considering its constitutionality.
Senator Grassley. I would like to have you think about
legislative history and how you might use it or how often you
might use it, or even how often--maybe if you got a rough
quantifiable answer, how often you might use it. The Supreme
Court, I think, has quite often stated legislative history of a
particular bill would be critical in their interpretation of
it. What is your position with respect to legislative history?
How important is it to you? And how have you utilized history
in interpreting statutes?
Judge Alito. I have often looked to legislative history in
the cases that I've written concerning statutory
interpretation. And I think if anybody looks at those opinions,
they will see that.
When I interpret a statute, I do begin with the text of the
statute. I think that certainly is the clearest indication of
what Congress as a whole had in mind in passing the statute.
And sometimes the language of the statute is dispositive and it
is really--the decision can be made based on the language of
the statute itself.
But when there is an ambiguity in the statute, I think it
is entirely legitimate to look to legislative history, and as I
said, I have often done that. I think it needs to be done with
caution. Just because one Member of Congress said something on
the floor, obviously that doesn't necessarily reflect the view
of the majority who voted for the legislation. So it has to be
done carefully and I think with a realistic evaluation of the
legislative process, but I'm not one of the judges who thinks
that you should never look to legislative history. I think it
has its place.
Senator Grassley. Are you familiar with the legal arguments
that some opponents of the False Claims Act have made to the
effect that its qui tam provisions are unconstitutional under
Articles II and III? And if you are, do you have any opinion on
those arguments that are used without prejudicing any review of
it you might give?
Judge Alito. Well, the issue hasn't come up before me. I
have a little bit of familiarity with the arguments. And I
don't think I--I think that all I can say on the question is
that the qui tam statute is of historical origin, as you
pointed out, and we have seen what it has produced in terms of
tangible results in the cases that have been brought under the
statute in recent years. And should an issue relating to its
constitutionality come before me, either on the Third Circuit
or the Supreme Court, then I would have to follow that whole
judicial process that I've described and evaluate the arguments
and certainly study the question much more thoroughly than I
have done up to this point.
Senator Grassley. You may have just answered this question,
but I would like to get it explicitly on the record. Have you
ever written or spoken publicly about the issue of the
constitutionality of qui tam or any other provision of the
False Claims Act, and if so, the circumstances and the context?
Judge Alito. I'm quite sure I've never written or spoken
about its constitutionality.
Senator Grassley. Do you feel that you have any bias
against the False Claims Act or Whistle-Blower Protection Act
that would impact the ability of you to fairly decide cases
involving those issues?
Judge Alito. I certainly don't, Senator.
Senator Grassley. I would like to ask you about the opinion
you authored in Mystic. As author of the legislation that we
call the False Claims Act, it has returned billions of dollars
to the Federal Government and has become a very effective tool
in combating fraud against the American taxpayers. So I follow
court cases on this as much as I can.
The False Claims Act contains a provision that
jurisdictionally bars lawsuits based on public disclosure,
including such things as administrative reports and
investigations. The purpose of this provision is to prevent an
individual who has read about a description of a fraud in a
newspaper report, public document, or Government report from
simply taking that material and using it as a basis for a case.
In Mystic, the qui tam relater had made a FOIA request and
utilized some of the documents he received in response to FOIA
in filing that qui tam case. In your opinion, you determined
that the qui tam relater had based his False Claims Act lawsuit
on public disclosure made in an administrative report or
investigation. To come to that conclusion, you had to equate
that the qui tam relater, who was acting on behalf of the
Government, as the public. But I think it is clear that
Congress did not equate such qui tam relaters with the public
when it wrote the public disclosure bar provision. That is
because if Congress had done so, then everything qui tam
relaters know is known to the public, which doesn't make any
sense.
So because my time has run out, I don't want to go on with
a question, but do you see what I am getting at? Could you
react to that?
Judge Alito. I do, and I understand that's a very strong
argument. I remember that I found that a very difficult issue
to deal with, and I spent a lot of time on it, and my view of
the matter elicited a strong and a very persuasive, I think,
dissent by one of my colleagues. So it is a tough issue, and if
that were to come up again, I would have to really reconsider
it.
Senator Grassley. Just in your last sentence, you gave
pretty much the same answer that Judge Roberts did. He had
dissented in a case, too, and it kind of worries me when we get
two of you on the Court that may be unfamiliar with
congressional intent on false claims.
Thank you very much.
Chairman Specter. Thank you, Senator Grassley.
That will be all. We will recess until 2 o'clock.
Senator Kennedy. Mr. Chairman?
Chairman Specter. Yes, Senator Kennedy?
Senator Kennedy. Just as a quick matter of personal
privilege, I would like to include in the record the response
from your staff to this letter that I wrote to you on the 22nd
and also my staff response to your staff's response to the
letter, include them in the record.
Chairman Specter. Like all requests, unanimous consent for
the record, they are granted.
Senator Durbin. Mr. Chairman? Mr. Chairman?
Chairman Specter. Senator Durbin?
Senator Durbin. Mr. Chairman, I--
Chairman Specter. I just want it known that we are now into
the lunch hour, but go ahead, Senator Durbin.
Senator Durbin. Mr. Chairman, I sent you a note and you
were kind enough to come and speak to me about it. I would just
ask for 2 minutes time to respond to comments made by members
of the Committee mentioning my name after I asked questions
this morning. You have asked if I would wait until Senator
Coburn returned to the Committee, and in deference to the
respect to my colleague, I will do that.
Senator Leahy. Could I also, Mr. Chairman, on this--
Chairman Specter. Well, I appreciate it very much, waiting
for Senator Coburn. I think it is a good practice, when
comments are made about other members, to do it while they are
here or to ask their joinder. And that is why if you have
something to say to Senator Coburn, I want him here; otherwise,
he will have something to say and you are not here.
Senator Leahy. In fact--
Senator Durbin. He did already, Mr. Chairman.
Chairman Specter. Now Senator Leahy is recognized into the
lunch hour.
Senator Leahy. Into the lunch hour. Mr. Chairman, if I
might, I came very close to objecting when Senator Coburn was
speaking and referring to Senator Durbin. Senator Coburn is a
new--he is a valued member of the Committee, of course but new,
and I wanted to say that I have been here for 30 years. I have
always made it a point, if I am going to raise something, to
get word to the other party. I think it is a good way of doing
it, and you have been totally fair in that.
I would urge Senators, if they are going to start quoting
each other, that maybe we have ``quote time'' or something like
that. Senator Durbin is absolutely right in wanting to be able
to respond to what was said.
Chairman Specter. Well, I think that we might agree on best
practice, but when you deal with Senators, my view is to give
Senators great latitude as to what they want to undertake to
do. And if Senator Coburn wants to make a comment without
Senator Durbin here, I think that is going to be his call,
although my preference would be to the contrary. But when
Senator Durbin wants time to respond, I immediately sent word
to him he would have the time that he requested. And then I
sent for Senator Coburn. And Senator Coburn is in a meeting
that he couldn't leave, but we will get the two of you together
fairly promptly.
Senator Durbin. Thank you.
Chairman Specter. Lunchtime.
[Whereupon, at 1:05 p.m., the Committee was adjourned, to
reconvene at 2 p.m., this same day.]
[AFTERNOON SESSION]
Chairman Specter. The Committee will resume, and it is now
Senator Biden's turn for his second round for 20 minutes.
Senator Biden?
Senator Biden. Thank you very much, Mr. Chairman.
Judge, good to see you. As I said to you--we happened to
run into each other in the hallway coming in--what I would like
to do, if I may, is go back and revisit two areas that you were
questioned on yesterday, and a little bit maybe today. I do not
recall actually. I think it was yesterday. One is the Casey
case and I want to make sure I understand because I am still a
little bit puzzled by your reasoning, but let me start off and
make it clear.
From my perspective, the abortion is a different--I am
trying to figure out how you arrived at interpreting a Supreme
Court Justice's standard that was being applied, and how it
came out differently than others. Yesterday you said when I
think it was Senator Kohl asked you, that you agreed with
Justice O'Connor, ``that you look at the group that's affected,
not the group that's unaffected.'' But when you wrote your
dissent, you said, and I quote, ``It seems safe to assume that
some percentage, despite an initial inclination not to tell
their husbands, would notify their husbands without suffering
substantial ill effects, acknowledging some would suffer
substantial ill effects.''
Can you rationalize yesterday's statement and your dissent
for me? Explain it to me.
Judge Alito. Well, I think what you look at is the group
that is required to notify. You don't look at the group that's
not required to notify, so unmarried women are not examined
here because the notification requirement obviously does not
apply to them.
Then my understanding of Justice O'Connor's standard, which
was the ``more than some woman'' standard, let me put it that
way, although she didn't put it quite that strongly. She said
that it is insufficient that some women are inhibited from
having an abortion as a result of the requirement. So you look
at the people who are affected by--who are within the scope of
the provision, and then you would see how many of the people
within the scope of the provision would be inhibited from
having an abortion as a result of what was involved. You don't
look at people who aren't regulated at all, and you don't just
look at the people who would be inhibited because both of those
would not be the right thing to look at.
So in the case of--let's take the case of the informed
consent requirement. You'd look at everybody who was required
to receive the information that was within the informed consent
provision, and then you would ask how many of the people, how
many of the women who were regulated by this, would be
inhibited from having an abortion as a result of the
requirement. That was my understanding and that is my
understanding of what she was talking about.
Senator Biden. You referenced in your dissent in Casey the
Thornburgh case. What was the issue in Thornburgh?
Judge Alito. Thornburgh concerned--
Senator Biden. Excuse me. That prompted her to come up with
the statement that you referenced, which was that it does not
have to affect everyone?
Judge Alito. Well, she was setting our her understanding of
what the standard was, of the Undue Burden Standard. Now, in
Thornburgh there were several provisions of a previous version
of the Pennsylvania statute at issue. There was an informed
consent provision, as I recall. There was a provision relating
to health insurance. There was a provision relating to
notification of a minor's parents. There were a number of
provisions involved. And my recollection is that when she made
the statement, she was talking about the Undue Burden Standard
itself. It was an explanation of what she meant by the Undue
Burden Standard.
Senator Biden. As I went back and read it, my understanding
was--and I will not, in the interest of time, read her entire
two paragraphs here--but the part of Casey which she found to
be a particular problem as being declared unconstitutional by
her colleagues was where a doctor, an obstetrician would have
to read to a woman certain verbiage that would explain the pros
and cons about an abortion, or at least downsides of an
abortion. And she said the State has an interest in promoting
life, and so even though some women might be offended by that,
it was still OK, it was still constitutional.
That language is the language that the discussion about
even though some women would be affected, you transposed, in
good conscience, to a case where notification to a husband was
required. And one of the things that I had some difficulty with
is whether or not there really were comparable issues here. In
one case it was about whether or not a woman would fear for her
life, for example, an exception was given, if she informed her
husband. Another case, it was not about that that O'Connor was
referring to, she was referring to about whether or not it put
an undue burden on a woman to be told, ``By the way, this can
happen when you have an abortion, and this is the state the
fetus is, et cetera.'' And that is the part that kind of
disturbs me, or that perplexes me anyway, about the real world
here.
Senator Specter references the Violence Against Women Act.
We did a lot of work on that. There is overwhelming evidence
that there are women who would be fearful of going home and
telling their husbands they are going to have an abortion, not
fearful physically, fearful that the husband had all the
economic power and said, ``I am divorcing you and I am taking
the kids and having a custody battle, and you don't have the
money to hire a lawyer.''
Are they comparable ill effects? That is, that kind of ill
effect on a woman that if she tells her husband, he is going to
sue for divorce and seek custody of the children, knowing that
he has all the economic horsepower and she has no ability to go
out and hire a significant lawyer? Is that comparable to the
doctor saying, ``By the way, if you have an abortion, here is
what happens?''
Judge Alito. No. The informed consent provision presented
an easier--easier isn't even the right word--a less difficult
question than the spousal notification provision. I don't think
there's any question about that. They both involved the same
standard, which was the Undue Burden Standard. And therefore, I
thought--and I still think that's what's said in reference to
one provision is relevant in determining what the standard was.
The big issue, when this case was before us, was whether
the standard was undue burden or not. It's funny how cases look
different after they've progressed through the Supreme Court
than they do when they're first presented to the court of
appeals. That was the most hotly contested argument before us.
Had there been any change in the Supreme Court's case law--and
the plaintiffs argued strenuously that there had not--but our
panel, after some effort, determined under the Marks standard
for determining what the holding of a case is when there's no
majority opinion, that the standard was the Undue Burden
Standard. And there just wasn't a lot to go on. I think I said
that yesterday. I looked for whatever guidance I could find.
Senator Biden. Again, I am not questioning the sincerity of
your search. Again, it gets down to the thing that keeps coming
up with me, is not that you do not care about the little guy
and all of that, that your reading of statutory language,
Supreme Court precedent, the Constitution, seems to me to not
reflect some of the genuine real-life differences that exist.
The idea that you acknowledged that some women would suffer ill
effects, substantial ill effects from informing their husbands,
but because it was only a small percentage that met the Undue
Burden test, that did not meet the Undue Burden test, it seems
to me--
Anyway, the majority disagreed with you, and I happen to
disagree with you because I guess maybe it is because we have
been so exposed to how so many women are within their
relationships can suffer significant consequences for
challenging a position that their husband does not want to
accept, whether it has to do with abortion or what school their
child goes to, and it is pretty consequential. But that is my
problem with how you arrived at your reasoning--or your
reasoning how you arrived at your conclusion.
Let me move on to another area in the interest of time
here. Yesterday there was discussion about the Family and
Medical Leave Act, and you correctly stated there were two
distinct parts of the Act, and the Hibbs case dealt with one,
and Chittister dealt with another. Can you explain that again
for me?
Judge Alito. Yes. Hibbs concerned a provision that required
employers to give employees leave to be out of work to take
care of a family member. And there was a record that employers,
State employers had given more leave for this purpose to women
than they had to men, and that was based on the stereotype that
when somebody in the family gets sick and somebody has to leave
work to take care of the family member, it's the woman and not
the man, and it reinforced the stereotype, of course, because
having such a policy would encourage, would put pressure on
women to leave for this purpose, as opposed to the man. If
there was a woman and a man in the family, and somebody had to
leave work to take care of a sick family member, and you have a
plan like this, this is going to pressure the woman to do that.
So the Hibbs court found that that was a sufficient record of
gender discrimination to justify the passage of legislation
under Section 5 of the 14th Amendment.
Chittister concerned a provision that related to leave for
personal illness, and there's no reason to think that men or
women get sick more often one than the other, or what was to
the point, that State employers had given men more sick time
than women, or women more sick time than men. And so with that
record, it was the conclusion of my court, and I believe seven
other circuits, that this was a different issue. These cases
were decided before and after Hibbs and that could not be
justified if you accept the Congruence and Proportionality
Standard.
Senator Biden. On the Congruence and Proportionality
Standard, we in the Congress thought we were speaking to that
because were you aware or your colleagues--speak for yourself,
actually, you cannot speak for them--that one in four people
taking sick leave under the Act are women for pregnancy-related
disabilities? That we, when we wrote the law, we said
explicitly that working women, we wanted the bill to protect
working women from the dangers that pregnancy-based
distinctions could be extended to limit their employment
opportunities. I mean the practical world is that a fair number
of women who are pregnant are told in the last--and I yield to
my doctor at the end of the dais on the other side--but it is
not unusual for a woman to be told that she needs to, the last
month of pregnancy or 2 months of pregnancy, have bed rest. And
if that counts against her 12 weeks, employers--we did
establish there is a record where employers say, ``Hey, look,
man, we are going to give men and women the same leave,
notwithstanding the fact that women in fact in many
circumstances--and one in four of them are pregnancy-related--
need more time because of the pregnancy.'' I mean was that
discussed by you guys or women?
Judge Alito. I'm quite certain it never was. I would have
made a reference to it in the opinion if that had been
mentioned. I am not aware of that coming up in the other
circuit opinions on the issue. We are, to a degree--we can't
know everything about the real world, and we're dependent on
the arguments that are presented to us to a degree. I don't
believe that argument was ever presented.
Senator Biden. Congress expressly stated that the purpose
of the Act was, quote, ``to minimize the potential for
employment discrimination by ensuring generally that leave is
available for eligible medical reasons, including maternity-
related disability.'' That is why the decision confuses me. I
think all you probably have to do is turn to your wife and say,
``Hey, the real world, when you are pregnant does that sometime
inhibit the amount of time you are required to be away from
your job?'' Fortunately, most women, like my wife and my
daughter-in-law, work up to the time, but a lot cannot.
Let me suggest also, as I said to you in the hallway, I
want to kind of set the record straight on Princeton. One of
the reasons why I am perplexed and many of us are perplexed by
your answers regarding the CAP, the organization, is that it
does not fit with your background. As we both said in the
hallway, I read your opening statement again, where you said
that ``a generation earlier I think that somebody from my
background probably would not have felt fully comfortable at a
college like Princeton.'' And I pointed out to you I am about
10 years older than you, that is how I felt. That was what I
was referencing yesterday about my, you know, Irish-Catholic
kid from Claymont.
And the thing that surprises, or at least puzzles, me is
that it was kind of, I thought, it was a pretty widely known
debate that in the Ivies, the one sort of last holdout,
fighting to not admit as many women and fighting not to admit
as many minorities, was Princeton. There was a whole battle
over it, as you heard referenced in terms of the Wall Street
Journal and mailings to alumni.
And I noticed someone in the press. I want to be able to
wear the hat given to me by pointing out that the reason I can
wear this hat proudly today after being on campus as much as I
have at Princeton is today, 28.7 percent of Princeton's
undergraduate population is minority, and today, the class of
2005, 47 percent--47 percent--are women. So that is what that
battle was all about, a lot of us thought. I would be proud if
my daughter were at Princeton Graduate School instead of Penn
now, although I am very proud she is at Penn, but that is what
this debate was about, Judge, and that is why it still confuses
me.
I am going to ask you a straightforward question and I hope
it doesn't offend you. Did, when you listed CAP, was part of
your rationale for listing it in an application you thought
that would appeal to the outfit you were applying to, the
people looking at your resume?
Judge Alito. Well, Senator, as I said, I don't have a
recollection of having anything to do with CAP, so all I can
say is that I put it down on the '85 form and therefore I must
have been a member at around that time, and that's--I can't--
Senator Biden. I am not even suggesting about whether you
were or were not remembering. Was part of the reason--I am
looking for a reason. I am looking to be able to say--because
you don't impress me as someone, especially from your
background, that would want to keep Princeton as--I won't go
back and read the quotes--keep Princeton as, you know, imagine
my father's 50th reunion, having 40 percent women, isn't that
awful. You don't impress me as belonging to that club.
Judge Alito. Well, I wasn't.
Senator Biden. So the only explanation I can think of--and
you are not. You are a very informed guy. I mean, you are
sitting up there in North Jersey as a U.S. Attorney. As I said,
it is in the Wall Street Journal. It is a debate going on. You
are getting letters. The only thing I could figure is you
figured that a relatively conservative Reagan administration
Justice Department would say, hey, maybe that is the kind of
guy I want. I can't understand why else you would put it down.
But if that is not the reason, if you just listed the outfits
you belong to, that still perplexes me, but anyway--
Judge Alito. Well, Senator, I wasn't a member of that club
as you refer to it. By the time I entered Princeton, there were
many minorities in my class. The practice of not including
minorities had ended, and my class was not coeducational when
we were admitted, and as I said yesterday, I had never
previously attended a non-coeducational school--
Senator Biden. You had about 300 women, if I am guessing
right, when you got admitted, roughly. When were you admitted?
Judge Alito. I was admitted in 1968. It was not
coeducational. It went coeducational while I was there--
Senator Biden. In 1971, 1970-71, there were 300 women. Now,
there are 2,100 in that same class.
Anyway, I thank you very much, Judge. I yield the floor.
Chairman Specter. Thank you very much, Senator Biden.
We now have both Senator Durbin and Senator Coburn present.
Senator Durbin, you have asked for 2 minutes as a matter of
personal privilege.
Senator Durbin. Thank you very much, Mr. Chairman, and I
will make it brief.
Chairman Specter. You have 2 minutes.
Senator Durbin. In a courtroom and in a Committee room, it
is not unusual to try to rehabilitate a witness. When hard
questions are asked, people come back with information. Mr.
Gillespie and his team are down there providing information, as
are others. It is perfectly acceptable. We would do the same
thing if the shoe were on the other foot.
Two personal references to me were made after I left the
room, and I apologize for leaving the Committee room. One
related to the fact that I had earlier been in the pro-life
position in my political life, and it is true. I made reference
to this in my opening statement. I have stood for election more
than 12 times in the House and the Senate, general and primary,
stating my position as pro-choice, so the voters of Illinois
know that.
I had asked Judge Alito whether his position had changed
from 1985. That was the nature of my questions to you this
morning. I don't consider that to be a shortcoming if you would
concede it changed, although at this point, you have not made
that concession. Abraham Lincoln was once accused of changing
his position on an issue and he said, I would rather be right
some of the time than wrong all of the time, and so I don't
think changing your mind is necessarily condemnation.
The second point I would like to make specifically is my
reference to settled law. Roe v. Wade is settled law, and I am
sorry that Senator Hatch is not here at the moment, but I would
like to read into the record exactly what was said on September
13, 2005, before this Committee when Senator Specter said,
Judge Roberts--
Chairman Specter. Does this involve Senator Hatch, Senator
Durbin?
Senator Durbin. It does. Senator Hatch raised the question
that I had said--
[Laughter.]
Senator Durbin [continuing]. That this position--
Chairman Specter. Shouldn't we have Senator Hatch here?
Senator Durbin. If you want to wait, I will wait.
Chairman Specter. Yes, I would like to wait until Senator
Hatch arrives. That way, we may be able to conclude this not in
2 minutes, but in less than 2 hours.
I have made inquiries on the Rusher issue over the lunch
hour, and I have some things to say about it, but I am not
going to say them until Senator Kennedy arrives--
[Laughter.]
Chairman Specter. --so I have asked staff to inform Senator
Kennedy that I await his arrival.
In the meantime, if it pleases this august body, we will
proceed with the hearing. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I do want to tie some
loose ends up and one of them makes reference to something
Senator Kennedy read. Would it be OK if I proceed with that? I
think it would be fine. This has to do with this last matter
that Senator Biden was also discussing and that is the
Princeton alumni group.
Just to make sure that the key facts are understood here,
you believe you joined, Judge Alito, around 1985 because of a
concerned threat to ROTC at Princeton University, is that
correct?
Judge Alito. Well, Senator, I don't recall joining, but I
do remember that that was the issue relating to the
administration that was bothering me for a period of time,
including that period.
Senator Kyl. And just for the record, Mr. Chairman, I would
ask unanimous consent to insert a quotation from the Princeton
packet. I will just quote it here. Prospect editor Denise
DeSouza added that CAP is concerned about the formation of a
third-world center, a campaign to eliminate the Army ROTC
program, and what it perceives as the decline of Princeton
athletics.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Second, on this matter, and I refer to this as
the very scurrilous material read by Senator Kennedy, I suspect
we would all agree was scurrilous material, had you ever heard
of any of that material that he read a while ago before today?
Judge Alito. No, Senator.
Senator Kyl. I believe you said you vehemently disagreed
with it, is that correct?
Judge Alito. I do. I deplore those things.
Senator Kyl. And would disavow it?
Judge Alito. I disavow it. I would never associate myself
with those things.
Senator Kyl. Did you know that such things had been
published by the PAC when you were a member of it, or when you
joined it?
Judge Alito. Absolutely not. I would never be a member of
an organization that took those positions.
Senator Kyl. OK. And also, Mr. Chairman, unanimous consent
for the record to contain the disclaimer which the editors of
the Prospect include in the magazine. It reads, ``The
appearance of an article in Prospect does not necessarily
represent an endorsement of the author's beliefs by the
Concerned Alumni of Princeton.''
Chairman Specter. Without objection, it, too, will be made
a part of the record.
Senator Kyl. OK. Now let us return to your 15 years as a
judge and how matters might come before you in the U.S. Supreme
Court. I just wanted to also refer to something that I put in
the record yesterday. It is a very difficult thing to look at
4,000 cases and conclude that, when you have ruled on both
sides of issues depending upon different fact situations, as we
have talked about before, that you necessarily favor one side
or the other. One of the areas of concern was in the area of
discrimination. I just want to read one sentence of what I
inserted in the record yesterday regarding employment
discrimination and see if you have any other comment on it.
A 2003 study of employment discrimination claims in Federal
court found that Federal appeals court judges sided with
employment discrimination plaintiffs in only 13 percent of the
cases. Judge Alito's record of four out of 18, or 22 percent,
is actually more favorable to plaintiffs. Do you know that to
be incorrect or do you have any other comment on it?
Judge Alito. I don't know--I'm not familiar with the
statistics. The way the appeals system is set up, the types
of--I think that's what results in the statistics that you
mentioned, the low rate of success for plaintiffs, because
these cases are generally cases in which summary judgment has
been granted for the defendant. If the district court denies
summary judgment for the defendant, then the case will go to
trial and very often is settled, or there's a trial and then
there's no appeal after the trial. So the cases that we get,
most of the cases that we get are cases that have been looked
at by a conscientious district judge and found not to be cases
that should go to trial and I think that's what produces those
statistics.
Senator Kyl. And that's an interesting lesson, I think, for
all of us, to be able to explain why certain cases come to
courts and why they would be more on one side than the other.
It is an important lesson, I think, both for lawyers and non-
lawyers to appreciate that kind of dynamic, because otherwise,
if you just look at raw statistics and don't know the
background, you could come to different conclusions. So I
appreciate that.
In another area, it is apparent to me that you are simply
not going to be able to satisfy some of my colleagues because
you will not absolutely commit to rule the way that they want
to on a couple of key issues, for example, on the issue of
abortion. You have repeatedly confirmed the significance in the
role of precedent, in this case, Roe v. Wade. You also noted
situations in which, as a Third Circuit Court judge, you
adhered to the Roe v. Wade precedent.
But you have declined to announce your constitutional view
of Roe today, despite repeated attempts by some of my
colleagues to get you to do it in these hearings. Implied in
your answer is the point that to do that here would commit you
to a particular result, something you cannot ethically do. Are
there cases regarding abortion that you believe may come before
the U.S. Supreme Court?
Judge Alito. There certainly are cases that may come before
the Supreme Court. There is a case involving abortion before
the Court this term, and they come up with some regularity.
Many of them involve the application of Roe. Most of them
involve the application of Roe or the application of other
precedents that build on Roe. But it is entirely possible that
a case involving Roe itself could come up at some point in the
future.
Senator Kyl. Now, I said in my opening statement that I
would defend your right to decline to say in advance how you
would rule on matters that could come before you, but kind of
along the same lines that you did a moment ago, perhaps you
could tell us the reason for the rule, in other words, to
elaborate on the damage that would be done if judges indicate
in advance how they might rule on cases. What is the reason for
that rule?
Judge Alito. In my mind, the most important reason is that
to do that would undermine the entire judicial decisionmaking
process. We have a process for deciding legal issues and it is
critically important that we stick to that process, and that
means that when an issue comes before us, the briefs are not a
formality. The arguments of the attorneys are not a formality.
We should read those very carefully and we should study the
issue and we should study all the authorities that are cited to
us and carefully consider all of the arguments that are
presented to us, both in the briefs and in the attorneys' oral
presentation, and then go into the conference and discuss the
case among the members of the court, and we shouldn't decide
legal questions without questions that are going to--not just
abstract questions as if we were in a constitutional law
seminar, but cases that are going to have an impact on the real
world. We shouldn't decide those questions even in our own
minds without going through that whole process.
If we announce--if a judge or a judicial nominee announced
before even reading the briefs or getting the case or hearing
the argument what he or she thought about the ultimate legal
issue, all of that would be rendered meaningless and people
would lose all their respect for the judicial system, and with
justification, because that is not the way in which members of
the judiciary are supposed to go about the work of deciding
cases.
Senator Kyl. I have talked about this image we have of Lady
Justice, the blind figure with the scales of justice in her
hand, and try to describe why she has the blindfold across her
eyes. I just marvel at our judicial system, and having
represented clients in court for 20 years myself, how we in
America are willing to literally put our lives sometimes,
certainly our freedom and our fortune, in the hands of a
person, one judge frequently, sometimes a jury, sometimes not,
sometimes more than one judge, but frequently a judge. How
would people possibly have the trust to put everything they
own, or their own freedom, in the hands of a person if we as a
country hadn't established over 200 years of adhering to this
rule of law, this notion that justice is blind, that the facts
of your case and the law will decide whether you win or lose
and nothing else?
It is a remarkable phenomenon, if you stop to think about
it, and not all countries do that, and even countries that have
judicial systems, I don't think one can have near the
confidence in that we do here in the United States. So it is a
critical, critical principle that plays itself out in
courtrooms around this country every day and it is something
that I think we have to fight to preserve as much as we
possibly can, and I appreciate your explanation of that.
Just a couple of final things and I am going to be able to
yield back some of my time. I just can't resist pointing out
one little irony here and it has to do with the precedent that
I spoke of before, Roe v. Wade, that is so important to several
members of this Committee. It was written by a Justice who
himself was, at least in some cases, willing to throw off
precedent. Do you remember who wrote the opinion in Roe v.
Wade?
Judge Alito. It was Justice Blackman.
Senator Kyl. Justice Blackman, and in, one might say, an
infamous 1994 dissent from a denial of cert in the case of
Collins v. Collins, Justice Blackman wrote that he would refuse
to follow all Supreme Court precedent on the death penalty,
which has been ruled constitutional by the Court, of course, by
saying that he would, and I quote, ``no longer tinker with the
machinery of death,'' end of quote. I suspect that is not the
way to deal with precedent. If you have a comment on it, fine,
but again, I just think it ironic that the decision perhaps
most in focus here was authored by a judge who himself was
quite willing to throw off precedent, I would argue in a rather
cavalier way, in a situation in which he didn't like it.
Let me just close by putting something in the record and
making a comment. Mr. Chairman, I ask unanimous consent to
insert the following statement in the record, but I would like
to read it because it is a statement of the Majority Leader of
the Senate, Bill Frist.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. And let me briefly read it. ``As a Princeton
alumnus, I had concerns about CAP, but I have no concerns about
Judge Alito's credibility, integrity, and his commitment to
protecting the equal rights of all Americans. Judge Alito has
condemned discrimination, and his record of more than 15 years
demonstrates his commitment to equal rights for women and
minorities.
``Old documents of a now-defunct organization will not tell
us more than Alito's statements and record already have.
Further, the views that the Democrats attribute to Alito
through CAP were the views expressed by an individual member in
a magazine, who was not speaking for the organization and
certainly not for Judge Alito. This is another transparent
attempt by Democrats to wage an unfair smear campaign against
an exceptionally qualified nominee.''
Mr. Chairman, I read that not to attribute the views to any
member of this committee, but I think it is important that the
reputation of this fine jurist be based upon his actions as a
jurist for over 15 years, as I said in my opening statement--
longer than any other justice of the U.S. Supreme Court, except
for one, 70 years ago, on a circuit court of appeals--with a
record of over 4,000 decisions and an ample opportunity to know
what kind of a person he is, what kind of a judge he has been,
and, I would argue, what kind of a judge that he would make.
I do not believe that his answers to questions have been
inconsistent or unforthcoming. I believe that, as a matter of
fact, Judge, you have been very forthcoming in your answers to
questions, including getting right up to the edge on a lot of
matters that arguably could come before the Court. But you did
not try to dodge or duck those questions at all. In fact, let
me just read for the record two or three statements relating to
your performance here at this hearing, if I could, please.
Well, Senator Biden isn't here, so I won't read what he has
said. But it is on the chart. And I appreciate what he said, by
the way.
Jill Zuckman, who writes for the Chicago Tribune: ``Judge
Alito has gone farther and I think that has given a lot more
substance to these hearings, said Specter--meaning our
distinguished chairman, Arlen Specter.''
And then, Dana Milbank, writing in the Washington Post:
``Unlike John G. Roberts, Jr., who made frequent attempts to
soften his views and dodge many of the questions, Alito took
almost every question.''
I am not going to subscribe to the first part of that last
quotation with respect to Judge Roberts, but I think it is true
that you have taken the questions, you have answered them to
the best of your ability, and you have only stopped short when
not to do so would be to commit to a decision in a case that
you are not ethically permitted to do and that would do
injustice to the rule of law and the parties that might come
before the Court.
So I want to commend you for being so forthcoming, for
answering our questions, and for testifying in a very
thoughtful, and as has been apparent to everybody, without any
notes or materials or referring to any other people here, with
great knowledge about both the matters on which you have worked
and the law generally.
Thank you, Judge.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman.
Judge Alito, after the first day of questions, it seems
very clear that you believe there are certain bedrock
principles in American constitutional law, principles like the
right of one man, one vote in redistricting, the right of
children not to have to go to schools unless they are
integrated schools, the right for people to have privacy in
making decisions about contraception, and other rights.
Even though these are cases where the principles are raised
and their application is debated on the margins or even more
fundamentally, I believe you have said and you are willing to
say that you will not question the underlying principle
involved on these issues. And I commend you for that. We are
assured, and I believe, that you clearly do stand by those
principles.
And yet, when you are asked about Roe v. Wade and the
following case of Casey, cases that say the Government should
not place an undue burden on a woman's right to choose, when we
ask about principles of that sort, you are unwilling to make
the same statement of support.
Now, I understand that there will be cases where plaintiffs
argue on the margins about Roe and Casey, where there are
efforts to narrow or broaden these principles, just as there
are cases that narrow or broaden the principles of one man, one
vote or the issue enunciated in Brown v. Board of Education or
Griswold. But you are willing to stand by those other legal
principles and yet you are not taking the same position with
regard to the principles embodied in Roe and Casey.
Could you explain that, please?
Judge Alito. Senator, I think it's important to draw a
distinction between issues that could realistically come up
before the courts and issues that are very much, that are still
very much in play--which is to say, the subject of litigation
in the courts. And I felt comfortable about commenting on one
person, one vote and, of course, Brown v. Board of Education
because those are not issues that are any longer the subject of
litigation in our country, not the fundamental principles that
are embodied in those decisions. And the Griswold case,
likewise, concerns an issue that is not realistically likely to
come before the courts.
Roe, on the other hand, involves an issue that is involved
in a considerable amount of litigation before the courts, and
so that's where I feel that I must draw the line, because on
issues that could realistically come up, it would be improper
for me to express a view and I would not reach a conclusion
regarding any issue like that before going through the whole
judicial process that I described.
Senator Kohl. I think there is strength to what you say,
but I also believe it is not inaccurate to say that these other
issues on the margins, just as Roe on the margins, are still
coming up and may yet come up before the Court. And I still
feel that while you are prepared to take a position on these
other issues which is almost bottom-line, clearly bottom-line,
you are not prepared to take that same position--which you
could, if you wished; you could take that position if you
wished. And I think what that does suggest is that what you are
saying is that it is possible, if a case comes before you, that
you would take a look at the principles underlying Roe and
Casey and see them in a way that would overturn Roe and Casey.
Now, you may say, well, obviously the answer is yes. But I
just want to get that clarified for the record.
Judge Alito. Well, what I would do if a case like that were
to come before me, and if I'm confirmed, is to follow the two-
step process that I've talked about, which is first to consider
the issue of stare decisis. And there's been a considerable
body of case law now on this issue going back to Roe and, in
particular over the last 20 years, and in the Casey opinion,
that was where the joint opinion began and the joint opinion
ended. And then only if I got beyond that issue would I
consider the underlying issue. And that's what I would do if
the issue were to come up. And I don't believe that it would be
appropriate and it wouldn't even be realistic for me to go
further than that.
Senator Kohl. That is correct. And in your mind, you are
not prepared to say that the principle embodied in Roe v. Wade
and the principle embodied in Casey is clearly established law
that is not subject, to your mind, to review. You are not
prepared--I mean, that is not your position, which I think you
have said. But I think, at least for me, a clarification of
that would be of some importance.
Judge Alito. Well, in light of the current state of
litigation relating to the issue of abortion--and as I said,
there's an abortion case before the Supreme Court this term and
there are undoubtedly abortion cases before the lower Federal
courts; I know there are--I don't believe that it's appropriate
for me to go further than that in relation to that issue.
Senator Kohl. All right.
Judge Alito, the President nominated you for the Supreme
Court because of your record as a person and as a judge. Groups
and individuals, particularly on the right, quickly endorsed
you soon after your nomination because they feel comfortable
with your record as you have established it over several
decades now, where you have come from, and where you are on the
issues that are important to them. We also assume that you
yourself are very proud of your record, as you should be. As a
man of principle and conviction, which we believe you are, you
worked on issues throughout your career as a Justice Department
attorney that you believed in, that you cared about, that
mattered to you. And I am certain you would say that if you
didn't believe in these things, you would not have gone to work
for that particular Justice Department under that particular
administration.
And yet yesterday during the hearing, you seemed to walk
away from a lot of your record. For example, when asked about
an interview where you supported Judge Bork, calling him ``one
of the most outstanding nominees of this century,'' you
answered that you were just supporting the administration's
position, that that wasn't your position. And even then, you
distanced yourself from a number of his views, after having
said that he was one of the most outstanding nominees of this
century. You are a man of conviction; I am sure you are. And
you are not just a mouthpiece for people. You never have been
and you never will be--which is to your credit.
When asked about the strong position you took opposing a
woman's right to choose in your job application, you said that
only reflected how you felt then and did not suggest anything
of what you believe now. What you felt then you felt as a full-
grown man, and you are saying that is not necessarily how you
feel now.
When asked about your membership in a radical organization
at Princeton, a group that you cited with pride on your job
application, you said that you could not remember anything
about the group at all.
When asked about the citation on your job application where
you refer to the importance of traditional values, and what you
meant by traditional values, then you answered, somewhat
incomprehensibly, when you said that you were protecting
children from ``psychological threats that come from elements
in the atmosphere is a traditional value.''
I also asked you about your statement on your job
application that you disagreed with the Warren Court's rulings
on reapportionment, rulings that stand for the basic principle
of one person, one vote. Indeed, you said your disagreement was
so strong that it contributed to your decision to pursue a
legal career. Yesterday you stated that you in fact did not
disagree with the principle of one person, one vote--not then,
not now.
So, Judge, this is the only time that the people of this
country are going to have an opportunity to get a sense of who
you are, what you believe in, what you stand for, who you are
as a person. I think you would say that the American people
have the absolute right to know that, without condition,
without any political considerations, that the most important
part of this hearing is that the American people get a chance,
through our questions and your answers, to know who you really
are. I would like to hope that you would say the job isn't
worth it if we can't do that and do that well. And I believe
you believe that.
So I would like to ask you how you bring into a sense of
harmony some of these things that you have done and said
throughout your career which have brought you to this situation
in which you are now, a person being nominated to serve on the
Supreme Court, and some of the positions which you have taken
in the last few days which, in effect, distance you from some
of the very things that you have done and stood for over a
career that bring you to where you are today.
Judge Alito. Senator, you mentioned a number of things and
I've tried to jot them down so that I could cover at least the
major things that you mentioned.
You mentioned--and I guess I'll take these in reverse order
of chronology--you mentioned the statement in the 1985
statement relating to reapportionment. And I've tried to
explain what I had in mind. The statement in the '85 statement
talked about what I thought about reapportionment when I was in
college. And the reason why I mentioned that--why would I
mention what I thought about constitutional law in college
before I'd even been to law school?
What I was attempting to do was to explain the development
of my thinking about the role of the judiciary and about
constitutional law and, in particular my development of my
strong belief in judicial self-restraint. And the first place
in which I saw a theoretical explanation of that doctrine,
which I found persuasive at the time, was Alexander's Bickel's
book, ``The Supreme Court and the Idea of Progress,'' which
came out during the time when I was in college. I think it was
the first book about constitutional theory, so to speak, that I
had read. And he addressed the issue of one person, one vote,
and that linked up in my mind with the experiences of my father
in working on the reapportionment of the New Jersey
legislature.
And at the time when I was in college, there was an issue
that was very much a live issue at the time as to what one
person, one vote meant. Did it mean that you took this
principle of one person, one vote and applied it with blinding
literalness so that every district was exactly equal in
population, or very close to that, with a population deviation
of under 1 percent, or could other factors that people thought
were legitimate factors to be considered in drawing districts,
such as respecting county lines and municipal lines; was it
permissible to take those into account? That's what I know I
was thinking about reapportionment back in my college days.
I referred in the statement to traditional values, and I
said yesterday at this point in 2006, I can't say for sure
exactly what was on my mind in 1985, when I made reference to
traditional values. But I tried to describe some of the things
that I probably thought were traditional--thought of as
traditional values, and I listed a number of them. One--and a
lot of them had to do with the ability of people to live and
raise a family in the sort of neighborhood where I grew up. And
I gave a little description of that earlier.
So it would include things like being able to live in peace
and safety. I think that's a traditional value, and that was
very much at stake when I was in college in the late '60s and
early '70s and in 1985, because these were eras of high crime.
And a lot of the work that I had done up to 1985 as an
assistant U.S. attorney and working on criminal cases in the
Solicitor General's Office seemed to me to be involved with
this issue of protecting people from the threat of crime.
I think I mentioned the ability to raise children the way
you want, to instill your values, not to have them subject to
certain external threats. And these were--you know, I've tried
to think of why would these have been at issue in the mid-80s.
And they were at issue because of things like some of the
things I was referring to earlier today about children being
able to, and students being able to express their religious
views at school in a nondiscriminatory way, so that religious
speech was not discriminated against. And that was very much at
issue in the '80s. Congress passed the Equal Access Act at
about that time to embody that principle.
So those were some of the things that came to my mind as
traditional values.
The 1985 statement in reference to abortion, I have not
distanced myself from it. I have said that that was a correct
expression of what I thought in 1985 when I wrote it. It was
written in 1985, and that was 20 years ago. And there's been a
lot of case law in the intervening years. There was Thornburgh
and there was Webster and Casey, all of which involved direct
challenges to Roe, and there were other cases applying Roe.
So that's what I had in mind with respect to the matters
that you've covered.
Senator Kohl. Last question. When we met privately, I asked
you what sort of Supreme Court Justice you would make and your
answer was fair when you said if you want to know what sort of
justice I would make, look at the sort of judge that I have
been.
Last week, the Washington Post did exactly that in an
analysis of your record as a Third Circuit judge for the past
15 years. They analyzed 221 cases that you sat on and in which
the court's decision was divided. I recognize that in every
case there is a difference and that it must be decided on its
facts. Nonetheless, this data reveals patterns and tendencies
in your decisions, among other things, as you may have
recollected from the Post article.
It was found that in civil rights cases you sided against
three out of every four people who claimed to have been victims
of discrimination. This was a significantly greater rate than
other judges in a national sample of cases. Of 33 criminal
cases the newspaper analyzed, you sided with the criminal
defendant only three times. This was a very much lower rate
than the national sample. In immigration cases, the Post also
found that you sided with immigrants who were trying to win
asylum or block deportation only in one out of eight cases
analyzed. This was much less than most judges in the national
sample.
Now, the Washington Post was not the only one to perform an
analysis of your record. Noted constitutional law professor
Cass Sunstein, for example, found that, ``When there is a
conflict between institutions and individual rights, Judge
Alito's dissenting opinions argue against individual rights 84
percent of the time.''
So what can we glean from these analyses of Judge Alito and
what might they indicate with respect to your posture on cases
should you become a Justice of the Supreme Court?
Judge Alito. On the discrimination cases, Senator, I think
that the statistic that Senator Kyl just cited speaks directly
to that, a comparison of the number of times in which people
claiming discrimination prevailed in the cases won my vote
compared to the average for circuit judges in general. And I
think that those statistics--that my statistics and the
statistics for circuit judges in general have to be viewed
against the background of--have to be viewed with a recognition
of the way in which these discrimination cases come up through
the court system. Most of them are cases in which the person
claiming the violation lost in the district court, and that
means that a district court judge--and they are not always
right, but most of the time they are right. And they are
conscientious people, and they apply the same law that we do.
They found that these were not meritorious cases. And so if you
start out with a group of cases that have already been found to
be not meritorious, it stands to reason that probably not a
very high percentage of them will ultimately be found to be
meritorious.
On the immigration cases, I take very seriously--and I
don't know what the statistics are in this area, but I can tell
you this, that I take very seriously the scope of review that I
am supposed to perform as an appellate judge. And that is
usually dictated by Congress, and in the area of immigration,
Congress has spoken clearly. And as to factual decisions that
are made by an immigration judge, what Congress has told us is
you are not to disturb those unless no reasonable fact finder
could have reached the conclusion that the immigration judge
did. And I very often see a record where I think it's doubtful.
I say to myself, ``I might have decided this differently if I
were the immigration judge.'' But I wasn't there. I didn't see
the witnesses testify personally. And Congress has told me what
my role is there. My role is not to substitute my judgment for
that of the immigration judge. My job is to say, Could a
reasonable person have reached the conclusion that the
immigration judge did? And if I find that a reasonable person
could have reached that conclusion, then it's my job to deny
the petition for review. And that's what I do in those
instances.
Senator Kohl. I appreciate that. I would just comment again
that your siding with immigrants who were trying to win asylum
or block deportation, you sided only in one out of eight cases
that they analyzed, and this was much less than most judges in
a national sample who are about evenly divided in their
decisions on these issues. This was what their analysis
indicated.
So, you know, for whatever it is worth, you were one out of
eight; in the national sample of judges, it was about 50
percent. I only bring that up for your comment.
I thank you very much, Judge Alito, and, Mr. Chairman, I
thank you.
Chairman Specter. Thank you, Senator Kohl.
We have made some inquiries about the issue which Senator
Kennedy has raised about the Concerned Alumni of Princeton. As
to the letter, I am advised by my chief of staff, Michael
O'Neill, that he first saw a computer letter and that he
believes later a letter was delivered to the Judiciary
Committee headquarters, apparently near Christmas, perhaps on
Christmas Eve, and our custom is to log letters in, and the
letter was never logged in. But I repeat and confirm that I
have never seen this letter until I saw a computer printout of
it about an hour ago.
Mr. O'Neill did talk to me about it over the break between
Christmas and New Year's. I traveled to Iraq. That is the first
time on the Judiciary Committee schedule I could find a few
days to get away, and Mr. O'Neill reminds me that we talked
about it on the phone, and I thought the matter was
unmeritorious, not worthy of the time of the Committee, based
on all that I knew about it. A very brief conversation.
We get so many requests and there are so many items that
are largely staff-driven--not that staff-driven matters aren't
important, but if something is of significance, you customarily
expect a member to tell you about it.
Senator Kennedy and I frequent the gym at the same time and
talk all the time, and he never mentioned it to me, nor did he
take it to the Ranking Member.
I make it a point that Senator Leahy's calls are the first
ones I return, and I have a fair number, but I return all calls
from Members very, very promptly. And had this matter been
presented to me, I would have given it more attention than I
did on that telephone call that I have referred to.
So much for matters which are not quite as relevant as what
I am about to come to. The New York Times published a story
about this on November 26th, and my chief of staff, William
Reynolds, talked to David Kirkpatrick, who said he had gone
through all of the records. And as the story in the public
domain stated, these are the records that the Library of
Congress, the Rusher records, those records and others at the
med. library at Princeton give no indication that Judge Alito
was among the group's major donors. He was not an active leader
of the group, and two of his classmates who were involved and
Mr. Rusher said they did not remember his playing a role.
Well, the obvious thing to do is to call Mr. Rusher, which
Mr. O'Neill did over the lunch hour, and Mr. Rusher said he
would be glad to have us look at his record, and that he had
received a request from Congressional Research Service, but it
was from an unnamed requester, and he declined. But he said had
he received a request from Senator Kennedy or some member of
this Committee, he would have made the records available. So in
Senator Kennedy's absence, I asked a staffer to tell him that
we had moved ahead, but I didn't want to waste any time, and
Mr. O'Neill has contacted Senator Kennedy's staffers, and they
are en route or at the Library of Congress to look at these
records so that we can confirm what the New York Times' David
Kirkpatrick has had to say.
I am just a little puzzled at the issue being raised in
this manner. We talk all the time, and I am just a little
surprised that Senator Kennedy hadn't talked to Senator Leahy
or hadn't talked to me before he made a request for access to
the Rusher records, talks about a subpoena, talks about a
ruling of the Chair, talks about overruling the Chair. Just a
little puzzled. But the substantive matters are being attended
to. And I share Senator Kennedy's concern that we have all the
facts. All the facts. All the facts. And this is a lifetime
appointment. It is a matter of tremendous importance, and I
wouldn't want to find on some occasion that something comes to
light which would bear on this nomination that we could have
found out had we been more vigilant.
Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman. I welcome the
fact that we are going to have the access to those records. The
fact remains I didn't anticipate--I thought that since this was
a major issue on the 1985 application of the nominee for a new
job, this membership with the Federalist Society and the CAP
organization, I thought as a matter of routine that we would
have access to those records. And it was a letter to you, as we
would do, and would followup with the staff, which is the usual
procedure here. I regret I have not been down in the gym since
before Christmas so I have missed you down there.
But the important fact is we are going to get that
information. I think that is what is extremely important. And,
quite frankly, if we had been able to get what I think were
more responsive answers by the nominee during the course of the
exchange today, I don't think it would have even been
necessary. But I don't think you would be able to look through
the transcript on the exchanges that we had with the nominee
and not feel that we have an important responsibility to
followup.
So I am grateful that we will have that chance to followup,
and I look forward to the further considerations and evaluation
of the material and further considerations of the hearing.
Chairman Specter. Enough said.
Senator Leahy, you have a unanimous consent request?
Senator Leahy. Yes, Mr. Chairman. As I had understood, we
will be going back to another round, so if I have
misunderstood, you will correct me. But as I understood Judge
Alito, he saw no connection between his unified Executive
theory and the use of Presidential signing statements. In fact,
the Wall Street Journal reported the President has cited the
unitary Executive 103 times in Presidential signing statements.
So I would like to put that article and some articles from the
Post that are relevant in the record. In fact, in the defense
bill, the McCain torture amendment, he specifically employed a
signing statement mentioning the unitary Executive, and I would
like to make that part of the record.
Chairman Specter. Without objection, those documents will
be made a part of the record.
Senator DeWine, 20 minutes.
Senator DeWine. Thank you, Mr. Chairman.
Judge, yesterday you and I discussed the concerns that I
have about the Supreme Court's willingness to strike down law
passed by this Congress and by State legislators. This lack of
what I consider to be appropriate deference by the Court
endangers our ability to protect the rights of our citizens.
One of the groups that I am most concerned about in that
context is people with disabilities. Congress has passed a
number of laws to assure that people with disabilities have
equal access and equal opportunities. I think it is critically
important that we make sure that those with disabilities have
these opportunities to participate fully in our society in
every way possible.
As you know, Judge, the Americans with Disabilities Act was
a landmark piece of legislation passed by this Congress in our
ongoing efforts to assure that people with disabilities are
treated fairly. The 1999 case of Olmstead v. L.C. was an
important Supreme Court case interpreting this law. As you
know, Olmstead held that Title II of the ADA requires States to
serve individuals with disabilities in community settings
whenever possible, instead of segregating them while providing
them with care.
Olmstead was decided after the case of Helen L. v. DiDario,
a case which, of course, you are familiar with, a Third Circuit
case, that reached essentially the same conclusion. Although
you were not on the Helen L. panel, you along with four other
judges voted to rehear the case en banc.
So let me ask you, Judge, if you could, to discuss with us
your reasoning behind voting to rehear the Helen L. case. I
would like to ask you, did that vote to rehear the case mean
that you thought that the Helen L. case was decided incorrectly
or that you opposed the later holding in Olmstead? Let me also
ask you, now that Olmstead has been decided, do your reasons
for voting to rehear the Helen L. case still apply? And do you
have any concerns with the Supreme Court's holding in Olmstead
that would cause you to question the validity of that
particular decision?
Judge Alito. I certainly don't have any concerns about the
decision in Olmstead. I would have to look at my own file in
the Helen L. case--and I doubt that there is any file in the
case at this point--to try and see if there's anything in there
to indicate specifically why I voted for rehearing in the case.
And perhaps if--but I can say this: that I read the decision
again, and one important part of the opinion in the case
attempts to distinguish an earlier Third Circuit case that
seemed to be somewhat closely related--closely related to the
issue that was at hand. And I noted there were five votes for
rehearing in the case, and that's quite unusual. It's unusual
for there to be that many votes for rehearing.
Most of the time--I would say most of the time when we vote
for rehearing, the reason is because we think that there may be
an inconsistency in our court case law, and that doesn't
necessarily mean that we think that the decision we're voting
to rehear was incorrect. Quite often, we think the decision
that we are voting to reconsider is correct, but that it is
inconsistent with a prior case that needs to be overruled, and
we are very scrupulous about following our own precedents, not
ignoring them. So if we have a precedent out there and it seems
to us to be wrong and the issue comes up in a later case, then
our mechanism is to vote to rehear.
That happens very often, and my guess, based on what I can
tell just from reading the opinion and looking at the votes for
rehearing and the judges who voted for rehearing, is that could
have been what was going on.
Senator DeWine. I appreciate your answer, Judge.
As the Chair of this Committee's Subcommittee on Antitrust,
I have seen that it is often very hard to draw the line between
anticompetitive conduct and, frankly, just good old-fashioned
competition. Let me give you an example that Senator Kohl and I
have done a great deal of work on, and, frankly, Senator Kohl
has really taken a lead on. Many hospitals buy their supplies
through group purchasing organizations, known as GPOs. These
organizations purchase products for a large number of hospitals
at one time, which decreases prices, but also gives them
extraordinary power over which products get used and which ones
don't get used. Often, GPOs reach deals with major suppliers to
buy items in bundles; in other words, buy a number of different
products from those suppliers in order to get discounts on all
the products. It saves money, but it also means that smaller
companies, which many only offer one of these products, have
really a hard time competing with the large discounts being
offered. The result is that smaller companies have difficulty
getting into the market even if their one specific product may
be better or it may even be cheaper.
Judge, you had a case that dealt with bundling like this.
It was the 3M v. LePage case. In that case, 3M, which sells
Scotch tape, was selling it as part of a bundle with other
products. The result was that LePage, which was offering a
cheaper competing tape, was having a hard time getting stores
to sell its tape because if the stores then did, they would
have to give up the chance to save money on all the other 3M
products that they carried. The majority ruled against 3M, but
you dissented. I wonder if you could please explain your
reasoning behind that dissent and explain what type of bundle
discounts you think would violate the antitrust laws.
Judge Alito. Well, let me preface what I'm going to say by
saying that I'm not an antitrust expert and so I plod my way
through these antitrust issues when they come up. But this was
a tough one and it was a monopolization case and it required an
examination of all the factors that were relevant to a
determination of whether 3M was engaging in monopolization.
3M was selling the product, as I recall, it was selling
these products--it was not selling them below its cost. It was
selling them above its cost, but 3M was--because of its scale
or because it was more efficient, was able to produce its
product more cheaply. I remember looking at the authorities
that had discussed this and the writing of leading antitrust
experts on bundling issues and that factor, taken together with
the other factors in the case, persuaded Judge Greenberg and I,
and we were the majority on the case at the panel level, that
there wasn't sufficient evidence of monopolization here. And
then when the case went en banc, the court as a whole came out
the other way.
But my understanding of the state of the scholarship on
this issue right now and on the way economists view the issue
is that I believe that, or many of them who believe that this
is--a situation like this is not--does not involve
monopolization. This is not a way in which a company like that
can engage in a predatory practice over a period of time. But
there is uncertainty, really, about how the monopolization
standard applies to issues of bundling. So I think it's quite
up in the air, and should it come up again, I think it merits
reexamination.
Senator DeWine. Thank you, Judge. Judge, you have heard a
lot of discussion and many of us have said that we don't like
it when judges legislate from the bench. For judges to properly
perform their function, obviously, it is crucial that they
attempt to put their own policy preferences aside in the cases
before them. But it seems to me that this is a lot easier said
than done.
Our Constitution is not a dictionary. It contains a number
of very broad, undefined phrases. Let me give you some
examples. The Fourth Amendment prohibits unreasonable searches
and seizures. The 14th Amendment says that the State shall not
deprive any person of liberty without due process of law. The
Eighth Amendment prohibits cruel and unusual punishments. I am
sure you could supply a lot more examples than I am.
When confronted with such broad phrases, like
``unreasonable'' or ``liberty,'' ``cruel and unusual,'' how do
you know whether you are making policy or merely interpreting
the Constitution itself? What tools will you use as a Supreme
Court Justice to ensure that your personal views do not play a
role in your decisionmaking?
Judge Alito. In all the areas that you mentioned, there is
now a considerable body of case law, and that is a real
limitation on the exercise of judicial power. That is one of
the important reasons for the doctrine of stare decisis. In the
78th Federalist Paper, when Alexander Hamilton was responding
to the people who were worried about this power of judicial
review, who thought that it would give the judiciary too much
power, he specifically cited the fact that members of the
judiciary would be bound up by precedent and this would
restrain them. This would keep them from injecting their own
views into the decisionmaking process.
Under the Fourth Amendment, there is an enormous body of
case law now and there are many types of searches that are--
it's established in case law that a warrant is required. There
are types of searches where it's established now that the
activity can be conducted with reasonable suspicion, a Terry
stop, for example, other types of searches require probable
cause. And there are many specialized types of searches,
administrative searches, roadblocks constructed for certain
purposes, border searches, and so forth.
Under the Due Process Clause of the Fifth Amendment and the
14th Amendment, there is a great body of case law on procedural
due process and most of the due process issues involve
procedural due process, what sort of process is required. There
is a standard for cases involving the substantive component of
that.
Under the Eighth Amendment, since the Supreme Court in
Gregg v. Georgia ruled that the death penalty is permissible
under certain circumstances, there is a very large body and a
complex body of case law within which a judge would work in
deciding cases in that field.
Senator DeWine. Judge, let me turn to an area that I talked
with Judge Roberts about, and that is free speech in the public
square. To me, there is perhaps no right in our Constitution
that is really as important as freedom of speech. The heart of
the First Amendment is the idea that people have a right to
speak their mind but also be heard on matters of public
concern. Traditionally, our citizens have expressed their
opinion on public issues by turning to the public square. They
do it in parks, streets, sidewalks, anywhere that people
gather. It is as old as the country--older than our country.
Lately, however, I believe that we are seeing a disturbing
trend. In many cases, governments have sought to restrict
speech in the public arena, sometimes with success, sometimes
without. Let me give you some examples. In one recent case, a
Wisconsin woman was kicked off a city bus when she tried to
distribute a book containing Bible stories to individuals
sitting next to her. In many towns and cities across the
country, individuals are prohibited from placing political
signs on their own property. They are told what size they can
put out. They are told the times they can put it out, the dates
they can put it out, et cetera. In many public places,
individuals have been forced to hold up signs of protest and
been confined to ``free speech zones,'' far away from the event
that they wish to protest. These individuals are doing nothing
more, many times, than just standing their with their sign.
These sorts of restrictions concern me because they limit
the ability of individuals not only to speak, but also to be
heard in public places, people who want to talk about politics,
religion, or any other matter of public concern. I think we
need to be careful as a society before we limit what people can
say and where they can say it.
Let me ask you, how do you approach challenges to
government restrictions on the ability of individuals to speak
and be heard in public places, and what, Judge, factors do you
consider when deciding which restrictions on speech in the
public square are proper under the First Amendment and which
ones are not?
Judge Alito. I think that freedom of speech and freedom of
the press and all the freedoms set out in the First Amendment
are matters of the utmost importance. Freedom of speech is not
only important for its own said, but it is vital to the
preservation of our form of government, and I think that if
anybody reviews that opinions that I've written in the area of
freedom of expression and other First Amendment--
Senator DeWine. I have looked at some of them, at least--
Judge Alito. --they will see that I strongly support those
rights.
The issue of speech in particular places is a daunting
issue. The Supreme Court has addressed it by developing the
forum doctrine, and they have identified what they call a
public forum, which would be something like a public street,
where people's ability to speak is at the maximum. At the other
extreme, there is a private forum. My chambers would be a
private forum. A Senator's office would be a private forum.
Someone would not have a right to come in from the street and
speak in a place like that. And then there are what they call
limited public forums or dedicated public forums or fora,
places where people can speak freely, but only at particular
times on particular subjects, a place that is dedicated to free
speech but only on a particular subject, for example. That is
the way they analyze it.
Now, some people would say that there are developments in
society that have resulted in the shrinking of public fora that
make it more difficult for people to express themselves. I know
that I'm not up to date on New Jersey case law under the New
Jersey Constitution, but it's my belief that our State has read
this--has a different forum doctrine in things like shopping
centers. Malls that are privately owned are considered to be
public fora under a New Jersey State law. I think some other
States view it that way and that's a competing way of looking
at this problem.
An important principle where I have dealt with this in my
cases, as I can recall, is the issue of freedom of speech in a
limited public forum, and even in a limited public forum, what
government cannot do is engage in viewpoint discrimination. If
the government opens up a particular forum for discussion of a
particular subject, it can't say, but we're not going to
allow--we're only going to allow people who express this
viewpoint and not another viewpoint. Viewpoint discrimination
really goes to the heart of what the First Amendment is
intended to prohibit, so that even in a limited public forum
where people are restricted with respect to what--the subject
that they can talk about, government can't impose a viewpoint
discrimination.
Senator DeWine. It just seems to me, Judge, that we could
talk about this issue all day, and we're not going to,
obviously, but that there is a shrinking public forum and the
opportunities many times are going away. I guess you could make
the other argument that because of modern technology, there are
other opportunities with the Internet, et cetera, that they are
opening up for people to communicate and to make their point
well known. But a lot of the places that people historically
have talked and made their point well known are shrinking. You
talked about the malls, which certainly in most States are
totally off limits to any kind of display of that kind of
debate.
Let me turn to commercial speech, if I could. Under current
law, commercial speech is protected by the First Amendment, but
it has never had the same level of protection as other forms of
speech, such as political speech. The difference in treatment
has puzzled a number of commentators and judges. In reviewing
your cases, I noted that you are certainly familiar with the
issue of commercial speech. In the Pitt News case, for
instance, you struck down a Pennsylvania statute that barred
paid alcohol advertisements in newspapers affiliated with
colleges and universities.
Let me ask you, Judge, based on your experience with this
and other cases, what is your view about the distinction
between commercial speech and noncommercial speech and is there
a common sense difference between these two types of speeches
and have you found that case law supports any distinction? How,
if confirmed, will you approach the so-called commercial speech
claims under the First Amendment?
Judge Alito. Well, there's a debate about how much
protection commercial speech should have. There are those who
argue that the distinction between commercial speech and
noncommercial speech should be eliminated. The Supreme Court
views commercial speech differently, and while it is strict
about any limitation regarding accurate information about
prices, it limits--it permits greater restriction of commercial
speech under current case law than it does with respect to
other types of speech. The theory, as I understand it, is that
commercial speech is more durable. At least, that's part of the
theory. In other words, there's such a great incentive for
people who are selling things to engage in advertising and
other forms of commercial speech that it's less likely to be
driven out than speech on other issues where the financing may
not be as extensive.
In the Pitt News case, what I had to apply was the question
of whether there was sufficient tailoring. There was a
compelling interest for what was done there, which was to
restrict advertising about alcohol in a publication that was
affiliated with an educational institution. But based on the
facts there, it just did not seem to be tailored at all. This
was a newspaper that I think 75 percent of the people who
received it, and it's connected with the University of
Pittsburgh, were people over the drinking age, and maybe even
more to the point, this publication was distributed free on
campus in newspaper boxes next to a number of others that
contained commercial publications and they both advertised
establishments and events in the area of the university and the
others were full of information about alcoholic beverages and
those were free, too.
So while the problem of underage drinking and abusive
drinking on college campuses is a very serious issue, and the
Pennsylvania legislature recognized that and we certainly
didn't question that, I mean, it is an issue of critical
importance, it seemed quite unrealistic to think that this
regulation, which only applied to the Pitt News and not to
these other publications, was tailored sufficiently.
Senator DeWine. I thank you, Judge. That is an interesting
set of facts. I thank you, sir.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
I want to try one more time. First of all, let me just say
this. Senator Durbin said that Justice Roberts retired the
trophy on performance. If that is true, you have retired it on
equanimity. I really think you are to be congratulated.
This is in this morning's Washington Post, ``Alito Says He
Will Keep an Open Mind.'' But what concerns me, and obviously
this is on Roe, is that despite 38 tests, despite 33 years,
despite the support of a majority of America, you also said
yesterday that precedent is not an inexorable command, and
those are the words that Justice Rehnquist used arguing for the
overturning of Roe.
My question is, did you mean it that way?
Judge Alito. The statement that precedent is not an
inexorable command is a statement that has been in the Supreme
Court case law for a long period of time, and sitting here I
can't remember what the origin of it is, but I would bet that
it's been--it certainly has been used in cases in which the
Court has invoked the doctrine of stare decisis and refused to
go ahead and overrule.
Senator Feinstein. I always believe everything I read in
the Washington Post.
[Laughter.]
Judge Alito. Well, that is an important principle, and I--
not the principle of believing everything in the Washington
Post, but the principle that stare decisis is not an inexorable
command, because then we would be stuck with decisions like
Plessy, and they couldn't be overruled except through a
constitutional amendment.
But when an issue is one that could realistically come up,
the people who would be making the arguments on both sides of
the issue have a right to have a judiciary of people with open
minds, and that means people who haven't announced in advance
what they think about the issue, and more importantly, people
who are not going to reach a conclusion in the--not going to
reach a conclusion until they have gone through the judicial
process. And it's not a facade, it's a--it's not a meaningless
exercise. It's a very important one.
Senator Feinstein. Let me try this. I would like to read a
line of questions that Senator Specter asked now Chief Justice
Roberts, and then I would like to ask this question: how do you
disagree with this? Here is the question.
Specter: Judge Roberts, in your confirmation hearing for
the Circuit Court, your testimony read to this effect, and it
has been widely quoted. ``Roe is the settled law of the land.''
Do you mean settled for you, settled only for your capacity as
a circuit judge or settled beyond that?
Roberts: Well, beyond that. It's settled as a precedent of
the Court, entitled the respect under principles of stare
decisis, and those principles applied in the Casey case explain
when cases should be revisited and when they should not, and it
is settled as a precedent of the Court, yes.
Specter: You went on to say then, ``It's a little more than
settled. It was reaffirmed in the face of a challenge, that it
should be overruled in the Casey decision, so it has added
precedentual value.''
Roberts: I think the initial question for the judge
confronting an issue in this area, you don't go straight to Roe
decision. You being with Casey, which modified the Roe
framework and reaffirmed its central holding.
Specter says: And you went on to say accordingly, ``It's
the settled law of the land,'' using the term settled again.
And then your final statement as to this quotation, ``There is
nothing in my personal views that would prevent me from fully
and faithfully applying the precedent as well as Casey.''
Where do you differ, since Justice Roberts made that
statement in a confirmation hearing. He not only got confirmed,
he is the Chief Justice. It seems to me appropriate for you to
comment on it and say where you might differ with it.
Judge Alito. Well, the statement covers a lot of ground,
and let me try to remember the major points. I certainly agree
with the point--
Senator Feinstein. I can give it to you if you would like?
Would that be helpful?
Judge Alito. Certainly, I would be happy to look at it.
Senator Feinstein. Would someone take it down to him? Show
him the place.
[Pause.]
Judge Alito. Well, Senator, I certainly agree with the
point that the Chief Justice made about separating any personal
views he has from anything that he would do as a member of the
Supreme Court. I emphatically agree with that. That's the
essence of what a judge has to do. I certainly agree that Roe
and Casey and all of the other decisions in this line are
precedents of the Supreme Court, and they are entitled to
respect under the doctrine of stare decisis to the extent that
some of the earlier decisions have been modified, and
obviously, the most recent ones are the relevant provisions of
the Supreme Court.
I have agreed, I think, numerous times during these
hearings that when a decision is reaffirmed, that strengthens
its value as stare decisis. I agree that when the Supreme Court
entertains a challenge to a prior decision and says, ``We're
not getting to re-examination of the merits of the issue, we
think stare decisis counsel against our going to that point,''
then that is a precedent on precedent. That seems to me to be
entirely logical, and we have a long line of precedents now
relating to this issue.
I have said I think--I have said that stare decisis is a
very important legal doctrine, and that there is a general
presumption that decisions of the Court will not be overruled.
There needs to be a special justification for doing it, but it
is not an inexorable command.
Senator Feinstein. But you do not agree that it is well
settled in the Court?
Judge Alito. I think that depends on what one means by the
terms ``well settled.''
Senator Feinstein. I actually agree with you, because
others have said that, and then gone out and voted to overthrow
it, so it is like saying, ``I have no quarrel with that.''
Judge Alito. Let me just say this. As a judge on the court
of appeals or if I'm confirmed as a Justice on the Supreme
Court, it would be wrong for me to say to anybody who might be
bringing any case before my court, ``If you bring your case
before my court, I'm not even going to listen to you. I've made
up my mind on this issue. I'm not going to read your brief. I'm
not going to listen to your argument. I'm not going to discuss
the issue with my colleagues. Go away, I've made up my mind.''
That's the antithesis of what the courts are supposed to
do, and if that's what settled means, then I think that's not
what judges are supposed to do. We are--
Senator Feinstein. Let me interrupt you for a moment if I
may. You were willing to give your view on one man/one vote,
and yet there are four cases pending in the court right now on
one man/one vote, and that is where I have a hard time. The
cases are Lulac v. Perry, Travis County v. Perry, Jackson v.
Perry, and GI Form of Texas v. Perry. That is where I have a
hard time. If you are willing to say that you believe one man/
one vote is well settled, and you agree with it, I have a hard
time understanding how you separate out Roe. I understand why.
If you say one thing, you upset my friends and colleagues on
that side, if you say the other you upset those of us on this
side. But the people are entitled to know.
Judge Alito. I don't think it's appropriate for me to speak
about issues that could realistically come up, and my view
about Brown v. Board of Education, for example, which was one
of the cases that was cited in connection with this issue about
where someone in my position should draw the line, seems to me
to embody a principle that is now not subject to challenge, not
realistically subject to being challenged, not within the
legitimate scope of constitutional debate any longer that there
should be segregated racial--facilities that are segregated on
the basis of race, and that's where I've tried to draw the
line. If an issue involves something that is in litigation,
then I think it's not appropriate for me to go further than to
say that I would be--I would be very respectful of the doctrine
of stare decisis, and I would not reach a decision on the
underlying issue, if one were to get to it, without going
through the whole decisionmaking process.
Senator Feinstein. OK. I will let you off the hook on that
one.
One of the reasons that some of us are so concerned about
the Commerce Clause is because we see major law being
overturned if the Rehnquist Court continues its march. Let me
give you some examples concerning the environment, and these
are cases that will be before you, so I do not expect you to
comment on the case, but to understand them.
The Clean Water Act was passed in 1972, and it included a
provision permitting citizens or citizen groups to bring
lawsuits for violation of the Act. In Public Interest Research
Group of New Jersey v. Magnesium Electron, a citizen's
environmental group sued a chemical manufacturer under the
Clean Water Act for polluting a river used by members of the
group. The trial court found that the defendant committed 150
Clean Water Act violations. On appeal, you are the decisive
vote in a 2-1 decision, overturning the trial court's decision,
even though it was undisputed that the defendant committed the
150 violations of the Clean Water Act.
Your decision, as I understand it, was based upon your
conclusion that the environmental group did not have standing
to sue under the Clean Water Act, because even though members
of the environmental group had stopped using the river due to
the pollution, they did not prove any injury to the
environment. The decision, if broadly applied, would have
gutted the citizen lawsuit provision of the Clean Water Act.
Now, 3 years later in Friends of the Earth v. Laidlaw, the
Supreme Court, in a 7-2 decision, rejected this reasoning, and
held that a citizen only needed to show that he or she was
harmed by the Clean Water Act violation, and did not need to
prove a broader injury to the environment.
So you see where the concern comes with respect to
overthrowing something on a technicality that can have enormous
implications. Do you agree with the Supreme Court's decision in
Friends of the Earth v. Laidlaw?
Judge Alito. Well, it's a precedent of the Court, and I
have respect for it, and as you mentioned--and it's governed by
stare decisis, and as you mentioned, it was decided after the
decision of my court in the Magnesium Electron case. And I
haven't gone back and thought about the question of whether
Laidlaw creates doubt about the soundness of the decision in
Magnesium Electron. If it does, then it does, and if the issue
were to come up again before the Third Circuit, for example,
and I sat on the issue, then I would follow Supreme Court
precedent if I concluded that it was in conflict with the
decision of the prior court of appeals decision.
We have--our jurisdiction, under the Constitution, is
limited to cases and controversies, and the Supreme Court has
said that means you have to have a plaintiff who has suffered
injury in fact. And although there was a disagreement on the
panel about the procedure we should use going forward,
everybody on the panel agreed--Judge Roth and I who were in the
majority, and Judge Lewis who dissented on a procedural point
that I'll get to--that the plaintiffs in that case had not even
alleged personal injury. They alleged that they enjoyed the
Delaware River in a variety of ways. As I recall, they walked
along the canal path, they ate fish from the river, they drank
water from the river, but there was no evidence that the
discharges into a creek some distance upstream from the river
had had any effect whatsoever on the river, and therefore,
there was nothing to support a claim that they were personally
injured by the discharges of this plant.
Now, there would presumably be other people who could take
legal action against the plant for its violations of the law,
and nobody would condone that, but our obligation under Article
III is to confine ourselves to cases within our constitutional
jurisdiction.
Senator Feinstein. Of course you are going to have two
cases challenging the application of the Clean Water Act to
nonnavigable waters under the Commerce Clause, and as you
probably know, we have lost 90 percent of the wetlands in the
United States. This is a very big deal. I mean there are many
of us that would hate to see wetlands be made virtually
impossible because it is very difficult to prove when something
becomes navigable, as opposed to nonnavigable, which is kind of
the question that is before the Court. I only say that because
if this march to restrict Congress continues, you could strike
down the Endangered Species Act, you could strike down the
Clean Water Act, you could strike down the Clean Air Act, and I
think that would be catastrophic for the United States.
If I can, let me just switch to another topic. A year ago
all of us became very concerned and involved and some horrified
with the Terri Schiavo case, and as I recall the case, the
local courts held that her life support could be turned off.
The State Supreme Court held the same thing. And then there was
an effort--and I think a Federal district court held it--to
bring it up to the Supreme Court. What do you believe the role
of the Federal courts should be in the arena of end-of-life
decisions?
Judge Alito. Well, there's a constitutional issue,
certainly, at the bottom of that and there are issues of
jurisdiction. There are statutory issues and Congress specifies
the jurisdiction of the lower courts and so Congress can give
us a role in decisions of this nature or Congress can keep the
Federal courts out of it and leave it to the State courts
where, for the most part, issues in this area have been
adjudicated. But if there is a Federal constitutional right
involved, then someone may have jurisdiction--then, of course,
the Federal courts have traditionally been a forum for the
adjudication of Federal constitutional rights.
The underlying statutory--I'm sorry, the constitutional
issue is the one that the Supreme Court addressed in the Cruzan
case and in the case of Washington v. Glucksburg, and this is
obviously one of the most sensitive issues that comes up in our
legal system and involves something that a lot of people have
had to face and a lot more people are going to have to face
decisions involving the end of life, and with the advances in
medical technology, this is going to be a very tough issue for
an awful lot of people.
In Cruzan, the Court proceeded on--they said, we assume
that there is a constitutional right to refuse medical
treatment that a person doesn't want, and there certainly has
long been a common law right to refuse medical treatment that a
person doesn't want. If somebody gives you medical treatment
and you say, ``I don't want it,'' and they perform an operation
on you or do something like that, that's a battery under the
common law and you can be sued, and the Supreme Court assumed
that that was a fundamental right under due process but said
that there wasn't a violation of the right under the
circumstances in Cruzan, where the State of Missouri had
imposed certain restrictions--regulations that had to be
complied with before a person who was comatose could be taken
off life support.
And then in Washington v. Glucksburg, they addressed the
issue of whether there was a constitutional right to assisted
suicide and they concluded that there was not, that there
were--and they applied the standard to be applied under the Due
Process Clause or its substantive component, whether a right is
firmly rooted in the traditions of our country and implicit in
the concept of ordered liberty, but there were some concurring
opinions that recognized that these were issues that were on
the cutting edge of medical technology, let me put it that way,
or they were issues on which more empirical evidence might
become relevant in the future.
Senator Feinstein. Thank you very much. I notice I just
have 40 seconds left. Will we have another round, Mr. Chairman?
Chairman Specter. Well, that is something that--let us talk
about. I would very much like to finish today. As I said
earlier, that may be an ambitious schedule, but let us talk
about it.
Senator Feinstein. Thank you.
Chairman Specter. Senator Sessions?
Senator Sessions. Thank you, Chairman Specter.
Judge Alito, I want to thank you for your patience and good
spirits and your thoroughness in answering questions. You have
been very forthcoming. I think very few people could disagree
that on case after case that you have been asked about, you
have gone as far as you legitimately should go to express your
understanding of the law and what is important there.
I know your entire record has been examined extensively.
You think about it, the FBI does a background check. They found
out every place you lived and talked to your neighbors and
checked your criminal history. The Department of Justice has a
big inquiry that they do before they submit your nomination to
the President, or the President submits your nomination to the
Senate. The American Bar Association has interviewed 300 of
your colleagues before they made their recommendation that you
are well qualified in a unanimous vote. The Senate has its
questionnaire. Outside groups look at it and create studies and
data. They read everything you have written to find things that
they might be unhappy with. So I think, all in all, you are
coming through this with very little mud upon you, for which I
congratulate you. I think it is something that you can be proud
of. Most of us on this side of the aisle would not like to have
our record scrutinized in the way yours has been.
I know some of us have made mistakes in our statements
already in the hearing, we have to admit. I will admit that I
was one of them. I first said that you were ranked No. 4 in
being the most independent judge out of 900 judges in the
country. As I see the numbers more clearly, you were No. 4 out
of 98 appellate judges examined in that system, but that still
shows that you are an independent, nonideological judge,
willing to--one of the factors they used was whether or not you
always agreed with nominees of your party, and so I think that
speaks well for your record and that is why you have gained
such a broad respect from your colleagues.
I just wanted to briefly mention some of these studies that
go into your background. People have looked at it, incredibly,
to the most minute detail. You were asked earlier about saying
that you only rule one out of eight times for immigrants
seeking asylum, but looking at the asylum cases nationwide,
most of those are the government's position is affirmed. It has
already been decided by a lower court or administrative body.
You are simply reviewing their decision.
But in immigrant asylum cases nationwide, the court of
appeals generally ruled for the asylum-seeker 11 percent of the
time. During your record on the bench, you ruled for asylum-
seekers 18 percent of the time. In your published opinions, the
average court of appeals judge in America ruled for immigrants
8 percent of the time. In your published opinions, you ruled
for them 19 percent of the time.
I think this not only shows that the charges against you
there are not well placed, it shows just how carefully your
record is being examined by people as you move through the
system.
Another example, civil rights. I think your critics have
cherry-picked from some of your 4,800 cases that you have ruled
on. In your opinions on civil rights, your panel was unanimous
90 percent of the time, and when you sat on a panel where both
the other judges were Democratic appointees, your decision was
unanimous 100 percent of the time. So I think that speaks well
for your overall record on civil rights. It certainly would
indicate that you are not hostile to a legitimate civil rights
complaint.
You were asked about one environmental case by Senator
Feinstein, and you ruled on that case based on standing. That
is an important issue in the legal system, don't you agree?
Judge Alito. It is--
Senator Sessions. It is a well recognized principle.
Judge Alito. It is a constitutional principle.
Senator Sessions. It does not have to do with whether you
were for or against the environmental issue in question, but
simply whether the person bringing the suit was a legitimate
person to bring that suit.
Judge Alito. That's right, and it doesn't have anything to
do with Congress's power to regulate the environment under the
Commerce Clause. That's a separate question. Congress--it's
totally separate. One has to do with the scope of congressional
power. The other has to do with who can bring the suit.
Senator Sessions. And with regard to environmental cases,
you have rendered, according to one of these studies, you have
authored six environmental opinions. You sided with the
environmental regulatory body in five of those six opinions.
Indeed, Professor Cass Sunstein, who has served as an advisor
to the Democratic members of this Committee on changing the
ground rules of confirmation, which was really a precursor to
the commencement of a filibuster, Professor Cass Sunstein said
this about you. Quote, ``This is a judge who, if the text is
pro-environment, he is very likely to follow it. This is not
someone who, like some judges, has a kind of pro-business
orientation in his approach to the law.'' I think that is also
a statement that you can take pride in.
I would offer for the record, Mr. Chairman, another article
by Stuart Taylor of the National Journal, Monday, December 12,
in which he, in a very effective way, dismisses much of the
complaints that have been made against Judge Alito--
Chairman Specter. Without objection, that will be made part
of the record.
Senator Sessions. He says the systematic--this is his
quote. ``The systematic slanting, conscious or unconscious, of
this and many other news reports have helped fuel a
disingenuous campaign by liberal groups and Senators to
caricature Alito as a conservative ideologue. In fact, this is
a judge who, while surely too conservative for the taste of
liberal ideologues, is widely admired by liberals, moderates,
and conservatives who know him well as a fair-minded, committed
to apolitical judging and wedded to no ideological agenda other
than restraint in the exercise of judicial power,'' close
quote. I would offer that for the record.
Also, with regard to your challenges on Vanguard, on
matters that have impacted your integrity, I would like to
quote from the American Bar Association's interview
questionnaires that they did on you among those who know you
well. This is what they put in their conclusion. ``Conclusion:
We accept his explanation and do not believe these matters
reflect adversely on him,'' talking about those conflict
allegations. They go on to say, ``To the contrary, consistent
and virtually unanimous comments from those interviewed include
he has utmost integrity, he is a straight-shooter, very honest
and calls them as he sees them.'' These are quotes from
different lawyers and judges. ``His reputation is impeccable.
You could find no one with better integrity. His integrity and
character are of the highest caliber. He is completely
forthright and honest. His integrity is absolutely
unquestionable. He is a man of great integrity.'' And then they
conclude, ``On the basis of our interviews with Judge Alito and
with well over 300 judges and lawyers and members of the legal
community nationwide, all of whom know Judge Alito
professionally, the Standing Committee concluded that Judge
Alito is an individual of excellent integrity.'' So
congratulations on that finding.
Judge Alito, many important decisions of the Supreme Court
in recent years touch on the deepest values of the American
people. They deal with things like Kelo and the property that
they own, matters of faith and morality, decency and
pornography. Do you have a sense of where the American people
are with regard to these issues? Can you indicate to us that
you have any appreciation for the legitimacy of some of those
concerns?
Judge Alito. Well, I do, Senator, and I--
Senator Sessions. Regardless of the technical laws it
involves, but just that fundamental policy.
Judge Alito. I think I have an appreciation of people's
concerns. Certainly with respect to Kelo, which is a recent
decision and I can't comment on how I would rule on any matter
concerning that, and it involves the power to take property for
public use through eminent domain, I certainly understand that
what occurred in that case, which, as I understand it, was the
taking of the homes of people of modest means for the purpose
of building a large commercial facility that would be--that was
thought by the city to be beneficial to the economic welfare of
the city, but this is an enormous blow to the people whose
homes are being taken. People live in homes and they have a
sentimental attachment to them. They have memories that are
attached to the homes. They can remember what happened in
particular rooms. The neighborhood means something to them, the
neighbors mean something to them. The things in the home mean
something to them. And taking their home away and giving them
money in return, even if they get fair market value for the
home, is still an enormous loss for people. So I certainly can
appreciate what they feel in that respect.
Senator Sessions. Well, let's talk about that a little bit.
Because this is a matter of real power and it is a matter that
the Congress gets drawn into sometimes whether we want to be
drawn into it or not. We have discussed Roe v. Wade, people
remain concerned about that. The polling numbers continue to
drift against that decision. We talk about the district court
opinion I believe Senator Brownback raised, a Federal court, on
marriage, on redefining the traditional statutory definition on
marriage contained in States and in State constitutions around
the country. In Kelo, it is pretty clear to me that the Court
just changed the meaning of the words. The Constitution said
you could take property for public use; the Court felt that was
too restrictive, basically, and a majority just changed it to
say you could take property for a public purpose, which could
include some private redevelopment on the area, in their minds.
See, that is not founded in the Constitution. That is an
overreach, in my opinion. On the Pledge of Allegiance case, the
Newdow case, the Ninth Circuit, which includes approximately 20
percent of the people in the United States, ruled that the
Pledge of Allegiance was unconstitutional. The Supreme Court
sort of side-stepped the fundamental issue and said that there
was not standing on behalf of Mr. Newdow, and sent that back to
a lower court. He now got him some plaintiffs that apparently
have standing. He has taken it to the district court in
California, and he has won that case. They have concluded that
the Ninth Circuit law remains in effect so that 20 percent of
the population of the United States, really, are not able, if
you follow that opinion, to render the Pledge of Allegiance.
Yet we have chaplains and In God We Trust in the Senate chamber
and those kind of issues.
So I don't believe that that is founded in the
Constitution. I think the American people do not. And they are
asking some real questions of us. So I guess I won't try to get
you drawn into those.
But I want to do this. The doctrine of judicial review,
Marbury v. Madison. You already indicated Hamilton didn't favor
that. But the Court found it. But it is not expressly stated in
the Constitution, is it?
Judge Alito. No, it's not.
Senator Sessions. And it definitely shifts the balance of
power between the branches because the Court now has the power
to, by a stroke of its pen, five of its nine members, to strike
down any law they say violates the Constitution. That is true,
is it not?
Judge Alito. Well, they decide constitutional questions,
and the doctrine has been established since Marbury v. Madison,
that's right.
Senator Sessions. Well, but there are explicit powers given
to the Congress. And Senator Coburn raised some of those.
Article III, Section 2 has these words: ``In all the other
Cases before mentioned,''--this is the Constitution's grant of
power to the courts--``the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.''
Now, those words are in the Constitution, are they not?
Judge Alito. Yes, they are.
Senator Sessions. And as you said, if the words are
expected to have some meaning, you would give them some
meaning, at least, would you not?
Judge Alito. I think that's undisputed, that they have a
meaning.
Senator Sessions. So Congress has some power here. We have
not exercised that power, certainly in recent years. In Ex
Parte McCardle, the Supreme Court in 1869 agreed that, though
the judicial power is conferred by the Constitution, it is
conferred under such exceptions as Congress shall make. Then
there is the Impeachment power--the Senator mentioned that. And
then the establishment of lower courts. Article III, Section 1
says, ``The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as
Congress may from time to time establish.'' That indicates that
Congress can establish or disestablish courts, does it not?
Judge Alito. I think it's undisputed that the so-called
inferior courts--and I don't particularly like the term as a
judge of the court of appeals--but the so-called inferior
courts are totally the creation of Congress.
Senator Sessions. Now I would just ask you to comment on
this thought. Chief Justice Roberts, in his hearings--and I
asked him some questions similar to this--indicated that he was
concerned about activism by the Court, overreaching by the
Court, and he felt that this overreaching had the--created a
danger that it could undermine respect for law in our country.
Do you share that view?
Judge Alito. I agree that overreaching by the courts can
undermine respect for law. Our authority is based on the belief
that what we are doing is different from what Congress is
doing. Because otherwise, why would people tolerate our
functioning? Nobody elects us. And we have a system of
Government that is fundamentally democratic. It's based on the
sovereignty of the people. So how do you explain an unelected
branch of Government making decisions?
So all of our authority is based on the idea, which was
expressed in Marbury v. Madison, that the Constitution is law.
It's not conceptually different from statutory law. And our job
is to interpret the Constitution--it has a meaning--and apply
it to the situations that come up.
Senator Sessions. Well, right now there is a strong feeling
that I share that the Court on some very important issues that
people care deeply about is exceeding its authority. They are
calling on me and members of--and those of us in Congress to do
something about it. I get a lot of letters saying withdraw
jurisdiction, why aren't you supporting legislation to do that?
And Congress, I think, has shown restraint.
But I hope that when you become a member of this august
body, the Supreme Court--and I believe you will--that you will
take those concerns with you and share with the members of the
Court that their views on policy issues are of no greater value
than mine, frankly--at least in my opinion they are not--and
that the Congress has been showing some restraint here. But we
really want the Court to be more modest and to draw back from
some of its intervention in policy issues that are causing much
angst around the country.
If you want to comment on that. Otherwise, Mr. Chairman, I
would yield my time.
Judge Alito. Well, Senator, I think your policy views are
much more legitimate than the policy views of the judiciary
because Members of Congress are elected for the purpose of
formulating and implementing public policy. And members of the
judiciary are appointed for the purpose of interpreting and
applying the law.
Senator Sessions. Thank you very much.
Chairman Specter. Thank you, Senator Sessions.
We will now stand in recess until 4:20.
[Recess 4:04 p.m. to 4:20 p.m.]
Chairman Specter. The hearing will resume.
We will turn to Senator Feingold for 20 minutes.
Senator Feingold. Thank you, Mr. Chairman.
Good afternoon, Judge. I hope, if nothing else, you
associate me with breaks in the proceedings, because it seems
to happen every time my questions are up.
Judge, yesterday I asked you about your preparation for
these hearings over the past few months with a variety of
practice sessions. You confirmed that you had had these
sessions and that a great variety of subjects came up in them,
and that is fine. I know this is not an easy process, and I
would certainly expect you to prepare in this way.
What I want to ask now, though, is simply if you can
provide a list of all the people who participated in any of
those practice sessions, and I would request that the folks
here sitting behind you in back of the Department of Justice
help you put that list together this evening and get it to us
tomorrow morning so that we have time to ask about it during
tomorrow's session, if necessary. Can you do that for me,
Judge?
Judge Alito. I certainly have no objection to that.
Senator Feingold. Thank you very much. Now I want to get
into a subject that really requires some attention here and
hasn't had much attention given the important role that it
plays in the job of a Supreme Court Justice, and that is the
issue of capital punishment or the death penalty.
Judge Alito, the idea that defendants are entitled to
effective legal representation is a fundamental part of our
criminal justice system. In fact, of course, it is enshrined in
the Sixth Amendment's guarantee that the accused have ``the
assistance of counsel for his defense.'' Nowhere is this
guarantee obviously more important than in cases where the
defendant's life is on the line. In a death penalty case you
decided in 2004 called Rompilla v. Horn, you rejected the
defendant's argument that his attorneys had failed to do an
adequate investigation to prepare for his sentencing hearing.
As a result, key mitigating evidence about his horrible
childhood was never presented to the sentencing jury, which
ultimately sentenced him to death.
As you know, the Supreme Court reversed your decision,
ruling that the defense attorney's failure to even review
evidence they knew the prosecution was going to introduce at
sentencing violated the Sixth Amendment. This case was one of
several Supreme Court cases in recent years to express
particular concern--particular concern about the adequacy of
indigent representation and the fairness of the capital
sentencing process.
In fact, in several recent decisions, including Rompilla,
the Court has overturned death sentences because defense
attorneys did not do adequate investigations to turn up
potential mitigating evidence and because jury instructions did
not clearly allow jurors to consider any and all possible
mitigating evidence. And Justice O'Connor, whom you have been
nominated to replace, has, of course, often been the author or
the deciding vote in these cases.
Judge, what are your views on these issues? Is the Court's
recent emphasis on the importance of fully developing and
considering mitigating evidence in capital sentencing
proceedings headed in the right direction?
Judge Alito. It is vitally important that all criminal
defendants receive effective representation, and I could not
agree with you more strongly that this is of the utmost
importance in death penalty cases where so much is at stake.
In the Rompilla case that you mentioned, we had to apply
the standard of review that is set out in the habeas corpus
statute as revised by Congress. And where there has been a
determination on the merits by the State courts on an issue
like whether a defendant received effective representation
within the meaning of the Sixth Amendment and where the State
courts have applied the correct legal standard, we are not
allowed to disturb their decision unless what they did was
unreasonable.
Senator Feingold. Well, let me ask you then, because you
are obviously pointing out the fact that you approached the
Rompilla case as an appellate court judge bound by prior
Supreme Court precedent, and yet you found that no
constitutional violation had occurred. And I believe when we
discussed this case in my office, you indicated you still think
your decision was correct.
So the question now is: Would your approach have been any
different as a Supreme Court Justice? What about your decision
on the outcome of the case?
Judge Alito. Well, my decision, I spoke directly to the
issue in the Rompilla case as I saw it when it came before me.
And my evaluation of the performance of the attorneys in that
case was fully set out in the opinion that I wrote. They were--
one of them was a very experienced criminal defense attorney.
He was the head of the public defender's office, and there was
no dispute whatsoever that this was an attorney of competence
and experience and great dedication to the defendant in this
case, and that attorney was assisted by another attorney in the
office, and together they were extremely dedicated to this
case.
Now, a number of judges took a look at this. All of the
Pennsylvania judiciary, with the possible exception of one
justice--I can't remember clearly whether there was one justice
who disagreed--thought that there had been effective
representation provided in this case.
Senator Feingold. This really isn't about the difference
between being on the court of appeals and the Supreme Court.
You apparently, based on what you know, would have ruled the
same way had you been on the Supreme Court.
Judge Alito. Well, my evaluation of the facts of the case
would be the same. Now, if a case came--
Senator Feingold. In other words, that there was not a
violation of the Sixth Amendment.
Judge Alito. Well, I should add, however, that if a case
came up in the future, the Supreme Court's decision in that
case is a precedent that I would have to deal with. And they--
Senator Feingold. Fair enough.
Judge Alito [continuing]. Expressed a view as to how the
standard applies to the facts of the case. It was a 5-4
decision. But it would be a precedent that I would follow.
Senator Feingold. Well, now let's go back to my original
question, which is, Do you think the Supreme Court has been
heading in the right direction in these cases?
Judge Alito. Well, I think that the Supreme Court is
correct in viewing this as a very important part of the
criminal justice system, and in particular, a very important
part of the representation of clients in Eighth Amendment
cases.
Senator Feingold. Isn't the Court doing more than that? The
Court is moving in the direction of giving greater recognition
and ruling on the inadequacy of counsel in this case.
Judge Alito. And I think it's entirely appropriate that
there be a searching review in every case as to whether a
defendant in any criminal case, but in particular, of course,
in a capital case, has received the representation that the
defendant is entitled to under the Sixth Amendment.
Senator Feingold. Do you think your replacing Justice
O'Connor will change the direction of the Court in this regard?
Judge Alito. I would approach these cases under the law
that the Supreme Court has established in this area, with the
recognition that I have attempted to explain of how important I
believe this right is in all cases and in death cases in
particular. When the Supreme Court reviews a case that has come
up through the Federal system, in a habeas proceeding, then the
Supreme Court, just like my court, should apply the standards
that are set out in the habeas corpus statute.
Senator Feingold. Let's go to a different one. Wiggins v.
Smith is a Supreme Court case decided in 2003 also addressing
inadequate mitigation investigation. In that case, Justice
O'Connor, writing for the majority, found trial counsel
ineffective for failing to conduct an adequate investigation
into possible mitigating evidence that could be presented at
sentencing. Had the attorney done adequate investigation, he
would have found abundant evidence of childhood physical and
sexual abuse as well as diminished mental capacity. Do you
think that case was right decided?
Judge Alito. Well, I discussed Wiggins in Rompilla, and I
thought that it was distinguishable. Wiggins, as described, as
I recall it, was a case where the attorney had reason--the
attorney simply didn't conduct an investigation without any
sound strategic reason for not investigating a particular
matter.
Senator Feingold. So you have no sense that that was
wrongly decided?
Judge Alito. I have no sense that that was wrong. I thought
it was different from the Rompilla case.
Senator Feingold. According to two independent studies,
your record in death penalty cases has been more anti-capital
defendant even than most Republican-appointed judges. In fact,
in every disputed capital case that you heard, that is, cases
in which a panel of three judges did not all agree, you would
have ruled against the defendant. How do you explain this
seeming tendency to favor the Government in capital cases?
Judge Alito. I have only sat on a handful of capital cases,
and in some of them I voted to uphold the death penalty, and in
a number of them I voted to strike down the death penalty. In
Carpenter v. Vaughn, I voted to strike down the death penalty.
In the most recent death penalty case I sat on, the Bronshtein
case, I voted to strike down the death penalty because of the
procedure that was followed at the penalty phase in that case.
In the Cruz case, I was part of a panel that vacated a decision
of the district court rejecting the claim of a habeas
petitioner. There have been other cases where I voted to uphold
the death penalty.
Senator Feingold. Justice Stevens recently gave a speech at
the American Bar Association in which he raised a number of
serious concerns about the administration of the death penalty.
He pointed to aspects of capital proceedings that he believes
unfairly tilt the balance in favor of the prosecution both at
the trial and sentencing stages. Specifically, he raised
concerns about the jury selection process, arguing that jurors
are questioned so extensively about the death penalty that they
might assume their role is primarily to decide this sentence
for a presumptively guilty defendant.
He also argued that a representation of indigent defendants
remains an issue that has not been adequately addressed, and he
noted that elected State judges may have a ``subtle bias'' in
favor of death because they have to face re-election.
Now, I know all of us on this Committee have the greatest
respect for State court judges, but we all can understand the
pressures of a re-election campaign. So what are your views on
the potential of these three issues--the jury selection, the
inadequate representation, and an elected judiciary--to skew a
capital prosecution against the defendant? And do you share
these concerns that Justice Stevens outlined?
Judge Alito. I certainly share a concern that there should
be a fair procedure for the selection of jurors. That certainly
is a concern. The issue of the election of judges at the State
level or the appointment of judges at the State level is a
matter for State legislatures to decide, and within my circuit,
we have three States. In New Jersey and in Delaware, the State
judiciary is appointed; in Pennsylvania, the State judiciary is
elected. And I've had the opportunity to view the work of all
three of the Supreme Courts in those States, and I think they
all are of a very high quality. I think the elected judges in
Pennsylvania do a conscientious effort to carry out their
responsibilities, and I think--I have a high regard for the
judiciary in all of those States.
So based on the experience of--on my experience, I think
you can have highly competent and certainly conscientious State
judges who are appointed and the same sort of judges who are
elected. And, of course, we do have habeas corpus and it is an
important--it's important to make sure that constitutional
rights are respected, and the scope of the review that we
conduct under habeas is up to Congress. Congress reformulated
the standards in the AEDPA, in the Antiterrorism and Effective
Death Penalty Act of 1996, limiting our review, and it's our
obligation to conduct the kind of review that Congress has
indicated we should be conducting.
Senator Feingold. Well, Judge, it sounds like you perhaps
have a lesser level of concern about some of these matters than
Justice Stevens. The only thing I would note is that one of the
most striking things about the history of Justices that have
gone to the Court sometimes who are pro-death penalty, an
amazing number have come to the conclusion that this is the one
area where, once they get there, they realize that these
problems are much more severe than they might have thought
before they became Supreme Court Justices, and I, should you be
confirmed, look forward to how you react to these issues after
you've become a Supreme Court Justice, should you do so.
In the past few years, the Supreme Court has limited the
application of the death penalty based on the Eighth
Amendment's ban on cruel and unusual punishment. In Atkins v.
Virginia, the Court ruled that mentally retarded inmates cannot
be executed, and in Roper v. Simmons, it held that individuals
who were minors when they committed capital crimes cannot be
executed as punishment for their actions.
Do you agree with these decisions?
Judge Alito. Those decisions applied the standard that the
Supreme Court formulated sometime earlier in determining
whether the imposition of the death penalty on particular
categories of defendants would violate the Eighth Amendment,
and they looked to evolving standards of decency. And that is a
line of precedent in the Supreme Court, and those are
precedents of the Supreme Court, and they're entitled to the
respect of stare decisis.
Senator Feingold. Can you just tell me what your general
approach to the Eighth Amendment would be in the context of the
death penalty?
Judge Alito. My approach would be to work within the body
of precedent that we have. As I mentioned earlier, the Supreme
Court has devoted a lot of attention to this issue since 1976
when it held that the death penalty is permissible, provided
that adequate procedures are implemented by the States so that
the decision about who receives the death penalty and who does
not is not arbitrary and capricious, so that there is a
rationality to the selection process. And the rules in this
area are quite complex, but I would work within the body of
precedent that is available.
Senator Feingold. Let me go to a topic that we have talked
about before. We had a good discussion of the recusal issue in
the Vanguard case yesterday, and I hadn't intended to ask more
about it. But your discussions with Senator Kennedy and Senator
Hatch today make further questioning a little bit necessary.
Senator Hatch noted that the Committee's questionnaire
asked about financial conflicts of interest during the period
of your initial service as a judge. Now, the reason for wording
the question like that, of course, is that nominees have no way
of knowing when they are up for confirmation whether they will
have the same investments 5, 10, 25 years later. The Committee
obviously can't ask for a comprehensive list of possible future
financial conflicts. So, for example, if you have stock in
Microsoft and you list that as a financial conflict on your
questionnaire, you still have to recuse yourself from a
Microsoft case 15 years later if you still have the stock.
Isn't that right?
Judge Alito. If you're required to recuse yourself if you
have stock in Microsoft, even one share, you must recuse
yourself.
Senator Feingold. You still have to recuse yourself even if
it is 15 years later, right?
Judge Alito. Certainly that's true.
Senator Feingold. So the question in the Senate
questionnaire about financial investments is not time-limited
based on the question being about initial service on the court,
is it?
Judge Alito. Well, I want to be clear on my answer
respecting this as it bears on the Monga case, the Vanguard
case, because that's what we're discussing.
The wording of the Senate questionnaire was not the reason
for the way I settled the case, and I've tried--
Senator Feingold. I just want to know if you have any
question in your mind why the question is phrased that way on
the questionnaire.
Judge Alito. Reading the question, it does seem to me that
``initial period of service'' is a temporal limitation.
Senator Feingold. I want to be sure we don't leave the
impression from these hearings that people don't have an
obligation to recuse themselves from a financial conflict just
because of the passage of time. You have already indicated if
that financial conflict continues, that is an indefinite and
permanent restriction until that financial holding is gone.
Isn't that--
Judge Alito. Absolutely, and that's under the Code of
Judicial Conduct, Canon 3(C)(3) I think it is. If you have a
financial interest, you must recuse yourself, and that's, of
course, a continuing obligation.
Senator Feingold. It is not temporal?
Judge Alito. The obligation to comply with the code of
conduct for Federal judges applies to every Federal judge for
as long as they serve.
Senator Feingold. And that is why I have to say that I am a
bit frustrated that people are trying to obscure what I think
was pretty clear testimony by you yesterday by bringing up this
period of initial service issue. In response to Senator
Kennedy, you made it clear again that your failure to recuse in
the Vanguard case had nothing to do with the suggestion that
your promise was time-limited. But I want to get this on the
record again, and hopefully this will lay any confusion to
rest. This idea that your promise to the Committee was somehow
limited to your initial service on the court, that was not the
reason you failed to recuse yourself from the case in 2002, was
it?
Judge Alito. It was not the reason in 2002. I do think
reading the question, it has a temporal limitation. If that
wasn't the intent, I think people could read it--certainly when
you say ``initial period of service,'' people will read that to
mean--
Senator Feingold. This has nothing to do with why you
didn't recuse yourself.
Judge Alito. It did not have to do with what I did in the
Monga case.
Senator Feingold. And it is not as if you noticed that
Vanguard was a party, remembered your promise to the Committee,
and then made a specific decision not to recuse because the
promise had expired?
Judge Alito. No, it was not that at all.
Senator Feingold. And you finally added Vanguard to your
standing recusal list in December 2003 and it is on your list
today. Isn't that right?
Judge Alito. It is on my list today.
Senator Feingold. Do you plan to recuse yourself from
Vanguard cases that come before the Supreme Court if you are
confirmed for as long as you keep your Vanguard mutual funds?
Judge Alito. Well, if I am confirmed, I will very strictly
comply with the ethical obligations that apply to Supreme Court
Justices. Supreme Court recusals are a bit different from
recusals in the court of appeals, and so the obligation to sit
when you are not recused is one that has to be considered very
seriously by somebody on the Supreme Court or, I would think,
on a State supreme court, for example.
Senator Feingold. Is there any question, if you still have
holdings in Vanguard and a case comes before the Supreme Court
that you should recuse yourself?
Judge Alito. Well, under the Code of Judicial Conduct, I
don't believe that I am required to recuse myself in Vanguard
cases. And I would strictly comply with the ethical obligations
that apply to a Supreme Court Justice.
Senator Feingold. You are not going to make a promise here
that you are not going to rule on Vanguard cases while you have
holdings in Vanguard when you are on the Supreme Court?
Judge Alito. Well, what I want to say about recusals on the
Supreme Court is that the decisionmaking process on the Supreme
Court, or any court with a fixed membership, a fixed number of
jurists who sit on each case, recusal in that situation
creates--affects the decisionmaking process because instead of
having 9 Justices, you have 8, you have the potential for a
tie.
On the court of appeals, that is a much less significant
consideration because we always sit in panels of three, we have
many judges on our court and many cases, so if I don't sit on a
case involving Vanguard, it just means somebody else will sit
on the case involving Vanguard, it will still be decided by a
three-judge panel.
Senator Feingold. I would add on that point that that may
be true, but it is also true that the Supreme Court is the last
stop, and if somebody does not recuse himself, there is really
no remedy, and that is why it is so important that somebody
would recuse himself.
Judge Alito. It is very important for somebody on the
Supreme Court to fulfill strictly the obligation not to sit
when the person should not sit, but it's also important for--
given the matters that I just discussed--for a Justice to sit
if the Justice is not required to recuse.
Senator Feingold. Judge, my time is up.
Mr. Chairman, we do not yet have the communication from
Judge Alito to the clerk on December 10th, 2003 that caused
Vanguard to be added to his standing recusal list, and whether
that was an e-mail or a form that Judge Alito filled out or
something else, we have requested it, so I am just asking for
the assistance of the Chairman in getting that document so we
can complete the record.
Chairman Specter. Senator Feingold, we will take a look at
it and see what the facts are.
Senator Feingold. Thank you.
Chairman Specter. Thank you, Senator Feingold.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Judge Alito, maybe we could continue with the Vanguard
issues just for a moment, and I know you have been asked every
conceivable combination of questions, but Senator Feingold is
very sincere about ethics in Government. He practices what he
preaches, and he has been one of the leaders trying to make
this place operate better. My impression of you is that you are
a good model for judges in terms of ethical conduct based on
what everybody says who knows you. I do not claim to be a close
associate of yours, but the ABA has looked at this and said
that it did not reflect poorly on you. Three hundred lawyers
and judges who know you have said that you are just really sort
of what we want in a judge, and maybe that is not enough, but
that is a pretty good start. I do not think you could get 300
people to say that about me or some of us, but.
The question I have, the criminal prosecutor or lawyer in
me has this question to ask: why would you make a conscious
decision not to recuse yourself? Why would Judge Alito sit down
in the corner of a room and say, ``I think I've got a conflict,
but I'm just going to let it go and hear the case anyway?'' I
am baffled as to why you would make a conscious decision in
this situation not to recuse yourself. Do you have an
explanation?
Judge Alito. There's no reason why I would make such a
conscious decision. I had nothing whatsoever to gain by
participating in this case, and nobody has suggested that I
did. This case involved some thousands of dollars. Vanguard
manages billions of dollars of funds. The idea that the outcome
of this case could have some effect on the mutual funds that I
hold is beyond preposterous, and I don't understand anybody to
have suggested anything like that.
Senator Graham. I have been asking myself that question
quietly, what is in it for this guy? Why would he bring all of
this grief upon himself consciously? Is it to intentionally
break a promise to the Senate so you would go through hell for
3 days? I do not think so. So I am going to accept your word,
like the ABA, and I am going to move on, and I do not know if
anybody else will.
Now, your days at Princeton, the more I know about
Princeton, it is an interesting place.
[Laughter.]
Senator Graham. What is an eating society?
Judge Alito. It's a--the eating clubs are privately owned
facilities where upperclassmen join for the purpose of taking
their meals. The first 2 years, when I was there--the situation
is now a bit more diversified as far as eating is concerned--
but when I was there, and traditionally, the freshmen and
sophomores ate in university dining halls, and then as juniors
and seniors they had to find other places to eat, and these
were private facilities.
Senator Graham. What is a selective eating society?
Judge Alito. It's one where you apply to be a member like a
fraternity, and you go through a process that is somewhat
similar to that, and they select you if they like you.
Senator Graham. Were you a member of a selective eating
society?
Judge Alito. No, I was not.
Senator Graham. Did people not like you, or--
[Laughter.]
Senator Graham [continuing]. You just did not apply?
Judge Alito. I didn't apply.
Senator Graham. Let me tell you who did apply. Donald
Rumsfeld was a member of a selective eating society at
Princeton, and that is an interesting comment I thought.
Woodrow Wilson, Jim Leach, good friend of mine over in the
House. Mitch Daniels, the Governor of Indiana, was a member of
a nonselective eating society. Senator Claiborne Pell was a
member of nonselective eating societies. And other Princeton
alumni who are Members of Congress could not verify their
participation or lack thereof in eating clubs, including
Senator Sarbanes, Bond, Frist and Representative Marshall, and
I promise you, I will get to the bottom of that before this is
all done.
[Laughter.]
Senator Graham. This organization that was mentioned very
prominently earlier in the day, did you ever write an article
for this organization?
Judge Alito. No, I did not.
Senator Graham. Some quotes were shown from people who did
write for this organization that you disavowed. Do you remember
that exchange?
Judge Alito. I disavow them. I deplore them. I--they
represent things that I have always stood against, and I can't
express too strongly.
Senator Graham. If you do not mind, the suspicious nature
that I have is that you may be saying that because you want to
get on the Supreme Court, that you are disavowing this now
because it does not look good. Really, what I would look at to
believe you or not--I am going to be very honest with you--is
how have you lived your life? Are you really a closet bigot?
Judge Alito. I'm not any kind of a bigot. I'm not--
Senator Graham. No, sir, you are not. And you know why I
believe that? Not because you just said it, but that is a good
enough reason because you seem to be a decent, honorable man. I
have reams of quotes from people who have worked with you,
African-American judges--I have lost my quotes, I do not know
where they are--but glowing quotes about who you are, the way
you have lived your life, law clerks, men and women, black and
white, your colleagues who say that ``Sam Alito, whether I
agree with him or not, is a really good man.''
And do you know why I believe you when you say that you
disavow those quotes? Because of the way you have lived your
life and the way you and your wife are raising your children.
Let me tell you this, guilt by association is going to drive
good men and women away from wanting to sit where you are
sitting. And we are going to go through this ourselves as
Congressmen and Senators. People are going to take the fact
that we got a campaign donation from somebody who is found out
to be a little different than we thought they were, and our
political opponents are going to say, ``Aha, I got you.'' And
we are going to say, ``Wait a minute. I didn't know that. I
didn't take the money for that reason.'' You know what? I am
going to believe these Senators and Congressmen for the most
part because that is the way we do our business. We meet people
here every day. We have photos taken with people, and sometimes
you wish you did not have your photo taken. But that does not
mean that you are a bad person because of that association.
Judge Alito, I am sorry that you have had to go through
this. I am sorry that your family has had to sit here and
listen to this.
Let's talk about another time not so long ago, and another
judge, and some of her writings, and see if the Senate is
changing for the better or for the worse. Justice Ginsburg, who
I need to go have a cup of coffee with because I constantly
bring her up, and I do not dislike the lady, I admire her. But
let's put it bluntly, under today's environment from a
conservative's point of view, she would have a very hard time,
because Justice Ginsburg was the General Counsel for the ACLU
from 1973 to 1980, and if you want me to tar somebody by their
association, I can put up some pretty wild cases from my point
of view where she was involved. But you know what? I respect
her because her job as an attorney for the ACLU is to represent
the most unpopular causes. As far as I can tell, during her
time with the ACLU, she was honest, she was ethical, and she
fought for the most unpopular causes, and for that, I respect
her.
But you put some things down on an application about your
view of the law in Roe v. Wade, and it is taking an
unbelievable effort on your part, I think, to convince people
that when I was a lawyer I did this, when I applied for a job I
was doing this, and as a judge I will do this.
Here is what Justice Ginsburg said in an article she wrote
titled ``Some Thoughts on Autonomy and Equality in Relationship
to Roe v. Wade.'' ``The conflict, however, is not simply one
between a fetus's interest and a woman's interest, narrowly
conceived. Nor is the overriding issue State versus private
control of a woman's body for a span of 9 months. Also in the
balance is a woman's autonomous charge of her full life's
course, her ability to stand in relation to man, society and
the State as an independent self-sustaining equal citizen.''
She wrote further, ``As long as the Government paid for
childbirth, the argument proceeded, public funding could not be
denied for abortion, often a safer and always a far less
expensive course short and long term. By paying for childbirth
but not abortion, the Government increased spending and
intruded upon or steered a choice. Roe had ranked as a woman's
fundamental right. The public funding of abortion decisions
appear''--denying a requirement of public funding appear
``incongruous following so soon after the intrepid 1973 ruling.
The Court did not adequately explain why the fundamental choice
principle and trimester approach embraced in Roe did not bar
the sovereign, at least at the previability stage of pregnancy,
from taking sides and being required to provide funding for the
abortions of poor women.''
If that writing does not suggest an allegiance to Roe, if
that writing does not suggest from her point of view as the
author of that article, not only is Roe an important
constitutional right, the Government ought to pay for abortions
in certain circumstances. If she were here today, and a
Democrat President had nominated her, and we take on the role
that our colleagues are playing against you, not only would she
not have gotten 96 votes, I think she would have been for a
very rough experience. And what has changed?
Justice Ginsburg openly expressed a legal theory about Roe
v. Wade. My question to you, if I am arguing a case that would
alter Roe v. Wade, would I have the ability, because of her
prior writings, to ask her to recuse herself based on those
writings alone?
Judge Alito. I don't think you would, Senator. I think it's
established that prior writings of a member of the judiciary do
not require the recusal of that member of the judiciary.
Senator Graham. I think you are absolutely right, Judge.
Let me tell you what she said at the hearing when it was her
time to sit where you are sitting. ``You asked me about my
thinking on equal protection versus individual autonomy. My
answer is that both are implicated. The decision whether or not
to bear a child is central to a woman's life, to her well-being
and dignity. It is a decision that she must make for herself.
When Government controls that decision for her, she is being
treated as less than a fully adult human responsible for her
own choices.''
A sentiment that I think our pro-choice colleagues share, a
sentiment that I disagree with because I think the decision
does affect humanity, and that is the unborn child. I do not
question her religion. I do not question her patriotism. She
gave an answer that was very honest and was very direct, and
pro-life Republicans and pro-life Democrats never thought about
disqualifying her. She did not go through what you went
through. Pro-life Republicans and pro-life Democrats set her
comment aside and judged her based on her whole record and
believed she was worthy to sit on the Supreme Court, and she
got 96 votes.
And what you have said in your writings about the other
side of the issue pales in comparison to what she said before
she came to this body.
I don't know how many votes you are going to get. You are
going to get confirmed, and it is not going to be 96. Judge
Roberts got 78, and I am afraid to say that you are probably
going to get less.
To my colleagues, I know abortion is important. It is
important to me, it is important to you. I know it is an
important central concept in our jurisprudence. But we can't
build a judiciary around that one issue. We can't make judges
pledge allegiance to one case. We can't expect them to do
things that would destroy their independence. You can vote yes,
you vote no. You can use any reason you would like. I just beg
my colleagues, let us not go down a road that the country can't
sustain and the judiciary will not be able to tolerate.
People set aside her writing, set aside her candid
statement and gave her the benefit of the doubt that she would
apply the law when her time came. She replaced Justice White.
We knew that that vote was going to change. I don't think any
Republican had any doubt that if there was a Roe v. Wade issue,
she would vote differently than Justice White, but you never
know.
The one thing I can tell the public about you and John
Roberts is that you are first-round NFL draft picks, but I
don't know what you are going to do ten or 20 years from now
because I think you are men of great integrity, and I may be
very well disappointed in some of your legal reasoning, but I
will never be disappointed in you if you do your job as you see
it fit.
The last thing I am going to read--do you know Cathy
Fleming?
Judge Alito. I do. She was an attorney, a supervisor in the
U.S. Attorney's Office in New Jersey.
Senator Graham. Did you ask her to write a letter on your
behalf?
Judge Alito. I did not, no.
Senator Graham. ``Judge Alito did not ask me to write this
letter. I volunteered.''
[Laughter.]
Senator Graham. I am glad you said that, by the way.
[Laughter.]
Senator Graham. ``I am a lifelong Democrat. I am the
president-elect of the National Women's Bar Association. I
chair the corporate integrity and the white collar crime group
at a national law firm. I do not speak on behalf of either my
law firm or the Women's Bar Association. I speak for myself
only. But by providing my credentials as an outspoken women's
rights advocate and liberal-minded criminal defense attorney, I
hope you will appreciate the significance of my unqualified and
enthusiastic recommendation of Sam Alito for the Supreme Court.
Sam possesses the best qualities for judges. He is thoughtful.
He is brilliant. He is measured. He is serious. And he is
conscious of the awesome responsibility imposed by his
position. I cannot think of a better quality for a Supreme
Court Justice. It is my fervent hope that politics will not
prevent this extraordinary capable candidate from serving as an
Associate Justice on the U.S. Supreme Court.''
I share her hope. Thank you. I yield back my time.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman. Thank you, Judge
Alito.
First, I want to go over some of the things you said
yesterday. Judge Alito, you testified yesterday that you would
keep an open mind, isn't that right?
Judge Alito. I did and I do.
Senator Schumer. Now, are you aware of any nominee in the
history of the Republic who has come before the Senate and
testified he would keep a closed mind?
Judge Alito. I am not aware of that, but I can only speak
for myself. I will keep an open mind on all issues.
Senator Schumer. You also testified yesterday that no one,
not even the President, is above the law, right?
Judge Alito. That's certainly true.
Senator Schumer. Yes. And are you aware of any nominee in
the history of this Republic of whatever political philosophy,
judicial philosophy, or denomination who has come before the
Senate--party denomination--and testified that, actually, there
are a few people who are above the law?
Judge Alito. I am not aware of a nominee like that,
Senator.
Senator Schumer. And you also testified that the Court
should have respect for the Congress, isn't that right?
Judge Alito. Yes.
Senator Schumer. Do you know of any nominees who came
before the Senate and said, ``The heck with you guys. I don't
have any respect for the Congress.''
Judge Alito. Senator, I can only speak for myself, and
those are true expressions of what I think.
Senator Schumer. I know that, but all I want to say is--and
I don't doubt your sincerity in saying them, but this morning's
newspapers were filled with headlines to the effect you would
keep an open mind. I don't find that really to be news, nor do
I find it very helpful in figuring out what kind of Justice you
would be.
My friends on the other side of the aisle have repeatedly
said you have answered over 200 questions. Now it is probably
300. But a response is not an answer, and you have responded to
more than 300 questions, but in all due respect, you haven't
answered enough of them. So again, I think we ought to make
clear that at least to many of us here, we haven't gotten the
answers to questions, yes or no, on some important issues.
With that, I would like to return to Roe, something that we
discussed yesterday at some length. You did say yesterday that
you would keep an open mind. You said, first, you would look at
stare decisis and then you would keep an open mind after going
through stare decisis. But when I asked you questions about
your prior statements to see if you would keep an open mind so
I could make a determination, so the American people could make
a determination, you really didn't answer the question.
Now, we have heard pledges about having an open mind
before. I want to read you one. It is another hearing, someone
who sat in your chair. ``I have no agenda, Senator. I have
tried here as well as in my other endeavors as a judge to
remain impartial, to remain open-minded, and I am open-minded
on this particular issue.'' I will bet you can guess who that
nominee was, Clarence Thomas on the issue of the Constitution
and the right to choose, the very issue I have asked you about,
when he sat in that chair 15 years ago.
So someone pledging an open mind doesn't tell us very much,
because I think there were a lot of people on this Committee
who were surprised--I wasn't there--were surprised by how
Justice Thomas ruled based on his testimony. He didn't tell
them enough.
Now, yesterday, as you know, I asked you whether you
believe today that the Constitution protects the right to an
abortion, given that in 1985 you flatly said that it doesn't,
and you didn't answer that question. Then I asked you whether
the Constitution protects the right to free speech, and you
said yes. Then I asked, how could you answer one and not the
other, and your answer as to why you could discuss one and not
the other was essentially that the words ``free speech'' appear
in the Constitution, but that, and this is your words, ``the
issue of abortion has to do with the interpretation of certain
provisions in the Constitution, the 14th Amendment.''
Now, Judge Alito, the words ``one person/one vote'' are not
in the Constitution. You know that. And yet you said yesterday,
and I think you repeated today to Senator Kohl and maybe
Senator Feinstein, as well, but what you said yesterday was,
quote, ``I think that one person/one vote is very well settled
now in the constitutional law of our country.'' So you were
able to answer on the basis of something as to whether it is
settled, not being in the--the words are not in the
Constitution.
But you were queried by a few of my colleagues and you had
a different explanation. Now, you said you can answer on the
other issues because it is settled law. It is not going to come
before the Court. So let us go over settled law a little bit.
In case after case, you have been telling us--you have been
comfortable telling us that certain cases are settled, and yet
you won't use that word with respect to Roe. You have done it
in a host of other cases and issues. I will read a few. ``So I
think that one person/one vote is very well settled now in the
constitutional law of our history,'' in response to Senator
Kohl. ``The status of independent agencies, I think, is settled
in the case law.'' That was in response to Senator Leahy. ``But
I do think that most of those Commerce Clause cases in the
years proceeding Lopez, the ones that come to mind, I think,
are well-settled precedents,'' in reference to Senator
Feinstein. ``I think the scope of immunity that the attorney
has is now settled by Mitchell v. Forsythe and that's the
law.''
So can you answer the question? Is Roe settled or not? It
is less of a concern which way you answer. I would just like
you to answer the question. You can say, Roe is not settled.
Roe can absolutely be reexamined. I think a lot of people think
that is the answer you want to give, but it is controversial
and you may not want to give it because it is controversial,
even though some of these other issues will come before the
Court. Commerce Clause cases will come before the Court.
Certain types of one man/one vote cases will come before the
Court. Certain types of administrative agencies will come
before the Court.
So why is it only when it comes to Roe you can't tell us
whether it is settled, whether it is not settled, or how it is
settled, and you can pick any formulation you want. Other
judges have commented on Roe being settled. Lindsey Graham
pointed out--he is not here, but Ruth Bader Ginsburg talked
about her view and she still got a lot of votes on the other
side of the aisle. The same might happen to you.
So the question, Judge Alito--
[Laughter.]
Senator Schumer. The question, Judge Alito, is why won't
you talk to us about Roe in terms of whether it is settled or
not when you will about so many other issues, even issues that
would come before the Court?
Judge Alito. The line that I have tried to draw, and I've
tried to be as forthcoming as I can with the Committee. I've
tried to provide as many answers as I could, and obviously, I'm
speaking here extemporaneously in response to questions. The
line that I have tried to draw is between issues that I don't
think realistically will come before the Court, and on those, I
feel more freedom to respond. One person/one vote is an example
of that--
Senator Schumer. What about Commerce--sorry to interrupt,
but we have limited time. What about Commerce Clause? Raich
came to the court a couple of years ago. Raich has roots all
the way back in Wickard v. Filburn. You talked about Commerce
Clause cases being settled.
Judge Alito. Well, it depends on which Commerce Clause
cases you're talking about. Certainly, the initial Commerce
Clause cases that moved away from the pre-New Deal
understanding of the Commerce Clause have been on the books for
a long time. Maybe I have been more forthcoming than I should
have been in some areas, and if that's the case in providing
these extemporaneous answers, I can be faulted for that. But
the line that I have to draw, and I think every nominee,
including Justice Ginsburg, has drawn, is to say that when it
comes to something that realistically could come before the
Court, they can't answer about how they would decide that
question. That would be a disservice to the judicial process.
Senator Schumer. I understand your view. I just think there
are some inconsistencies there. I would argue you ought to err
on the side of being more forthcoming. This is the last chance
we and the American people will have to make a decision before
a lifetime appointment.
But I want to move on to another issue also related to Roe.
Now, you did say that in 1985, you believed that the
Constitution did not protect the right to an abortion, and at
that time, you were a mature legal mind. You were 35. You were
already a Federal prosecutor. You were serving in the Solicitor
General's Office. You had a pretty good understanding of the
Constitution. You had argued cases related to Roe before the
Supreme Court, I think, 12 times by 1985. So you were a well-
seasoned, mature, established legal mind at that time, is that
fair to say?
Judge Alito. Well, Senator, most of what you said is
certainly correct, but I had not argued any case involving Roe
before the Supreme Court.
Senator Schumer. I see. You had argued 12 cases before the
Supreme Court?
Judge Alito. Yes, that's correct.
Senator Schumer. Sorry. Now, let me ask you this. When you
wrote that statement, you did not, as we discussed yesterday,
when you wrote that the Constitution does not protect the right
to an abortion, you had no exceptions. So that would mean, at
least in 1985, your view then, there would be no constitutional
protection for a woman to terminate her pregnancy even if the
termination was needed to preserve her future ability to have
children, right?
Judge Alito. Well, Senator, it was a general statement. It
didn't go into--it didn't--
Senator Schumer. But it had no exceptions. You could make
that--
Judge Alito. It was one sentence and it certainly didn't
represent--there was no attempt--
Senator Schumer. You didn't write any exception for that
situation, correct? It just said, the Constitution does not
protect. It was without exception. And yesterday, you didn't
argue with me when I mentioned that, without exception.
Judge Alito. I don't recall you using the word, ``without
exception.''
Senator Schumer. I think I did.
Judge Alito. Senator, it's one--well, I'm not disputing
that--
Senator Schumer. OK. So if you believe--
Judge Alito. Could I just answer that question?
Senator Schumer. Yes, please.
Judge Alito. It's one sentence and it certainly is not an
attempt to set out a comprehensive view of the subject.
Senator Schumer. No, I understand that, but it was a very
strong statement. It didn't talk about any exceptions at all,
and the way I read that statement, even if a woman was raped by
her father, she would have no constitutional protection to have
an abortion and terminate that pregnancy. If you believe the
Constitution protects no right to an abortion, that would
follow, wouldn't it?
Judge Alito. I think the statement speaks for itself, and
it's one sentence and it's not an effort to set out a
comprehensive--
Senator Schumer. Well, knowing these examples, do you still
refuse to distance yourself in any way from a broad,
unqualified statement without exception that the Constitution
does not protect the right to an abortion, no ands, ifs, or
buts is my words, but--
Judge Alito. What I actually said was that I was proud of
my participation in the Thornburgh case in which the government
made the argument that it made in the Thornburgh case--
Senator Schumer. Right, but you said in the previous
sentence of that statement that you personally held those
views.
Judge Alito. That's correct, but what I was talking about
there was the Thornburgh case and nothing more than the
Thornburgh case.
Senator Schumer. I understand, but you haven't rethought
the position at all, even knowing these extreme cases and the
hardship that it might cause--
Judge Alito. What you've pointed out is exactly why, if the
issue were to come up and one were to get beyond stare decisis,
the whole judicial decisionmaking process would have to be gone
through. You'd have to know--
Senator Schumer. You didn't think that through in 1985?
Judge Alito. I was not involved in--
Senator Schumer. When you wrote the statement. When you
wrote that statement.
Judge Alito. And when I wrote this statement, what I was
saying was that I was proud of what I had done in relation to
the Thornburgh case, which was to write the memo that the
Committee is aware of, which did not argue that Roe should be
overruled. It did not argue that the Government should argue
that Roe should be overruled, but that the decision should be
challenged on other grounds that were quite similar--
Senator Schumer. I understand what you wrote, but you
also--we can bring the statement up here, but I don't want to
go over the thing of yesterday. I would just ask you to think
of all the consequences of a broad statement, even from 1985,
that the Constitution does not protect the right to an
abortion. There is not an exception of health to the mother,
not an exception of rape or incest, not an exception of any of
these others. I didn't see any of those in your job
application.
But I want to conclude on one--
Judge Alito. Senator, it was one--
Senator Schumer. Go ahead, please.
Judge Alito. It was one sentence, and I think what you're
saying highlights the importance of not addressing this until
the judicial process takes place where all of this complexity
would be taken into account.
Senator Schumer. In all due respect, sir, I think it
highlights the importance of and obligation to discuss it,
particularly in light of a strong statement before, but we will
have to differ on that.
I want to go back to the CAP issue in conclusion, because
some of the statements just don't add up and I just want to try
to figure this out a little better. You graduated from
Princeton in 1972. I am just going to state, to save us a
little time, a series of facts here. You filled out the
application to apply for the job in the Reagan administration
in 1985, where you mention membership in that group. Now, is it
fair to say you joined sometime around 1972?
Judge Alito. I think that's very unlikely.
Senator Schumer. Unlikely?
Judge Alito. Very unlikely.
Senator Schumer. When do you--you have no idea when you
joined?
Judge Alito. I don't, but if I had done anything
substantial in relation to this, including renewing membership
or being a member over a lengthy period of time, I feel
confident that I would remember that.
Senator Schumer. OK. So you don't remember renewing
membership, writing out a check at a certain time, getting a
magazine, this Prospect magazine, once a month, once a quarter,
once a year? You have no recollection of any of that?
Judge Alito. I don't.
Senator Schumer. OK. Well, here is what the--and let me
just ask you one other question. I take it in 1985 you were a
member of a whole lot of different groups. I mean, you were a
member of the Bar Association. You might have been your
neighborhood guy, I respect that, maybe a neighborhood
association in New Jersey where you lived, maybe other
Princeton alumni organizations. In your 1990 application, there
are a bunch of other organizations you list as being members
of. So you were a member of a whole lot of groups.
Judge Alito. I was a member of some other groups, not a
whole lot--
Senator Schumer. Yes, OK, a bunch. More than two?
Judge Alito. Some other groups, yes.
Senator Schumer. OK. Here is what I don't understand. I
think here is what a lot of people don't understand. You are a
member of other groups. You hardly have any recollection of
this organization. And yet, somehow in 1985, you put it on your
application. Why did you? Why did you list that particular
organization on your application when you have such vague
recollection of it? Why didn't you put the National Bar
Association--I mean, the American Bar Association or one of the
other groups that you were a member of? It wasn't a long list
where you were trying to list--you somehow plucked this group,
which you now say you have almost no recollection about, and
put it on the application, and this group, as we have heard, is
controversial. Just try to give us some understanding of your
state of mind in 1985, why that group, with its tawdry history
even public then, although you said, in all fairness, you
didn't know about it, but why that group? Why was it plucked
out and put on the application?
Judge Alito. Well, I deplore all of those statements that
were shown on the chart.
Senator Schumer. Understood.
Judge Alito. I would never associate myself with those
statements--
Senator Schumer. What made you pick that group? I
understand. I am not trying to--
Judge Alito. I think you have to look at the question that
I was responding to and the form that I was filling out. I was
applying for a position in the Reagan administration, and my
answers were truthful statements, but what I was trying to
outline were the things that were relevant to obtaining a
political position. I mentioned some very minor political
contributions. I didn't mention contributions to charitable
organizations, and that's not because the contributions to
charitable organizations were unimportant. It's just that--
Senator Schumer. Can you reach back, because it is an
important issue now--it has become one--and try to figure out
your state of mind then and what made you pick this
organization. What did you--I mean, I see why you picked the
Federalist Society. That is obvious. Why did you pick this one?
Judge Alito. Well, Senator, since I don't remember this
organization, I can't answer your question specifically, but I
think that the answer to the question lies in the nature of the
form that I was filling out and the things that I put. I think
the illustration of the political contributions goes right to
the point. Why did I mention small political contributions and
not charitable contributions?
Senator Schumer. Can I ask you--
Judge Alito. It wasn't that the charitable contributions
were less important. It was that they were not as relevant to
obtaining a political position.
Senator Schumer. Why didn't you put it on your application
in 1990? It wasn't there.
Judge Alito. I didn't remember it.
Senator Schumer. But you remembered it from 1972, or
whenever you joined, to 1985, formed in 1972. Why I think you
probably joined earlier is because of what you said about ROTC,
which is a much bigger issue in its early history than its
later history. And you remember that. You remember it up until
1985, and then by 1990, you had forgotten it.
Let me just say, I am glad--this is by way of explanation.
That is why Senator Kennedy made his request. I am glad,
Senator Specter, that you have acceded to it. I think there are
unanswered questions here that we really have an obligation to
answer, and maybe the documents we get will give us some of
those answers. Thank you, Mr. Chairman.
Judge Alito. Senator, I have--
Senator Schumer. Please.
Judge Alito. I have told the Committee everything that I
can about this organization, and the most important thing I
want to tell the Committee is that I have no association with
those comments that were made, even if they were made in
letters to the editor or in articles that simply represented
the views of the authors of those articles. They are not my
views now. They never were my views. They represent things that
I deplore. I have always deplored any form of racial
discrimination or bigotry. I was never opposed to the admission
of women to Princeton. After I had been there for a few months,
I realized the difference between the non-coeducational
atmosphere that was there and the coeducational atmosphere that
I had had throughout my prior schooling. When it came time for
me to join an eating facility, I chose one that was one of the
most coeducational facilities on the campus.
Senator Schumer. I just can't figure out why you put this
group on here.
Chairman Specter. Senator Schumer, your time is up, Senator
Schumer.
Senator Cornyn?
Senator Cornyn. Judge Alito, let me tell you how desperate
your opponents are to defeat your nomination. Late last
Wednesday--or, excuse me, last Thursday, a name of a witness
was listed relative to this whole issue of Concerned Alumni of
Princeton that included the name of a man named Stephen Dujak.
Is that name familiar to you?
Judge Alito. Not other than from seeing the witness list.
Senator Cornyn. Well, by the end of the day on Friday, his
name was gone from the witness list of those witnesses intended
to be called by the other party. As it turned out, it was
revealed that in April of 2003, that he had authored an op-ed
piece for the Los Angeles Times entitled, ``Animals Suffer a
Perpetual Holocaust,'' and in that article, he wrote this. He
said, ``Like the victims of the Holocaust, animals are rounded
up, trucked hundreds of miles to the kill floor, and
slaughtered. Comparisons to the Holocaust are not only
appropriate but inescapable, because whether we wish to admit
it or not, cows, chickens, pigs, and turkeys are capable of
feeling loneliness, fear, pain, joy, and affection as we are.
To those who defend the modern-day Holocaust on animals by
saying that animals are slaughtered for food to give us
sustenance, I ask if the victims of the Holocaust had been
eaten, would that have justified the abuse and murder? Did the
fact that lamp shades, soaps, and other useful products were
made from their bodies excuse the Holocaust? No. Pain is
pain.''
Judge Alito, I read that to point out to you the
desperation of your opponents. This was to be a principal
witness who was going to come in and say why your membership in
Concerned Alumni of Princeton was a terrible thing. But the
fact is that I think they have stumbled by their overreaching
by demonstrating the desperation that they feel and how few
ways they have to criticize your testimony, your career, your
integrity, and who you are as a person based upon the facts and
I think it speaks volumes.
It is clear to me, at least, that part of the reasonings or
the rationale given for a ``no'' vote against you by some on
this Committee and perhaps on the floor of the Senate will be
that you have not been responsive to questions. We have a chart
here that I think is instructive. This is as of 3 p.m. on day
two. We couldn't get any more current than that. But as this
indicates, so far in this hearing, 441 questions have been
asked and 431 have been answered, or 98 percent. Justice
Ginsburg, and we have heard a lot about her and what she would
answer and would not answer and what her philosophy was, her
beliefs, before she was confirmed by the Senate with only three
votes against, she had 384 questions asked and she answered 307
of those for an 80 percent answer rate.
You know, listening to the back and forth about whether you
have been responsive to questions reminds me of a saying that I
heard recently: ``I can answer the question, but I can't
understand it for you.''
In other words, I think you have done, to the best of your
ability and to the limits of your ethical responsibility, tried
to be responsive to the questions here. Obviously, no one can
make that decision but the Senators who will ultimately vote on
that. But certainly the public and the world, people all across
this great country who may be listening to this hearing and
will be judging for themselves both the fairness of the
proceeding and your responsiveness to the questions, I believe
that they will conclude that not only have you been responsive
but that you have been very forthcoming in answering the
questions that have been asked of you, but that, like Justice
Ginsburg and others before her, you believe that it is
important to maintain the independence of the judiciary, that
you are not willing to make the judiciary subservient to the
Senate or the Congress in order to get a vote for confirmation.
And I applaud you for that.
You know, yesterday I made a mistake. I know Senator
Sessions confessed a mistake and, as it turned out, I went over
and talked to Senator Biden because I had quoted him and it
turned out I didn't quite quote him accurately. But I told him
we have corrected the record to make sure it reflected his
words, because it is important to me to make sure that we are
accurate and we are clear.
But yesterday I made a mistake and referred to you as Judge
Scalito. And I was embarrassed by that, and I asked your--
begged your pardon for that. For those that may not be in on
the joke, the idea is, the argument by some is somehow you are
a clone of Judge Scalia. Well, I have found for myself
everything we have heard, everything I have come to learn about
you is that you are a clone of no one, that you are an
individual who is particularly gifted and talented and
experienced and someone who has been, notwithstanding the abuse
that you suffer during the confirmation process, willing to
offer yourself for public service in a very important role, and
that is as a member of the United States Supreme Court.
But yesterday my colleague from New York put up some
quotes. Now, it was late in the day and I think most of the
press had gone--and maybe that is a good thing. People had
gotten tired, but you had to still sit here and listen to the
questions and respond to those. But he put up a quote, which
was relatively innocuous on its face, and it asked about things
like do you believe that continuity in the law is important.
And you said yes and it seems unarguable to me. But then he
said, well, that was a quote from Clarence Thomas. And I
suppose that was going to attribute to you all of the baggage
that those on the left feel that Justice Thomas carries and all
of the views that he has espoused and all of his performance on
the bench.
Later, he asked whether you agreed with another quote, and
here again it was a sort of black-letter law, good-government
quote. And you agreed that, yes, you agreed with that quote.
And he said, Ah-ha, Judge Bork said that. Meaning somehow that
you were carrying whatever baggage people on the left feel that
Judge Bork carries and you somehow embrace or subscribe to
everything he believes.
I want to give you an opportunity, Judge Alito, to tell us
whether you feel like you are a clone of Judge Scalia, Judge
Thomas, Judge Bork, or whether you believe that you are your
own man, you come to your own conclusions based on careful
study and your experience in the law. Would you comment on that
for me, please?
Judge Alito. Yes, Senator. I am who I am and I'm my own
person. And I'm not like any other Justice on the Supreme Court
now or anybody else who served on the Supreme Court in the
past. I don't think any jurist is a duplicate of any other
jurist. I think that the Committee and anybody who's interested
in the sort of judge I am can get a very clear picture of that
by looking at my record on the court of appeals. And I've been
on the court of appeals for 15 years and have sat on over 4,000
cases. And most of the cases that come to the court of appeals
never go any further. We're the last stop in 99 percent of the
cases, probably higher than that. And we know that when we're
deciding those cases.
And I think if anybody reads the opinions that I've written
and the opinions that I've joined, they can see exactly the
sort of jurist that I am. They will find some opinions I'm sure
that they will disagree with. But if they look at the whole set
of opinions that I've written or joined, they can get a very
clear picture of me. I'm not like anybody else. I don't claim
to have the abilities of some of the distinguished members of
the Supreme Court now or in the past. I have my--whatever
abilities that I have. But they are my own.
Senator Cornyn. Let me tell you what Cass Sunstein has said
about you. You may be familiar with the op-ed piece that was
written in the Akron Beacon Journal on November 3, 2005. This
is--of course, you know Professor Sunstein from the University
of Chicago, a brilliant and liberal legal scholar. But he
concludes in this op-ed--and this is how he describes you based
upon his review of your life's work as a judge.
He said, ``Alito sits on a liberal court''--and this is an
analysis of your dissents. ``Alito sits on a liberal court, so
his dissents can be from relatively liberal rulings. None of
Alito's opinions is reckless or irresponsible or especially
far-reaching. His disagreement is unfailingly respectful. His
dissents are lawyerly rather than bombastic. He does not berate
his colleagues. Alito does not place political ideology at the
forefront. He doesn't claim an ambitious or controversial
theory of interpretation. He avoids abstraction. He's not
endorsed the view associated with Justices Antonin Scalia and
Clarence Thomas that the Constitution should be interpreted to
fit with the original understanding of those who ratified it.
Several of his opinions insist on careful attention to
governing legal text, but that approach is perfectly
legitimate, to say the least.''
Judge Alito, I think it is important for people listening
to understand that you are indeed your own man and that you do
the very best job that you can with the skills and the talents
that God has given you, and that you are willing to serve, and
we ought to applaud you for that. And it is really, to me,
demeaning to suggest some sort of guilt by association or that
you must be a clone of some other judge or someone who outside
groups hold up to disrespect and ridicule.
So I hope that, as I say, those listening, both in the
Senate and outside, will make up their mind about you based
upon the evidence that we have heard and that is available and
not based on those sort of specious comparisons.
Now, let me ask--you know, believing as I do that you have
been responsive, and expecting as I do that those who vote
against you will claim that you have been nonresponsive
notwithstanding the chart I showed you and your willingness to
respond to the questions, you know, Senator Schumer--who is an
enormously talented and very bright lawyer in his own right--
was pressing you on whether Roe v. Wade is settled. And, I've
really tried to analyze for myself, when is it that judges and
nominees are willing to go out on a limb, so to speak, and say,
yes, that's settled law or to talk more expansively about an
issue; and when is it that they feel less comfortable, less
free, more constrained by their ethical obligations or their
desire to preserve the independence of the judiciary?
And what I have concluded--and I would like to get your
reaction to this--is the more settled, to use the word Senator
Schumer has, the more accepted in the society, in our culture,
the more free nominees feel to talk about it; but the more a
nominee feels like this is an issue that not only is going to
come back, it is going to come back soon--as a matter of fact,
it may be on the Court's docket now--the less free, the more
bound by your ethical obligations you feel, the more you feel
it is important to preserve your independence as a judge.
And we have mentioned a couple of them--Brown v. Board of
Education, which expresses a commitment to equal justice under
the law that all Americans embrace, virtually speaking. You
have felt free to express a view on that case, have you not,
sir?
Judge Alito. I have. The line I've tried to draw is whether
something realistically could come up in litigation before the
court of appeals or before the Supreme Court. And I--
Senator Cornyn. Does that mean that you don't expect Brown
v. Board of Education to be attacked, or someone to come before
the Court and ask that it be overruled?
Judge Alito. I don't. There's no realistic possibility of
that, so I felt freer to talk about something like that.
Senator Cornyn. But you do believe, and I think with good
cause, that there will be continuous attempts to address the
abortion issue because of its divisive nature and because
Americans are so divided on that issue, or at least some aspect
of the issue. To what extent, for example, can the Congress
pass laws which ban the barbaric practice of partial birth
abortion, to what extent can Congress or the States pass laws
that provide for minors to seek--requiring them to seek
parental--or provide their parents notice, with an appropriate
judicial bypass for those who are abused or neglected or
abandoned by their parents? That is an issue that is at the
forefront of America's consciousness and really, I think, sort
of the subtext under which a lot of the wars over judicial
nominations are fought. Would you agree with that, more or
less?
Judge Alito. It's an issue that is in litigation now, and I
think you can look at the course of litigation over the past 20
years and you can see a number of cases--and of course this has
been highlighted--in which the Supreme Court has been asked to
overrule Roe and it has repeatedly refused to do that. But
there's nothing--there's no comparable pattern, for example,
with respect to Brown v. Board of Education or one person, one
vote.
Senator Cornyn. Well, in the closing two and a half minutes
that I have, I mentioned the Cass Sunstein op-ed, which, from
my reading, even though I am sure you and Professor Sunstein
don't see eye-to-eye on all legal issues, he seems to be highly
complimentary of you, is the way I interpreted those two
paragraphs I read out of the op-ed piece.
Now, a national newspaper, the Washington Post, on January
1st--that is the Washington Post, not National Review--did an
analysis of your voting record on the Third Circuit. They found
that in virtually every type of case, whether labor,
employment--your record was no different than the average
Republican-appointed judge. And to me, that is sort of the--
said another way, that means that you are within the
conservative mainstream in terms of your judicial philosophy.
Now, I know that you and other legal scholars have some
trouble with this approach by political scientists to try to
survey your opinions and categorize them and say, well, this is
who you are, because you don't decide cases that way, do you?
You decide individual cases based upon the legal arguments, the
merits, and the facts. Isn't that correct, sir?
Judge Alito. That's right, and it would be a bad thing if
judges started keeping these scorecards and said, oh, I've
ruled a certain number of times in favor of one side; when the
next case comes up, I'd better rule on the other side. That's
exactly what we don't want judges to do.
Senator Cornyn. You anticipated my next question, and that
would be if somehow it disqualifies you because of how
political scientists have somehow ranked your sympathy with
certain types of cases, how often you have ruled in favor of
one type of litigant and another--as opposed to an individual
case-by-case decisionmaking process contemplated by the
Constitution--I doubt it will be long before prospective
nominees to the Federal judiciary will be keeping that kind of
chart. And when litigants come into court, they are going to be
tempted to look at that and say, well, I've ruled for too many
plaintiffs, I'd better rule for a defendant this time. Or, no,
I've shown too much sympathy for civil rights plaintiffs, I'd
better rule for the government this time. Which would totally
skew your responsibility as a Federal judge, in my view.
Judge Alito, my time has run out. Thank you for your
response to my questions.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you, Senator Cornyn.
We will take now another break for 15 minutes.
I have had requests from two Senators on the Democratic
side for a third round. We have three more Senators to question
on the 20-minute round--
Senator Leahy. We have several more than the two.
Chairman Specter. Well, Senator Leahy, that is what I would
like to ascertain so that we can figure out the schedule for
the balance of the evening. We have 1 hour more for three
Senators at 20 minutes; I want to figure out what we are going
to do the rest of the evening. I want to figure out when we are
going to bring on the outside witnesses who are available
tomorrow. So if there are other requests, I would like to have
them.
But now we will stand in recess until 5:55.
[Recess 5:40 p.m. to 5:55 p.m.]
Chairman Specter. We will proceed now to the last three
Senators who have not had a second round of 20 minutes--Senator
Durbin, Senator Brownback and Senator Coburn.
As I had mentioned before, I have had requests from two
Senators for a third round. Senator Leahy advises that there
are others and I would like the specifications. Senator Biden
is prepared to proceed--has requested 20 minutes and is
prepared to proceed. Senator Feinstein has requested 10 minutes
and she has a doctor's appointment, so she won't be able to be
here this evening, and we will accommodate her on that.
But I would like to know who else wants time so we can plan
what we are going to do for the balance of the evening and
hereafter. I have had requests on my side of the aisle as to
whether we are having a Friday session and I have had a request
as to whether we are having a Saturday session. And I told both
of those requestors to stand by. And I do piecework, so I am
here for the duration.
Senator Leahy.
Senator Leahy. Mr. Chairman, I have been told that each one
of the people on this side want another round. I know I want to
look at the transcript this evening and I will have a few more
questions. Obviously, you can do what you want. Judge Alito has
shown that he has the stamina of Hercules. I am not sure that
all the rest of us do. Senator Coats is hanging in there, but
he is able to bail out now and then.
I would suggest you finish with the Senators who are here
tonight. That would get us out of here around seven or a little
later; come back in the morning. This is very similar to what
we did with Chief Justice Roberts. Come back in the morning,
and I have a feeling that whatever rounds it takes, we would
probably wrap it up in relatively expeditious order.
But then we wouldn't be looking like we are trying to ram
this through. It is a lifetime appointment, after all. We get
it done. I think most of the outside witnesses have been told
that they were going to testify on Friday, anyway, in all
likelihood. That is my suggestion.
Chairman Specter. Well, that is not true. There are people
who can't be here on Friday among the outside witnesses who
were looking at Thursday.
Senator Leahy. Well, who knows? We will probably be wrapped
up in time so that we can leave here sometime Thursday.
Chairman Specter. Well, Senator Leahy--
Senator Leahy. It is up to you.
Chairman Specter [continuing]. The only way we will know
what is going to happen--I want to know who wants more time so
I can see what is going to go on tomorrow, if we are going to
go beyond Senator Feinstein tomorrow. We had this exact same
situation with Chief Justice Roberts and we worked on into
Wednesday evening and then we got an understanding as to what
we were going to do on Thursday.
Senator Leahy. Well, we are into Wednesday evening now
already, so I mean we have done--
Chairman Specter. Well, why don't we proceed with our few
witnesses so as not to spend any more time, and if I could have
the advice from you--
Senator Leahy. Sure.
Chairman Specter.--Senator Leahy, and from Senator Kennedy.
Senator Durbin has 20 minutes. He probably has more time than
he needs.
Senator Leahy. I have yet to find a situation in this
Committee, Mr. Chairman, when you and I haven't been able to
work things out because you have always been eminently fair.
Chairman Specter. OK. Well, to put all the cards on the
table, the only compelling force, if there such a thing as a
compelling force for Senators, is to figure out how to avoid
working this evening by telling me what you want to do
tomorrow. That is a fairly simple formula.
Senator Leahy. Who was the Leader, Mr. Chairman, who once
said moving the Senate around was like transporting bull frogs
in a wheel barrow?
Chairman Specter. Senator Baker, who is author of the
``herding cats.''
Senator Durbin, you are recognized for 20 minutes.
Senator Durbin. Thank you very much. And, Judge Alito, if I
am not mistaken, this is how we started the day. I think we are
now into about eight-and-a-half hours, which means we are both
on overtime by any measurable workplace standard in America.
Thank you for your endurance, and to your family as well. I
know it is a stressful and tough situation.
Let me say at the outset I asked you a question earlier
today about settled law and John Roberts's statement before the
Committee. I have spoken to one of your corner men over here,
Ed Gillespie, and he and I have a difference of opinion about
what it says in the record. I commend to my colleagues the
record itself, September 13, 2005, page 145, and I stand by my
earlier statement. Enough said about that.
I want to ask you about two substantive issues. We are not
going to go to Princeton or any other place. The unitary
Executive: the reason it is important is that there are some
people even on the Supreme Court who believe the unitary
Executive theory--and I don't know if it is always associated
with the Federalist Society, but sometimes associated with the
Federalist Society and their members--but the unitary Executive
theory gives a President extraordinary power. And under that
theory, some argue that a President, particularly in a wartime
situation, can ignore and violate laws as Commander in Chief--
critically important and timely as we debate eavesdropping and
the like.
You have made it clear that when you spoke to the
Federalist Society in 2000, you were not talking about scope of
the President's power, but you were talking instead as to
whether or not he would have control over the executive branch.
I hope I am characterizing your statement correctly.
Judge Alito. That is exactly correct, and I think in the
speech I said there is a debate about the scope of what is
meant by the Executive power, but there isn't any debate that
the President has the power to take care that the laws are
faithfully executed, and that was the scope of the power that I
was discussing.
Senator Durbin. So my question to you is this: What about
those who do argue the unitary Executive scope theory? Do you
agree with their analysis, do you disagree? Would you be
joining Justice Thomas, in particular, in his dissent in
Hamdi--in arguing that in this situation a President has more
power than the law expressly gives him?
Judge Alito. I don't think that the unitary Executive has
anything to do with that. Let me just say that at the outset. I
think that--and if other people use that term to mean the scope
of Executive power, that certainly isn't the way that I
understand--
Senator Durbin. That is not your point of view?
Judge Alito. That is not my point of view.
Senator Durbin. You don't accept that point of view?
Judge Alito. No. I think--
Senator Durbin. If an argument is made that that is how
they are going to expand the power of the President, as you
testify today, that is not your position or your feeling? Say
it in your own words.
Judge Alito. It is not my--the unitary--when I talk about
the unitary Executive, I am talking about the President's
control over the Executive branch, no matter how big or how
small, no matter how much power it has or how little power it
has.
To me, the issue of the scope of Executive power is an
entirely different question and it goes to what can you read
into simply the term ``Executive.'' That is part of it and, of
course, there are some other powers that are given to the
President in Article II, the commander in chief power, for
example. And there can be a debate, of course, about the scope
of that power, but that doesn't have to do with the unitary
Executive.
Senator Durbin. So when Hamdi draws that line and Justice
O'Connor makes that statement about no blank check for a
President in times of war when it comes to the rights of
American citizens, and there is a dissent from Justice Thomas,
who argues unitary Executive, scope of powers, more power to
the President, you are coming down on the majority side and not
on the Thomas side of that argument. Is that fair to say?
Judge Alito. Well, I am not coming down--I don't recall
that Justice Thomas uses the term ``unitary Executive'' in his
dissent. It doesn't stick out in my mind that he did. If he
did, he is using it there in a sense that is different from the
sense in which I was using the term.
Senator Durbin. Fair enough. Let me move to another area. I
hate to return to that infamous 1985 memo, but there is one
element of it we have really not asked you about, and that is
your reference to the Establishment Clause. So instead of going
into that memo, let me just try to explore with you for a
moment your feelings about religion in our diverse society and
under the Constitution. You have heard some questions from the
other side about it from Senator Brownback, Senator Cornyn and
others, and I would like to try to get into this a little bit.
There seems to be a debate within the Court between two
standards for judging conduct as to whether it is
constitutional in relation to freedom of exercise of religion,
as well as establishment. And the two theories, if I can
describe them quickly, are the Lemon theory which has three
tests that the Burger Court came out with in 1971 and the new
coercion theory.
Are you familiar with both of those theories?
Judge Alito. I am, and there is actually a third theory,
the endorsement test.
Senator Durbin. Where do you come down? Do you subscribe to
any one of those as an accurate analysis of what the Founding
Fathers meant under the Establishment Clause?
Judge Alito. I don't think the Court has settled on any
single theory that it applies in every case. There are cases in
which it finds the Lemon theory, the Lemon test, which now has
two parts, whether the statute has--whether whatever is at
issue has a secular purpose and whether the primary effect is
to advance or inhibit religion. There are instances in which it
applies that. It tends to apply that in cases involving
funding.
There is the endorsement test, and it applies that in
certain cases. Typically, it applies those in cases involving
things like the displaying of symbols that may have religious--
that have religious significance. So it itself has not found a
single test that it applies in all of these cases.
Senator Durbin. Well, where are you? If the Court is
divided, and it appears it is, where do you come down? I mean,
do you--please tell me.
Judge Alito. Well, I don't have a--I do not myself have a
grand, unified theory of the Establishment Clause. As a lower
court judge, of course, my job has been to apply those
precedents, and this is an area in which I think the Court has
been--you can just see by the number of cases that it has
decided it has been attempting to find the best way of
expressing its view of what the Establishment Clause requires.
I certainly agree that it embodies a very important
principle and one that has been instrumental in allowing us to
live together successfully as probably the most religiously
diverse country in the world, and maybe in the history of the
world. And it's a very important principle, but I myself do not
have a grand, unified theory of this.
Senator Durbin. Let me ask you a few starting points. The
question was asked of John Roberts about his personal religious
and moral belief. And I would ask you in the most open-ended
fashion. We all come to our roles in life with life experience
and with values. When you are calculating and making a
decision, if you were on the Supreme Court, tell me what role
your personal religious or moral beliefs will play in that
decision process.
Judge Alito. Well, my personal religious beliefs are
important to me in my private life. They are an important part
of the way I was raised and they have been important to Martha
and me in raising our children. But my obligation as a judge is
to interpret and apply the Constitution and the laws of the
United States, and not my personal religious beliefs or any
personal moral beliefs that I have, and there is nothing about
my religious beliefs that interferes with my doing that. I have
a particular role to play as a judge and that does not involve
imposing any religious views that I have or moral views that I
have on the rest of the country.
Senator Durbin. That is virtually the same answer given by
Justice Roberts and I think from my point of view that is the
right answer. It is the same challenge many of us face on this
side of the table with decisions that we face.
Now, I asked Judge Roberts the following: Does the Free
Exercise Clause, in addition to the Establishment Clause,
protect the right of a person to be respected in America if
they have no religious beliefs, the non-believers?
Judge Alito. Yes, it does. It is freedom to worship and not
worship, as you choose, and compelling somebody to worship
would be a clear violation of the religion clauses of the First
Amendment.
Senator Durbin. Let me go to a specific case, the Black
Horse Pike Regional Board of Education case, in which you were
involved. And it is an interesting case and I hope this fact
pattern that I describe to you is correct.
The school board policy allowed the seniors at this school
to vote on having a graduation prayer, and the decision, it was
suggested, was whether that was coercing students who didn't
agree with that religious prayer or had no religious belief.
What is your feeling, or what was your feeling at that time
when it came to that decision?
Judge Alito. Well, that was the case that followed Lee v.
Weisman and preceded the Santa Fe case, which dealt with a
prayer before a football game. Lee v. Weisman involved a
situation in which the principal--and that was the most
directly relevant and a rather recent precedent at the time of
the Black Horse Pike case.
In Lee v. Weisman, the principal of a middle school, as I
recall, decided that there would be an invocation at the middle
school graduation, and selected a member of the clergy, a local
rabbi, to deliver the prayer and specified the nature of the
prayer that would be appropriate for the circumstances. And the
Supreme Court held that that was a violation of the
Establishment Clause.
The case that we considered in the Black Horse Pike case
involved a situation in which the high school left it up to the
students through an election to decide whether there would be a
prayer at the high school graduation and left it up to them to
select the person who would conduct the prayer, the student who
would lead them in the prayer, if that was--if they decided by
a vote to do that.
And so our job at that point was to decide whether this
fell on one side or the other of a line that I referred to
earlier which Justice O'Connor very helpfully--the distinction
that she drew between government religious speech, which is not
allowed, and private religious speech which is protected. The
government itself cannot speak on religious matters, but the
government also can't discriminate against private religious
speech. And we had here a situation--
Senator Durbin. That goes back to the Oliva case where the
student comes up with the drawing of Jesus, and that is a
voluntary, personal and private expression, as you have
described it.
Judge Alito. That is correct, and the Supreme Court has
recognized this in any number of cases. In the Rosenberger case
and the Good News Club case and the Lamb's Chapel case, they
have drawn this distinction.
So here we had a situation involving an election by the
students to pick somebody to lead them in prayer, and which
side of the line did it fall on? Well, it wasn't individual
student speech, but it was collective student speech by way of
an election. And that was what we had to decide, which side of
this line it fell on. And Judge Mansmann, who wrote the opinion
that I joined in that case, explained why we thought it fell on
the side of the line of individual student speech.
Senator Durbin. Let me ask you about that. Let me explore
for a second. You are dealing with a school board policy. A
school board is a government agency. They have set up the
policy, so it is not coming entirely from a voluntary personal
situation, like the Oliva case. And you know that the majority
is going to rule in the decision on whether there will be a
prayer and what the substance of the prayer will be.
How, then, could you respect the rights of the minority,
including people with different religious beliefs and non-
believers, if you leave it up to a majority vote?
Judge Alito. Well, that is why--that factor is why it was a
case that didn't--there could be debate about which side of
this line it fell on. Now, I think there also was a disclaimer
that was distributed at the time of the graduation explaining
to anybody who was in attendance that the prayer was not
endorsed--if there was a prayer, it wasn't endorsed by the
school board, and that this was a decision of the students.
There are factors there that fall on one side of the line.
There are factors there that point to the case being put on one
side of that line, factors that point to putting the case on
the other side of the line. And Judge Mansmann's opinion
explained why she thought, and I agree, that it would fall on
the private student speech side of the line. But it was a
question that was debatable.
And then the Sante Fe case came along later. It didn't
involved exactly the same situation, but it involved a related
situation, and that is now the Supreme Court's expression of
its opinion in the form of a precedent on the application to--
the application of this test that I have been talking about, a
situation like this.
Senator Durbin. As you have described it, this is not an
easy call. There are circumstances on both sides, and yet in
your dissent you use the phrase referring to the majority as
``hostility toward religion.'' It seems to me that you could
make a case that I am not hostile toward religion, but trying
to be sensitive to the rights of all to believe or not to
believe in America and come down on the opposite side of the
case.
Were you overstating your position in using that phrase
``hostility toward religion'' in describing the majority?
Judge Alito. That was--it was Judge Mansmann's opinion, in
which I joined, and I don't remember the phrase ``hostility to
religion.'' Obviously, it must be in there. I certainly don't
think that she meant to suggest that those who were objecting
to this were proceeding in bad faith, or even that they were
hostile to religion.
I think what she--I can't speak for her and I don't recall
the specific language, but looking at it now, the way I would
put it was that she probably thought that this was not giving
as much room for private religious speech as should be given.
Senator Durbin. I couldn't tell you what in the heck I ever
wrote in law school about anything, but in the second year in
law school you wrote a paper, I take it, some research, which
you had to tell us about here relative to the issue of
religion, and then in the 1985 memo raised the question about
the Warren Court on the Establishment Clause.
What was it that the Warren Court decided on the
Establishment Clause that troubled you, if you remember?
Judge Alito. Well, I actually think that the student note
from the Yale Law Journal is an illustration of the sort of
thing that has interested me and troubled me about the
jurisprudence in this area for a long time.
In the law school note, I talked about two--what are called
the release time cases. It was the McCollum case and Zorach v.
Clausen, both of which were decided just before Chief Justice
Warren took his seat. And they involved situations that were
quite similar. There was a distinction between the two
programs, but they were quite similar and the Court reached
contrary conclusions.
And unfortunately this has been a repeating--a recurring
pattern in the Establishment Clause jurisprudence, cases that
turn on extremely fine distinctions. The Supreme Court held in
Board of Education v. Allen, if I am remembering the correct
case, at the end of the Warren Court that it was permissible
for a school board to supply secular books to schools that are
related to a religious--that are religiously oriented. And then
later in another case--I think it was Wolman--they said but you
can't--but that doesn't apply to other instructional material,
other secular instructional material.
And this has been the thing about the Establishment Clause
that has bothered me, the absence of just what your initial
question was pointing to, some sort of theory that draws
distinctions that don't turn on these very fine lines.
Senator Durbin. Tell me about the Establishment Clause in a
more contemporary context if you can. You talked about the case
of the Warren Court in providing secular books to religious
schools, which I find no problem with. I think that is
acceptable from my point of view, for whatever that is worth.
But what about the concept and theory of financial support
from a government agency to a school that is a religious school
where the money is used for the purpose of teaching religion or
proselytizing?
Judge Alito. Well, I think the Court's precedents have been
very clear on that that the money--that a government body
cannot supply money to a school for the purpose of conducting
religious education. And I don't recall any--I don't recall a
suggestion in dissenting opinions--maybe there is one that I am
not recalling here that says that that would be permissible.
Senator Durbin. I am running out of time, but it would go
back to my first question. I think under the coercion test,
there is some argument among some on the Court and others that
not applying Lemon but using this new coercion test may give
them more leeway when it comes to this kind of financial
support and vouchers, but I don't want to presume that.
And I thank you for your responses to these questions.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Durbin.
Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman.
We started off this morning and we will end today. I want
to thank you for all the questions you have answered. You have
answered the questions that I have had, and I have heard much
of the rest of the discussion. I think we have covered many of
these points so many multiple times. We have just overdone it
on some of these.
So, Mr. Chairman, I am satisfied with the questions that he
has answered. I will be supporting your nomination in front of
the Committee and on the floor. I think you are an outstanding
nominee, and I have appreciated your thoughts that you have put
forward here. I think if approved--and I hope you are, and I
think you will be approved by the full Senate--you are going to
serve as an outstanding Justice on the U.S. Supreme Court. And
I will be supporting you here in the Committee and on the
floor, and with that, Mr. Chairman, I would yield back my time.
Chairman Specter. Senator Brownback, thank you. Thank you
for 19 minutes and 6 seconds.
[Laughter.]
Chairman Specter. Senator Coburn?
Senator Coburn. Well, Mr. Chairman, I will give you some
time back, but it won't be quite that much. Thank you.
I have a couple of charts I want to show just to clarify
the record. I want to again make sure everybody knows that in
1985, there is a quote in the Princeton Packet, the campaign to
eliminate the Army ROTC program and what was perceived as the
decline of Princeton athletics, it was also known that this CAP
program was soliciting through mail membership and support.
There also was a disclaimer in this that I want to make sure is
in the record as well, and it says, ``The appearance of an
article in Prospect does not necessarily represent an
endorsement of the author's belief by the Concerned Alumni of
Princeton. CAP has never taken a formal stand on coeducation at
Princeton or elsewhere.''
And I liken that to--I am a member of the American Medical
Association, but I will tell you, I don't agree with everything
that is written in JAMA. As a matter of fact, I take great,
great umbrage at some of the things that are written there and
some of the ideas that are put forward that aren't done well,
that go counter to good medicine, but that doesn't mean I
endorse--because I am a member of the American Medical
Association, because I am a member of JAMA, it doesn't mean
that I endorse everything that that organization or that
magazine might put out.
And so I think Senator Graham had it right. You know, this
idea of association with anything means that you take it all,
whether, in fact, that is the truth or not, and that is not
good work on this Committee, and it is not truthful, and it is
not intellectually honest.
I want to spend just a few minutes going back. You had
mentioned earlier about one of the things the Court didn't do
is they can't take necessarily all the technology or all the
science and how it applies to things, and that things, in fact,
might change. And I mentioned earlier this morning in our
questions about the Stenberg case and the Doe v. Bolton and
this concept of health, and that one of the things as a
practicing physician who has delivered 4,000 babies, who also
had a grandmother who came into this world as a result of
rape--so I have a special view on the consequences of rape--
this concept of health, I am interested in your thought on it,
because one of the things I think about it is the health of the
woman when? At the time or later? Because of what we do know
about the consequences of Roe v. Wade and the actual act of
abortion and the impact that that has on a woman's health.
For example, you are twice as likely to commit suicide if
you have had an abortion. Now a study, a longitudinal study
shows that. Twice as likely to have alcohol or drug dependency
if you have had an abortion. About 60 percent more likely to
have a pre-term delivery.
So as the Court looks at that and also looks at the fact--
this health question, then also looks at health and then also
looks at viability--when I was in medical school it was unusual
for a pre-term infant at 28, 29, 30 weeks to survive. And we
routinely see infants at 24 weeks that survive. As a matter of
fact, I have a nephew 24-, 25-week delivery. The only deficit
he has is he is blind in one eye. He weighed 1 pound 2 ounces
when he was born.
And so technology means something, and so the fact that we
are not going to commit to give a blanket answer--and I am
convinced that the only way you will get certain votes off this
Committee and out of the Senate is if you were to write a blood
oath that there is nothing that could interrupt any type of
abortion on demand at any time.
So my question to you is: How is it that the courts
should--any court should take into consideration these
questions about technology and science and how they impact the
law? And the other thing I would add to that--and I mentioned
it in my opening statement--is we consider somebody alive when
they have a heartbeat and brain wave. And we consider them dead
when they don't have those things. And how is it that the court
can't look at that science and say we have a heartbeat and a
brain wave, we know when viability is now outside of the womb,
should those factors play in the decision of the court, or just
we just blanket stare decisis and say Roe and Casey, it is all
settled, and we are not going to look at the science? Should
that play a role?
Judge Alito. Well, Senator, I guess I would answer that by
saying that you would have to--you would look at the factors
that are relevant under the stare decisis analysis and ask the
role of the sort of data that you have outlined, ask how that
would be involved in the factors that go into the stare decisis
analysis. And then if you get past that to the second step, of
course, you would ask the same question whether--what bearing
that information has on the resolution of the question at that
step.
Just speaking in general, not talking about abortion at
all, in general, in deciding any legal issue, I think courts
should be receptive to any information that has a bearing on
the decisions that they are making. There is no such thing in
general as bad knowledge, and I think that is relevant to the
decisionmaking process that judges go through. They should be
receptive to information that is relevant, that the parties
want to bring to their attention, and then decide how it
figures in the application of the legal standards that they are
applying in the particular case.
Senator Coburn. Let me ask you another question, and I want
you to be careful how you answer this because I think at some
time this probably will come before you, and I am not trying to
get you pinned down. If I am driving a car today and I hit a
pregnant woman who has a 36-, 37-week fetus, and the woman
survives and the fetus dies, I can be held accountable for the
death of that fetus. And by law, we value that as a life--
unborn but a life.
If I am the pregnant woman and say I want to terminate that
fetus at 37 weeks, there is nothing in this country today that
keeps me from doing that, even though on one side of the law we
say it is a life.
How did we get there to where it is not a life or it is a
life? Tell me, somebody logically explain that to the American
people that how if I kill it, it was a life, but if I choose to
take it voluntarily, it is not a life. Can anybody logically
explain how we got there and what the consequences going down
the road are going to be for us as a Nation when we have laws
that send two completely different signals about the same
individual?
Judge Alito. Well, let me try to just explain my
understanding of where the law rests on those two questions.
The first is a question of tort law, or maybe it is a question
of--well, it is a question of tort law, and decisions are made
by State legislatures. Maybe in some instances it comes about
through the development of common law through the State courts
regarding the scope of State tort law and protection--a tort
can be created that applies in the situation of the auto
accident you mentioned or a legislature may choose to structure
the tort law differently. But that has been a decision that has
been left for the State legislatures to decide, and they have
taken a variety of approaches in doing that, I believe.
The second, of course, is the issue of Roe and the cases
that follow after it, and those are based on an interpretation
of the Fifth Amendment and the 14th Amendment of the
Constitution, and they are not the result of decisions--of
legislative decisions made at the State level or at the Federal
level.
Senator Coburn. Can you rationalize any way the logical
explanation of how that could be, though? I mean, if you had
somebody that wasn't from this world and they came in and they
said, oh, yeah, if you kill it, it was alive, but if you choose
to--if you accidentally kill it, it was alive, if you choose to
kill, it wasn't? Can you come to--I mean, I am having trouble
getting my mind around that concept that there is any logic
there. I just wondered if you were.
Judge Alito. Well, the answer is that the tort situation
has been left for its development under State law, and States
have taken a variety of approaches expressing the values that
the legislature believes should be embodied in the tort law.
And in the abortion context, of course, States have laws
regulating abortion, and they're free to enact whatever
statutes they want on this subject as long as they comply with
the Constitution. But we have decisions of the Supreme Court
that establish constitutional requirements in the area. I think
that's the explanation. The decisions are made by different
bodies.
Senator Coburn. Just one other comment. For the American
public to know there are 1.3 million abortions in the U.S. each
year. This is from the Alan Guttmacher Institute. And it is
very interesting for us to know the purpose that people--why
people have an abortion, why women choose to terminate their
unborn children: 21 percent say they can't afford a baby; 21
percent say they don't want the responsibility; 16 percent say
the baby could change their lives; 12 percent have problems
with the relationship or want to avoid single parenthood; 11
percent are not mature enough or don't want to have more
children; 3 percent have a possible fetal health problem, of
which two-thirds are Down syndrome or spina bifida; 1 percent
resulted from rape or incest; 1 percent, the husband or the
partner doesn't want them to have a baby; and 1 percent is they
didn't want anybody else to know somebody had sex with them.
And of that, 48 percent of the women who have an abortion in
this country have already had one previously. So, in fact, our
country, through the auspices of an activist court, in my
opinion, has moved to use abortion not as a health issue, but
as a convenience issue. And we have done great damage because
we have a schizophrenic policy.
My hope, Judge, is that science and technology and
recognition of life on some parameter ought to be applied, and
my hope is, as they get to the court, that we have common
sense. And it doesn't have to be my way. You know, it could be
Senator Schumer's or Senator Durbin's view. You know, the fact
is there is a legitimate disagreement about rape and incest and
medical malformations and all these other things, but we need
in this country to have the confidence in the Supreme Court
restored, and I think it has taken a hit just like this
institution has taken a hit, because it is making decisions
that are not based on fact and good law. It is making decisions
like we have made decisions, based on expediency. And my hope
is, is that you will be confirmed. I think you have great
character and great integrity, and integrity I think is the No.
1 issue, not your legal mind, your heart and your soul, and how
you view honesty and straightforwardness, and that the result
will be that we will see some leadership that will put science
and fact, and combine it with the law, and restore the
confidence in the Supreme Court.
I asked Judge Roberts, I asked, ``Why do you think we have
lost it, some of the confidence of the Court?'' And he said,
``Because we've gotten into areas of policy and not law.'' And
I tend to agree with him, and it is my hope that you would
agree with that as well.
I yield back the balance of my time.
Chairman Specter. Thank you very much, Senator Coburn.
We are trying to figure out what the schedule is going to
be for the balance of the evening, and for the balance of the
week. We now have Senator Biden, who has requested 20 minutes,
and Senator Feinstein 10, and Senator Durbin 10, all of which
will be done tomorrow. Anybody who wants a fourth round? I want
to do the third rounds tonight so that we can move ahead
promptly tomorrow.
Senator Leahy. Mr. Chairman, I think that if we want to do
this we should remember the judge and his family have been
sitting here all day. He has been answering questions. He has
shown more equanimity than most of us would. You sat here
through the whole thing. I sat here through most of it, but
Senators can come and go. He cannot. He has had to sit through
all of it. His family has had to sit through all of it, and
that has to be a strain. I do not think most teenage sons would
show that much attention on these things.
I would suggest that we would probably have far better
questions if we can go back and go over the transcript. I know
what I want to do, I want to go over some of it--I am not going
to have an awful lot of questions, but I would like to go back
to three or four places from my notes that I have some
questions. I want to read the transcript so when I ask the
question, in fairness to the judge, it is about what is
specifically in the transcript.
This is the same thing we did with Chief Justice Roberts.
We came back on that last day, as I recall, and I think we
wrapped up around 1, 1:30 in the afternoon.
Chairman Specter. No. We wrapped up about 11 o'clock, a
little before.
Senator Leahy. Oh, did we?
Chairman Specter. A little before 11.
Senator Leahy. When you are having so much fun time goes by
so quickly.
Chairman Specter. We do not have word from Senator Kohl or
Senator Feingold. Suppose we put the maximum of 25 minutes on
the next round for tomorrow, and suppose we start at 9 o'clock?
That means the only people that have to be here are Senator
Leahy and myself at 9.
Senator Leahy. I will be here at 9. I am here usually a lot
earlier than that.
Chairman Specter. Senator Schumer just on the auctioneer
said yes?
Senator Leahy. That is OK. I will go along with it. And
understand though, and I would assume--you have always been
fair--if we run into some extraordinary problem, somebody may
need a few more minutes.
Chairman Specter. Anybody who satisfies your extraordinary
problem test will get more time. Make it your test.
Senator Leahy. Thank you very much.
Chairman Specter. Without objection, so ordered.
Judge Alito, you have shown remarkable stamina, and you
have shown, in my opinion, remarkable patience. I think it is
unwise for any Senator, including the Chairman, to do too much
commenting about anybody else's questioning, but you have been
patient. And people may not like your answers, but they are
your answers. We have precedent for that. Nobody has even said
they are misleading. They have said they just do not like them.
But you have been consistent, and very patient in stating your
position, even though you have been called upon to state it
repetitively, and repetitively, and repetitively. So I think it
is well within the ambit of fairness to say that you have been
patient, and you have shown real stamina, as has Mrs. Alito,
and as has your loyal family.
So that we will proceed at 9 o'clock tomorrow, and we will
have 20 minutes for Senator Biden, 10 minutes for Senator
Feinstein, 10 minutes for Senator Durbin, and my expectation is
we will not have a great deal of time for Senator Kohl. I am
not sure about Senator Feingold. And that anybody else will be
limited to 25 minutes on the final round, subject to the Leahy
exceptional circumstance standard.
Recess.
[Whereupon, at 6:37 p.m., the Committee was adjourned, to
reconvene on Thursday, January 12, 2006, at 9 a.m.]
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
THURSDAY, JANUARY 12, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9 a.m., in room
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman
of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The hearing will resume on the
confirmation proceedings for Judge Samuel Alito to the Supreme
Court of the United States.
Good morning, Judge. Saw your family in the hallway as we
were coming down. Everybody appears to be bright and rested and
ready.
Judge Alito. Thank you, Senator.
Chairman Specter. The Committee staff, accompanied by
representatives of Senator Kennedy, went through the Rusher
files yesterday, finishing up their work, I am advised, at
about 2 a.m. this morning, and provided me with a memorandum
that the Committee staff reviewed more than four boxes of
documents from the personal files of William Rusher concerning
CAP. Judge Alito's name never appeared in any document. His
name was not mentioned in any of the letters to or from the
founder, William Rusher. His name was not mentioned in any of
the letters to or from CAP's long-term executive director, T.
Harding Jones. His name does not appear anywhere in the dozens
of letters to CAP or from CAP. The files contained canceled
checks for subscriptions to CAP's magazine, Prospect, but none
from Judge Alito. The files contained dozens of articles
including investigative expos written at the height of the
organization's prominence, but Samuel Alito's name is nowhere
to be found in any of them.
The Rusher files contained lists of the board of directors,
the advisory board, and the contributors to both CAP and
Prospect Magazine, but none of these lists contains Samuel
Alito's name. The files contain minutes and attendance records
from CAP meetings in 1983 and 1984, just before Samuel Alito
listed the organization on his job application, but Samuel
Alito did not attend any of those meetings, at least according
to those records. He was not even mentioned in the minutes. The
files contained dozens of issues of CAP's magazines, but none
of the articles was written by, quoted or mentioned Samuel
Alito. CAP founder, William Rusher, said, ``I have no
recollection of Samuel Alito at all. He certainly was not very
heavily involved in CAP if at all.''
Before turning to Senator Leahy for his allotted time, I
would yield to him if he has any opening comments he chooses to
make.
Senator Leahy. Mr. Chairman, as we know, this will be the
last opportunity for the American people to learn what Judge
Samuel Alito thinks about the fundamental constitutional
rights, whether he is going to serve to protect their liberty,
their privacy from Government intrusion. I think it is even
more critical today because of the efforts to expand
Presidential--
Chairman Specter. Excuse me, Senator. Do you want to start
on your 25--
Senator Leahy. Oh. I thought you were asking me--
Chairman Specter. Opening comments, sure, yes. We are not
going to start your time clock until you tell us.
Senator Leahy. Just a short opening comment.
Chairman Specter. Fine.
Senator Leahy. I know the judge probably feels like he has
been here and doing nothing but being on a hot seat, but we are
talking about a lifetime appointment, and it is the most
powerful court in the land. It is at a time when we see this
effort to expand Presidential powers such as illegal wiretaps
on Americans, the President using a signing statement to create
exemptions from laws prohibiting torture. These are all
important things. The Supreme Court is our ultimate guardian,
has to be our ultimate guardian, and we need to know whether
Samuel Alito is willing to be that kind of guardian.
I am still troubled by some of the questions. Mr. Chairman,
I know you are going to be asking questions, and I will wait to
ask mine after that, of course.
Chairman Specter. I am going to reserve my time at this
juncture, and turn to Senator Leahy for time up to 25 minutes.
Senator Leahy. Thank you.
In his confirmation hearing last September, we went through
hours and hours, days and days for Judge Roberts, now Chief
Justice. I asked him if the Constitution permits the execution
of an innocent person. He said if they have been falsely
convicted and they are innocent, they should not be in prison,
let alone executed. I think we all agree with that. But I
pushed further because my question was whether the Constitution
permits the execution of an innocent person, if you know that
they are innocent. He said, ``I would think not.''
Judge, do you agree with Chief Justice Roberts?
Judge Alito. I agree that it is one of the most fundamental
rights protected by our Constitution, that no one may be
convicted of an offense unless they are proven to be guilty
beyond a reasonable doubt, and further than that, the Supreme
Court's decisions since 1976 dealing with the Eighth Amendment,
have attempted to create a whole set of procedural safeguards
to make sure that the death penalty is not imposed arbitrarily
or capriciously, and this whole framework is designed to
prevent exactly that, to prevent the conviction of an innocent
person, and to prevent the imposition of capital punishment on
someone who is innocent, or on someone who is guilty of the
offense but it not deserving to have that penalty imposed on
the person.
Senator Leahy. Judge, as we know, we saw the cases in
Illinois of people a few days away from execution, they have
been sentenced to death; they have been convicted; they had
their trial, gone to trial; jury came back; apparently
appropriate procedure followed on sentencing; they are now
sentenced to death. A few days before somebody comes forward at
the very last minute because of DNA evidence and says,
``Whoops, we've got the wrong person.'' And then they are let
loose. We are finding it in Virginia, and now in other cases it
appears that there is a possibility a number of innocent people
were executed.
What if you had a case, they have gone through the whole
thing, they have been convicted; the judge has followed all of
the appropriate sentencing; the jury came back--did everything
following the law. And now they are up for execution. Evidence
comes up, say DNA evidence, or a confession of somebody else.
Would it be unconstitutional then to execute that person?
Judge Alito. Well, Senator, it is unconstitutional to
execute someone who has not been proven guilty beyond a
reasonable doubt. Now, depending--
Senator Leahy. They may have been found guilty beyond a
reasonable doubt. What I am saying is that a lot of these
people were on death row and then had to be commuted at the
last moment, when a few days before the execution they found,
whoops, we have the wrong guy.
Judge Alito. Well, that's the ultimate tragedy that could
possibly occur in our criminal justice system, and we should do
everything we can to prevent that from ever occurring, and I
have not had a case during my time on the court of appeals--
I've had only a handful of capital punishment cases where there
was a suggestion that that was a possibility.
If the evidence develops at the last minute, then I think--
and if this is a--it would depend to some degree on--the
procedures would depend on--would be different depending on
whether the person had been convicted in State court or in
Federal court. The first procedural step in either instance
would be to file a petition with the trial court. It would be--
if it were in State court, it would be a State collateral
relief petition, and those are handled differently depending on
the State. And then a file of--I'm sorry. You could go to the
State court or you could file a second habeas petition, attempt
to file a second habeas petition in Federal court, and follow
the procedures that are set out in habeas corpus statute.
Senator Leahy. I understand all of the steps. Like you, I
was a prosecutor, even though we do not have the death sentence
in Vermont, we do have real life imprisonment, and I remember
those. But you agree though with Chief Justice Roberts that the
Constitution does not countenance the execution of an innocent
person?
Judge Alito. The Constitution is designed to prevent that.
Senator Leahy. The reason I ask this, this is something
that was originally raised, as I recall, in the Judiciary
Committee by Chairman Specter, the Rule of Four. Are you
familiar with that procedure on the Supreme Court? In other
words, it takes five Justices to stay an execution, but four to
hear one of these cases, so usually if there has been four that
have agreed it should be stayed, somebody will make the fifth
just as a matter of courtesy. That has not been followed that
much recently. Chairman Specter has called it a bizarre and
unacceptable outcome to not provide the fifth vote. He once
introduced legislation to codify the Rule of Four.
If you were one of the Justices and you are there--and
these things always seem to happen, everybody is scattered all
over the place--four of your fellow justices have said that
they would hold. What would you do? They voted to stay the
execution. They are asking you to be the fifth vote.
Judge Alito. I had not heard of this rule until the
hearings for Chief Justice Roberts, but it seems to me to be a
very sensible procedure because I think we all want to avoid
the tragedy of having an innocent person executed or having
anyone executed whose constitutional rights have been violated.
Senator Leahy. I raise it, as I did with then-Judge Roberts
here, because some things you will remember from this hearing,
some things you will probably try to forget from this hearing,
both you and your family, but I hope this one, at least this
idea stays in your mind.
About a decade ago in Washington v. Glucksberg, the Supreme
Court declined to find that terminally ill patients had a
generalized constitutional right to a physician's aid in dying,
preferring the matter be left to the States. The Court noted:
``Throughout the Nation, Americans are engaged in an earnest
and profound debate about the morality, legality and
practicality of physician-assisted suicide.'' Chief Justice
Rehnquist wrote, ``The Court's holding permits the debate to
continue as it should in a democratic society.'' I remember
reading that. I found it very practical, aside from the legal
things, a very practical response.
Last spring, we witnessed a fierce legal battle over the
medical treatment of Terri Schiavo. She was in a persistent
vegetative state for more than a decade, and ultimately after
she died, the autopsy showed that. But we found politicians
rushing to the cameras, engaged in extraordinary measures to
override what the State courts determined be her own wishes,
State courts who had heard countless cases on this. Suddenly
this became the thing politicians all over the place rushing
for it. The power of the Federal Government was wielded by some
to determine, in my view, deeply personal choices. The
President even came back to Washington in the middle of one of
his vacations to sign special legislation on this. Do you agree
with the idea advanced in the Cruzan case that the wishes of an
unconscious patient, to the degree they can be known, should
govern decisions regarding life-sustaining therapies?
Let us assume that the wishes are clearly known. Should
they be followed?
Judge Alito. Well, the Cruzan case proceeded assumed for
the sake of argument, which is something that judges often do,
that there is a constitutional right to say--that each of us
has a constitutional right to say, ``I don't want medical
treatment.'' And the Cruzan decision recognized that this was a
right that everybody had at common law. At common law, if
someone is subjected to a medical procedure that the person
doesn't want, that's a battery and it's a tort, and the person
can sue for it. It is illegal. The Court did not--
Senator Leahy. One of those cases where we got something
from that foreign law, in this case English common law; is that
correct?
Judge Alito. Well, that's correct, and I think that our
whole legal system is an outgrowth of English common law.
Senator Leahy. That popped in to my mind because I was
thinking of some of the people talking about paying attention
to foreign law. Most of our law is based on foreign law. But go
ahead, common law.
Judge Alito. Most of our common law is an outgrowth of
English common law, and I think it helps to understand that
background often in analyzing issues that come up.
Senator Leahy. But you agree with Cruzan? I am thinking if
somebody has a ``do not resuscitate'' order, do you agree with
that?
Judge Alito. That's a fundamental principle of common law,
and Cruzan assumed for the sake of argument that that would be
a fundamental constitutional right, but that is a right that
people have had under our legal system for a long time, to make
that decision for themselves.
Senator Leahy. My wife is a nurse and she was working on
the medical-surgical floor, and she would mention about people
with these DNR, do not resuscitate. Would you agree that a
patient would have a right--for example, if you have a living
will, you have a right to designate somebody who can speak for
you in a case of terrible injury or unconsciousness, speak for
you on a do not resuscitate, or do not use heroic measures and
all the rest, do you agree with that?
Judge Alito. Yes, Senator. That's, I think, an extension of
the traditional right that I was talking about that existed
under common law, and it's been developed by State
legislatures, and in some instances by State courts, to deal
with the living will situation and with advances in--which I
think is in large measure a response to advances in medical
technology which create new issues in this area.
Senator Leahy. We have three separate and co-equal branches
of Government, as the Constitution says. We have these checks
and balances, and most of us feel that the Congress is going to
carry out that check and balance. They have to carry out real
oversight and make sure the Government is accountable to the
American people. If you do not do that, corruption and
incompetence sets in. We have given a lot of powers to our
Government in the fight against terrorism and others, and the
check and balances to make sure there is oversight. Do you
believe in the general principle of the Congress having major
oversight powers?
Judge Alito. I don't think there's any question about that.
Senator Leahy. Let me go to this, and I was thinking of
this as we were talking about the Schiavo case. I do not want
you to have to get involved in what many found was kind of a
sorry exercise when people are already suffering enough, a
sorry exercise by the Congress, so I will not talk about the
House committees' unbelievable subpoena to Terri Schiavo. But
let me ask you this: could the Judiciary Committee issue a
subpoena for a defendant on death row in a State prison, if we
believed he was about to be executed and thought he was
innocent?
Judge Alito. Could the subpoena--could this Committee issue
a subpoena--
Senator Leahy. And enforce it?
Judge Alito. To have the defendant come and testify before
the Committee?
Senator Leahy. Yes. Say it is an hour before execution, for
example, to make it even a tougher case.
Judge Alito. It's not a question that I ever thought of.
Sitting here I can't think of an objection to it, but I would
have to--I would have to hear whatever arguments there were to
be made.
Senator Leahy. This may seem to be bouncing around here a
little bit. I am trying to go over again in my own mind, after
looking at the transcript last night, some of the things we
were saying. You were in a discussion with a number of Senators
about views of the court, or how the American people view
courts, and how basically in a democracy courts have to have
the respect of people if they are going to be able to carry out
their orders. Brown is probably one of the key examples there
where the Chief Justice worked 2\1/2\ years until he got a
unanimous Court decision.
Justice O'Connor gave a speech decrying the present climate
of antipathy between the judiciary and some Members of
Congress, and I have spoken with her and others--and the late
Chief Justice--about this. She expressed concern about efforts
to limit Federal court jurisdiction in areas that some Members
of Congress think the Federal courts should not be involved. We
have seen a number of efforts to strip the Federal courts of
jurisdiction when some Members of Congress felt they disagreed
with them.
Now, I thought some of these issues were settled by Marbury
when Chief Justice Marshall said, ``It is emphatically the
province and duty of the judicial department to say what the
law is.''
Now, the court-stripping bills are not without precedent.
Recent efforts have failed. I recall one where three Senators
finally talked it down until it ran out of time. I was one of
the three. Senator Lowell Weicker of Connecticut was one of the
other three. On the way out, the third one put his arm around
us and said, ``I think we are the only true conservatives in
this Senate.'' We both said, ``Thank you, Barry Goldwater. We
appreciate you joining us in this.'' I took it as a great
compliment.
Now, imagine that in the early 1950s Congress enacted a law
that purported to strip all Federal courts, including the
Supreme Court, of jurisdiction to hear cases and appeals
involving the segregation of public schools. Would such a law
have been constitutional?
Judge Alito. Well, there's a debate among scholars about
the extent of the authority of Congress to structure the
appellate jurisdiction of the Supreme Court, and there are
those who say that Congress has the authority to eliminate
appellate jurisdiction by topic, and there are those who say
that if--and they rely on the language of Article III. And
there are those who say that to take away jurisdiction over a
category of cases such as that would be a violation of another
constitutional provision, in that instance a violation perhaps
of the Equal Protection Clause.
And there is this debate that it has not--that it is not
something--
Senator Leahy. Have you taken part in that debate?
Judge Alito. Pardon me?
Senator Leahy. Have you taken a position in that debate?
Judge Alito. I have not taken part in that, and I have
read--
Senator Leahy. Would you like to?
Judge Alito. Not at this time.
[Laughter.]
Senator Leahy. I don't know why that surprises me.
Judge Alito. The case law is not definitive on this
question. According to the scholars, Ex Parte McCardle is a
case that can be interpreted in a number of different ways.
Senator Leahy. You know, we had many in the Congress at
that time, had they thought that Brown v. Board of Education
was about to come down the way it did, probably would have made
efforts to strip the authority of the Supreme Court to hear it.
And I am afraid that as we find some of these efforts where the
courts become a very convenient whipping boy to people looking
for votes or whatever, that that might happen again. And I
would suggest you think long and hard on it.
Let me ask you this, and it probably invites more effort to
find out. On more than one occasion, the House of
Representatives has included a provision in an appropriations
bill--and we all agree that the Congress has the power of the
purse--but in an appropriations bill saying that none of the
funds can be spent enforcing a particular court decision, pick
something that they feel is unpopular at the moment, so they
say no money can be spent to enforce it.
Let us say the Court has ruled basically on a
constitutional issue saying this shall be enforced; the
Congress says, no, we won't allow money to be spent. Does that
violate the Constitution?
Judge Alito. Well, that's also a provocative constitutional
question. I can't recall an instance where that has been done
with respect to a constitutional decision. Perhaps it has been.
I do recall back during the 1980s that it was done with respect
to an issue of antitrust. And I would assume that if there
wasn't--well, obviously if there isn't a constitutional
question raised by that limitation on the expenditure of funds,
and if you're talking about a non-constitutional question,
maybe there is no constitutional issue raised, there wouldn't
be an obstacle to Congress's doing that.
With respect to a constitutional question, that's a
provocative constitutional issue that--I don't know the answer
to it, and I cannot think of precedent on that point. I don't
believe there is any.
Senator Leahy. Let's take a nonconstitutional--I want to
make sure I understand your answer. Decisions come down of
whatever nature. You mentioned antitrust. Whatever it is comes
down from the Court, and it is going to require some
enforcement. And the Congress says, no, we are not going to put
the money in there. Can the Congress do that?
Judge Alito. Well, I'd have to know the facts of the case
and hear the arguments on both sides of it. Unless there was a
constitutional objection, then that falls within one of the
most important powers of the Congress, the expenditure of funds
Congress exercises. The Framers wanted Congress to have the
control of the purse because Congress is the branch that is
closest to the people. And I would think that--and Congress
obviously has great latitude in this area.
I don't know what constitutional objections would be raised
to doing that with respect to a nonconstitutional question, but
I'd have to understand exactly what was--
Senator Leahy. Well, it is something to keep in mind
because it may happen. You know, if we can grandstand, if
Congress can grandstand the way it did on the Schiavo case, you
have to wonder what else may come down.
One of the advantages or disadvantages of being here for a
long time, I have actually been here for the hearings on every
member of the Supreme Court, including that of former Chief
Justice Rehnquist. And Senator Specter and I have served here
together a long time. And I went back to one of his questions.
He asked then-Justice Rehnquist whether Congress can strip the
Supreme Court of jurisdiction over First Amendment cases
involving freedom of speech, press, or religion. And I think
the Chairman remembers this. He can be a rather tenacious
questioner, as I know from some of my weekend phone calls from
him. But he kept pushing then-Justice Rehnquist until he
finally got an answer. In the end, then-Justice Rehnquist gave
his view. He said the Congress could not remove the Court's
jurisdiction over First Amendment cases.
So let me ask the same question that Senator Specter asked
in 1986. Does Congress have the authority to say the Supreme
Court does not have jurisdiction over First Amendment issues of
freedom of speech, press, and religion?
Judge Alito. Well, I would give the same answer to that
that I gave to the more general question you asked a few
minutes ago about taking away the Supreme Court's appellate
jurisdiction over a topic of cases. It's not a question that I
have obviously had to deal with in my capacity as a judge or
something that I have written about or studied in any sort of a
focused way. My understanding of the writing on the question is
that there's a division of thought among leading constitutional
scholars on the issue, and there are some who argue that
Congress has plenary authority to define the appellate
jurisdiction of the Supreme Court, and there are others who
argue that if Congress takes away the authority of the Supreme
Court to hear a particular type of case, that there could be a
violation of another constitutional provisions, and in that
instance it would be the First Amendment. And as a matter of
constitutional law, I don't feel I can go further than that. I
have--
Senator Leahy. But, Judge, this is somewhat similar to the
initial answers given by then-Justice Rehnquist. But he
ultimately came down and said in that hearing that Congress
could not remove the Court's jurisdiction over First Amendment
cases.
Are you telling me that--and I just wanted to make sure I
fully understand your answer--you are not willing to go to the
extent then-Justice Rehnquist did at his hearing?
Judge Alito. I gave a speech a while ago addressing this
question from a practical standpoint or touching on it from a
practical standpoint, and I said that I thought that doing
something like this would be an awkward and undesirable way of
proceeding because it would lead to a lack of uniformity in
decisions. If jurisdiction is taken away from the Supreme Court
but jurisdiction remains in the courts of appeals, then
conflicts in the circuit would develop--conflicts in the
circuits would develop and you'd have conflicting decisions
potentially in different parts--governing in different parts of
the country and no way to resolve the issue. And if the
jurisdiction was taken away from the Federal courts in general,
then you would potentially have conflicting State court
decisions. So the First Amendment, or whatever constitutional
provision was at issue, would mean something different
potentially in Vermont than it did in New Hampshire or in some
other State.
So there are undesirable practical consequences of
proceeding in that way. I'm--
Senator Leahy. Your answer would be the same, I assume, if
I was asking the question about the Fourth or the Fifth or the
Sixth Amendment, basically the same?
Judge Alito. It would be, Senator. I have just not studied
this issue in enough depth to be able to give an answer. I
would have to study it in depth and probably hear it in the
context of a case. What I do know is that there is a division
of authority among leading constitutional scholars, and I would
not want to hazard an answer to the question here without going
into the question with a lot--studying the question in
considerably greater depth than I have.
Senator Leahy. This will be my last, and I appreciate the
courtesy of the Chairman, who, I might say, has run this
hearing with total fairness, as he always does. I may have some
followup questions in writing, but this will be last chance to
ask you anything.
Under your theory of the unitary Executive, are citizen
suit provisions, such as those in our environmental laws,
allowing citizens to act basically as private attorneys general
and sue polluters, are they constitutional?
Judge Alito. I don't see a connection between the unitary
Executive theory and that issue, and I think Congress has the
authority to create a private cause of action for anyone that
Congress chooses to create such a cause of action for, subject
only to whatever limitations are imposed by the Constitution.
But we often grapple with the issue of whether Congress
intended to create a private cause of action for a particular
class of plaintiffs. That's a difficult issue that comes up
with some frequency in Federal litigation. But where Congress
speaks directly to the question and says that people with--and
defined the category of cases, the category of plaintiffs who
can bring a suit, a citizen suit, or whatever it is, then
that's definitive, of course, subject only to whatever
limitations the Constitution imposes.
Senator Leahy. Judge, that is an answer--the substance of
what you said is something obviously I would like, but I am
still troubled by it because in November 2000, right after the
Presidential election, you came and spoke to a meeting of the
Annual Federalist Society Lawyers Convention about the powers
of the President. And when you discussed your theory of the
unitary Executive, you criticized the Supreme Court's upholding
the independent counsel statute, among other things. Is your
answer today different than what you were saying then?
Judge Alito. What I said in that speech was that the
Congress--I'm sorry, the Constitution confers the Executive
power on the President, and when we are dealing with something
that is within the President's Executive power, without getting
into the scope of Executive power, and there I was focusing on
the President's duty to take care that the laws are faithfully
executed. That's explicitly set out in the Constitution, so
there can't be any debate about whether or not the President
has that power.
When we're dealing with something that is within the scope
of the President's Executive power, the President should have
the authority to control the executive branch, and the latest
expression of the Supreme Court on that issue at the time was
the Morrison decision, and the Morrison decision formulated the
governing standard in what I would call functional terms. And
it said that Congress has the ability to--has the authority to
place restrictions on the President's ability to remove
inferior executive officers, provided that in doing so Congress
does not take away the President's authority to control the
executive branch. And I was talking about the importance of
maintaining the principle that the President is the head of the
executive branch and should control the executive branch.
Senator Leahy. But you did at that time criticize the
Supreme Court's upholding the independent counsel statute, did
you not?
Judge Alito. I said that it was inconsistent with what you
could call the pure theory of the unitary Executive. But at the
time, of course, Morrison had been decided, and it was a
resounding 8-1 decision, and it is a very important precedent
of the Court.
Senator Leahy. If you had been there, it might have been 7-
2? Is that what you are suggesting?
Judge Alito. Well, if it comes up before me, if I am
confirmed, then Morrison is a strong expression of the view of
the Supreme Court on the question, and an 8-1 precedent on an
issue that was important and controversial at the time when it
came up before the Court, and it was very clear and, as I said,
a resounding decision by the Supreme Court on the question.
Senator Leahy. Well, I do not want to intrude on other
Senators' time, and I may do a followup question with you.
Thank you for your answers. We have obviously agreed on some
things and disagreed on others. I appreciate you taking the
time to answer.
Mr. Chairman, I appreciate your time.
Chairman Specter. I am going to use just a little of my
reserved time to comment on what Senator Leahy raised about the
issue with Chief Justice Rehnquist on his statement that you
could not take away the jurisdiction of the Supreme Court of
the United States on First Amendment issues. That was as
interesting a dialog as I have had in my tenure here, and I
have had a few, and it arose in a curious context.
I had asked the Chief Justice about the question and he
refused to answer. And overnight, the staff had found an
article written by a young Arizona lawyer named William H.
Rehnquist in 1958, which was published in the Harvard Law
Record, not the Harvard Law Review but the Harvard Law Record.
And in that article, lawyer Rehnquist said that the Senate
Judiciary Committee was derelict in its duty in questioning
Justice Whittaker at his confirmation hearing in not asking
pointed questions about due process or equal protection.
When my turn came, I came back to then-Justice Rehnquist
and said, how about it? Are you that William H. Rehnquist. He
admitted he was, didn't have much choice. And I said, well, how
about this article? And he emphatically said, ``I was wrong.''
[Laughter.]
Chairman Specter. But that provided--
Senator Hatch. He was under oath.
Chairman Specter. That provided an opening, and I proceeded
to continue the line of questioning. Finally, he allowed as to
how Congress couldn't take away the Court's power over the
First Amendment.
It seems to me patently clear that Congress cannot take
away the jurisdiction of the Supreme Court on constitutional
issues. It cannot do it. That is the principal function of the
Supreme Court of the United States, is to interpret the
Constitution. And if the Congress could take away that
authority, the Court's authority would be vacuous.
But then, as you might expect, I asked him about the Fourth
Amendment, search and seizure, and Fifth Amendment, privilege
against self-incrimination, went right down the line. He
refused to answer every question. And I said, well, why will
you answer questions on the First Amendment and not on the rest
of them? He wouldn't answer that, either.
[Laughter.]
Chairman Specter. Chief Justice Rehnquist was confirmed 65
to 33, which confirmed an observation which I have made from
time to time, Judge Alito, that nominees answer just about as
many questions as they think they have to to be confirmed. He
may turn out to be a notable exception, but I think that is a
valid generalization. It also confirmed my experience that
nominees remember these proceedings and nominees are influenced
by these proceedings in very subtle ways.
We don't extract promises, but when Senator Leahy very
adroitly asks you about the rule of four on granting cert, four
Justices say the cert is granted but it takes five to stay an
execution in a capital case, how ridiculous can you be? Senator
Leahy wondered if you would remember that. Well, I predict you
will, if confirmed, remember that. In fact, I predict you will
remember it even if you are not confirmed.
But to this day, Justices' comments to me about questions
they had here--every time I see Justice Souter, he says he
still hasn't made up his mind on whether Korea was a war or
not. And the other Justices--I won't go into any more detail.
I am going to reserve the balance of my 20 minutes and 54
seconds. Senator Hatch?
Senator Hatch. I will reserve my 25 minutes.
Chairman Specter. Senator Kennedy, you are recognized for
25 minutes.
Senator Kennedy. Thank you. Good morning.
Judge Alito. Good morning, Senator.
Senator Kennedy. Just to initially follow-up on the last
area of questioning by Senator Leahy about a unitary Executive,
I have asked you questions about this earlier in the week. My
colleagues have. I am not going to get back into the speech
that you gave at the Federalist Society. Well, I will mention
just the one part of it that is of concern.
``If the administrative agencies are in the Federal
Government, which they certainly are, they have to be in one of
those branches, legislative, executive, judicial, and the
logical candidate is the executive branch. The President has
the power and the duty to supervise the way in which the---to
which subordinate executive branch officials exercise the
President's power, carrying Federal law into execution.''
So we asked you about that power and that authority and you
responded, as I think you just repeated here, that the
Humphrey's case was the dominant case on this issue. Am I
roughly correct? I am trying to get through some material. Is
it--
Judge Alito. Yes. It was the leading case that was followed
up by the Morrison case.
Senator Kennedy. Followed up by the Morrison case as the
controlling case on these administrative agencies. But what you
haven't mentioned to date is your dissent from the Morrison
case. We have been trying to gain your view about the unitary
Executive. Most people believe we have an executive,
legislative, and judicial branch--and now we have this unitary
Executive which many people don't really understand and it
sounds a little bizarre. You have indicated support for it. You
have commented back and forth about it. You have indicated the
controlling cases that establish the administrative agencies.
You refer to the Morrison case as guiding the authority.
But then in your comments about Morrison, you then proceed
to outline a legal strategy for getting around Morrison. This
is what you said. ``Perhaps the Morrison decision can be read
in a way that heeds if not the constitutional text that I
mention, at least the objective for setting up a unitary
Executive. That could lead to a fairly strong degree of
Presidential control over the workings of the administrative
agencies in the area of policymaking.''
Our question in this hearing is what is your view of the
unitary Executive. You have responded to a number of our
people, but we are interested in your view and your comments on
the Morrison case, which you say is controlling, but we want to
know your view and it includes these words--``that could lead
to a fairly strong degree of Presidential control over the
workings of the administrative agencies in the area of
policymaking.'' Now, that would alter and change the balance
between the Congress and the President in a very dramatic and
significant way, would it not?
Judge Alito. I don't think that it would, Senator. The
administrative agencies--the term ``administrative agencies''
is a broad term and it includes the Federal Reserve--it
includes agencies that are not regarded as so-called
independent agencies. It includes agencies that are within--
that are squarely within the executive branch under anybody's
understanding of the term, agencies where they are headed by a
Presidential appointee whose term of office is at the pleasure
of the President, and that's principally what I'm talking about
there, the ability of the President to control the structure of
the executive branch, not agencies--the term ``administrative
agencies'' is not synonymous with agencies like the FTC, which
was involved in the Humphrey's Executor case, where the agency
is headed by a commission and the commissioners are appointed
by the President for a term of office and there are conditions
placed on the removal of the commissioners.
Senator Kennedy. The point, Judge, the answer you gave both
to my colleagues Senator Leahy, Durbin, and to me, and the
quote, ``the concept of a unitary Executive does not have to do
with the scope of Executive power'' really was not accurate.
You are admitting now that it has to do with the administrative
agencies and this would have a dramatic and important
reconsideration of the balance between the Executive and the
Congress. I haven't got the time to go through, but we are
talking about the Federal Reserve, Consumer Product Safety, the
Federal Trade Commission, a number of the agencies that would
be directly considered and that have very, very important
independent strategy.
Judge Alito. Senator, as to the agencies that are headed by
commissions, the members of which are appointed for terms, and
there are limitations placed on removal, the precedents--the
leading precedent is Humphrey's Executor and that is
reinforced, and I would say very dramatically reinforced, by
the decision in Morrison, which did not involve such an agency.
It involved an officer who was carrying out what I think
everyone would agree is a core function of the executive
branch, which is the enforcement of the law, taking care that
the laws are faithfully executed, and yet--
Senator Kennedy. But the point here is that you take
exception to Morrison. You are very clear. We are interested in
your views. We understand Humphrey's and Morrison are the
guiding laws, but we talked about stare decisis and other
precedents. But you have a different view with regards to the
role of the Executive now, an enhanced role, what they call the
unitary Executive, and that has to do, as well, with the
balance between the Executive and the Congress in a very
important way in terms of these administrative agencies.
I haven't got the time to go all the way through, but we
did have some discussion about those agencies and how it would
alter the balance of authority and power between the Congress
and the Executive. That is very important. It is enormously
interesting. We have had Professor Calabresi from Harvard
University spell this out in great detail, and I know you have
separated yourself a bit from his thinking, to the extent that
he would go in terms of administrative agencies. The point is,
there would be a different relationship if your view was the
dominant view in the Supreme Court between the Executive and
the Congress and that is really the point.
Judge Alito. But Senator Kennedy, what I have tried to say
is that I regard this as a line of precedent that is very well
developed and I have no quarrel with it and it culminates in
Morrison, in which the Supreme Court said that even as to an
inferior officer who is carrying out the core Executive
function of taking care that the laws are faithfully executed,
it is permissible for Congress to place restrictions on the
ability of the President to remove such an officer, provided
that in doing so, there is no interference with the President's
authority, and they found no interference with that authority
there. That is an expression of the Supreme Court's view on an
issue where the claim for--where the claim that there should be
no removal restrictions imposed is far stronger than it is with
respect to an independent agency like the one involved in
Humphrey's Executor.
Senator Kennedy. The point is that you differed with
Morrison and outlined a different kind of a strategy. I want to
move on.
I want to come back just briefly again to the Vanguard
issue, where I continue to be troubled and puzzled by your
answers to me and others. Now, just to get back to the starting
point, in your sworn statement to the Committee when you were
nominated to the circuit court in 1990, on page 15 of that
statement, you wrote this about your recusal practices. ``I do
not believe that conflicts of interest relating to my financial
interests are likely to arise. I would, however, disqualify
myself from any cases involving the Vanguard Companies.'' So
according to your sworn promise, you were going to recuse
yourself from cases involving the Vanguard Companies, is that
correct?
Judge Alito. I said I would disqualify myself from any
cases involving the Vanguard Companies.
Senator Kennedy. All right. You also said you would recuse
yourself from any case involving your sister's firm--
Judge Alito. That's correct.
Senator Kennedy.--and cases in which you were involved in
the U.S. Attorney's Office, is that correct?
Judge Alito. Yes, that's correct.
Senator Kennedy. And there has been some discussion as to
whether that commitment covered only the initial period of your
judgeship, and I am not going to go into that. I am not going
into that.
I just want to know about the steps you took to meet your
commitment to the Committee even in the initial years. On
Tuesday, you told Senator Feingold that you had no recollection
of whether you put Vanguard on your recusal list when you were
first appointed to the bench in 1990. Is that still right?
Judge Alito. That's correct. I don't have the initial list
that was submitted to the clerk's office and I think I
clarified in response to Senator Feingold's question that that
is a list for--that is a list that is used by the clerk's
office to make the first cut on recusal issues, but it is not
by any means the last word.
Senator Kennedy. OK. And in 1990, you owned $80,000 of
Vanguard funds, is that right? And over the years, it grew to
hundreds of thousands, is that correct?
Judge Alito. It grew, yes.
Senator Kennedy. So you were getting reports from Vanguard
now either monthly or quarterly or annually, were you not,
reporting--
Judge Alito. Yes, I was.
Senator Kennedy. All during this period of time?
Judge Alito. Yes.
Senator Kennedy. Do you know whether Vanguard was on your
recusal list in 1991?
Judge Alito. I don't know what was on my--the list that was
with the clerk's office prior to the time when the system was
computerized. I have seen recently, and I believe you have
copies of the lists that were on the computer, and those lists
do not include Vanguard. There is no question about that.
Senator Kennedy. We received your standing recusal list
from the Third Circuit earlier this week. It is dated January
28, 1993, and Vanguard is not on it. You have your sister's law
firm on it. You have your cases from the U.S. Attorney's Office
on it, but not Vanguard, your largest investment. Here are the
recusal lists for 1994, 1995, 1996, and Vanguard is not on any
of them, either. Do you have any reason to disagree with the
report from the Clerk of the Court?
Judge Alito. I don't, Senator. I don't know whether--I have
no comment on the list. That's the list that they had and I
don't know exactly how that list came about, but that's the
list they have.
Senator Kennedy. What does it say at the top of the 1/28/93
list under the date? As I understand, it says ``no changes.''
Judge Alito. As of 1/28/93, no changes. That's correct.
Senator Kennedy. So this was 1993, so there were no changes
in that from 1992, and you have listed probably eight or nine
different items on there, have you not?
Judge Alito. There are eight items listed.
Senator Kennedy. OK. So you have got eight items on there.
Vanguard isn't on it, and it says no changes from the previous
year. So I assume that means the 1992 list was the same, so
that you did not have Vanguard on the 1992 list, either. Do you
remember whether you ever placed Vanguard on your recusal list
at any time between the time you were sworn in and January
1993?
Judge Alito. As I said, I don't have a copy of lists that
predate this. In fact, I didn't have a copy of these lists and
I don't know, obviously, I can't recall what was on the earlier
lists.
Senator Kennedy. Well, in 1994, you removed the U.S.
Attorney's Office from your recusal list, is that right?
Judge Alito. Yes.
Senator Kennedy. So you did revisit the recusal list at
that time.
Judge Alito. I notified the clerk's office to take the U.S.
Attorney's Office off the list. I actually think I have a copy
of the letter that I sent there. I don't believe that I looked
at the list and crossed it off the list. I sent them a letter
and I outlined--I say, it has now been 4 years. This was an
instance--another instance of my going beyond what I had to do.
I recused myself from everything from the office, not just
things that were there while I was in office. But after the
passage of 4 years, I thought that the cases that I had had any
possible connection with had washed out and so I sent a letter,
and I have a copy of the letter, saying, take it off this list
but notify the U.S. Attorney's Office and the public defender's
offices that they should notify the clerk's office if any case
comes up in which they have any reason to believe that any
aspect of the case was in the U.S. Attorney's Office while I
was there.
Senator Kennedy. Well, I just mention, one of the things
you had to do was put Vanguard on the list, was it not, because
you gave the assurances to the Committee, sworn testimony, that
you were going to recuse yourself. That was one of the things--
Judge Alito. Senator, if it was not on the initial list,
then that would be an oversight on my part. I said in answering
the question to the Senate, I don't believe conflicts of
interest are likely to arise. They really rarely do arise with
respect to mutual funds. That's one of the main reasons why
judges and other people who have to worry about conflicts
invest in mutual funds, and no Vanguard case came before me--no
case involving Vanguard came before me for 12 years.
Senator Kennedy. The point is, judges--as I understand and
is their responsibility--take the whole issue on recusal
extremely seriously and review those lists very, very
carefully. Given the assurances and the pledge and the promise
under oath to the Committee. Now we find out that it is not on
your list, and over the period of these last weeks, we have
heard so many explanations, Judge. This is what confuses us.
We hear first of all that it is a computer glitch. Then we
hear, well, it doesn't really apply because it is an initial
service list, so Vanguard really wasn't in it because I didn't
make the decisions on it until after I had been in 12 years. I
made the pledge to the Committee. I don't know how good that
pledge was, or how many years it was good, but that initial
pledge--initial service meant I didn't have to do it. And then
we heard the excuse of, well, it was a pro se case, and we had
different computers. That was what was mentioned in my office.
It is a pro se case. We have different computers. There are
different computers in the clerk's office than exist in the law
firms here in Washington from all over the country. I could
never quite understand it because a pro se--obviously talking
about individuals--you would think that that might even have a
higher kind of a requirement.
But the facts are that you never put that Vanguard on your
recusal list, and all of these papers were in your control. And
that, I think, is a matter of concern to the--it should be to
all of us.
Judge Alito. Senator, could I just say a brief comment on
that?
Senator Kennedy. Yes.
Judge Alito. I have tried to be as forthcoming in
explaining what happened here as I possibly could be, and I am
one of those judges that you described who take recusals very,
very seriously. And I served for 15-and-a-half years. I sat on
the merits on well over 4,000 cases.
In addition to that, let me just mention the statistics for
a recent year, and I think these are typical of my entire
period of service. During the last calendar year, I received
over 500 petitions for re-hearing; most of those are in cases I
didn't sit on initially; over 400 motions. Most of those are in
cases I didn't hear on the merits, and many of those are just
as important as appeals on the merits because they involve
things like whether someone is going to be removed to a country
where the person claims that they will be subjected to
persecution, or they are applications by habeas petitioners for
permission to proceed with--to take an appeal in a habeas case.
And if we don't issue the certificate of appealability, that is
the end of the matter for that petitioner, who may be serving a
very lengthy sentence or a life sentence.
So we are talking about well over a thousand cases a year.
Now--and this is over a course of 15 years. This Monga case is
one case and I have said there was an oversight on my part in
not focusing on my personal practice when the issue came before
me. And when the recusal issue was brought to my attention, I
did everything that I could to make sure that nobody could come
away from this with the impression that Ms. Maharaj got
anything other than an absolutely fair appeal.
But I have tried to explain the whole thing. I have not
given conflicting answers, but I have been asked a number of
different questions and there are a number of steps that were
involved in what took place. The fact that it was a pro se case
doesn't--I mentioned that not because pro se cases are any less
important than any other category of cases. They are very
important, but it is the fact that our court uses a different
system for pro se cases. We don't have these clearance sheets,
and that is when I have typically focused on the issue of
recusal.
Senator Kennedy. Well, I thank you, Judge. I think if we
had in the beginning--we all make mistakes and I have certainly
made more than my share. But if we had a statement on this, I
think we could have cleared this all up in the very beginning
if it was just said it was a mistake, it wasn't on the list, it
should have been on the list, as we are saying now. We would
never have had to get all this or go through this.
But we have had a series of explanations--the light not
going off when I looked over the Vanguard case, the computer
glitches, the changes of the computers, I wasn't told by my
clerks. We had all of those statements, and so this was what
troubled many of us on the Committee about getting straight
answers on an issue which is of great importance.
Mr. Chairman, I will use the remainder of my time with a
brief comment. I want to thank our Chairman for the fair and
dignified way that he has conducted the hearing. I thank our
ranking member, Senator Leahy, for his usual courtesies, as
well. And I thank Judge Alito for your willingness to serve,
and thanks to your family for being here and for the support
they have given throughout these hearings.
These stakes are very high, and that was reflected in the
variety of questions posed over the past 3 days. We started
these hearings seeking answers. We have come with even more
questions about Judge Alito's commitment to fairness and
equality for all.
Unitary Executive: We discussed Judge Alito's expansive
views on Presidential authority. He distanced himself from the
theory of the so-called unitary Executive, one that promotes
extremely expanded Executive power. He gave the Committee
platitudes about Supreme Court precedent and the Constitution,
but his comments before this Committee run away from his
statements of the past, some as recently as 5 years ago, that
embrace this very radical, and I believe bizarre theory.
Professor Stephen Calabresi, one of the originators of the
unitary Executive theory, says that the impact on this Nation
is vast and dramatic. It obliterates the independence of
agencies that protect the public, such as the Consumer Products
Safety Commission, the Elections Commission, Securities and
Exchange Commission, and much more.
It makes no sense to describe the effects of this bizarre
theory in any other terms. That is how its founders brazenly
described it. Somehow, Judge Alito expects us to buy his unique
and lonely portrayal of this radical theory as something less
than it is.
On the Concerned Alumni of Princeton, much has been made of
the wide interest in Judge Alito's interest in this
organization and its frankly bigoted views. I was pleased that
Judge Alito distanced himself from its repulsive anti-woman,
anti-black, anti-disability, anti-gay pronouncements--views
that were especially pronounced at the time that Judge Alito
believes he joined.
But we still do not have a clear answer to why Judge Alito
joined this reprehensible group in the first place. We still do
not know why he believed that membership in the group would
enhance his job application in the Reagan Justice Department.
We still don't know why he chose this organization among so
many others organizations that he likely belonged to, but
somehow can't remember why.
In Vanguard, some of our Republican colleagues find it
shocking that we would even question Judge Alito about his
failure to recuse himself from Vanguard cases. But the real
shock is that Judge Alito failed to meet his sworn promise to
this Committee more seriously. He says it was an oversight that
he corrected 12 years after he made that promise.
But now we know from his own testimony and records that he
apparently never put Vanguard on the recusal list, even
immediately after his promise to this Committee. He has failed
to give us any plausible explanation. The bottom line is that
he just didn't think his commitment to the Committee and to the
U.S. Senate was important enough to honor.
On the 1985 job application, in my office Judge Alito tried
to distance himself from the ideological views and legal
opinions expressed in the 1985 job application to the Reagan
Justice Department. He brushed it off as just a job
application. Now, he has tried before the Committee to distance
himself from the stunning statement that the White House and
Congress somehow are superior to the Supreme Court, the keeper
of our liberties.
He didn't back away one inch from his view that a woman's
right to make her own reproductive decisions is not protected
under the Constitution. He didn't back away from his criticism
of the principle of one person/one vote.
On the cases he decided, in case after case we see legal
contortions and inconsistent reasoning to bend over backward to
help the powerful. He may cite instances to think that he
helped the little guy, but the record is clear that the average
person has a hard time getting a fair shake in Judge Alito's
courtroom.
We are not expecting judges to produce particular results
in their decisions, but we do expect fairness for understanding
the real-world impact of their decisions. Frankly, it would be
more comforting if Judge Alito gave individuals the same
benefit of the doubt in his courtroom that he is asking from
this Committee on Vanguard, CAP, the unitary Executive, and
women's privacy.
Now, the debate over the nomination continues. In the end,
this debate really is about the path of progress and the kind
of America we hope to become. America is noblest when it is
just to all of its citizens in equal measure. America is freest
when the rights and liberties of all are respected. America is
strongest when all can share fairly in its prosperity. And we
need a Court that will hold us true to these guiding principles
today and into the future.
Thank you very much, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
Senator Hatch has stated his wish to reclaim at this point
some of his reserved time.
Senator Hatch.
Senator Hatch. I don't intend to be very long, but I really
believe that bringing up Vanguard or the Princeton matter goes
beyond the pale at this point in this hearing, and let me just
make this case.
Some of your critics, Judge, have focused a lot of
attention on the actions over the Vanguard matter, and I think
most people who think, think this is really a case of much ado
about nothing. Certainly, no law required you to recuse
yourself in that case. As a matter, the law, helped put
together by one of the leading Democrat ethicists and
professors of law, reads as follows: ``financial interest means
ownership of a legal or equitable interest, however small, or a
relationship as director, adviser or other active participant
in the affairs of a party, except that ownership in a mutual or
common investment fund that holds securities is not a
`financial interest' in such securities unless the judge
participates in the management of the fund.''
Now, you did not participate in the management of the fund,
right?
Judge Alito. No, I certainly did not.
Senator Hatch. OK. That is what the law says. So what is
this big case that is being made? It must be that since you
signed, among dozens of pages, the Committee form that says in
the initial service you agreed to recuse yourself in the
Vanguard matter, and then you made a mistake later, 12 years
later, which you rectified--in other words, you lived up to
your word in every sense of that term, whether or not you
considered the initial service or not.
But anybody who looks at it would have to say, my gosh,
that doesn't mean 12 years from now. But you even ignored that
and said I recognize that I made a mistake. I recused myself
even when I didn't have to recuse myself and did everything I
could to live up to my word, which you did. In other words, you
lived up to your word.
That is a fair interpretation, isn't it?
Judge Alito. It is, Senator. I said in the--even if you
read the answer as setting out a promise that would exist--that
would be binding on me for the entire term of my judicial
service, I did disqualify myself in the only Vanguard case that
ever came before me.
Senator Hatch. And so to imply somehow or other that you
were dishonest because you lived up to your word in the end, I
think is a little bit beyond the pale.
The ABA reviewed this matter and found that you have an
excellent record for integrity. You earned for the second time
the highest American Bar Association rating of well qualified.
Now, I put in the record yesterday letters from several
ethics professors who have examined this issue and found
nothing improper. They agree that you lived up to your word and
you didn't have to, nor will you have to in the future. That is
what that law says in 28 U.S. Code Section 455(d)(4)(i). That
is what it says.
Now, I might add that included a letter from Professor
Geoffrey Hazard. Back when Justice Breyer was up for
confirmation and questions were raised about the propriety of
him hearing a case in which some argued falsely, I think, that
he had a financial interest, my friend from Massachusetts,
Senator Kennedy, favorably cited a letter from Professor Hazard
that was favorable to Justice Breyer. And by the way, I am not
going to judge the two cases, but it was every bit as much a
case as this weak thing that has been brought against you.
Now, you know, what is going on here is nothing but an
attempt to make a big deal about nothing, a small thing, and I
think it is being done with a bit of old bait-and-switch, if
you ask my opinion. I might add that when Judge Breyer--what
happened there in the case of Breyer is I reviewed, I
investigated it, and when the facts showed that he did no
wrong, as they show you have done no wrong, I came out of the
blocks and defended him. And I am glad I did because he, like
you, is an honest man. Neither Justice Breyer nor you have gone
into public service to make money. That is pretty apparent.
Now, to have this like you have done something wrong
because you made a mistake and then you rectified it--my gosh,
how many times do we have to beat that old, dead horse?
With regard to other thing, I have my own opinion as to why
that is repeatedly brought up, when you have adequately
explained that you didn't remember much about it, or anything
at all. Now, we find that the Rusher memoranda contained no
reference to you. He never heard of you before now. And it
makes you wonder, why are they bringing that up? Well, I have
got my opinions on that and I think my opinions are right.
The fact of the matter is you have been straightforward
here. You have honestly answered the questions. You have
answered more questions than almost any Supreme Court nominee
in my 29 years in the Senate and I don't think you have been
fairly treated. And it makes everybody wonder, why would
anybody want to do these jobs?
I know law review graduates who make more than the Chief
Justice this year, new graduates from law school. So it is
apparent you are going into this because you love your country,
you want to serve it. And you have done it well for 15 years,
and anybody who knows you knows that. And I know you. So I
think it is just wrong to keep bringing these phony issues up.
And you have to ask, well, why are they doing it because they
are so phony?
That is all I care to say. I will reserve the balance of my
time.
Chairman Specter. Thank you, Senator Hatch. Your 18 minutes
and 9 seconds will be reserved.
Senator Hatch. Thank you.
Chairman Specter. Senator Biden has asked for 20 minutes.
We are going to be a little more flexible with this final round
because I see light at the end of the tunnel, quite frankly. I
see our conclusion of these hearings probably not tonight, but
tomorrow, not too late. We have started all the sessions
exactly on time and we have held to the time limits up until
now, which I think we have to do if we want to do if we want
ahead. If you once start to slip on when you start or the
timing, it just gets out of hand, but at this juncture on a
final round we have a little more flexibility. I see the light
at the end of the tunnel.
Senator Biden, you are recognized for up to 20 minutes, as
you have requested, and if you go a little more, my gavel will
stay put.
Senator Biden. Thank you, Mr. Chairman. I will try not to.
Judge, I heard the Chairman. I happened to be doing
something on Darfur and I was in the conference room and I
heard the Chairman say that--which I agree, he and I have
talked about this--nominees tend to answer as many questions as
they think they have to in order to get confirmed. I would say
that that has been the case with all nominees basically since
Judge Bork.
I would also add another, I think, truism that has
developed is they tend to answer controversial questions in
direct proportion to how much they think the public is likely
to agree with them. It all goes to kind of a central point
here, is what is the public entitled to know about what you
think, or what anyone thinks, before they go on the Court. I
realize there is this dynamic tension between your independence
as a nominee, would you be an independent Justice, and
answering questions.
But having said that, let me go to an area that I hope you
will engage me in and it goes to Executive power. I have had
the dubious distinction because of my role in the Judiciary
Committee and on the Foreign Relations Committee in the last
three or four times forces have been used by a President to be
the guy in charge of, at least on my side of the aisle,
drafting or negotiating the drafting of the authority to use
force, whether it was President Clinton, before that, President
Bush, and even before that, the discussion back on Lebanon with
President Reagan, et cetera. So it is something I have dealt
with a lot. It doesn't mean I am right about it, but I have
thought a lot about it.
Now, there is a school of thought that is emerging within
the administration that is making not illegitimate an
intellectually thought out claim that the power of the
Executive in times of war exceed that of what I would argue a
majority of the constitutional scholarship has suggested. The
fellow, who is a very bright guy, who is referred to as the
architect of the President's memorandum on the ability of
Presidents to conduct military operations against terrorists
and nations supporting them is Professor Yoo. He has written a
book called, ``The Power of War and Peace,'' and he makes some
claims that are relatively new among the constitutional
scholars in his book and he urges, and he had urged when he was
at the administration, the President had these authorities.
For example, he says that the framing generation well
understood that declarations of war were obsolete. He goes on
to say, given this context, it is clear that Congress's power
to declare war does not constrain a President's independent and
plenary right and constitutional authority over the use of
force. And he goes on and he argues, as you well know this
argument, I mean, not from your court, just as an informed,
intelligent man, there is a great debate now of whether the
administration's internal position is correct, and that is the
President has the authority to go to war absent congressional
authorization. It was a claim made by Bush I and then dropped.
Bush I dropped that the only reason the ``declare war''
provision is in the Constitution is to give the President the
authority to go to war if the President didn't want to. That
was the claim made. A similar claim is made here.
So I want to ask you a question. Do you think the President
has the authority to invade Iran tomorrow without getting
permission from the people, from the United States Congress,
absent him being able to show there is an immediate threat to
our national security?
Judge Alito. Well, that is a question that I don't think is
settled by--the whole issue of the extent of the President's
authority to authorize the use of military force without
congressional approval has been the subject of a lot of debate.
The Constitution divides the powers relating to making war
between the President and the Congress. It gives Congress the
power to declare war, and obviously, that means something. It
gives Congress the power of the purse, and obviously military
operations can't be carried out for any length of time without
congressional appropriations. Congress is given the power to
raise and support an army, to maintain a navy, to make the
rules for governing the land and the naval forces. The
President has the power of the Commander in Chief. I think
there has been general agreement, and the Prize cases support
the authority of the President to take military action on his
own in the case of an emergency, when there is not time for
Congress to react--
Senator Biden. Is that the deciding question, that the
Congress does not have the time to act?
Judge Alito. Well, the Prize cases, I think, go--are read
to go as far as to say that in that limited circumstance, the
President can act without congressional approval. A lot of
scholars say that what is important as far as congressional
approval is not the form, it is not whether it is a formal
declaration of war or not, it is whether there is authorization
in one form or another. The War Powers Resolution was obviously
an expression of the view on the part of Congress--
Senator Biden. If I can interrupt, Judge, since I am not
going to have much time, the War Powers Resolution is a
legislative Act. I don't want to get into that. I am talking
about the war clause. The administration argues and Yoo argues
that, quote, ``I do not think the President is constitutionally
required to get legislative authorization for launching
military hostilities.'' That is a pretty central question. That
means the President, if that interpretation is taken, the
President could invade--and maybe there is good reason to--
invade Iraq--I mean, invade Syria tomorrow, or invade Iran
tomorrow without any consultation with the U.S. Congress. That
is a pretty big deal. Up to now, Fisher and Hencken and most of
the scholarship here has said, no, no, no, the President's
authority falls into the zone where he needs it for emergency
purposes, where he doesn't have time to consult with the
Congress.
But you seem to be agreeing with the interpretation of the
President--Professor Yoo that says, no, the President has the
authority if he thinks it is necessary to move from a state of
peace to a state of war without any congressional
authorization. Am I--
Judge Alito. I hope I am not giving you that impression,
Senator--
Senator Biden. Oh, OK. Maybe you can clarify.
Judge Alito.--because I didn't mean to. I didn't mean to
say that. I have not read Professor Yoo's book or anything that
he or anyone else has written setting out the theory that you
described. I have been trying to describe what I understand the
authorities to say in this area.
Generally, when this issue has come up, or variations of
this issue have come up in relation to a number of recent
wars--there were a number of efforts to raise issues relating
to this in relation to the war in Vietnam. There was an effort
to raise it in relation to our military operations in the
former Yugoslavia. In most of those instances, they didn't--
most of those instances were the cases were dismissed by the
lower courts under the so-called political question doctrine--
Senator Biden. As you and I know, that is a different
issue. The political question doctrine is a different issue
than whether or not you think that--I am asking you as a
citizen whether you think that, as the administration is
arguing--for example, it argues that the case is made, and I am
quoting, that ``the Constitution permits the President to
violate international law when he is engaged in war.'' It just
states that, flatly, that is what the memorandum of the Justice
Department states flatly. The President has that sole
authority. He argues that the Congress could have that
authority, as well, just violate international law. He goes on
to argue, as does the memorandum argue, this is this
administration's position, so that is why it is relevant. It
says that the President may use his Commander in Chief and
Executive power to use military force to protect a nation
subject only to the congressional appropriations. That means
that the argument the administration is making is the only
authority that Congress has is to cut off funds.
Let us say we didn't want the President to invade Iran. The
administration argues, we could pass a resolution saying, ``You
have no authority to invade Iran.'' and the President could say
and the next day invade Iran. Our only recourse would be to cut
off appropriations. But as you know, there is no way to cut off
specific appropriations. You would have to cut off
appropriations for the entire military, which means it is a
totally useless tool for the Congress in today's world. You
can't say, well, I am going to cut off only the money for the
oil that allows the steaming of the ships to get from the East
Coast to the Mediterranean Sea and/or to the Persian Gulf.
So it is really kind of important whether or not you think
the President does not need the authority of the U.S. Congress
to wage a war where there is not an imminent threat against the
United States, and that is my question.
Judge Alito. And Senator, if I am confirmed and if this
comes before me, or perhaps it could come before me on the
court of appeals, the first issue would be the political
question doctrine that I have described. But if we were to get
beyond that, what I can tell you is that I don't have--I have
not studied these authorities and it is not my practice to just
express an opinion on a constitutional question, including
particularly one that is as momentous as this. I set out my
understanding of what the Congress--what the Constitution does
in allocating powers relating to war between the Executive and
Congress and what some of the leading authorities have said on
this question. But beyond that--and I haven't read Professor
Yoo's book or anything that he has written on this issue--I
would have to study the question.
Senator Biden. Thank you. Let me move to something you have
spoken about, stare decisis. I know it has been raised a number
of times. That is basically following precedent. As a circuit
court of appeals judge, in layman's language, what does that
mean, as a circuit court of appeals judge, what does it mean,
you are required to adhere to stare decisis?
Judge Alito. We are required to follow decisions of the
Supreme Court, to start out with, because it's a superior
court. We are--when we sit as a panel, it is our practice, and
I think it's the practice of all the courts of appeals, that
one panel can't overrule a decision of another panel, so it
means that when we sit en banc, it is a doctrine that counsels
adherence to prior precedent.
Senator Biden. But you are allowed, like you did in ACLU v.
Schundler, you concluded, which I think you had a right to do,
that the precedent of your circuit was incorrect and you ruled
the other way. I mean, I think you have the right to do that--
Judge Alito. We can't do that at the panel level. We can't
say a prior panel decision is incorrect.
Senator Biden. But you can when you sit en banc--
Judge Alito. Oh, when we sit en banc--
Senator Biden.--when all the justices are there.
Judge Alito. That's correct.
Senator Biden. OK. Now, how about when a Supreme Court
Justice, a Supreme Court Justice is not required, is he or she,
to follow the precedent of the Supreme Court? Stare decisis
doesn't apply there, does it? It may be practice, but as a
practical matter, most scholars say you are required as a
Supreme Court Justice to adhere to precedent, is it?
Judge Alito. Well, stare decisis certainly applies. Stare
decisis takes different forms. There is what some people call
horizontal stare decisis, which means a lower court has to
follow the higher court--I am sorry, vertical stare decisis.
And then are various forms of horizontal stare decisis, which
means a court either must or should follow its own prior
precedents. And on the Supreme Court, of course, when we are
talking about whether the Supreme Court is going to follow a
prior Supreme Court precedent, that is horizontal. There, it
isn't an absolute requirement to follow a prior precedent--
Senator Biden. It is not an absolute--
Judge Alito. It is not an absolute requirement, but it is
the presumption that the Court will follow its prior
precedents--
Senator Biden. No, I understand that, but no one would
argue that if you or any other Justice clearly broke from the
precedent of a Supreme Court decision, that you are in any way
violating your ethical responsibility as a judge. You are
entitled to do that, not that you would, but you are entitled
to do that and no one would question that as a matter of right,
is that not correct?
Judge Alito. Well, I think people would question it if you
disregarded the factors that go into the stare decisis
analysis. If you said, I don't believe in--you know, I am not
absolutely required to follow prior Supreme Court precedent and
I regard every question as a completely open question--
Senator Biden. Well, I doubt--with all due respect, the way
it would likely take the form is a Justice would say, ``I
disagree with the line of cases that say that.'' you know, ``a
President needs congressional authority.'' or that a--whatever
the line of cases are. They are not likely to say, ``I
disregard stare decisis.'' It is like what Scalia said in the
abortion issue. He said, we should just look at this head-on.
Roe v. Wade is wrongly decided. We should just say so. And he
is entitled to do that, and if he had a majority--I am not
suggesting what you would do on that--he is entitled to do that
and that wouldn't be a violation of any written or unwritten
code that relates to a Supreme Court Justice's conduct, would
it?
Judge Alito. Different Justices and different judges have
different views about stare decisis, but my view is that you
need a special justification for overruling a prior precedent
and that reliance and reaffirmation are among the factors that
are important. But I have also said it is not an inexorable
command. In the area of constitutional law, there has to be the
ability to revisit a case like Plessy v. Ferguson. I don't
think anybody would want a system of stare decisis that made
that impossible.
Senator Biden. My time is almost gone. I have a few minutes
left. I would like to try to get quickly to another area here,
if I may, that you have been questioned on, this whole notion
of unitary Executive and the questions referencing Morrison and
the dissent of Scalia, et cetera.
As I reach and teach the dissent of Scalia, he--and I won't
take the time, in the interest of time, to read his exact
language--he has a very scathing and intellectually
justifiable, many would argue, criticism of the test employed
by the majority in that case as to determine whether separation
of powers has been breached. He argues there are very bright
lines, that there can be no sharing of any of the power. If it
is an Executive power, it is an Executive power and it is
Executive power. He would argue that the alphabet agencies, the
FDA, the FCC, the EPA, they are really not constitutionally
permissible because the FDA makes a legislative judgment, it
makes a judicial judgment, and it imposes fines and penalties,
so therefore it does all three things and is sort of the
bastard child.
But the majority of the Justices say that as long as the
power one branch is using does not unduly trench upon the power
of the other branch, or it does not substantially affect its
ability to carry out its powers, then that is permissible.
Which school of thought do you fall into?
Judge Alito. Different issues are presented in different
factual situations--
Senator Biden. That is why I didn't give you a specific
issue.
Judge Alito. Well, I think you need a specific issue in
order to answer it. For example--
Senator Biden. OK, the FDA. Is it constitutional, the Food
and Drug Administration?
Judge Alito. I don't know that there are--I don't know
whether there are statutory restrictions on the removal of the
FDA Commissioner.
Senator Biden. No, but there are. The FDA does exercise
judicial power. It makes judgments. You, Drug Company A,
violated the law--
Judge Alito. And I don't know any constitutional objection
to that.
Senator Biden. Well, Scalia.
Judge Alito. I don't know that he would have a
constitutional objection to that. My understanding is that he
would not have a constitutional objection to their doing that,
but I could be mistaken, and I wouldn't want to prejudge any
constitutional question that might be presented to me. But I am
not aware of a constitutional--if there isn't any limitation on
removal, then there obviously isn't a removal issue there. As
to the agencies where there are restrictions on the removal of
commissioners who are appointed for a term, that issue was
dealt with within Humphrey's Executor and Wiener and in
Morrison, and Morrison was eight-to-one and the other cases
would be sort of a fortior from Morrison.
Senator Biden. My time is up, and hopefully, someone will
pursue this unitary Executive issue about private suits,
because I think what you explained was a little inconsistent,
or I don't understand it, but I will let someone else do that.
Thank you very much.
Chairman Specter. Thank you very much, Senator Biden.
Senator Grassley has asked that his time be reserved.
Senator Grassley has other duties which he had to attend to. He
was here earlier and will be back. He is also Chairman of the
Finance Committee.
Just a word. When Senators come and go, everybody has many
committees and many constituents and many visitors and many
callers. So when they are not here, you can conclude they are
otherwise engaged, and Senator Grassley is now. But his time is
reserved.
Senator Kohl has asked for 20 minutes. Senator Kohl, we
will set the clock at 20 minutes for you, and as I said
earlier, we have some flexibility here.
Senator Kohl. I thank you very much, Mr. Chairman.
Judge Alito, elected officials make decisions on issues
every day as we try to best represent the people of our States.
And if our constituents do not think that the choices that we
make reflect their opinions, then every few years they have an
opportunity to vote for someone else.
As you know, that is not the case with the courts. Once
confirmed, Federal judges have lifetime tenure and are
virtually unaccountable. And that lifetime tenure can result in
a judge or in a court that is removed from the thoughts and
opinions of most Americans. As public opinion changes on an
issue, the court may cease to reflect the views of the country.
If the courts take positions contrary to what most
Americans think about an issue or decide a case, a very
important case, in a way that is clearly out of the mainstream
of American thought, what can be done about it? And do you
think that the courts need to consider public opinion when
deciding cases?
Judge Alito. I think that the courts were structured the
way they are so that they would not decide their cases based on
public opinion. If the Framers had wanted the Federal courts to
follow public opinion, then they would have made Federal judges
elected officials, as they are in--as State judges are in many
States. They gave them lifetime tenure because they thought
there was a critical difference between deciding cases under
the Constitution and the laws and responding to public opinion.
Now, they gave the courts limited authority because they
wanted most of the decisions that affect people's daily lives
to be made by the branches of Government that are directly
responsible to the people, so that the people can control their
own destiny. The Framers' theory was that sovereignty lay with
the people and the Government was legitimate only insofar as it
responded to the people. And that's why Congress is structured
the way it is; that's why the Presidency is structured the way
it is. But the courts were viewed--courts are not a democratic
institution, and they were structured the way they are because
they saw a difference between the judicial function and the
other functions that are performed by the branches of the
Federal Government.
Senator Kohl. Well, and yet the courts, particularly the
Rehnquist Court has struck down more laws than any court in
recent memory. In response to your comment about the
legislatures as being involved in the daily lives of people,
and the rate that they have been striking down laws during the
Rehnquist Court was 6 times faster than during the first 200
years of our Republic. So how do we deal with the fact that
while the legislature in your opinion is supposed to represent
the daily lives of people, the courts, particularly the Supreme
Court in recent years has been striking down the laws of the
legislature more often than ever before?
Judge Alito. Acts of Congress are presumptively
constitutional, and I don't think that's just--that saying that
is just words. I think that means something. Members of
Congress take an oath to support the Constitution, and I think
that the presumption of constitutionality means a lot. And I
think that judgments that are reached by the legislative branch
in the form of findings of fact, for example, are entitled to
great respect because of the structure of our Government, the
fact that the basic policy decisions are supposed to be made by
the legislative branch and carried out by the executive branch,
and also for the practical reason or the functional reason that
Congress is in a better position to evaluate conditions in our
country and conditions in our society and to make findings and
to determine what's appropriate to deal with the social and
economic problems that we face.
So I would certainly approach the question of determining
whether an Act of Congress is constitutional with a heavy
presumption in favor of the constitutionality of what Congress
has done.
Now, ultimately Marbury v. Madison decided the question
that when a case or controversy comes before the Supreme Court
and the constitutionality of an Act of Congress is challenged,
it is the duty of the Court to decide the question. Unless we
were going to back to 1819, then that's the practice that the
Federal courts have to follow. But they should always do that
with an appreciation of their limited role and the role that
the legislature is supposed to play.
Senator Kohl. All right. Well, as a followup to that, would
you comment on term limits for Federal judges or age limits for
Federal judges? As you know, if a judge so wishes, he or she
can serve forever. Do you think that is a good thing in our
society? Should judges be term-limited? Should judges at least
be age-limited? Or should they serve just as long as they wish?
Judge Alito. Well, those are issues that are decided by the
Constitution. The Framers said that Federal judges have life
tenure, so without amending the Constitution, I don't think you
could have judges serve for a term of years or impose an age
limitation on Federal judges?
Senator Kohl. Well, what is your opinion?
Judge Alito. I'm not really sure. I understand the
arguments in favor of doing both of those things, and State
courts do that, and although I said yesterday I didn't think we
should look to foreign law in interpreting our Constitution, I
don't see a problem in looking to the practices of foreign
countries in the way they organize their constitutional courts.
And I believe that many of them do have term limitations on the
length of service of a member of the highest court and other
members of the judiciary.
So there are arguments on both sides of the question. If
you had a short term of years, you would have a judiciary that
was like an elected judiciary, and you would have the
advantages and the disadvantages of that kind of structure. But
there are arguments on both sides of the question, and it is
for other people to decide, not for a member of the judiciary.
Senator Kohl. Right. We are asking you--you know, I
appreciate that and I appreciate your thoughtfulness, but,
again, this is the only time--today may be the last time that
we ever have a chance as a Nation to talk to you. So you have
thought on it. I mean, I can't believe you don't have a
thought. You know, we are not going to amend the Constitution
tomorrow based on your thought that you express today. But what
is your thought? Do you think it is a good thing for judges to
serve unaccountably forever, with no age limits, no term limit?
Or do you think it might be the best thing for our society, for
judges after a reasonably long period of time, if you so wish,
or at a certain age, to phase themselves out?
Judge Alito. If I had been a delegate to the Constitutional
Convention in Philadelphia in 1787--which is a little hard for
me to imagine, but if I had been there, and knowing the way
things work out, I guess I would narrow the range of
possibilities down to--the range of options that I would
consider down to either life tenure or a long term of years so
that the judiciary would be insulated from being swayed by
popular opinion during a particular period as to the
constitutional questions that come before them, and as between
those I'm not sure which I would choose.
If the judiciary is going to exercise the power of judicial
review in enforcing constitutional rights, then I would think
that one of those two options would be the best. But I wasn't
in Philadelphia in 1787, so I had no say on that question.
Senator Kohl. Judge, at the end of its term last year, in a
5-4 decision the Supreme Court ruled in Kelo v. City of New
London that it was constitutional for local government to seize
private property for private economic development. Many people
are alarmed about the consequences of this ruling because, in
the words of Justice O'Connor, under the logic of the Kelo
case, ``nothing is to prevent the State from replacing any
Motel 6 with a Ritz Carlton, any home with a shopping mall, or
any farm with a factory.''
So what is your view of the Kelo decision, Judge Alito?
Judge Alito. Well, what I can say is that it's a precedent
of the Court, and it built on the Midkiff decision which had
been handed down a number of years earlier. I know that it
touches some very sensitive nerves. When someone's home is
being taken away using the power of eminent domain, that is a
blow to a lot of people. Even if they're going to get
compensated at fair market value for their home, the home often
means more to people than just dollars and cents. It's a place
that often involves a lot of emotion. They have emotional
attachments to it. They've lived in it a long time. They're
familiar with the neighborhood. They want to be with the
neighbors. They want to stay in the same area. They may have
emotional attachments to things in the home.
So it is a tremendous blow, and I suppose that when--I
would imagine that when someone's home is being taken away, a
modest home, for the purpose of building a very expensive
commercial structure, that is particularly galling. But Kelo
was a decision of the Court, and I've discussed my view about
stare decisis, and should that issue come up again, then
obviously the stare decisis factors would have to be, you know,
considered as the first--the stare decisis question would have
to be the first question addressed, and the factors that I've
discussed would have to be weighed.
Senator Kohl. Well, your comment is on the one hand and on
the other hand, and I do appreciate that. But I would ask you
if you would venture an opinion more precisely. Specifically,
do you agree in general with Justice O'Connor's dissent?
Judge Alito. Well, Senator, I don't think I can answer that
beyond what I have said. If the issue were to come before me if
I'm confirmed, then I would first have to consider whether
there's any reason for not following Kelo, which is a precedent
of the Supreme Court and grew out of the earlier precedent that
I discussed, that I mentioned.
Now, I'm not suggesting which way I would decide that
question of stare decisis, but that is the way our legal system
works, that decisions are presumptively to be followed, and I
would have to address that question. And if I got beyond it, I
would have to go through the whole judicial process that is set
up so that questions of constitutional law and other questions
are decided in the best way, and reading the briefs, listening
to the arguments, participating in the conference, and only
that reaching a decision on the merits of it.
Senator Kohl. All right. As a followup, Judge Alito, if
confirmed, you will be replacing Justice O'Connor, who is a
Justice who will be remembered by history as one of the most
influential justices of the 20th century. She is also, as you
know, a much beloved person. How would you be different from
her, Judge Alito? How do you think Justice O'Connor ought to be
remembered, Judge Alito? And how are you like or not like
Justice O'Connor as a judge?
Judge Alito. She certainly will be remembered for many
reasons, and I think with great admiration by--I think she is
held in great admiration by the American people at this time,
and I think that when people look back, they will have great
admiration for her work. She obviously was a pioneering figure
and was an inspiration for many people who want to pursue legal
careers, and other careers.
She has been a very dedicated Justice and has been known
for her meticulous devotion to the facts of the particular
cases that come before her and her belief that each case needs
to be decided on its complex facts, and that's something that
is an important part of our judicial process.
I would try to emulate her dedication and her integrity,
and her dedication to the case-by-case process of adjudication,
which is what I think the Supreme Court and the other Federal
courts should carry out. I think that's one--that is a central
feature of best traditions of our judicial system.
Senator Kohl. She was seen as someone who in a general way
was at the center of the Court. You never had an idea whether
she might look a little left or a little right, but she was
seen as the center of the Court, which, as you know, is central
to your nomination. And you have said you have great respect
for her. You have said you respect her as a Justice who did
look at the facts, made judgments based on those facts, which I
think is what you would say about yourself, an umpire calling
balls and strikes pretty much as they see them.
Do you see yourself as a Justice, if you are confirmed, who
in many ways will fill the same role as Justice O'Connor has
filled?
Judge Alito. I think that anybody who is appointed to any
judicial position has to be himself or herself, and I don't
think that anybody can try to replace the person, can duplicate
the approach of the person that that person is replacing. We
all have to proceed in accordance with our own abilities and
our own outlook, so I don't think that--I think we all have to
be who we are. But I think we can emulate the great jurists of
the past, which is not to say that we can equal them, but we
can look at what they've done and see the things that they've
done very well, try to approach what they've done in various
areas. And I think that I certainly would try to emulate
Justice O'Connor in the ways that I've described. I wouldn't
flatter myself to say that I could equal her in any of those
ways, but I would certainly try to emulate the way in which she
has gone about the conscientious and dedicated and dignified
way in which she's gone about the performance of her judicial
duties.
Senator Kohl. You may have answered this question already,
but as I said, she was at the center of the Court, at least
viewed as a person at the center of the Court, and served a
very useful purpose in that respect. Is it, in your opinion,
like that you might turn out in a general way to be that kind
of a Justice?
Judge Alito. I can only answer that really by saying what I
think I've said before, which is that I'd be the same sort of
Justice on the Supreme Court that I've been a judge--as I've
been a judge on the court of appeals. I am my own person with
whatever abilities I have and whatever limitations I have, and
I think if anybody looks at my record on the court of appeals,
they can get an idea about the way I approach the work of being
a judge, and that is what I would try to do on the Supreme
Court. And I don't think I can do anything other than that, and
that's what I think I should do, and that's what I would do if
I am confirmed.
Senator Kohl. Judge Alito, I thank you very much.
Mr. Chairman, I thank you very much.
Chairman Specter. Thank you, Senator Kohl.
We will take our break now and resume at 10 minutes after
11.
[Recess 10:55 a.m. to 11:10 a.m.]
Chairman Specter. Welcome back, Judge Alito. A thought just
crossed my mind that this is the only time when you walk into a
room that everybody does not stand up.
Judge Alito. That happens to me all the time at home,
Senator.
[Laughter.]
Chairman Specter. I am not saying when you come home, Judge
Alito. The reception for a judge or a Senator or even the Chief
Justice is very different at home than when he walks into a
room and a bailiff shouts ``All rise.'' Just crossed my mind
that we were not all standing up. As Chief Justice Roberts
said, this is a discussion among equals, that is, until you are
confirmed, if confirmed.
Senator Kyl?
Senator Kyl. Mr. Chairman, I will reserve my questions for
now, thank you.
Chairman Specter. Senator Kyl is reserving his time.
Senator Feinstein is about the join us, coming in, so we will
await her arrival, which should be imminently.
[Pause.]
Chairman Specter. I think Senator Feinstein is going to be
a few moments more, so let us turn to Senator Feingold.
Senator Feingold. Mr. Chairman, if that is your wish. I
certainly defer to Senator Feinstein if she wants to reclaim
her time when she comes, but I will get started if you want.
Chairman Specter. Let us wait another minute or two for
her. She is not in the back room and she is not in the
corridor, but let us wait another minute or two for her.
[Pause.]
Chairman Specter. Senator Feinstein, you have made another
dramatic entrance. We were all assembled for the Committee
action on Chief Justice Roberts when you were on the floor from
your position on the Appropriations Committee, managing a bill
and 17 of us were there.
Senator Feinstein. Not quite, but I thank you for the
excuse.
Chairman Specter. And you walked in with drama as today.
You have asked for up to 10 minutes, Senator Feinstein. We will
set the clock at 10 minutes. I have indicated we have some
flexibility. We see the light at the end of the tunnel.
Senator Feinstein. I may take 20 if that is all right with
you, Mr. Chairman.
Chairman Specter. We will reset the clock at 20, Senator
Feinstein.
Senator Feinstein. Thank you.
Good morning, Judge Alito.
Judge Alito. Good morning.
Senator Feinstein. I want to begin a conversation,
hopefully. Let me try to set the precedent for it because
others have discussed this as well. You said, and I think
everybody agrees, that nobody is above the law, and nobody is
beneath the law, and you made comment about the balance of
powers, that all branches of Government are equal. There are
three of us on this Committee, Senator Hatch, Senator DeWine
and myself, that also serve on the Intelligence Committee, and
Intelligence has the duty to provide the oversight for the 15
different agencies that relate to America's intelligence
activities. So this question of Presidential authority at a
time of crisis, not necessarily a full declaration of war,
state to state, but a time of crisis becomes very prescient
right now. And I wanted to talk to you a little bit about the
President's plenary authorities as Commander in Chief, plenary
meaning unrestrained and unrestrainable, his plenary
authorities to defend the United States, and whether it is true
that no law passed by Congress binds him if he determines that
it interferes with his Commander in Chief role.
Now, we have explicit powers, as you have said, under the
Constitution, and in section 8 we have the explicit power to
raise and support armies, to provide and maintain a Navy, to
make rules for the Government, and regulation of the land and
naval forces, and the National Security Administration, known
as the NSA, is within the Department of Defense. It is headed
by a general. So it would seem to me that there is an explicit
power for the Congress to be able to pass the rules that govern
the procedures of the National Security Administration.
Now, again to the Jackson test. When the President's power
is the least is when the Congress has legislated, and this is
where the Foreign Intelligence Surveillance Act, known as FISA,
comes in. FISA is very explicit, and let me read a part of it
to you. ``Procedures in this chapter and the Foreign
Intelligence Surveillance Act, known as FISA, shall be the
exclusive means by which electronic surveillance, as defined in
section 101 of such Act, and the interception of domestic wire
and oral communications may be conducted.'' It does provide--
you used the word ``general.'' It does provide two exigent
circumstances: one, following a declaration of war, the
President has 15 days in which he can wiretap; the second
exigent circumstance is an emergency provision that if he needs
emergency authority, the Attorney General can authorize it,
provided they go to the FISA Court within 72 hours.
I was concerned--there are two questions in this one
statement. The first question is: if we have explicit authority
under the Constitution to pass a law, and we pass that law, is
the President bound by that law, or does his plenary authority
supersede that law?
Judge Alito. The President, like everybody else, is bound
by statutes that are enacted by Congress unless the statutes
are unconstitutional, because the Constitution takes precedence
over a statute. But in general, of course, the President and
everybody else, is bound by a statute. There's no question
about that whatsoever. And the President is explicitly given
the obligation, under Article II, to take care that the laws
are faithfully executed. So he is given the responsibility of
making sure that the laws are carried out.
Senator Feinstein. Let me press you on unconstitutional,
and a very few of us on this Committee are not lawyers. I am
one of them, so let me just speak in common everyday terms.
There are two resolutions that were passed, one authorizing the
use of military force involving Iraq, and one involving use of
terrorism. Never was there any indication that domestic
wiretapping of Americans was involved in anything that was
done. As a matter of fact, the former minority leader just
wrote an Op-Ed piece, in which he said he was approached by the
administration shortly before the second resolution was passed,
and asked to add certain words that essentially--added the
words ``deter and preempt any future acts of terrorism or
aggression against the United States.'' and he refused to do
it.
Mr. Chairman, if I could place this statement in to record.
Since we are going to be having hearings on what has happened,
I think this is an appropriate bit of legislative history. I
would like to place it in the record.
Chairman Specter. Thank you, Senator Feinstein. It will be
made a part of the record without objection.
Senator Feinstein. Thank you.
So bottom line, two resolutions passed, no consideration by
the Congress or any member that I know of, no legislative
history to indicate that we included in these authorizations,
authorization to wiretap Americans. The question then comes, I
guess, does the plenary power of the President supersede this?
Judge Alito. I think there are two questions. Maybe there
are more than two questions, but there are at least two
questions. The first question, to my mind, is a question of
statutory interpretation, what is the scope of the
authorization of the use of military force? I don't know
whether that will turn out to be an easy question or whether it
will turn out to be a difficult question, but it is a question
of statutory interpretation like any other. Of course, there's
a great deal at stake, and maybe a lot more at stake than is
involved in a lot of issues of statutory interpretation. But if
I were required to decide that, I would approach it in
essentially the same way I approach any other question of
statutory interpretation, what does the word of the law--what
does the law say? Are there terms in there that carry a special
meaning because of the subject matter that's being dealt with?
And I think legislative history can be appropriately consulted.
And I would have to decide that in the context of the whole
process of deciding legal questions, as I said, like any other
issue of statutory interpretation.
Once a decision was reached on the issue of statutory
interpretation, it might be necessary to go further, depending
on, I guess, the answer to that question.
I would also say in connection with this that we have a
little bit of guidance as to the interpretation of the
authorization of the use of military force in the Hamdi case,
where the Court interpreted that enactment, and determined that
the detention of an individual who was captured on the
battlefield in Afghanistan fell within the scope of that, and
they relied there, I think, on customary practices in the
conduct of warfare in determining what fell within the scope of
the authorization.
Senator Feinstein. Let me stop you right here, because
now--that is right, because detention is a necessary following
of an authorization of military force. So detention is logical.
When you have a specific statute that covers all electronic
surveillance, the question comes, is that statute nullified,
and does it necessarily follow that the wiretapping of
Americans without--and I am not saying there is not a reason to
do this. What I am saying is that we set up a legal procedure
by which you do it, and we set two exigent circumstances to
excuse a President from having to do it, therefore, doesn't
that law prevail?
Judge Alito. Well, as I said, I think the threshold
question is interpreting the scope of that, and it might turn
out to be an open and shut argument, it might turn out to be a
very complicated argument. I wouldn't presume to issue--to
voice an opinion on the question here, in particular because I
haven't studied it in the depth that I would have to study it
before reaching a judicial decision on the matter. Then
depending on how that issue was resolved, it might be necessary
to go on to the constitutional question, and I think you've
exactly outlined where that would fall under Justice Jackson's
method of analyzing these questions. This would be in the
category in which--well, if it was determined that there wasn't
statutory authorization, then--
Senator Feinstein. There was.
Judge Alito. Well, if it was determined that there was--
Senator Feinstein. No statutory authorization to wiretap,
right.
Judge Alito. If it was determined that there was statutory
authorization, then I don't know what the constitutional
would--
Senator Feinstein. But if there was not?
Judge Alito. There would still potentially be--there might
be a constitutional issue. Let me stop there. There would be a
Fourth Amendment issue, obviously. If you went beyond--if you
determined that there wasn't statutory authorization, then as
far as whether--then as far as the issue of Presidential power
is concerned, you would be in Justice Jackson's scheme in the
category where the President--you would have to determine, if
this is the argument that's made, whether the President's
power, inherent powers, the powers given to the President under
Article II, are sufficient, even taking away congressional
authorization, the area where the President is asserting a
power to do something in the face of explicit, an explicit
congressional determination to the contrary.
Senator Feinstein. Now, in my lay mind, the way I interpret
that--and correct me if I am wrong--is that you essentially
have a conflict, and that it has not been decided whether one
trumps the other.
Judge Alito. I think that's close to the point that I was
trying to make. The way Justice Jackson described it was that
you have whatever Executive power the President has, minus what
Congress has taken away by enacting the statute.
Senator Feinstein. Even though you have a statutory
prohibition, even a criminal prohibition?
Judge Alito. Well, I'm not suggesting how the determination
would come out. I think it's--that it is implicit in the way
Justice Jackson outlined this that Presidential--well, he said
it expressly--Presidential power is at its lowest in this
situation, where the President is claiming the authority to do
something that Congress has prohibited.
Senator Feinstein. Enough of that. Let me move on.
In W.R. Grace v. the EPA, a chemical company released large
amounts of ammonia into the local aquifer in Lansing, Michigan.
Under the Safe Drinking Water Act, the EPA ordered the chemical
company to clean up the discharge to reduce the concentration
of ammonia to a level that wouldn't threaten the health of the
community. The chemical company challenged this EPA decision.
You cast, as I understand it, the decisive vote to overrule the
EPA, permitting the company to leave more ammonia in the
aquifer, despite the EPA's determination that this level of
ammonia would continue to endanger the water supply.
In her dissent, Judge Mansmann urged deference to the EPA
in matters of science, noting that, ``The high degree of
deference we are to accord the EPA is a cornerstone to the
EPA's power enshrined in the Safe Drinking Water Act to protect
the public health, the environment and public water supplies
from the pernicious effects of toxic wastes.''
Do you agree with the dissent that a reviewing court must
generally be at its most deferential when reviewing factual
determinations within an agency's special area of expertise?
Judge Alito. I do agree with that. I don't think there is
any question about that.
Senator Feinstein. Do you believe that where an agency is
taking action to protect the health of citizens, additional
deference should be given?
Judge Alito. I think that deference is owed to the
expertise of administrative agencies. That is an important part
of administrative law, and when you are dealing with an agency
like the EPA, you would defer to their area of expertise. I
think that is correct.
Senator Feinstein. Should the EPA be accorded the same
deference as other governmental agencies?
Judge Alito. I don't think--I don't see why it should not.
It is the expert on environmental questions and where the APA--
I am sorry, the EPA--for example, if the EPA issues regulations
interpreting a statutory provision and it is given broad
authority under the environmental laws frequently to implement
choices that are reflected in the legislation, then I think
that it is entitled to a broad measure of deference under the
Chevron decision. If it issues rules, then any reasonable
interpretation of the rules--I am sorry--of the statute is
entitled to deference from the courts.
Senator Feinstein. OK. Let me go way back, and I recognize
that time has gone by and I recognize you were in a different
position, but these questions are really aimed to point out the
importance of the Commerce Clause to us.
In 1986, Congress passed the Truth in Mileage Act to
prevent odometer fraud. As deputy at the Office of Legal
Counsel, you recommended that President Reagan veto the bill
because you believed it violated the principles of federalism.
In a draft statement for the President, you wrote ``It is the
States and not the Federal Government that are charged with
protecting the health, safety and welfare of their citizens.''
That is a quote. President Reagan did sign the Truth in Mileage
Act.
Does it remain your opinion that it is the States, not the
Federal Government, that are charged with protecting the
health, safety and welfare of Americans?
Judge Alito. Both the Federal Government and the States
have responsibilities in those areas. Historically, the primary
responsibility with respect to that, to those concerns, has
been with the States. But with the expansion of Federal
regulatory programs, the Federal Government has taken on
broader and broader responsibilities in those areas and now has
very substantial responsibilities in all of those areas under
regulatory schemes that have been in place for a long time and
I don't believe are being challenged on constitutional grounds
at this time.
If I could just say a word about that memo, which I read
for the first time in 20 years recently, as I--it is a brief
statement and as I read it, it is based--what it is primarily
expressing is not an interpretation of the scope of the Federal
Government's--of Congress's constitutional authority, but a
recommendation based on the federalism policies of the Reagan
administration.
The Reagan administration had a policy of implementing its
view of federalism concerns through policymaking decisions. In
other words, its policy was to go further in respecting what it
viewed as the Federalist system--as our Federal system of
Government and the Constitution required to go further as a
policy matter. And as I read that brief statement, that is what
was being expressed there.
Senator Feinstein. So if I understand that, quickly, what
you are saying is this was written as staff in an
administration to follow a policy. But are you also saying as a
judge this would not necessarily be a position that you would
hold in any case?
Judge Alito. Well, as a judge, I would have no authority
and certainly would not try to implement any policy ideas about
federalism. Congress can implement policy ideas about
federalism. The Garcia case, in fact, is based on the view that
the primary--and this is what the Supreme Court said there,
that the primary way in which the federalism concerns that were
expressed in National League of Cities was to be implemented in
the future was through policy decisions made by Congress.
They said the States are represented in Congress through
the membership in the Senate, and protection of the
prerogatives of the States should be left to policy decisions
made by Congress, or decisions made by Congress in implementing
its view of how the system of federalism should work.
And an Executive--a President can take a similar approach.
A President can say although the Constitution allows the
authority of the Federal Government to go this far, as a policy
matter I don't want to go along with legislation that goes up
to the limits of what the Constitution allows; as a policy
matter, I want to stop short of that. And as I read this memo,
that is what we were saying there.
Senator Feinstein. Thank you very much. Thanks, Mr.
Chairman.
Chairman Specter. Thank you, Senator Feinstein.
Senator Grassley has stated his interest in reclaiming some
of his reserved time.
Senator Grassley.
Senator Grassley. A small part of it, number one, to make a
point that I hope would put a lot of my colleagues who have
raised questions about some theory you might have about this or
that--whatever political science theories you might have about
the executive branch of Government, I don't worry about that,
and I would hope my colleagues wouldn't worry about that
because you could have a hundred theories and they could be all
crazy.
But is it not right that you are a person that is bound by
the Constitution to only hear cases and controversies that come
before the Supreme Court? And so, you know, whatever comes
before you, you are responsible for deciding it within the
constitutional of case and controversy.
And, second, it seems to me that you are a person that has
got the judicial temperament, as you said so many times, that
you are going to keep your own personal views out of it. And it
seems to me that you are person that has indicated to us that
you are going to look at a case within the four corners of the
law and the facts that apply to that case, and nothing more.
So any theories you might have about--what was it called,
unitary Executive or something? What has that got to do with
your deciding a case?
Judge Alito. Senator, you are exactly right. If cases
involving this area of constitutional law come before me, I
will look to the precedents of the Supreme Court. And that is
what I think I have been trying to emphasize, and there are
governing precedents in this area. There is Humphrey's Executor
and Wiener, and most recently Morrison, which was an eight-to-
one decision.
Senator Grassley. Then the other thing I would take an
opportunity to just tell you something and not want any
response, but that is on the False Claims Act. This Act was
originally passed in 1862 because Lincoln didn't have enough
people to prosecute fraud by military people against the
Government. So he empowered individuals to do that under qui
tam.
And then in 1942, I think it was, the law was gutted by
taking out the qui tam provisions, probably because of World
War II and the necessity of getting the job of military
construction done. And then in the 1980s, we found a heck of a
lot of military fraudulent use of taxpayers' money. We held a
lot of hearings on that. It came that there wasn't enough being
done by the Justice Department to take care of it.
We saw the Justice Department making a lot of global
settlements; you know, some company that had done a massive
amount of wrong in many areas and maybe having the Justice
Department settle one little dispute, but give a global
settlement so that they would never be prosecuted for anything
after that. It led us to beefing up the False Claims Act by
putting the qui tam provisions in it.
And it was a terrible thing to get through Congress. I
think 6 months after we voted it out of Committee, we had every
Senator putting a hold on it, some bequest of somebody in the
defense industry. And you would take care of that little
problem and another put a hold on and another one put a hold
on. Finally, the last person was a friend of mine that had a
hold on it and I said why did you have a hold on it? Well, some
of my friends said that is bad for the defense industry.
And I talked to him about it and he says, you know, you are
absolutely right, and we got the last hold off and we got it
passed and we got it signed by the President of the United
States. And then over the last several years, we have had the
defense industry going trying to gut it again. Then we had the
Hospital Association trying to gut it because we were using
medical care.
And it has brought $12 billion into the Federal Treasury,
and I think it has even had the benefit of discouraging a lot
of activity that would go on normally that save the taxpayers
money without prosecution. But there are people in the Justice
Department, professional people in the Justice Department, who
don't want some citizen looking over their head and doing their
job for them, when they aren't doing it.
A district judge in the mid-1980s, or maybe it was the late
1980s, in, I think, a General Electric case someplace in Ohio,
when the Justice Department was trying to cut back the award
that the relator was going to get, said to this Justice
Department guy, don't you get it? You wouldn't even have a case
if it wasn't for this whistleblower coming forth to make their
statement and to make their case.
And, you know, it grown into quite a thing now. The only
thing I regret about it is there are a lot of lawyers, tort
attorneys out there getting rich off of it. But there is also a
lot coming into the Federal Treasury, and about 15 percent if
what it would cost the Federal Government anyway to bring in
this same amount of money if they prosecuted. But they won't
prosecute it and they don't know about all of it, and you have
got to rely on the whistleblowers to get the information out
there.
And so when you are in your private meetings that you have
after you get on the Supreme Court and you are talking about
these things, I hope you will remember that this was meant to
serve a worthy purpose, is serving a worthy purpose, and I
would like to have you look at it in a very unbiased way.
[Laughter.]
Senator Grassley. I reserve the rest of my time.
Chairman Specter. Judge Alito, Senator Grassley is going to
follow that up with a strong letter.
[Laughter.]
Senator Grassley. Well, the Chairman remembers we even had
to subpoena William French Smith one time in this whole
process.
Senator Leahy. Chuck, I think we know where you stand on
this.
Senator Grassley. OK.
Chairman Specter. To use a little bit more of my time,
Senator Grassley did more than subpoena Attorney General
William French Smith. He started proceedings to hold him in
contempt, and that was at about a time when Attorney General
Smith was inviting some members of the Judiciary Committee to
have lunch. And he was very dour during the entire lunch as far
as his attitude toward me and I found out why at the end of the
lunch. He wanted to know why I wanted to hold him in contempt.
He had insulted Senator Grassley to the nth degree by confusing
me with him.
[Laughter.]
Chairman Specter. Tell your Anita Hill story, Chuck.
Senator Grassley. Well, just to show you how they get mixed
up, you know, he asked the questions of Anita Hill and I was
sitting beside him very quietly, because only two Republicans
were going to ask questions. And I went back to my constituency
and everybody said to me, you were awful to Anita Hill, you
just treated her awful, because they got me mixed up with him.
Chairman Specter. Wait. I didn't know you were--
[Laughter.]
Chairman Specter. I didn't know you were going to tell that
part of the--
Senator Grassley. I thought that is the only part we have
talked about.
Chairman Specter. Judge, we are just trying to use a little
time over here to give you just a little respite from the--
Senator Leahy. Arlen, fortunately none of this is on
television so nobody knows what we are saying here with these
stories.
[Laughter.]
Chairman Specter. Senator Feingold, you haven't told me how
much time you would like to have.
Senator Feingold. I think 25 minutes, with flexibility.
Maybe I won't have to use it all.
Chairman Specter. So granted. Set the clock to 25 minutes
and you are recognized, Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. Good morning,
Judge. It is nice to talk to you in the morning for once, and
thank you, Mr. Chairman, for the opportunity to ask a third
round of questions. I do appreciate the latitude on the time,
if it is necessary.
First, Judge, I want to thank you for arranging to have put
together the list of people who participated in your practice
sessions. I want to say that I am still somewhat troubled by
the idea that you were prepared for this hearing by some
lawyers who are very much involved in promoting the purported
legal justification for the NSA wiretapping program, and
obviously this issue of Presidential power is so central to
this hearing. In fact, my first questions will also be about
this, as well.
I note, for example, that one of the people that
participated in these sessions was Benjamin Powell. He recently
advised President Bush on intelligence matters and was just
given a recess appointment as General Counsel to the National
Intelligence Director. I also see the name of White House
Counsel Harriet Miers on the list, and she obviously is
involved in the President's position on this matter.
So I am just going to continue to think about this issue
and I hope that you and the Department will, too. I think you
would agree that at some point in a situation like this, an
ethical issue could arise.
Let me go back, though, to what many Senators have asked
you about, including most recently Senator Feinstein. I want to
try again to clarify this issue, the constitutional authority
of the President to violate a criminal statute. You have said
repeatedly that the President is not above the law, but you
have also been very careful to qualify this statement by saying
that the President must always follow the Constitution and laws
that are consistent with the Constitution, and that statement
sounds good until you look at it real closely. After all,
everyone agrees that the President must follow constitutional
law. The question is whether Presidents can claim inherent
powers under the Constitution that allow them in certain cases
to violate a criminal law, and your formulation seems to leave
open the possibility that the President can assert inherent
authority to violate the criminal law and still be following,
to use your words, the Constitution and laws that are
consistent with the Constitution.
So I would like to ask you, assuming that you have already
done phase one, step one, the statutory analysis, in your view,
just because a law is constitutional as it is written, like a
murder statute or FISA, that doesn't actually answer the
question of whether the President can violate it, does it?
Judge Alito. I don't think I would separate the
constitutional questions into categories. I think it follows
from the structure of our Constitution that the Constitution
trumps the statute. That was the issue in Marbury v. Madison.
It would be a rare instance in which it would be justifiable
for the President or any member of the executive branch not to
abide by a statute passed by Congress. It would be a very
rare--
Senator Feingold. But it is possible, based on your answer,
that a statute that has been determined standing on its own to
be constitutional could, in theory, run into some conflict with
an inherent, as you would say, constitutional power of the
President, which in theory, even under Justice Jackson's test,
could trump the seemingly constitutional criminal statute, is
that correct?
Judge Alito. Well, I'm not sure what standing on its own
means there. Somebody gave an example in a law review article I
remember reading of a statute that said that a particular named
individual was to be immediately taken into custody by Federal
law enforcement agents and taken immediately to a certain place
to be executed. Would the President be bound to, under his
responsibility to take care that the laws are faithfully
executed, would the President be legally obligated to do that,
even though it flies in the face of some of the most
fundamental guarantees in the Constitution, and I think we
would all say in a situation like that, no, the Constitution
trumps the statutory enactment.
Senator Feingold. But it is possible under your construct
that an inherent constitutional power of the President could,
under some analysis or in some case, override what people
believe to be a constitutional criminal statute--
Judge Alito. Well, I don't want to--I want to be very
precise on this. What I have said, and I don't think I can go
further than to say this, is that that situation seems to be
exactly what is--to fall exactly within that category that
Justice Jackson outlined, where the President is claiming the
authority to do something and the thing that he is claiming the
authority to do is explicitly, has been explicitly disapproved
by Congress. So his own taxonomy contemplates the possibility
that says that there is this category and cases can fall in
this category, and he seems to contemplate the possibility that
that might be justified.
But I don't want to even say that there could be such a
case. I don't know. I would have to be presented with the facts
of the particular case and consider it in the way I would
consider any legal question. I don't think I can go beyond
that.
Senator Feingold. I understand that has been your position.
I have heard the repeated references to Justice Jackson's test.
But all that test says in the end is that the President's power
is at the lowest ebb at that point, and I understand and
obviously have enormous regard for Justice Jackson and that
opinion in particular. But I think in this time it leaves me
troubled.
I am concerned that if we are simply going to rely on that
in the end without getting a better sense of where you might
come down on these kind of matters, it really goes to the very
heart of our system of government. And if somehow that--even if
the President's power is at a very low ebb at that point, I
think it still leaves open the possibility of enough ambiguity
and vagueness that could alter the basic balance between the
Congress and the Presidential power in a way that could affect
our very system of government.
Judge Alito. Well, Senator, this is a momentous
constitutional issue and it is the kind of constitutional issue
that generally is not resolved--well, let me say this, that it
is often--it often comes up in a context that is not
justiciable. But I think it would be irresponsible for me to
say anything on the substance of the question here, and by not
saying it, I don't mean to suggest in any way how I would come
out on the question. I don't mean to suggest that there could
be a case where it would be justified or not, particularly on
an issue of this magnitude. I think anybody in my position can
say no more than this is the framework that the Supreme Court
precedents have provided for us, and when the issue comes up,
if it comes up, if it comes before me, if it is justiciable, I
will analyze it thoroughly, and that's all I can say.
Senator Feingold. And I respect your constraints in this
regard, and frankly, this isn't so much about you or your
appointment. This is about the possibility you have raised that
this may not be justiciable, which is going to be a very
serious problem for our system of government. If the U.S.
Supreme Court cannot help us resolve these issues because of
justiciability issues, at a time of crisis like this in terms
of the fight against terrorism, I think it raises one of the
most important issues in the history of our country's
constitutional debate. I don't think you disagree with that,
but it really troubles me that the Supreme Court could possibly
not help us resolve this.
Judge Alito. And I don't want to suggest that it is or it's
not justiciable. We would look to the Baker v. Carr factors,
and that is something else that would be very irresponsible for
me to express an opinion on in this forum and I want to make it
perfectly clear that I'm not doing that.
Senator Feingold. Do you think it could ever be
constitutional to admit evidence obtained by torture against an
individual who is being charged with a crime?
Judge Alito. Well, the Fifth Amendment prohibits compelled
self-incrimination and it's long been established that evidence
that is obtained through torture is inadmissible in our courts.
That's the governing principle.
Senator Feingold. So I take that answer to mean it could
not be constitutional to admit evidence obtained by torture
against individuals being charged with a crime?
Judge Alito. In all the contexts that I'm familiar with,
that would be the answer.
Senator Feingold. Thank you for that answer. I want to
followup on one question that Senator Leahy asked this morning
about the constitutionality of executing an innocent person.
You said that the Constitution, of course, is designed to
prevent that. We all agree on that. But let us say that the
trial was procedurally perfect and there were no legal or
constitutional errors, but later evidence proves that the
person convicted was unquestionably innocent. Does that person
have a constitutional right not to be executed?
Judge Alito. The person has--would first have to avail
himself or herself of the procedures that Congress has
specified for challenging convictions after they've become
final. If this individual has been convicted and has gone
through the whole process of direct appeal, either in the State
system or in the Federal system, then there are procedures.
States have procedures for collateral attacks and there are
procedures under Federal statutes for collateral attacks on
Federal convictions and on State convictions. The person would
have to go through the procedures that are set out in the
statute.
The system is designed to prevent a person from being
executed if the person is innocent, and actual innocence
figures very importantly, even in these complex--in sometimes
complex procedures that have to be followed in these collateral
attacks. For example, usually, there's this doctrine of
procedural default, which is not something that ordinary people
are familiar with, but it means that if a State prisoner is
challenging a State conviction, the State prisoner has to take
advantage of the procedures that are available under State law,
and if the State prisoner doesn't do that--
Senator Feingold. My question assumes that all that has
been done and the process went through and there is no legal or
constitutional or procedural problems, but evidence suddenly
proves that the person convicted was unquestionably innocent.
The question is, does that person in that posture have a
constitutional right not to be executed?
Judge Alito. Well, then the person would have to, as I
said, file a petition, and if it was an initial petition, it
would fall into one category. If it was the second or a
successive petition, it would fall into another category and
the person would have to satisfy the requirements that Congress
has set out for filing a second or successive petition.
Senator Feingold. You can't say that the person has a
constitutional right not to be executed?
Judge Alito. Well, I have to know the specific facts of the
case and the way it works its way through the legal system. The
rules here are complicated. A person has a right. It is one of
the most fundamental rights that anybody has. It is a
fundamental right and a fundamental objective of our judicial
system that nobody is to be convicted without proof beyond a
reasonable doubt. If evidence--if there's evidence that the
person is not guilty of the offense, then that gets to the very
heart of what our whole system of criminal justice is designed
to address.
Senator Feingold. I will stop on that topic, but I think
there is a real question here. Simply because somebody is
adjudicated guilty but they are, in fact, innocent, I would
take the view that they still have a constitutional right not
to be executed, but I am glad we could talk about that a bit.
Let me talk about affirmative action. In her opinion in
Gruder v. Bollinger, Justice O'Connor recognized the, quote,
``real world significance and impact'' of affirmative action
programs and policies, and she noted that American businesses
need skills obtained through exposure to widely diverse people
and cultures. A racially diverse officer corps is essential to
the military's ability to fulfill its mission to provide
national security. And diversity in colleges and universities
leads to diversity in civil society, which is, quote,
``essential if the dream of one nation, indivisible, is to be
realized.''
Justice O'Connor expressly gave great weight to the views
of military leaders, who said a highly qualified racially
diverse military is essential. How much weight would you give
to that view?
Judge Alito. Well, I can speak to the issue of diversity in
education from a little bit of my own experience. A couple of
years ago, I taught, as an adjunct law professor at Seton Hall
Law School, I taught a seminar on civil liberties and
terrorism, because in the wake of terrorist attacks on 9/11, it
became apparent to me that there were going to be a lot of
civil liberties issues raised. It seemed to me that these were
issues of the utmost importance, so I put together a seminar on
the question.
The first time I conducted the class, we had an extremely--
we had a class with people of extremely diverse backgrounds
relating to this issue. There was a student who had been in the
Special Forces in Bosnia. There was a student who was a Muslim
from the Middle East. There were a number of students who had
been personally affected by, in one way or another, by the
terrorist attacks on the World Trade Center. There were
students who felt very strongly about civil liberties. And
having these people in the class with diverse backgrounds and
outlooks on the issues that we were discussing made an enormous
contribution to the class.
So in that setting, I have personal experience about how
valuable having people with diverse backgrounds and viewpoints
can be, and the Supreme Court has expressed the view that
diversity is a compelling interest. Having a diverse student
body is a compelling interest. Justice Powell voiced that back
in the Bakke case and it's been reiterated in a number of cases
and most prominently in--most recently in the Gruder case.
Senator Feingold. In fact, in Gruder, seven of the nine
Justices, all but Justices Scalia and Thomas, reaffirmed
Justice Powell's determination in the Bakke case that the State
has a compelling interest in promoting diversity in the
classroom. Do you think that increasing diversity in the
classroom is a compelling State interest?
Judge Alito. Well, I've spoken to my own personal
experience about its importance in education and Gruder is a
precedent that directly addressed this issue in the context of
education. It's the Supreme Court's recent word on this issue.
Senator Feingold. I hope you will think it fair that
nothing about what you just said would suggest to me you think
it is anything less than a compelling State interest.
Judge Alito. It is a precedent and the Supreme Court has
dealt with this over a period of time, and that's the
conclusion that they've drawn.
Senator Feingold. On another subject, do you believe that
Congress has the power under the Constitution to prohibit
discrimination against gays and lesbians in employment?
Judge Alito. I would have to--I can't think of a reason why
Congress would not have that power, but I would have to be
presented with the arguments.
Senator Feingold. In 2001, you wrote an opinion overturning
a public school district's antiharassment policy, that
protected, among other people, lesbian and gay students. You
said the school policy in the case, Saxe v. State College Area
School District, violated the First Amendment, and the case was
brought by students who believed that the policy interfered
with their ability to speak out against the ``sinful'' nature
and harmful effects of homosexuality as compelled by their
religion.
In your Senate questionnaire you note that you won the
Family Research Council Golden Gavel Award in 2001 for your
decision striking down that policy. The Family Research Council
is a leading conservative group that opposes gay rights.
In order for a policy protecting gay students from
harassment to pass constitutional scrutiny, must it have an
exception for harassment motivated by religious belief?
Judge Alito. Well, let me say what was at issue in the Saxe
case because that's the context in which I dealt with issues
like this. The Saxe case involved a very broad antiharassment
policy that had been adopted by a school district, and it
prohibited the expression of--it not only prohibited the
expression of political viewpoints, but it went so far as to
say that just about anything that any student would say about
another student that would be offensive to that student,
including comments on the way the student dressed, or the
things that they like to do, would be a violation of the
antiharassment policy. And under the First Amendment, unlike in
most other areas of the law, statutes can be challenged on
overbreadth grounds, and that was the ground on which the
statute was struck down in the Saxe case, that it was overly
broad, that it prohibited a great deal of speech that was
constitutionally protected.
The Supreme Court decided back in the Tinker case that
students don't lose all of their First Amendment rights to
freedom of expression when they enter the school grounds, and
Justice Brennan's opinion in that case set out the test that is
to be applied there, the schools have greater ability to
regulate student speech than Government has to regulate adult
speech in general, but the authority of school officials to
regulate political speech by students--in Tinker it was the
wearing of an arm band to protest the war in Vietnam--is not
unlimited, and there has to be a threat of disturbance on the
school grounds or a violation of the constitutional rights of
another student. And so any policy that regulated student
expression, political expression in a school, would have to
satisfy Justice Brennan's Tinker standard.
Senator Feingold. Thank you, Judge. Does Congress have the
authority to enact legislation that would protect gay students
from harassment in schools that receive Federal funding?
Judge Alito. That would fall within the South Dakota v.
Dole standard, and the question would be whether the condition
that's attached to the receipt of the Federal funds is germane
to the purpose of the funding, and that's a standard that gives
Congress a very broad authority.
Senator Feingold. So that Congress does have the authority
in general. The question would be the scope of it.
Judge Alito. Congress has the authority to attach all sorts
of conditions to the receipt of Federal money. It has to be
clear so that the States understand what they're getting into,
that if you take this money there are conditions that go with
it, but provided that that clear statement requirement is
satisfied and provided that the condition is germane to the
purpose of the funding, then Congress can attach conditions,
and it could do so in this area.
Senator Feingold. Judge, let me switch to an ethics issue
that is not Vanguard. As you know, after your testimony
concludes today, a number of outside witnesses are coming to
testify about your nomination, including seven current and
former judges from your court. As far as I know, this is the
first time that sitting Federal judges have testified on behalf
of a Supreme Court nominee. I am a little troubled by it. I
hope to have some opportunity to question the judges about
this, but I think it may raise something of an ethical issue
for you. If you are confirmed to the Supreme Court, how would
you analyze a possible recusal motion if an appeal on a case
from one of those sitting judges testifying on your behalf were
to come before you? Will you have to recuse yourself from any
case where one of these judges was involved in the decision?
Judge Alito. That's not a question that I've given any
thought to before this minute, Senator, so I don't know that I
could answer it, and I would want to answer any recusal
question very carefully.
Senator Feingold. Perhaps you could give me an answer after
you have had a chance to think about it.
Judge Alito. I'd certainly be happy to do that.
Senator Feingold. Appreciate that.
Mr. Chairman, I think that is sufficient. Thank you very
much.
Chairman Specter. Thank you very much, Senator Feingold.
We are on course to finish you before lunchtime, Judge
Alito. We have more potential questions from the Republican
side, and we have two more from the Democratic side.
Senator DeWine, do you have any questions?
Senator DeWine. Mr. Chairman, I will reserve my time.
Chairman Specter. Senator DeWine reserves his time.
Senator Schumer, you are recognized for up to 25 minutes.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Specter. With our conversation that you are going
to ask new questions.
Senator Schumer. That is what I want to ask but--
[Laughter.]
Senator Leahy. It is a new day.
Senator Schumer. I think some of my old questions, ones I
have asked before, should bother you. They bother me.
But in any case, I do have a few other issues that I do
want to talk to you about. The first is just a general question
on Presidential power. Let's just assume that it was found that
the President's right to wiretap people, the way we are
discussing it now in terms of the recent NSA revelations, was
found constitutional. Would there be a different standard if,
say, the President--does that necessarily allow the President
to then go ahead and go into people's homes here in America,
American citizens, without a warrant? Does the one necessarily
lead to the other?
Judge Alito. I would have to understand the--I would have
to see the ground for holding the wiretapping or the electronic
surveillance constitutional before seeing whether it would
apply in the case of other searches and seizures.
Senator Schumer. But let's assume it is constitutional.
Judge Alito. I'd have to know what the arguments were made
about it and on what ground it was found to be constitutional.
Senator Schumer. So it could follow, but might not; is that
what you would say?
Judge Alito. It very well might not. I would have to know
the constitutional ground for the decision relating to the
wiretapping, and I have no idea what that would be. It might
well not extend to things like physical searches of homes.
Senator Schumer. Is there a difference? Is there a
constitutional difference between a wiretap and an actual
physical search of the home on Fourth Amendment grounds? Is
there any that you know in cases--
Judge Alito. There are differences, yes, there certainly
are.
Senator Schumer. Thank you.
Judge Alito. Wiretapping is subject to--general criminal
wiretapping is subject to all the rules that are set out in
Title III, which are thought to be based in large part on
Fourth Amendment requirements. And the warrant requirement is
very strong in the area of electronic surveillance. When you're
talking about other types of searches, the searches can take
place in a variety of places for a variety of reasons.
Senator Schumer. But if it can be done under the inherent
power that the President has for the one, why could it not be
done for the other? I am not asking about the statute.
Judge Alito. There's also a Fourth Amendment issue. Any
search--
Senator Schumer. In both cases.
Judge Alito. In both cases, and the Fourth Amendment could
play out very differently in those two contexts.
Senator Schumer. Now I would like to go back to some of the
line of questioning that Senator Durbin explored yesterday when
he mentioned the crushing hand of fate, Bruce Springsteen.
Judge Alito, I assume you believe that you will be able to
be fair in every case that comes before you on the Supreme
Court.
Judge Alito. I have no reason to think I will not be. I
certainly will.
Senator Schumer. And you do not believe that you prejudged
any legal of constitutional issue?
Judge Alito. I don't believe that I have.
Senator Schumer. And you will take care to apply the rules
of law and procedure equally and evenhandedly, no matter who
the parties are, prosecution or defense?
Judge Alito. I certainly will, yes, Senator.
Senator Schumer. Employer or employee.
Judge Alito. I will apply the laws evenhandedly to
everyone.
Senator Schumer. And I take it you it you believe that you
have done just that on the Third Circuit while you were there?
Judge Alito. I believe I have.
Senator Schumer. Yesterday Senator Durbin asked about
Pirolli v. World Flavors, and you remember that case. You
discussed it with Senator Durbin. And the case involves the
claims of a mentally retarded man who brought suit against his
employer for violent and persistent sexual harassment by his
coworkers, am I right?
Judge Alito. Those were the claims.
Senator Schumer. And the majority allowed the case to
proceed, finding that the Court had ``discretion to consider
issues not raised in the brief.'' And they did so to give the
plaintiff his day in court. You exercised your discretion to
vote against giving him his day in court because his lawyer
failed to raise the argument in the brief. As you told Senator
Durbin, ``There is a very important principle involved in
appellate practice''--these are your words--``I think it goes
with the idea of judicial self-restraint, and that requires
parties raise issues in the trial court, and that if they don't
raise the issue in the trial court, then absent some
extraordinary circumstances, they shouldn't be able to raise
the issue on appeal.'' and that was the principle there. Those
are your words, right?
Judge Alito. I believe they are, yes.
Senator Schumer. Now I would like to go to two other cases
that you had when you were on the Third Circuit. The first one
is Smith v. Horn, where a similar issue arose. That was a
criminal case involving a habeas corpus petition brought by a
criminal defendant, right?
Judge Alito. Yes, it was.
Senator Schumer. And it turns out that in that case as
well, just like Pirolli, one of the parties had failed to raise
a relevant argument in its brief, right?
Judge Alito. Well, Smith v. Horn was really not comparable
to Pirolli for a very important reason. Smith v. Horn was a
habeas case, and so what is involved there is not simply a
dispute between private parties, and of course, disputes
between private parties are very important, and individual
rights can be involved.
Senator Schumer. No, I understand it is a Government case.
Let me just make--
Judge Alito. There's more to it than the Senator--
Senator Schumer. I am going to let you answer it. I just
want to make the point here so everybody can--the majority in
Smith v. Horn to say--this time it was the Government that
failed to raise the issue in the district court brief. This
time you were prepared to excuse that failure. This time you
felt it was appropriate to consider the issue on your own, and
I am at a loss to understand the difference. I am going to give
you a chance to explain, but I want to read what the majority
in Smith v. Horn had to say about your indulgence of the
Government for failing to bring up an issue, just as the
retarded person did with Pirolli.
They said, ``Where the State has never raised the issue at
all in any court, raising the issue ourselves puts us in the
untenable position of ferreting out possible defenses upon
which the State has never sought to rely. When we do so, we
come dangerously close to acting as advocates for the State,
rather than as impartial magistrates.''
So as far as I can see, the legal principle and procedural
rule in each case was precisely the same, the only difference
being that the first was a sexual harassment plaintiff who left
out an argument, and in the second, it was the Government who
did. In the first case you said to that retarded individual,
``Sorry, you're out of luck.'' In the second case you said to
the Government, ``I'll make your argument for you.'' and that
does not seem evenhanded to me. Can you explain the difference?
Judge Alito. Yes, Senator. As I was attempting to explain a
couple minutes ago, there is an important principle called the
Principle of Comity that is involved in habeas cases, and it
goes to a critical part of our concept of federalism, and it is
something that Congress itself has very strongly recognized in
the habeas corpus statute. What I'm talking about there is the
doctrine of procedural default, which is very closely related
to the doctrine of exhaustion. They go hand in hand. And what
Congress has said in the Antiterrorism and Effective Death
Penalty Act of 1996 is that on the issue of exhaustion, the
court has to consider that even if the parties don't raise it.
Senator Schumer. Now, that applies to the Government as
well as to the defendant?
Judge Alito. Absolutely. The issue of exhaustion must be
considered by the Federal habeas court, even if the State
prosecutor does not raise the issue of exhaustion. And why did
Congress say that? Congress said that because there's something
more involved here than a dispute between the State prosecutor
and the habeas petitioner. There is respect for the Federal
system of Government involved. There is respect for the State
court system involved.
Senator Schumer. But the majority did not agree with you in
that situation, did they?
Judge Alito. The majority, but what I'm saying, Senator, is
that the underlying principle of comity makes this case makes
Smith v. Horn quite different from a dispute between private
parties.
And the Supreme Court has said that it is appropriate in
certain circumstances for a court to consider procedural
default sua sponte, and that's what I thought we should do
there. And my position on--
Senator Schumer. Let me ask you--I understand your
explanation. I am not sure I agree with it, but let me go on to
another one. This is Dillinger. In this case it was with a
corporation. The case is Dillinger v. Caterpillar. And it is
also a case where a party did not raise an issue at trial, will
not have the same explanation as the habeas case, obviously.
They did not raise the issue at trial or on appeal. This time a
large company didn't, Caterpillar. And the majority held that
it was waived and it sided with the plaintiff, who was
seriously injured in the accident, right?
Judge Alito. I don't have a recollection of all of the
facts--
Senator Schumer. OK. Well, let me tell you. Maybe this will
refresh your recollection. The majority wrote that it was not
appropriate to exercise its discretion--again, it was the
majority--to excuse the defendant company's waiver when the
consequence of the decision would be to deprive a seriously
injured plaintiff of a trial in conformity with applicable law.
That is the majority.
You dissented, with the result, had you prevailed, that the
accident victim's case would have been over. The majority
described your approach as follows. Quote, ``There is an
insurmountable procedural difficulty with Judge Alito's
position. Caterpillar never advanced this argument at trial, an
oversight that Judge Alito excuses on a ground that a district
court decision may be affirmed on an alternative ground, though
not advanced at trial.''
So in the Dillinger case, you also thought it was
appropriate to use your discretion to excuse Caterpillar, isn't
that right?
Judge Alito. Well, I'd have to refresh my recollection
about exactly what was involved in the case. There is--
Senator Schumer. Can you explain the difference between the
two for us, why in one case it was OK and why in another case
it wasn't?
Judge Alito. Senator, I'd have to refresh my recollection
about Dillinger--
Senator Schumer. So you don't--
Judge Alito.--but what you've just mentioned calls--relates
to the principle that it is appropriate for an appellate court
to affirm a decision of a lower court on an alternative ground
when the basis for that is apparent from the record of the
case. So if the facts that are--if it's a purely legal issue,
for example, and you're talking about whether you're going to
affirm or whether you're going to reverse--
Senator Schumer. Was that the case in Dillinger?
Judge Alito. Without refreshing my recollection, I wouldn't
be able to tell you--
Senator Schumer. All right.
Judge Alito. But what you read--
Senator Schumer. I would posit to you that, again, it was
an example of your seeming to have more sympathy for a certain
type of plaintiff than another, but what I would like to do,
Mr. Chairman, is just ask permission that Judge Alito could
respond to the difference, which he hasn't been able to do here
because he doesn't recall the details of the case, in writing
in the next few days.
Chairman Specter. Is that acceptable to you, Judge Alito?
Judge Alito. Certainly, Senator, yes.
Senator Schumer. Because he can then go look at the case
and explain to us why he thought it was different.
Chairman Specter. With Judge Alito's agreement, that will
be the procedure.
Senator Schumer. Thank you. Next, strict construction.
President Bush has stated his beliefs that judges should be
strict constructionists, rigidly adhere to the letter of the
Constitution. He has described you as a strict constructionist
who favors judicial restraint. So I would just like to explore
one particular issue with you.
First, as you said before, there are certain very
straightforward questions that are easy to interpret. It says
in Article I, Section 3, no person shall be a Senator who will
not have attained the age of 30 years. That was a section you
mentioned at our individual meeting, and there is no way that
it could be constitutional, I suppose, for a 27-year-old to
become a Senator, correct? That is easy. That is strict
construction, easy.
Judge Alito. I can't think of a reason why that would not
be the case.
Senator Schumer. Good. Me, either, lucky for them.
[Laughter.]
Senator Schumer. Next, another one. No person except a
natural-born citizen or a citizen of the United States at the
time of the adoption of this Constitution shall be eligible to
the office of President. So there is no way, without a
constitutional amendment, that, say--I know Senator Hatch has a
bill--that, say, Arnold Schwarzenegger could become President
under the current circumstances. That is easy.
Judge Alito. Well, I don't want to express a view about the
constitutionality of Senator Hatch's bill.
Senator Schumer. No, it is a constitutional amendment.
Judge Alito. A constitutional amendment.
Senator Schumer. I am just asking you very simply, you
would need a--
Judge Alito. No one but a natural-born citizen can be the
President of the United States.
Senator Schumer. OK. Now I want to ask you about the 14th
Amendment, which sets forth the definition of citizenship. It
states, in relevant part, all persons born or naturalized in
the United States and subject to the jurisdiction therefore are
citizens of the United States. All persons means all persons.
That is pretty easy. Do you agree this is a fairly clear and
straightforward provision of the Constitution?
Judge Alito. There are legal--there are active legal
disputes about the meaning of that provision at this time.
Senator Schumer. Right. But given the clear language, could
Congress pass a statute, not a constitutional amendment,
denying citizenship to a person born in the United States?
Judge Alito. And I know that there are proposals to do
that. I know that it is an issue that is in play. If it were to
come before me, then I would have to go through the whole
judicial process of decisionmaking--
Senator Schumer. Is there any way that you can see, just
off the top of your head here, that that kind of statute would
be constitutional?
Judge Alito. Well, Senator, on issues that can come before
me in litigation, I need to apply the same standard that
previous nominees have applied, and that is no hints and no
previews. And they may be--they may turn out to be easy issues.
They may turn out to be hard issues. But I can't opine on them
here off the cuff. I would have to go through the process of--
Senator Schumer. Just make the argument. You don't even
have to tell us how you would decide. What imaginable argument
could there be for a statute that Congress could deny the
citizenship to those born in the United States, say, on the
grounds that their parents were illegal aliens? Is there any
constitutional argument that you can see off the top of your
head?
Judge Alito. Well, Senator, I don't want to say anything
that--could I answer the question, Senator. I don't want to say
anything that anybody will characterize as an argument that I
am making on one side of this question or on the other side of
the question. I know that an argument is being made by people
who favor this kind of legislation based on the language, under
the jurisdiction of the United States, and I don't know whether
that will turn out to--I don't know whether it will come before
me. I don't know whether, when it's analyzed, it will turn out
to be a compelling argument or a frivolous argument or
something in between and I wouldn't express an opinion on it.
Senator Schumer. Judge, I simply asked you to give us an
interpretation of one of the most direct and clear provisions
in the United States Constitution, and if you can't give us an
answer on a very, it seems to me, clear-cut question like that,
I find, and I think many of us find, make it difficult to make
an assessment of how to vote on your nomination because--
Judge Alito. Senator, my answer is that it is inappropriate
for a sitting judge or for a nominee to a judicial position to
offer opinions on constitutional questions that are percolating
at that time and may well come before that judge or that
nominee. It may turn out to be a very simple question. It may
turn out to be a complicated question. Without studying the
question, I don't know and I wouldn't--and even if I had an
initial impression, I wouldn't voice it here. I would have to
go through the whole judicial decisionmaking process before
reaching a conclusion that I would be willing to express.
Senator Schumer. I want to move on now to the Commerce
Clause and Rybar. As you know, after you ruled on Rybar,
Gonzales v. Raich was decided and Justice Stevens wrote for the
majority the following. ``Our understanding of the reach of the
Commerce Clause, as well as Congress's assertion of authority
thereunder, has evolved over time.'' Do you agree with that
statement? Has our understanding of the scope of that clause
evolved over time, and is it appropriate for our understanding
to evolve?
Judge Alito. I think our understanding of the reach of the
Commerce Clause has evolved as the commercial activity of the
country has developed. Commerce in the United States at the
time of the adoption of the Constitution was entirely different
from commerce in the United States today.
Senator Schumer. I think most people would agree with that,
maybe--
Judge Alito. As a matter of looking at the development of
case law, certainly the case law has developed. The pre-New
Deal case law was fundamentally different from the post-New
Deal case law, with which I don't have any quarrel.
Senator Schumer. Right. But here, I am going to read you
two views on the Commerce Clause. One, Congress's authority to
enact laws necessary and proper for the regulation of
interstate commerce is not limited to laws directed against
economic activity that have a substantial effect on interstate
commerce. Where Congress has the authority to enact a
regulation of interstate commerce, it possesses every power
needed to make that regulation effective.
Then there is another view. Under the Commerce Clause,
Congress may regulate interstate commerce, not activities that
substantially affect interstate commerce. Those are pretty
diametrical.
I am not asking for an absolute here, but which one is
closer to your view of the Commerce Clause?
Judge Alito. Well, the second view is contrary to Supreme
Court precedent. It is contrary to even Lopez and Morrison,
which says that Congress may regulate activities that
substantially affect interstate commerce.
Senator Schumer. Right, and the first actually was Justice
Scalia's concurrence in Raich, and the second, even though it
may be contrary to precedent--we have talked about precedent
before--was actually Justice Thomas's dissent in Raich, so it
is obviously a view that has some currency on the Court. I am
glad to see you favor the first one.
Now, I asked you a question when we met. I asked you, as
you know, because we talked about it, I was very troubled by
your decision in Rybar as--and Mr. Chairman, I just don't want
to--could I get permission for an additional five minutes? That
is all I will need.
Chairman Specter. Yes.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Specter. I couldn't be very forceful about it, but
yes.
Senator Schumer. Thank you. I will take it any way you give
it.
[Laughter.]
Senator Schumer. I asked you in Rybar when we had met if
you would have decided the case differently after Raich, which
is quite different than Rybar, and at that point you said you
wanted to think about it and I told you I would ask you here.
So I guess you have thought about it now. So my question is,
does the recent Supreme Court decision in Raich, joined by
Justice Scalia, whose opinion you said was closer to your view
than the other, affect your thinking? More specifically, had
Raich been decided before you got Rybar, do you think you would
have decided it differently?
Judge Alito. Well, Senator, I don't recall making a promise
that I would reach a definitive conclusion--
Senator Schumer. I asked you to think about it. You said
you would. That is all.
Judge Alito. And I have thought about it, but what I can
say is that I certainly would have thought about Rybar
differently had I had Raich available at that time. My effort
in Rybar was to follow Supreme Court precedent. At the time,
Lopez was the latest expression of the Supreme Court's view of
this question, and if the chronology had been different and I
had the benefit of Raich, I would have taken that into account.
Senator Schumer. OK. Now, just one other thing on the
Commerce Clause. So what you are saying is that there is a
possibility--we won't put a percentage on it--that Raich might
have changed the outcome of your ruling or your dissent in
Rybar?
Judge Alito. Well, it certainly would have changed my
thinking and my analysis. I would have had to take it into
account.
Senator Schumer. We will take what we can get.
Next, as a U.S. Attorney, you frequently crossed paths with
State agencies, particularly law enforcement agencies, and at
that point, as I remember--I was a Member of Congress very
active in anti-crime legislation--there were all kinds of
fights about whether there should be an increased Federal role
in crime fighting. You must have dealt with some of those
statutes. There was carjacking and trigger-lock type offenses.
You must have presided over some prosecutions of local
corruption based on an expansive Federal law theory. Mail fraud
was being expanded at that time. These enforcement priorities
tended to be conservative. I agreed with them, but they tended
to be conservative priorities.
So did your tenure as U.S. Attorney affect your thinking on
these kinds of situations in terms of the State, the need for
Federal involvement when the State can't do it?
And it brings up, and then I will let you speak about this
for a minute, in the odometer Act--I can't remember the exact
name of it, but the legislation that was bill S. 475 that
Senator Feinstein mentioned, you urged disapproval. But it
seems to me if that legislation was disapproved, it would have
been very difficult for the Federal Government to regulate
odometers because cars that were transferred from one State to
the other wouldn't have the same uniform system in terms of
their title, and it seems to me, at least, in this world which
is becoming smaller and smaller that some of the federalism
theory, that the States should have primacy in regulation, just
don't make sense.
It didn't make sense to me in your decision in Rybar, as we
have discussed. Ninety percent of the guns used in crimes in
New York come from out of State. There is no way New York State
could stop them unless they inspected each car that came across
the George Washington Bridge. Similarly, here. Without this
Federal statute, there is no way the Federal Government could
regulate odometers. It would be ridiculous to ask General
Motors to have 50 different standards for 50 different States.
And similarly as U.S. Attorney, there were areas where it was
better for, particularly in our interconnected world, for the
Federal Government to prevail.
And yet here you were saying--you were working for the
administration, but they ultimately rejected your view--that
State primacy is such--you even said in this memo, after all,
it is the States, not the Federal Government, that are charged
with protecting the health, safety, and welfare of citizens.
That is a pretty broad statement. I would take it you had
exceptions to it, of course--Medicare, U.S. Attorneys. You
wouldn't have had a job if that was an absolute statement back
then.
But just tell us a little bit, for a couple of minutes,
about your view of the balance between State and Federal
powers, particularly in light of the changing circumstances we
face.
Judge Alito. Well, I think your mentioning those two
things, the memo that I wrote when I was in OLC or that I
signed when I was in OLC and my service as U.S. Attorney brings
out an important point. I was playing different roles. I had
different responsibilities in those two jobs. When I was in
OLC, I think what I was expressing in that memo was the
federalism policies of the Reagan administration, which as I
mentioned earlier, involved going beyond simply insisting on
compliance with constitutional standards. It also involved
implementing a policy that certain things should be done at the
State and local level, even if the Federal Government could do
that.
As U.S. Attorney, it was my job to use the legal resources
that were available to address the crime problems of the
district for which I was U.S. Attorney and I approached that on
a basis of cooperating with State and local law enforcement and
my approach was that we should do, the Federal prosecutors
should do and the Federal investigative agencies should do the
things that they were best suited to do and that it should be a
practical division of responsibility. And in many instances as
U.S. Attorney, we were using far-reaching Federal powers. We
brought a Hobbs Act prosecution and were stunned when the
district court initially threw it out on Commerce Clause
grounds, because that was virtually unheard of.
Senator Schumer. All I am trying to get at here, there is a
practical dimension here that I think fits within the
Constitution, and you are agreeing with that.
Judge Alito. Absolutely, and I--
Senator Schumer. I just have to conclude, but go ahead.
Judge Alito. Senator, that is fine.
Senator Schumer. Good. Quit while we are ahead on that one.
Let me just, in conclusion, Judge, thank you. It has been a
long 3 days, obviously. As your testimony in these hearings
comes to a close, I just have to tell you that I remain very
troubled, not by anything in your personal history so much as
by your judicial views.
You arrived before us this week with a record. It is a
record that contains evidence that you believe the Constitution
does not protect a woman's right to choose. It is a record that
suggests you believe in an executive branch so powerful that it
would trump other branches of government. It is a record that
makes you appear all too willing to curtail the ability of
Congress to look out for the little guy and a record in which
you all too often seem to reach for the legal theory that
allows you to side with the large and powerful when average
Americans touched by this crushing hand of fate need the most
help.
Unfortunately, by refusing to confront our questions
directly and by giving us responses that really don't
illuminate how you really think as opposed to real answers,
many of us have no choice but to conclude that you still
embrace those views, completely or in large part, and would
continue in a similar fashion on the Supreme Court. So while
the process is not yet over, we have written questions, we have
some witnesses, the evidence before us makes it very hard to
vote yes on your nomination.
On the first day of hearings, I said that while you give
the appearance of being a meticulous legal navigator, in the
end, you almost always choose the rightward course. I am sorry
to say that I haven't heard anything this week very substantive
to dissuade me from that opinion, but I thank you for being
here and going through these hearings.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Senator Sessions, do you have any questions?
Senator Sessions. Just a few. I would just respond to
Senator Schumer and Senator Kennedy and would note that that is
not what the ABA has concluded. They have interviewed 300 of
your colleagues, judges and lawyers who have practiced before
you and against you, and they rate you the highest possible
rating. They don't see you as an extremist, out of the
mainstream, or otherwise.
And I also want to thank your family for their patience in
going through all of this and listening to those of us on this
side as we expostulate on all sorts of things. I see your
sister back there, in her own right a nationally known
attorney, Rosemary. It is good to see you here. I understand
you were debate partners in high school. It must have been an
interesting household to have two prominent lawyers growing up,
so I will ask you how that was and who was the best debater.
[Laughter.]
Judge Alito. I will take the Fifth Amendment on the second
part of the question--
[Laughter.]
Judge Alito.--but it structured our arguments, so instead
of arguing about things at home, we would argue about the
issues that we were debating.
My wife insists that we actually argued a debate in front
of her class. We didn't know each other at all at the time and
didn't meet, actually, for many, many years later, but we did
have a debate at her high school, which was about 20 miles
away, and she insists she remembers seeing us debating in front
of her French class.
Senator Sessions. It must have been an interesting thing.
Apparently, your colleagues in school there were impressed.
They predicted you would serve on the Supreme Court one day,
and I think that is going to turn out to be a good prediction.
I would point out, Judge Alito, that you have been asked a
lot about separation of powers, FISA Act, and those kind of
things. This Congress has not clarified its position yet. As a
judge, if some of these issues were to come before you
involving congressional power or something, you would expect
the Congress to have formulated its position first, would you
not?
Judge Alito. Well, that would certainly be very helpful.
These are very--these are momentous issues and they're
difficult issues and they are--they have just come to the
surface in the last few weeks and I couldn't begin to say how I
would decide any of these issues without going through the
whole judicial decisionmaking process. I think it would be the
height of irresponsibility for me to try to do that.
Senator Sessions. I would agree, and the Chairman is going
to be having hearings within a few weeks here to discuss many
of these issues and it is something that every Senator will be
engaged in, whether they desire to or not, and we will have to
think these important issues through. I don't think they are
ripe yet for decision, that is for sure.
I would also note that with regard to Justice Jackson's
position on the President and his war making powers and the
question of when there is a higher position and a lower ebb
position, Chief Justice Rehnquist discussed that idea in Dames
and Moore v. Reagan and, in fact, pointed out that that doesn't
completely answer the question. Those answers are not black and
white and there is a spectrum running from explicit
congressional authorization to implicit or to explicit
congressional prohibition. So there are many factors that must
be considered, would you not agree, as you analyze those
matters?
Judge Alito. Yes, you have to know the specifics of the
situation.
Senator Sessions. On the question of jurisdiction of the
Supreme Court and whether Congress has the power to contain it
in some way, it does appear there is language in the
Constitution that indicates that. As you said yesterday, it is
there.
My question to you is do you believe that the three
branches of Government owe it to our country and to our
constituents to stay within our bounds and to avoid a
constitutional confrontation, a constitutional crisis? Isn't it
better if the courts restrain themselves, Congress would
restrain itself and not to go forward to an ultimate
confrontation of those issues?
Judge Alito. It certainly is. The issue of the ability of
Congress to take away the Supreme Court's jurisdiction over a
particular subject of cases is not something that I have
previously addressed in writings, unlike a lot of previous
nominees who had addressed that, and therefore I think felt
that they were freer to discuss that when they came before the
Committee.
That is not something that I have ever addressed in any
writing, nor is it something that I have studied, other than to
read a few--you know, read some of the authorities who have
addressed the question. I did mention that I had given a speech
expressing the idea that I thought that it was not a good
policy idea.
I could understand the--I understand the motivation, but I
don't think that it is good as a matter of policy to proceed in
that fashion. And I don't know what the argument would be as I
sit here in favor of taking away jurisdiction over an entire
class of cases. That would raise some serious constitutional
questions.
Senator Sessions. I would just say to you I think we ought
not to confront that question if we can avoid it, and that is
why I have not joined in legislation, some of which has been
filed in this Congress, to take jurisdiction away. But I do
believe that is some power that has been given to the Congress
and hopefully will not have to be utilized. Hopefully, that
sword will never be drawn because the Court will show restraint
and remain within the constitutional powers that they have.
With regard to the unitary Executive, there are just three
branches of Government in our Constitution. That is correct, is
it not?
Judge Alito. That is all I see in it.
[Laughter.]
Senator Sessions. Well, does every agency and department
have to be within one or the other?
Judge Alito. I think they do. That doesn't say that they
can't be structured in ways that differ from each other,
depending on their function. And that doesn't address the
separate issues of appointment or removal or whether--well, let
me just leave it there, with appointment and removal. But I
think that the Constitution sets up three branches and
everything has to be within one of those branches.
Senator Sessions. One of the things that I learned as
United States Attorney is these agencies think they are
independent entities. They think they are almost like nations.
When they get together--you probably had this experience--they
sign memorandums of understanding.
Wouldn't you agree they sometimes look awfully like
treaties?
Judge Alito. They do look--yes, they do look like treaties
between Federal law enforcement agencies and State law
enforcement agencies.
Senator Sessions. But, of course, the Federal Government is
one. They can't take two positions in a lawsuit. That is for
certain.
With regard to interstate commerce, there is a limit to
that, to the power of the Government, I believe. In the Hobbs
Act and the Racketeering Act that Senator Schumer mentioned,
doesn't it say within those Acts that the extortion of the
pattern of racketeering has to affect interstate commerce and
that is an element that the prosecutor must prove before a
conviction can be obtained?
Judge Alito. Yes, that is right, and the Federal criminal
statutes that I am familiar with almost without exception have
jurisdictional elements in them. That is the traditional way of
casting them. There are a few areas where that is not feasible,
such as drugs, but in most of the--most of the statutes have
jurisdictional elements right in them.
Senator Sessions. And that is basically the Lopez holding,
was it not? And in your opinion in Rybar, you specifically said
all that Congress needed to do was to put in an interstate
commerce nexus that would be proved to the jury, which I agree
with you; having prosecuted hundreds of drug cases, it has not
ever been a problem in those cases to prove.
That would have solved the problem, isn't that correct?
Judge Alito. That is right. In firearms cases, that is just
not a problem.
Senator Sessions. Well, I think you have testified
extremely well here. You have been most forthcoming. I disagree
with the recent comment that you haven't been forthcoming. I
would say--and I think Senator Biden indicated that we have not
had a witness more forthcoming, more willing to discuss the
issues than you have.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
I thought we were going to get to that light at the end of
the tunnel before one. It looks like we are going to be a
little later than that, but we don't want to take a break now.
So to the extent we could move ahead rapidly, it would be
appreciated.
Senator Durbin, you had originally asked for ten minutes,
but I understand you want more time. How much would you like?
Senator Durbin. Senator, I will do it as close to ten
minutes as I can. I might need a few extra. I want to reach the
end of that same tunnel.
Chairman Specter. All right. Let's set the clock at ten,
with flexibility to exceed that.
Senator Durbin. Thank you very much.
Thank you, Judge Alito. Thanks to your family for putting
up with this endurance test, and I appreciate your patience
throughout.
First, let me address the issue of court-stripping that was
mentioned by my friend from the State of Alabama. I really hope
that Congress will never draw that sword. We heard about it
during the Schiavo case. If we are going to have a truly
independent judiciary, the thought that Congress will take away
from the courts issues which we disagree with would really
jeopardize it. And just editorializing, I hope we don't reach
that point.
After you leave today, there will be a panel of your
colleagues on the bench from the Third Circuit. Was this your
idea that they come and testify?
Judge Alito. No, it was not.
Senator Durbin. Were you asked if it was a good idea?
Judge Alito. No, I was not.
Senator Durbin. OK. I understand it has never happened
before and that is why I asked you that question. I don't know
who came up with this notion, but it does raise some
interesting questions which we have shared on a bipartisan
basis about that testimony. But since you weren't involved in
that decisionmaking, I will drop it at that.
Then there will come some public witnesses and one of those
witnesses will raise a contrast between two decisions you made,
and I am going to give you a chance now to respond to that
charge or that observation that will be made. Fourth Amendment
cases. One we have talked about a lot, Doe v. Groody, another
we have talked about, I think, tangentially which involves
Leveto. I hope I am pronouncing that correctly.
Judge Alito. Leveto, or I am not sure what the
pronunciation is, yes.
Senator Durbin. You know which case I am concerned with?
Judge Alito. Yes, I do.
Senator Durbin. In the Leveto case, a veterinarian and his
wife, subject to Internal Revenue Service agents coming at 6:30
in the morning, detaining him, patting him down in an Internal
Revenue Service investigation, holding him for 6 hours in his
office. Then they went to his home, found his wife in her
nightgown, patted her down, held her incommunicado for a period
of time. And they brought a civil suit and said the Government
went too far; they didn't have the authority to do those
things, to pat us down and search.
And your conclusion, writing the majority opinion, was,
yes, they did go too far. There was a question about immunity
which I won't touch on, but at least from the Fourth Amendment
point of view you said that the Government went too far.
Now, of course, the notorious case that has come up time
and again of Doe v. Groody. In that case, there is a search of
premises and a John Doe search warrant looking for someone who
might have been involved in drug-dealing. An affidavit attached
to the warrant says that it could also involve persons on the
premises who may be hiding drugs, but the affidavit is not part
of the search warrant. It is maybe incorporated in general
terms. The majority of the court says that it was not
incorporated, Judge Chertoff writing for the majority.
Particularly egregious is the fact that a mother and her 10-
year-old daughter were strip-searched pursuant to that search
warrant. And in that case, you concluded that that was
warranted, that was an acceptable search.
So the witness who comes before us is going to say, Judge,
how can you do this? You have a veterinarian here and his wife,
an IRS search. In their case, you said they went too far when
they patted them down and searched them. The next case
involving a 10-year-old girl in a strip search--you say they
didn't go too far.
How would you compare the two and draw the distinction
between them?
Judge Alito. Well, the Leveto case involved the issue of
how long they could detain people who were present on the
premises while they executed the search of the premises. And
they detailed these people for a very long period. I don't
remember--
Senator Durbin. Six hours, or more.
Judge Alito. It might even have been longer. It was a very
long period of time and there was no warrant for their arrest.
There was no claim that there was a justification to seize
them, other than the fact that they were present on the
premises at the time when the search was being executed.
The Doe v. Groody case involved the question of the
interpretation of the warrant, and the standard that is to be
applied there is, the Supreme Court has told us, a practical,
common-sense instruction. It is not--the warrant is not to be
interpreted like a sophisticated commercial instrument that is
drafted by parties.
The facts were--you mentioned many of them--that the
affidavit prepared by the police officer said we have probable
cause to search anybody who is found on the premises because we
know that--we have probable cause to believe that this drug
dealer will hide drugs on the people on the premises.
And they presented that to the magistrate and the
magistrate issued the warrant, attached the affidavit to the
warrant and said the warrant is incorporated for--and I guess I
left out the important fact that the officers--they said we
have probable cause to search anybody on the premises and that
is what we want; we want authorization to search anybody on the
premises.
And the magistrate granted the warrant and attached the
affidavit to the warrant, and said the affidavit is
incorporated for the purpose of probable cause, which meant
that the magistrate found that there was probable cause to
search anybody on the premises. But in the portion of the
warrant where it said person to be searched, it only mentioned
this--
Senator Durbin. John Doe.
Judge Alito. The John Doe, and using--now if this were a
bond, I think you would conclude the only person you can search
is John Doe. But it is a warrant, and my view was that viewing
this from a practical standpoint, when the magistrate says,
yes, you are right, there is probable cause to search anybody
on the premises, that is what he is saying. Those are the
people he is saying can be searched.
But even if one didn't agree with that, you would go on to
the qualified immunity question and say could a reasonable
police officer who says I have got probable cause to search
anybody who is on the premises and that is what I want, and you
go to the magistrate and he magistrate says I agree with you on
probable cause and here is your warrant--could they reasonably
think that the magistrate is saying, yes, search anybody on the
premises?
Senator 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?
Judge Alito. I was concerned about the fact that a minor
had been searched. And I mentioned that in my opinion and that
is something that is very unfortunate. But the issue in the
case was not whether there is some sort of rule that minors
can't be searched. That is 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 the firearms.
Senator Durbin. Or the issuing authority may be more
specific in the warrant which, as I understand it, is what the
Fourth Amendment is all about.
Judge Alito. Well, the warrant here certainly could have
been drafted better, and a lot of--
Senator Durbin. I think that is what the majority said.
Judge Alito. It is, but we have to take into account that
these are police officers operating under time pressure. And
the Supreme Court has told us that we are not to read these
warrants like they are complicated commercial documents. We are
trying to get at the practicalities of the situation.
Senator Durbin. I only have a few minutes and I will try my
best to end it, but I don't think I can do it in two.
In the Seventh Circuit, in Chicago, Judge Richard Posner is
a very prolific writer about many things. He recently made an
observation which I think really is a challenge to all of us on
the Judiciary Committee. We currently have a situation
involving immigration cases, particularly those involving
asylum and deportation, that we have to look at very seriously.
There was an effort to clear the backlog when Attorney
General Ashcroft was in charge, and some procedures were
changed to streamline the process. And a lot of these cases
were just churned out very quickly, with very little evidence
as to why decisions were being made. Judge Posner made that
point recently, publicly stating, if I might quote him, ``The
adjudication of these cases at the administrative level has
fallen below the minimum standards of legal justice.'' he said.
Now, you have been involved in some of these cases, about
nine split decisions, as we calculate here. There has been a
dramatic increase in the number of these cases coming to the
Federal appeals courts. In one particular case here, the Saidou
Dia case, which involved the deportation of a man back to
Guinea, where he refused to serve in the military. His wife was
then confronted in his home country at their home. When they
couldn't find him, they beat her, raped her, and burned down
his home. And this was a man who said, ``I don't want to go
back because I think it could be a dangerous circumstance for
me.''
In this case, you dissented and said, ``Return him to
Guinea.'' You didn't feel that there was a strong enough case
to grant him asylum in the United States and to stay.
The reason I raise it is we looked at your record in cases
where there was a split decision, and we discovered that you
ruled for the Government in eight out of nine cases and in
seven of those eight cases yours was the minority position.
So my question to you is: Do you appreciate the observation
made by Judge Posner about the terrible state of affairs when
it comes to the immigration judges and the decisions they are
sending for you to review? And why did you in those contested
cases consistently rule on the Government side?
Judge Alito. Well, Senator, I think I have ruled in favor
of asylum seekers in a number of cases now and--
Senator Durbin. There are usually no dissents in those
cases.
Judge Alito. Well, I know that I've ruled in favor of
asylum seekers in quite a number of cases. I don't have the
list on the tip of my tongue.
In the Dia case that you mentioned, the facts that you
recited were not the facts that were found by the immigration
judge. Those were the facts that the asylum seeker alleged, and
the whole issue in the case was whether there was sufficient
evidence to support the contrary finding of the immigration
judge.
I agree with Judge Posner that the way these cases are
handled leaves an enormous amount to be desired. I have been
troubled by this; my court has been troubled by this. But my
situation as a court of appeals judge before whom these cases
come is created by the legal framework that Congress has
created. And Congress has given us a very limited role in
reviewing factual findings by immigration judges. What Congress
has said is that we have to accept factual findings by the
immigration judge unless no reasonable fact finder could come
to a contrary conclusion. And that's a tough standard.
And I have tried to adhere faithfully to that standard in
all the cases that come before me, even if I felt that I might
have reached a different conclusion on the record.
Senator Durbin. Judge, wouldn't you concede there are
basically two standards that are being debated here? One is
that no reasonable adjudicator would have come to a different
conclusion. The other talks about substantial evidence. And you
have followed that second standard, the substantial evidence
case in Liu v. Ashcroft and Zhang v. Gonzales.
My point I want to get to--and this will be the last thing
I ask you--is if we know the system is 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 are asking for asylum and protection in the
United States not to let this broken system work to their
detriment?
Judge 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 of 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.
But there's the additional problem that the immigration
judges are 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, 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.
Senator Durbin. Thank you. I agree, and I thank you very
much. And I finished in under 15 minutes, Mr. Chairman.
Chairman Specter. Well, thank you very much, Senator
Durbin. That is appreciated.
Senator Graham? No comments. Wonderful.
Chairman Specter. Senator Cornyn?
Senator Cornyn?
Senator Cornyn. I yield back my time.
Chairman Specter. Doubly wonderful.
We are going to be going into executive session when we
finish, which will be just in a few moments, and we have
attempted to notify all Senators, those not here, through
staff. The purpose is to discuss in private any questions which
arise as to--any questions anybody may have in mind as to Judge
Alito. It doesn't suggest anything of substance, but we have
adopted this practice since Justice Breyer's proceeding and do
it as a matter of routine so that if there is something, by
going into executive session we do not signal that there is
something. And going into executive session does not mean, if
there is something, that there is nothing, but it is routine.
As I explained it, I am not quite sure why we do it, but we do
it.
[Laughter.]
Chairman Specter. It doesn't take long if you do it before
lunch.
[Laughter.]
Chairman Specter. There has been some suggestion we do it
after lunch, and let me tell you, it would be a long session.
But we are going to do it before lunch, and we are going to do
it in the Committee hearing room, which has been swept--another
unnecessary item because there is nothing to say in there. But
that is our procedure.
Now I yield to our distinguished Ranking Member, Senator
Leahy.
Senator Leahy. Thank you. Just briefly, Mr. Chairman, and
you have been so courteous on this, I hate to even take this
time. But in saying this, I want to make sure Judge Alito is
here.
When we started this, I actually started with the same
subject I started with then-Judge Roberts, now Chief Justice.
It is on the question of Presidential power, and whether he
appreciates the role of the Supreme Court as a check and
balance. As you know, I voted for him, and that is a leap of
faith because nobody makes commitments on exactly how they are
going to vote in one case or another.
In this case, it has been pointed out you are to replace
Justice Sandra Day O'Connor. Actually, initially Chief Justice
Roberts was nominated for that. Then Harriet Miers was
nominated. The President was forced by concerns within his own
party to withdraw her, then nominated you very quickly after
you had been--well, you had been interviewed once at the
beginning of his term, but then you were interviewed again by
Vice President Cheney and Karl Rove, Scooter Libby, I think a
few others. And that is why I worry. I just wanted to make sure
in my own mind that you would stand as a check and balance, for
this President or any President.
I know your concerns you expressed in the year 2000. You
criticized the independent counsel law. So many times in the
questions I have raised this issue, because I was afraid you
would not act as a check and balance. We have a Government that
is getting more and more powerful, in the electronic age
especially powerful. We see illegal spying on Americans by
Americans.
All of us agree the President is not above the law any more
than you are or I am. But it takes more than that, especially
if we are giving the President the power unilaterally to
redefine the law, an issue that is going eventually to come
before you.
So those are my concerns. I wanted you to know what my
concerns are. They go beyond the other issues raised by Senator
Specter or other Senators, though those are legitimate issues.
But those are mine, and I wanted to say that to you personally.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Leahy.
We were about to excuse you from any further participation
in these proceedings, Judge Alito. I have been handed
statistics which show that you have been questioned for about
18 hours, the number of questions approximating some 700, and
some differences of opinion as to the comprehensiveness of your
responses. But Senators are entitled to their own views, and
you will be hearing more when we conclude the hearings and
later go into executive session for the Committee to vote and
further on floor debate. But you have certainly demonstrated
remarkable patience--I think everybody would agree with that--
and remarkable stamina and a very loyal family, led by your
wife. And we thank you for your public service, and you may be
assured that the Committee on both sides and all of the balance
of our 100 Senators will give very, very careful consideration
to the President's nomination of you for the Supreme Court.
We will recess now and we will resume at--it is uncertain
how long our session will be, so we will resume at 2:30 and we
will begin with a report from the American Bar Association, and
then we will move to witnesses from the Court of Appeals for
the Third Circuit.
Senator Leahy. Right now we are going to the closed--
Chairman Specter. But now we are going to the Committee
hearing room, Dirksen 226, for an executive session.
[Whereupon, at 1:10 p.m., the Committee was recessed, to
reconvene at 2:30 p.m., this same day.]
Chairman Specter. The Judiciary Committee will now proceed
with the confirmation hearing on Judge Samuel Alito for the
Supreme Court of the United States.
After our morning session, the Committee met in executive
session and reviewed confidential data on the background of
Judge Alito, and it was all found to be in order.
We are now proceeding with the witnesses. The tradition of
the outside witnesses, the independent witnesses, our tradition
is to hear first from the American Bar Association and their
evaluation of the judicial nominee.
We have structured this portion of our hearing differently
from what had been done prior to last year, and that is, where
the majority took most of the outside witnesses. The tradition
has been to have 30 witnesses, and the majority party had taken
18, and the minority party 12, and it seemed that it would be
more appropriate to have an even split, 15 and 15, and that is
the practice we are following. And of course, the ABA
representatives are not witnesses called by either Democrats or
Republicans. We have really done our best to proceed in a
nonpolitical way in the selection of a Supreme Court Justice.
There can be different evaluations as to how successful we are
in that, but that has been our effort.
We have limited testimony to 5 minutes for outside
witnesses. The next witness already nods in agreement. He was
here not too long ago for Chief Justice Roberts. And we have
established the 5-minute rule because we have 31 witnesses, and
the Senate is not in session, and all the members of the
Committee have other commitments. It is projected that we will
finish today, but we will have to keep on schedule.
We turn now to the American Bar Association panel, and we
welcome Mr. Steve Tober, Ms. Marna Tucker, and Mr. John Payton.
In accordance with the practice, the testimony will be given by
Mr. Tober, who is the Chairman of the American Bar Association
Standing Committee on the Federal Judiciary. He is an attorney
with a law firm bearing his name, experienced in civil
litigation, professional negligence and domestic relations;
undergraduate and law degree from Syracuse University; on the
board of the Law Review; deeply involved in New Hampshire and
New England legal communities, former chairman of the Committee
to Redraft New Hampshire's Rule on Professional Conduct.
We know the laborious job involved, Mr. Tober, which you
are about to describe, in reaching an evaluation of a Supreme
Court nominee, and the importance of your judgment, so we thank
you and Mr. Payton and Ms. Tucker for your public service.
Now, Mr. Tober, the floor is yours.
STATEMENT OF STEPHEN L. TOBER, ESQ., CHAIRMAN, AMERICAN BAR
ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
PORTSMOUTH, NEW HAMPSHIRE; ACCOMPANIED BY MARNA TUCKER, ESQ.,
D.C. CIRCUIT REPRESENTATIVE, AMERICAN BAR ASSOCIATION STANDING
COMMITTEE ON THE FEDERAL JUDICIARY, WASHINGTON, D.C.; AND JOHN
PAYTON, ESQ., FEDERAL CIRCUIT REPRESENTATIVE, AMERICAN BAR
ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
WASHINGTON, D.C.
Mr. Tober. Thank you, Your Honor. Thank you, Mr. Chairman,
members of the Committee. My name is Stephen L. Tober of
Portsmouth, New Hampshire, and it is my privilege to chair the
American Bar Association Standing Committee on the Federal
Judiciary.
I am indeed joined today by Marna Tucker, our D.C. Circuit
Representative, and by John Payton, our Federal Circuit
Representative.
For well over 50 years the ABA Standing Committee has
provided a unique and comprehensive examination of the
professional qualifications of candidates for the Federal
bench. It is composed of 15 distinguished lawyers who represent
every judicial circuit in the United States, and who annually
volunteer hundreds of hours of public service.
Our committee conducts a thorough, nonpartisan,
nonideological peer review, using well-established standards
that measure a nominee's integrity, professional competence and
judicial temperament.
With respect to a nomination to the United States Supreme
Court, the Standing Committee's investigation is based upon the
premise that such a nominee must possess exceptional
professional qualifications. The significance, range and
complexity of issues that will be confronted on that Court
demands no less. As such, our investigation of a Supreme Court
nominee is more extensive and is procedurally different from
others in two principal ways.
First, all circuit members on the Standing Committee reach
out to a wide range of individuals within their respective
circuits who are most likely to have information regarding the
nominee's professional qualifications. And second, reading
groups of scholars and distinguished practitioners are formed
to review the nominee's legal writings and advise the Standing
Committee. The reading groups assist in evaluating the
nominee's analytical skills, knowledge of the law, application
of the facts to the law, and the ability to communicate
effectively.
In the case of Judge Alito, circuit members combined to
contact well over 2,000 individuals throughout this Nation.
Those contacts cut across virtually every demographic
consideration, and it included judges, lawyers and members of
the general community. Thereafter, circuit members interviewed
more than 300 people who knew, had worked with, or had
substantial knowledge of the nominee. All interviews regarding
the nominee were fully confidential to assure the most candid
of assessments.
Judge Alito has created a substantial written record over
his years of public service. Our three reading groups worked
collaboratively to read and evaluate nearly 350 of his
published opinions, several dozen of his unpublished opinions,
a number of his Supreme Court oral argument transcripts and
corresponding briefs, and other articles and legal memos.
The academic reading groups were composed of distinguished
faculty from the Syracuse University College of Law and from
the Georgetown University Law Center. The practitioners group
was composed of nationally recognized lawyers intimately
familiar with demands of appellate practice at the highest
level.
Finally, as we do in any Standing Committee investigation,
a personal interview was conducted with this nominee. Judge
Alito met with the three of us on December 12th, and he
provided us a full opportunity to review matters with him in
detail.
After the comprehensive investigation was completed, the
findings were assembled into a detailed confidential report.
Each member of the Standing Committee reviewed that final
report thoroughly, and individually evaluated that nominee
using three rating categories: well qualified, qualified and
not qualified. Needless to say, to merit an evaluation of well
qualified, the nominee must possess professional qualifications
and achievements of the highest standing.
During our investigation questions were raised concerning
the nominee's recusal practice, and also concerning some
aspects of his judicial temperament. We have carefully reviewed
and resolved those questions to our satisfaction, as we have
detailed in our accompanying correspondence to your Committee,
which, Mr. Chairman, we ask to be made part of this record.
Chairman Specter. Without objection, they will be made part
of the record.
Mr. Tober. We are ultimately persuaded that Judge Alito
has, throughout his 15 years on the Federal bench, established
a record of both proper judicial conduct and evenhanded
application in seeking to do what is fundamentally fair.
As such, on the basis of its comprehensive investigation,
and with one recusal, the Standing Committee unanimously
concluded that Judge Samuel A. Alito, Jr. is well qualified to
serve as Associate Justice on the United States Supreme Court.
His integrity, his professional competence and his judicial
temperament are indeed found to be of the highest standard.
Mr. Chairman, let me say once again what we noted here back
in September. The goal of the ABA Standing Committee has always
been and remains in concert with the goal of your Committee, to
assure a qualified and independent judiciary for the American
people. With that, thank you for the opportunity to present
these remarks.
[The prepared statement of Mr. Tober appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Tober, for your
work and for ending right on the button, 5 minutes to a tee.
Mr. Tober. I worked on that, sir.
[Laughter.]
Chairman Specter. That quality of yours would recommend you
for Supreme Court argument, where Chief Justice Rehnquist
stopped the speaker in mid-sentence, and the word from Judge
Becker, who will testify later, he was looking for an
opportunity--he stopped me in mid-sentence one day--and he was
looking for an opportunity to stop a speaker in the middle of
the word ``if,'' I did not give him that chance.
[Laughter.]
Chairman Specter. Before proceeding to questions, I want to
yield to Senator Leahy, to see if he has any opening comments
that he wants to make.
Senator Leahy. I do not, Mr. Chairman. Thank you, though.
Chairman Specter. We have 5-minute rounds for each of the
members of the Committee.
Mr. Tober, picking up on your testimony that you found
Judge Alito to have evenhanded application of the law, how
would you amplify that with respect to what kind of materials
you have looked at, and what your evaluation was, and what led
you to that conclusion?
Mr. Tober. Be happy to, Mr. Chairman. The conclusion was
reached in large measure in interviews with, as I said, well
over 300 individuals around this country, over 130 of whom were
Federal judges. Many were State judges. Many were colleagues,
co-counsel, opposing counsel, who almost uniformly talked in
terms of his even-handedness, of his open-mindedness, of his
willingness to be fair. He is called ``a judge's judge'' more
than once in those interviews.
When we interviewed him we had questions that would have
been on that issue, and we discussed that issue with him to get
his own personal perspective on it, and we were satisfied with
what we heard at that time.
And perhaps it's best reflected in his writings, which
again, I indicated the body of that work was read by our three
reading groups collaboratively, and the conclusion that was
reached, if you will, the overarching conclusion that was
reached, is that this is a judge who brings pragmatic skills to
his decisionmaking. We discussed that with him in that
interview that we had on December 12th. He tried to do what he
thinks is right with respect to the application of the law that
is before him. He took us through how he analyzes that
approach, up to the point that when he is just about ready to
release his decision, he looks back once again at the law to
make sure he has not misapprehended something in the first
instance, and second, to make sure that the outcome is fair.
That to me suggests--
Chairman Specter. You say he came back to you twice?
Mr. Tober. I am sorry?
Chairman Specter. Was your testimony that he came back to
you? What did you mean when he came back and took another look.
Mr. Tober. He would look at his draft opinion, Mr.
Chairman, before it would be issued, and he would look back at
the law that he was applying in that opinion and the outcome
that was occurring in that opinion, just to justify in his mind
one more time that the outcome would be fair.
Chairman Specter. Did your group study all of his opinions?
Mr. Tober. The reading groups read 350 of his published
opinions, scores of his unpublished opinions and other
materials, yes.
Chairman Specter. And did they make any analysis of--an
issue has been raised as to whether Judge Alito unduly favored
the powerful or the Government. Did your ABA analysis reach
that issue?
Mr. Tober. That issue was one that we looked at, and we
discussed it in our letter of evaluation, and I gave some
examples of some of the disparate results that we were told
about. One of the reading groups reported to us that they could
not reach a full conclusion on whether or not it was some
attempt to favor one outcome for a group of litigants over
another. And while there were a couple of members in a couple
other reading groups that may have said the same thing in so
many words, there were a significant number of other
individuals in the reading groups who said they couldn't find
any such evidence of that. It was inconclusive with respect to
the reading groups.
What was of interest in the reading group reports to us was
a comment that was echoed by others, which is that in looking
for a sense of partiality in the opinions, the conclusion that
was left very often was one of pragmatism, that--
Chairman Specter. Let me interrupt you, because my time is
almost up, to ask you to clarify what was inconclusive in your
studies.
Mr. Tober. It was inconclusive whether or not there were
certain categories of parties who might have come out at the
wrong end of Judge Alito's opinions.
Chairman Specter. Did some of those readers find that he
was impartial and some find the contrary?
Mr. Tober. My understanding is it was inconclusive. We did
not receive any clarion call at one point that he was
representing or suggesting to have a bias against any
particular group of litigants before him.
Chairman Specter. A considerable amount of attention has
been paid in these hearings to the recusal issue of Vanguard.
Would you comment on what your committee found there?
Mr. Tober. I am going to defer to Mr. Payton, who took the
lead on the Vanguard-related issues, if that is OK with the
Chairman.
Chairman Specter. Mr. Payton?
Mr. Payton. We certainly looked into all of the recusal
issues. We asked Judge Alito in some detail about how the
Vanguard and the other recusal issues came about. But let me
put this in some context which I think will be helpful.
In the materials that Judge Alito submitted to this
Committee, he attached a list of all of the cases from which he
had been recused over his 15-year tenure, and that is 40 pages
long, with about 30 to 35 cases per page. It is well over a
thousand cases from which he was recused.
Among those cases that he was recused from were cases
involving Vanguard in 1992, cases involving his sister's law
firm throughout the tenure, cases involving the U.S. Attorney's
Office throughout the tenure, cases involving the other
entities that he had identified in his representation to this
Committee back in 1990.
A few cases, in fact, slipped through, and that has been
the subject of our inquiries and some of the testimony before
this Committee. We asked him how that came about. He explained
how he thought it came about, but I think it is fair to say he
was not certain how they slipped through, whether it was
through the screen, whether it was because they were pro se
cases.
In the end, he did acknowledge that it was his
responsibility that a mistake and error had been made, those
cases should have been caught, and he should have not heard
those cases. We listened quite carefully to all of that, and in
the context in which we understood how this came about, we
accepted his explanation that he simply had made a mistake.
These cases should not have slipped through the screen, just
like the other thousand or so cases were captured by the screen
in the process, but they did. They shouldn't have. And we think
that did not reflect in any significant degree on his
integrity.
Let me tell you something else we did that goes to both of
your questions, Mr. Chairman. We also interviewed an incredibly
broad array of judges--virtually all of the members of the
Third Circuit, virtually all of the district judges that were
in New Jersey and were in Philadelphia. We interviewed a number
of the other judges in the Third Circuit who were on the
district court who had contact with Judge Alito. And what we
learned from them almost unanimously was that he is held in
incredibly high regard with respect to the issues that this
committee, the ABA's committee, looks at: his integrity, his
judicial competence, and his judicial temperament. And on the
issue of the recusals, everyone--everyone--thought that he has
the highest integrity and that these few cases that slipped
through do not diminish his integrity.
Chairman Specter. Thank you, Mr. Payton.
The red light went on during the course of your testimony,
so I will terminate and yield to my colleague, Senator Leahy.
Senator Leahy. Just to followup on that, on Vanguard, the
only reason I even mention this is that the initial explanation
from Judge Alito and the White House after his nomination was a
computer glitch had precipitated the Vanguard case. But then he
answered some questions from Senator Feingold by saying that in
the Monga case it wasn't a computer glitch that caused his
failure to submit Vanguard to the clerk of the court. Then he
said when it came before him, he was not focused. Since your
report was filed, we have learned that Judge Alito did not have
Vanguard on his recusal list as far back as 1993,
notwithstanding the fact that in 1990 he had given a sworn
statement to the Committee that he would recuse.
Some of that information came after your report. Would it
change anything in the conclusion?
Mr. Payton. I think that it is--like I said, from the
interview with him, I am not sure we figured out what caused
these cases to slip through. I am not sure Judge Alito knew the
precise answer to that. But he did acknowledge that it was a
mistake.
On what was on his standing recusal list, I don't know what
was on his standing recusal list, but I just note in the
materials that were submitted to this committee, there is a
1992 entry of an entity that has the name Vanguard in it--it is
Vanguard--that says, ``Recusal because on standing recusal
list.''
I don't know what happened in 1993. I don't know if things
went on and went off. Something went wrong here, and these
cases came before him, and they shouldn't have. But they are a
very small number in a huge universe of cases from which he was
recused.
Mr. Tober. Senator, may I add to that very briefly.
Senator Leahy. Sure.
Mr. Tober. We did not find in the vast number of our
interviews and the review with the nominee and any other
extrinsic information we could look at any pattern of
intentional effort to try and have Judge Alito impose himself
in cases in which he did not belong. We are persuaded that some
errors were made, some mistakes were made, and they total up to
a small handful.
In the course of the numbers that he has been sitting on--
and I believe Senator Hatch suggested yesterday some 4,000 or
5,000 cases have been adjudicated involving Judge Alito--we
took that into context, particularly in light of the comments
from individuals who know him and work with him, with respect
to the ethics he brings to the position.
Senator Leahy. You understand the reason this became an
issue here is because it was based on a sworn statement that he
recuse.
You also looked into his open-mindedness, his commitment to
equal justice. I am just asking, in doing that--because I have
never served on one of these committees that you are on. There
have been a number of studies of the judge's record--Knight-
Ridder, the Washington Post, Cass Sunstein and others--and they
have concluded that he had much more likelihood of siding
against discrimination plaintiffs than other circuit judges.
Knight-Ridder reviewed 311 of his published opinions and found
that he seldom sided with a criminal defendant, a foreign
national facing deportation, an employee alleging
discrimination, or a consumer suing Big Business. And his
record stood out significantly from others in the circuit.
Did this question come in on the issue of whether he was
compassionate?
Mr. Tober. The answer is yes, we looked at that. Our
reading groups looked at it for us. We discussed it with the
nominee in our interview on December 12th. We are not immune
from the media stories that have been available. I suggest
everybody on my committee has been watching the last 3 days
very carefully. We are where we started with that issue, and
that is, the over 300 people we spoke with who know this person
as a judge, as an individual, are convinced that he has an open
mind, that he does not bring any bias to his decisionmaking.
Senator Leahy. And, last, on the issue of CAP, nobody is
suggesting a bias on his part, but what bothers me, when you
are doing a job application in 1985--we know Judge Alito is a
very careful person, and I mean that as a compliment. On a
carefully put together job application, he proudly proclaims
his membership in CAP, a group that was very much dedicated to
keeping minorities and women out of Princeton, one that would
probably look unkindly toward either Judge Alito's Italian
ancestors or my Italian ancestors. Was this just pandering to
the Meese and the Reagan administration, or was this just a
total screw-up?
Mr. Tober. May I defer to Ms. Tucker with that?
Senator Leahy. Sure.
Ms. Tucker. We looked at that question, Senator. We were
very concerned about that listing, knowing that membership in
that organization would put him perhaps on an extreme that we
would be uncomfortable with. His answers to our committee were
very similar, if not identical, to the answers to your
Committee.
He did not recall when he became a member or even what he
did, but he didn't recall ever attending any meetings or
reading any publications. He did recall that he joined the
organization because of the university's attempt to remove
ROTC--
Senator Leahy. But that is not really my question. Was
there any question of why--why was he so proud of this that he
would put it in a 1985 job opplication--when everybody--
everybody--knew what kind of an organization it was, where
Senator Bill Frist had condemned it and Senator Bill Bradley
had. Did you ask why he proudly put that on his application?
Ms. Tucker. We asked him why he put that on there. We
didn't ask him why he proudly put that on there. But he stated
that he recalled he was a member. We specifically asked him if
this was to--since it was a job application, was he pandering,
and he said it would be improper to not tell the truth on an
application, that he was a member of that organization. But
there were only two organization that he listed, as I recall,
on that application: one was the Federalist Society, the other
was the Concerned Alumni for Princeton. He did not have a long
list of activities at that time.
But I should say, in fairness, we were very concerned about
the membership of that and what happened, and all of the people
we spoke to on the courts, women and minorities, people who he
had worked with, people who had sat on panels with him side by
side in issuing judicial opinions, almost universally said that
they saw no bigotry, no prejudice. They thought he was a fair
man. And they felt that if he did put that--they were shocked
when they heard that that was listed on his application. And
they said, ``That is not the Sam Alito we know.'' And we heard
that time and time again.
Senator Leahy. Thank you very much.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Mr. Tober. Thank
you, Ms. Tucker. Thank you, Mr. Payton.
Senator Hatch?
Senator Hatch. I will reserve my time. Thank you.
Chairman Specter. Thank you.
Senator Kennedy?
Senator Kennedy. Thank you very much.
Did you know, Mr. Tober, that the Vanguard Ventron, which
is the case of 1992, actually involved the carpenters? It names
the carpenters which were on the Alito list for recusal, and--
Mr. Payton, maybe this should be directed to you--and that most
of the people that have looked through there in detail feel
that the reason that that was actually recused is because of
the carpenters. I think it is spelled carpenteers--yes, c-a-r-
p-e-n--carpenter, and that is the reason it was under the name
of the Vanguard. You are familiar with that?
Mr. Payton. Yes. I simply thought that it was unclear
whether or not what would have caused that to be kicked off
because of the standing recusal list was any hit with Vanguard
or something else. It is unclear. You cannot tell from what is
there.
Senator Kennedy. Did the committee know, when it inquired
of the nominee, that Judge Alito had made a promise to the
Committee under oath that he was going to recuse himself from
Vanguard?
Mr. Payton. Yes, and we asked him about that.
Senator Kennedy. And did he indicate what--well, what was
his response?
Mr. Payton. His response was that it was a mistake for
those cases to have slipped through. That was not just a
question about what the code said, but also what his
representation to this Committee encompassed, that it was a
mistake.
Senator Kennedy. Was the mistake, as you understand it, is
because he did not, for one reason or another, neglected to put
the Vanguard on his recusal list?
Mr. Payton. No, I do not think I could say it that
concretely. The mistake was that it got through. Why it got
through, I think it was not completely clear to us, and I am
not sure it was clear to Judge Alito. It got through.
Senator Kennedy. It was not on his 1993, 1994, 1995, 1996
list, and the 1993 said no changes were made from 1992. So
there is just 1 year, year and a half. We do not have the
record on it, and I am just wondering, in your inquiry and
review of that case, since that is the principal source of, as
I understand it, of revenue. I mean it has had sizable
increases in the revenue from the time he took that oath till
the more recent years. So that is one of the factors on it. I
was just interested, when he said it was a mistake, whether you
made a determination, detection, because we have not been able
to find that it was ever put on. Quite frankly, at least as a
member of the Committee, we have heard a number of reasons for
it. We have heard computer glitch. We have heard that it was an
interim pledge and a commitment. We have heard that it was a
pro se case and, therefore, the computers do not exist in the
Third Circuit the way they do in law firms here in Washington,
D.C. I am just trying to find out what was told to you.
To be very honest about it, if it had been said it was a
mistake in the very beginning, I do not even think this issue
would have taken more than 30 seconds of the Committee's time,
but since we have had so many different reasons for it, which
we have been trying to ascertain exactly what had happened, and
particularly since it was a pledge to the Committee and it was
a sworn statement to the Committee, that we are wondering what
the Bar Association, in its interview--
Mr. Payton. I do not know the answer to your question. I do
not believe that what you just said about what was on the list
in 1993-94 was known then. I was unaware of that, and I am not
sure Judge Alito knew that. But in our discussion with him, we
actually cut right through that and simply wanted him to tell
us if he agreed this was a mistake. Did you just miss it?
``Yes, I just missed it. It was a mistake.'' The why then sort
of became less significant.
Senator Kennedy. Well, of course, Mr. Payton, he did. He
took, during that same period of time, he took a name off the
list, so he must have been familiar with it. He took the U.S.
Attorney's name off the list. We went through this. I would be
glad to make available to you--you indicated that you had gone
through the hearings on this, and I welcome the opportunity
just to make available to you the same material, and to get
your response.
Mr. Tober. Senator, we indicated in our letter of
explanation, as we always do, that we continue to monitor these
proceedings, and we will be happy to revisit anything the
Committee wishes us to look at.
Senator Kennedy. I want to join in thanking you for the
service of the Bar Association. This is a very challenging and
in many sense, a thankless job. But I think the country is much
better off. So it judiciary. I thank you for your service.
Chairman Specter. Thank you, Senator Kennedy.
Senator Hatch has stated an interest in regaining some of
his reserve time.
Senator Hatch. Just shortly. We appreciate the efforts that
you make. We appreciate what the Bar Association is doing, and
we appreciate what you have done in this particular case as
well.
Frankly, he did state right off the bat, early in his
testimony, that he had made a mistake with regard to the
Vanguard matter. On the other hand, are you aware that not only
did he recuse himself once he realized he had made a mistake,
but he asked the succeeding panel to retry the case. Are you
aware of that?
Mr. Tober. Yes.
Mr. Payton. Yes.
Senator Hatch. Was that an appropriate thing to do?
Mr. Payton. He asked that the Chief Judge identify a new
panel, and I think that was the appropriate thing to do.
Senator Hatch. That is what an honest, decent judge would
do, is it not?
Mr. Tober. Sure, of course.
Senator Hatch. You are all aware of this 28 USC, the U.S.
Code statute on this, am I correct?
Mr. Tober. Correct.
Senator Hatch. I mean that statute defines a financial
interest for the courts. It says, ``Financial interest means
ownership of a legal or equitable interest, however small, or a
relationship as director, adviser, or other active participant
in the affairs of a party, except that ownership in a mutual or
a common investment fund that holds securities is not a
``financial interest'' in such securities, unless the judge
participates in the management of the fund.'' Are you aware of
that?
Mr. Payton. Yes.
Senator Hatch. Now, did he participate in the management of
the fund?
The answer is no. Then if he did not participate in the
management of the fund, would he have had, under normal
circumstances, to recuse himself?
Mr. Payton. I think the normal circumstances is amplified
by the representation to this Committee, which he acknowledged,
independent of the obligation that you are talking about, would
have caused him to not want these cases to come before him.
Senator Hatch. Right. But he made it clear that once he did
realize that there was a mistake, even though he did not,
according to this U.S. Code which is the basis, did not have to
recuse himself, he did so because he had said in his statement
that he would.
Mr. Payton. Yes, sir.
Senator Hatch. And you knew that. And so, I take it, you do
not find any real fault in the way he handled the Vanguard
matter?
Mr. Tober. That is so.
Mr. Payton. That is correct.
Senator Hatch. That is correct?
Mr. Payton. That is correct.
Senator Hatch. Thank you so much.
Chairman Specter. Thank you, Senator Hatch.
Senator Feinstein?
Senator Feinstein. Thank you very much for your service.
Have you heard anything in these hearings that would cause you
any concern or reason to change any of your views?
Mr. Tober. Well, the hearings are still going and I am
still listening. But to the moment, Senator, I have been
looking for any kind of material or discordant statement that
would have been inconsistent with anything that we have learned
or heard either through our interviews or our meeting with the
nominee, and to the moment I am still comfortable that we
understood the judicial and legal profile of Judge Alito when
we reached our rating.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feinstein.
Senator Kyl?
Senator Kyl. Mr. Chairman, I do not have any questions, but
I would like to thank the panel and the Bar Association for
its, I wonder, how many hours of work put into verifying the
qualifications of nominees, not just for the Supreme Court, but
the other nominations, and particularly, Mr. Payton, your
explanation of the matters that you testified to here. Thank
you very, very much.
Chairman Specter. Senator DeWine?
Senator DeWine. No questions, Mr. Chairman.
Chairman Specter. Senator Sessions?
Senator Sessions. Mr. Tober, you have 15 members of your
committee that goes out, and they divide up the work and
interview 300 individuals; is that what you did?
Mr. Tober. As it turned out, Senator, the Chair just gets
into a lot of marshaling, and the Third Circuit representative
had to recuse herself because she had argued a case before a
panel that Judge Alito had served on before he had been
nominated, and the decision had yet to come down, so she, by
our standards, removed herself. So I had 13 people out in the
field, interviewing well over 300 people, contacting over 2,000
people, putting together their own written reports, marshaling
the information from every corner and putting it in what turned
out to be an 11-pound report. And when I first received it, as
I told Ms. Tucker, I did not know whether to read it or send
out birth announcements.
Senator Sessions. We are glad you do not have to do
background work on Senators.
[Laughter.]
Mr. Tober. We are pleased it is done for the moment.
Senator Sessions. One of the things, you know, some of us
have complained about the ABA ratings, but there is so much
value to it, it strikes me, because is it not true that
sometimes when you are interviewing a lawyer that has been
before the judge, or lost a case, a lawyer who has litigated
against him, they will tell you things they may not come
forward and say publicly, and that you can get a good--you feel
like you get a better perspective on a nominee's professional
qualifications than you can get from reading the newspaper
perhaps?
Mr. Tober. Thank you for that question. Let me try and
answer it. The answer is yes. We have had the experience since
1948, when we started reporting our ratings to this Committee,
of being able to get comprehensive confidential information
from people who know the nominee directly in the trenches,
whether it be a judge, a lawyer or other people in the
community, and we are able to ask them with respect to
integrity, professional competence and judicial temperament,
with the full and complete understanding that there will be no
attribution, there will be no embarrassment, that if it is
important we need to know, and people indeed give us that kind
of information. So, yes, it is a remarkable process, and if I
have a moment, I would like to say it is a remarkable group of
people that I have had the privilege to work with.
Senator Sessions. And, Mr. Payton, you used the phrase that
they held him in incredibly high regard. I think you are a
premier litigator, you have argued before the Supreme Court. I
am sure you used those words carefully.
Mr. Payton. I did.
Senator Sessions. I thank you for your service, and I think
it has provided valuable insight to the Committee because you
see these things out there, and it is important for the
American people to know what do the people who really know and
work with this judge think about him, and we value your
comments.
Mr. Payton. Thank you.
Chairman Specter. Thank you, Senator Sessions.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
I would just like to echo what my colleagues have said
about the service you are providing not only to the Committee,
but I think the country, because most people in the country are
not lawyers. That is probably a good thing.
The idea of who you are getting as a person is important,
and the homework you have done gives us a good picture of this
particular man. But his judicial experience, compared to other
people that you have reviewed, seems to me that being on the
court for 15 years, you had a lot to look at.
Mr. Tober. Well, we do not compare one nominee to another,
Senator, as I am sure you can appreciate. But I will take the
direct question, and indeed, I believe we said in our letter of
evaluation that he has created an enormous record of public
service, and his writings speak top that, and that is indeed
what we have reviewed.
Senator Graham. Thank you. About your rating, you know, we
are all very pleased to the outcome here, but democracy is
about a process, not an outcome. The rule of law is about a
process, not an outcome. There may be an occasion where you
will render a writing I will not agree with, and that is just
the way it goes. But I think the process where you are involved
really helps us a lot. I think it helps the country, and I
appreciate the time you have taken from your families, from
your business to do it.
Now, what may take normal people 30 seconds to figure out
may take the Senate 3 days--
[Laughter.]
Senator Graham.--but we are going to ask one simple
question about Vanguard. With this much material to have dealt
with, and as many cases as he has heard, the first question for
me about Judge Alito is, who am I getting here? Is an innocent
mistake OK? I hope so because I make them all the time. What
would I not want? I would not want someone who is into self-
dealing. I would not want someone who skirts the ethical rules
and plays as close to the line as they could. Would it be a
fair statement that Judge Alito never plays close to the line,
he tries to do it the best he can, to take the highest approach
to ethics?
Mr. Payton. I think that from what his colleagues who know
him very well would say, is that they hold him in the highest
regard with respect to his integrity, and I think that
encompasses what you just said.
Senator Graham. Thank you very much. One last thought about
Vanguard. What is in it for him to intentionally hear the case
knowing that he should not? I have never found anybody that
could give me a reason why this judge would make an intentional
decision to avoid recusal when he should. Have you found a
reason?
Mr. Payton. I actually am unaware of anyone who has claimed
that he intentionally did this. It was a mistake.
Senator Graham. And there is no benefit one could find for
him intentionally doing it, based on the nature of the case.
Mr. Payton. I am not aware of one.
Senator Graham. Thank you all.
Mr. Tober. Senator, if I could just add, I believe it was
Professor Rotunda who submitted a report to this Committee, and
I think there was a line in there that caught my attention. He
said ``Reasonable people can make reasonable mistakes.'' And I
think that captures what we thought we found, and when we spoke
to Judge Alito about it, we were convinced that indeed that
happened.
Senator Graham. Again, thank you for your service.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman.
I just have a brief question because we have heard a lot
about the ABA rating, which is something that is prized and
important. Your sheet here says it describes three qualities:
integrity, professional competence, judicial temperament. Is
that right?
Mr. Tober. That is correct.
Senator Schumer. So it would not at all get into what
somebody's judicial philosophy would be, is that correct?
Mr. Tober. That is also correct.
Senator Schumer. And so if somebody were very far right or
very far left, as long as they had integrity, professional
competence or judicial temperament, you would give them--that
is what you would rate them on?
Mr. Tober. Senator, we do not do politics. What we do is
integrity, professional competence and judicial temperament.
They are objective standards and that is what we bring to this
Committee.
Senator Schumer. And if one standard was, however one
defined it, if somebody was out of the mainstream, again, your
rating would not give us any inclination whether that was part
of it?
Mr. Tober. If the suggestion was that they were out of the
mainstream politically, That is correct. If they are out of the
mainstream in terms of their judicial temperament, we might
have a different thought.
Senator Schumer. Thank you.
Chairman Specter. Thank you very much, Mr. Tober, Ms.
Tucker, Mr. Payton. We very much appreciate your service and
your being here today.
Mr. Tober. Thank you.
Chairman Specter. We next call the next panel--Judge
Becker, Judge Scirica, Judge Barry, Judge Aldisert. Judge Garth
will be coming to us electronically, but he appears on the
screen. Welcome, Judge Garth. And Judge Gibbons and Judge
Lewis.
Pardon me. Senator Coburn, do you have questions of the
ABA?
Senator Coburn. No, Mr. Chairman.
Senator Sessions. AMA, he would like to ask.
Chairman Specter. I begin by welcoming the judges. By way
of a brief introduction, I think it is worthy of comment how
this panel came to be invited. Judge Becker was in my offices
because since August of 2003 he has been performing mediation
services on asbestos reform legislation, more than 40 meetings
in a very, very tough legislative approach. And he was in my
office last December, at a time when I was being interviewed by
Kathy Kiley, of USA Today.
And I introduced Judge Becker to Ms. Kiley, who asked him
about Judge Alito. And without objection, I would like to make
a part of the record the article which Ms. Kiley wrote for USA
Today, dated December 14, 2005, which contains Judge Becker's
comments about Judge Alito.
After that, I discussed with Judge Becker the possibility
of his being a witness for Judge Alito. And after some
discussions, Judge Becker checked out the various
considerations and said he would be willing to do so if invited
by the Committee. And then Judge Becker talked to the other
judges who are here today, who also stated a willingness to
appear, if invited by the Committee, and I then sent them
formal letters of invitation.
Now, to the judges. Judge Becker is a graduate of the
University of Pennsylvania, 1954; Yale Law School, 1957;
appointed by President Reagan to the district court in 1970 and
to the Court of Appeals for the Third Circuit in 1981. He has
really been performing services as the 101st Senator, and by
way of full disclosure I have known Judge Becker since the fall
of 1950, when he was a freshman at the University of
Pennsylvania and I was a senior, and we have been good friends
ever since.
Judge Becker, thank you for your service to the United
States in so many capacities.
Judge Becker. Thank you, Mr. Chairman.
Chairman Specter. We have a procedure for five minutes. I
don't intend to bang the gavel on any of you judges, and not
because you are judges, but because my gavel is almost broken.
Judge Becker.
STATEMENT OF EDWARD R. BECKER, SENIOR JUDGE, U.S. COURT OF
APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA
Judge Becker. Mr. Chairman, Senator Leahy and other members
of the Committee, Sam Alito became my colleague when he joined
our court in 1990. Since that time, we have sat on over a
thousand cases together, and I have therefore come to know him
well as a judge and as a human being.
Many do not fully understand the intensity of the
intellectual and personal relationship among appellate judges.
We always sit together in panels of three and, in the course of
deciding and writing up cases, engage in the most rigorous
dialog with each other. The great violinist Isaac Stern,
describing an afternoon of chamber music, once opined that
after such a session, one knows his fellow quartet members
better than a man knows his wife after 30 years of marriage.
Now, this analogy, hyperbole aside, vividly describes the
intense relationship among appellate judges. I therefore
believe myself to be a good judge of the four matters that I
think are the central focus of this Committee as it decides
whether to consent to this nomination--Sam Alito's temperament,
his integrity, his intellect and his approach to the law.
First, temperament. Sam Alito is a wonderful human being.
He is gentle, considerate, unfailingly polite, decent, kind,
patient and generous. He is modest and self-effacing. He shuns
praise. When he had completed his tenth year of service on our
court, Sam declined my offer extended as chief judge--I was
then the chief judge of the court--to arrange the usual party
to observe 10-year anniversaries. Sam was uncomfortable at the
prospect of encomiums to his service.
Sam has never succumbed to the lure of big-city lights. He
has a sense of place, which for him is not nearby New York
City, but New Jersey, which to him has always been home.
Finally, there is an aspect of appellate judging that no
one gets to see, no one but the judges themselves--how they
behave in conference after oral argument, at which point the
case is decided, and which I submit is the most critically
important phase of the appellate judicial process.
In hundreds of conferences, I have never once heard Sam
raise his voice, express anger or sarcasm, or even try to
proselytize. Rather, he expresses his views in measured and
tempered tones.
Second, integrity. Sam Alito is the soul of honor. I have
never seen a chink in the armor of his integrity, which I view
as total. That opinion is not undermined by the furor over the
Vanguard issue, by which I remain baffled. My wife holds
Vanguard mutual shares which I report on my financial
disclosure form. However, I do not identify Vanguard on my
recusal list because I am satisfied that my wife possesses no
ownership interest in the Vanguard Management Company, which is
what controls the recusal determination. She has never received
a proxy statement, an opportunity to vote for directors, or any
indicia of ownership, other than her aliquot share and the fund
to the extent of her investment. I believe that the view of
Dean Rotunda which is in your record explains why Judge Alito
was not required under the law to recuse himself in the suit
against Vanguard.
Third, intellect. Judge Alito's intellect is of a very high
order. He is brilliant, he is highly analytical, and meticulous
and careful in his comments and his written work. He is a
wonderful partner in dialog. He will think of things his
colleagues have missed. He is not doctrinaire, but rather is
open to differing views and will often change his mind in light
of the views of a colleague. Contrary to some reports, Sam does
not dissent often. According to our court statistics, in the
last 6 years he has dissented only 16 times, a little over two
cases per year. That is the same number that I have dissented,
and fewer than a number of our colleagues.
In my view, Sam Alito has the intellect to sit on the
Supreme Court. I know all of its members. I know them
reasonably well, and in my view he will be a strong and
independent Justice, his own man. Finally, Sam's intellect is
not abstract, but practical. He does not mistake the obscure
for the profound.
Fourth, approach to the law. As I address this topic, I am
acutely aware of the deep concern of the members of the
Committee about this subject. I am also aware that my role here
is to testify to fact, not to opinion, and hence I will express
neither normative or predictive judgments.
The Sam Alito that I have sat with for 15 years is not an
ideologue. He is not a movement person. He is a real judge
deciding each case on the facts and the law, not on his
personal views, whatever they may be. He scrupulously adheres
to precedent. I have never seen him exhibit a bias against any
class of litigation or litigants.
He was a career prosecutor, but in the numerous criminal
cases on which we have sat together, if the evidence was
insufficient or the search was flawed, he would vote to
overturn the conviction. And if the record did not support
summary judgment against the plaintiff in an employment
discrimination or civil rights case, he would vote to reverse.
His credo has always been fairness.
Now, I know that there has been controversy about certain
ideological views expressed in some 20-year-old memos. Whatever
these views may be, his judging does not reflect them. I think
that the public does not understand what happens when you
become a judge. When you take that judicial oath, you become a
different person. You decide cases not to reach the result that
you would like, but based on what the facts and the law
command. What you decide as a judge are not general principles,
but the case in front of you. You do it as narrowly as
possible. That is what Sam always does, with great respect for
precedent. Sam Alito has been faithful to that judicial oath.
Now, my final point relates to another facet of his
approach to the law, and the best calipers that I could find to
measure his approach to the law was to compare it with my own.
I have been a Federal judge for 35 years, one week and one day.
My opinions would fill many book shelves, but I think that I am
fairly viewed as a mainstream or centrist judge.
A computer survey run by our court librarian received 1,050
opinions in cases on which Sam Alito and I sat together. In
these cases, we disagreed 27 times, which is probably about the
same number that I would have disagreed with most other
colleagues. Some cases turned on a reading of the record,
others on how rigorously or flexibly we interpreted the reach
of a statutory or constitutional provision or a State court's
jurisprudence, or applied our usually deferential standard of
review. But in every case on which we differed, Sam's position
was closely reasoned and supportable either by the record or by
his interpretation of the law, or both.
The short of it, members of the Committee, is that Sam
Alito is a superb judge in terms of temperament, integrity and
intellect, and he has exhibited a careful, temperate, case-by-
case approach to the law.
Thank you for the opportunity to address you.
[The prepared statement of Judge Becker appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge Becker. We now
turn to Chief Judge Anthony Scirica, who, like Judge Becker,
has known Judge Alito on the Third Circuit for the 15 years of
Judge Alito's service there. Judge Scirica became Chief Judge
in May of 2003, succeeding Chief Judge Edward Becker.
Judge Scirica has a bachelor's degree from Wesleyan, 1962;
Michigan Law School, 1965; appointed to the district court by
President Reagan in 1984, and to the circuit court also by
President Reagan in 1987.
Thank you very much for coming in, Judge Scirica, and we
look forward to your testimony.
STATEMENT OF ANTHONY J. SCIRICA, CHIEF JUDGE, U.S. COURT OF
APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA
Judge Scirica. Mr. Chairman, thank you very much. For the
last 15 years, I have worked with Judge Alito. For 15 years, we
have decided thousands of cases while serving on the same court
of appeals. On most cases, we have agreed, but not always.
Judges don't always agree on every case.
As the Chief Justice remarked last summer, much like a
baseball umpire, a judge calls balls and strikes. If the pitch
is down the middle or way outside, the call is straightforward,
but many pitches are on the corners and then the calls are
difficult. These cases require hard thought, and these are the
cases where a judge earns his or her keep.
In 15 years on the court of appeals, Judge Alito has more
than earned his keep. He is a thoughtful, careful, principled
judge who is guided by a deep and abiding respect for the rule
of law. He is intellectually honest, he is fair, he is ethical.
He has the intellect, the integrity, the compassion and the
judicial temperament that are the hallmarks of an outstanding
judge.
On three separate occasions, I spoke with the
representative of the American Bar Association during its
evaluation process. My views and those of my colleagues on the
court were sought by the American Bar Association because we
have a unique perspective on Judge Alito, a perspective that no
one else has. Anyone can read and interpret his opinions, but
we know Judge Alito from almost daily contact over a period of
years. We have sat together in the same conference room. We
have discussed the cases, we have decided them, and we have
exchanged legal memoranda.
Judge Alito approaches each case with an open mind and
determines the proper application of the relevant law to the
facts at hand. He has a deep respect for precedent. His
reasoning is scrupulous and meticulous. He does not reach out
to decide issues that are not presented in the case. His
personal views, whatever they might be, do not jeopardize the
independence of his legal reasoning or his capacity to approach
each issue with an open mind. Like a good judge, he considers
and deliberates before drawing a conclusion.
I have never seen signs of a pre-determined outcome or
view, nor have I seen him express impatience with litigants or
with colleagues with whom he may ultimately disagree. He is
attentive and respectful of all views, and is keenly aware that
judicial decisions are not academic exercises, but have far-
reaching consequences on people's lives.
We admire him as a person. Despite his extraordinary
talents and accomplishments, Judge Alito is modest and
unassuming. His thoughtful and inquiring mind, so evident in
his opinions, is equally evident in his personal relationships.
He is concerned and interested in the lives of those around
him. He has an impeccable work ethic, but he takes the time to
be a thoughtful friend to his colleagues.
He treats everyone on our court and everyone on our court
staff with respect, with dignity, and with compassion. He is
committed to his country and to his profession, but he is
equally committed to his family, his friends and his community.
He is an admirable judge and an admirable person.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Judge Scirica.
We turn now to Third Circuit Judge Maryanne Trump Barry, a
graduate of Mount Holyoke, 1958, Columbia University in 1962,
with a master's and a law degree from Hofstra, 1974. Judge
Barry was in the U.S. Attorney's Office before Judge Alito was
there, appointed to the District Court in 1983 by President
Reagan and to the Circuit Court in 1999 by President Clinton.
She has worked with Judge Alito for the past 6 years as
colleagues on the Third Circuit.
Thank you for joining us, Judge Barry, and we look forward
to your testimony.
STATEMENT OF MARYANNE TRUMP BARRY, JUDGE, U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA
Judge Barry. Thank you, Mr. Chairman. Good afternoon. Good
afternoon, members of the Committee. It is my privilege to
appear before you and it is a particular privilege to speak on
behalf of my friend and colleague, Judge Samuel Alito.
Now, I warn you, I may be a little free and call him
``Sam'' on occasion because Judge Alito and I go back almost 30
years, to 1977. In 1977, Judge Alito came to the United States
Attorney's Office in the District of New Jersey following his
clerkship with Judge Leonard Garth, who was and remains a giant
on our court. Sam was assigned--see, I did it--to the Appeals
Division and I was the chief of that division, although in
those days, I didn't have very much more experience than he
did. Now, I have said Appeals Division. That sounds very much
more substantial than it was for what it was, the three
Assistant United States Attorneys working very, very hard at a
very, very responsible job.
We handled all the criminal appeals of those defendants who
were convicted at trial. It was our job to master the record,
to analyze the issues, to read the relevant cases, to write a
persuasive brief on behalf of the United States, and, if
necessary, to argue the case on the floor of the Court of
Appeals. Nobody did it better than Sam Alito. And if there were
any doubt on that score, the best evidence is the fact that
after just 4 years as an Assistant United States Attorney, he
went directly to the Office of the Solicitor General. Only the
best are able to do that.
For the next 6 years, Judge Alito distinguished himself
with public service in Washington, D.C., and then he returned
to the District of New Jersey in 1987 as the United States
Attorney. Important cases were brought on his watch, organized
crime cases, drug trafficking cases, public corruption cases. I
know, because I was there, and as a district court judge at
that time, having been appointed by President Reagan, I handled
some of his more important cases.
Now, I mentioned the cases that were handled on his watch
for another reason. The tone of the United States Attorney's
Office comes from the top. The standard of excellence is set at
the top. Samuel Alito set a standard of excellence that was
contagious, his commitment to doing the right thing, never
playing fast and loose with the record, never taking a short
cut, his emphasis on first-rate work, his fundamental decency.
The Assistant United States Attorneys who worked for him were
proud to do so. They admired him completely.
Now, of course, in 1990, Judge Alito became Judge Alito,
and you have heard the most glowing things said about Sam as a
colleague on our court. I embrace every glowing statement.
Let me just conclude with this. Judge Alito is a man of
remarkable intellectual gifts. He is a man with impeccable
legal credentials. He is a fair-minded man, a modest man, a
humble man, and he reveres the rule of law. If confirmed, Judge
Samuel A. Alito, Jr. will serve as a marvelous and
distinguished Associate Justice of the Supreme Court of the
United States. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Judge Barry.
We turn now to Judge Ruggero Aldisert. He has a bachelor's
degree from the University of Pittsburgh in 1942 and a law
degree from the same institution in 1947, with intervening
service in the Marine Corps. He served on the Court of Common
Pleas of Allegheny County from 1961 to 1968, at which point he
was appointed to the Third Circuit by President Lyndon Johnson.
Judge Aldisert and I were reminiscing about my predecessor,
Judge--Senator--he used to be a judge--Senator Joe Clark, whose
seat I now occupy. He was Chief Judge from 1984 to 1986 and
took senior status in 1986. He has been an adjunct professor at
the University of Pittsburgh and has served with Judge Alito on
the Third Circuit for the past 15 years.
Thank you for coming all the way from California, Judge
Aldisert, to be with us today and we look forward to your
testimony.
STATEMENT OF RUGGERO J. ALDISERT, SENIOR JUDGE, U.S. COURT OF
APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA
Judge Aldisert. Thank you, sir. Mr. Chairman and members of
the Committee, I thank you for this invitation to offer my
views on my colleague, but before proceeding into my formal
statement, I want the record to show that there was a
discussion this morning about ages of judges. Well, I am an old
man.
[Laughter.]
Judge Aldisert. And I will tell you how old I am. There is
a certain distinguished United States Senator sitting up there
who I swore in as a lawyer in the city of Pittsburgh over 40
years ago, and that is Orrin Hatch.
[Laughter.]
Judge Aldisert. And I will also say that I presided over
the first jury trial that he ever tried, and he won the case.
Senator Leahy. Oh, that is sweet.
[Laughter.]
Senator Hatch. I am glad you said that, Judge. They don't
believe that I did.
Senator Leahy. I never knew you won one.
[Laughter.]
Chairman Specter. They have always gotten along very well
together, Senator Leahy and Senator Hatch.
Judge Aldisert. When I first testified before this
Committee in 1968, I was seeking confirmation in my own
nomination to the Federal Circuit Court. I speak now as the
most senior judge on the Third Circuit, and I begin my brief
testimony with some personal background.
In May 1960, I campaigned with John F. Kennedy in the
critical Presidential primaries of West Virginia. The next
year, I ran for judge, as was indicated, and I was on the
Democratic ticket, and I served 8 years as a State trial judge.
As the Chairman indicated, Senator Joseph Clark of Pennsylvania
was my chief sponsor when President Lyndon Johnson nominated me
to the Court of Appeals, and Senator Robert F. Kennedy from New
York was one of my key supporters.
Now, why do I say this? I make this as a point that
political loyalties become irrelevant when I became a judge.
The same has been true in the case of Judge Alito, who served
honorably in two Republican administrations before he was
appointed to our court. Judicial independence is simply
incompatible with political loyalties, and Judge Alito's
judicial record on our court bears witness to this fundamental
truth.
I have been a judge for 45 of my 86 years, and based on my
experience, I can represent to this Committee that Judge Alito
has to be included among the first rank of the 44 judges with
whom I have served on the Third Circuit, and including another
50 judges on five other courts of appeals on which I have sat
since taking senior status.
Moreover, I have been a longtime student of the judicial
process. I have written four books on the subject and more than
30 law review articles, and this study required me to study the
current work of 22 Justices of the U.S. Supreme Court, and I
have read hundreds of opinions of appellate judges of every
Federal circuit, every State, and every political stripe. The
great Cardozo taught us long ago, the judge even when he is
free is not wholly free. He is not to innovate at pleasure.
This means that the crucial values of predictability, reliance,
and fundamental fairness must be honored, and as his judicial
record makes plain, Judge Alito has taken this teaching to
heart. He believes that legal outcomes will follow the law as
dictated by the facts of the particular case, whether the facts
involve commercial interests, government regulation, or
intimate relationships.
According to these criteria, Mr. Chairman, Judge Alito is
already a great judge. We who have heard his probing questions
during oral arguments, we who have been privy to his wise and
insightful comments in our private decisional conferences, we
who have observed at first hand his impartial approach to
decisionmaking and his thoughtful judicial temperament and know
his carefully crafted opinions, we who are his colleagues are
convinced that he will also be a great Justice.
If Judge Alito is confirmed, as I believe wholeheartedly he
deserves to be, he will succeed a Justice who has gained a
reputation as a practical Justice, whose resistance to
ideologically driven solutions has positioned her as a swing
vote on the Court. And as has been heard several times in this
hearing, Justice O'Connor in 1995 described her approach to
judging. What she said then is even more important today, and I
quote: ``It cannot be too often stated that the greatest
threats to our constitutional freedoms come in times of
crisis...The only way for judges to mediate these conflicting
impulses is to do what they should do anyway: stay close to the
record in each case that appears before them and make their
judgments based on that alone.'' And knowing Sam Alito as I do,
I am struck by how accurately these words also describe the way
in which he has performed his work as a United States circuit
judge. That is why, with utmost enthusiasm, I recommend that he
be confirmed as an Associate Justice on the Supreme Court.
Thank you, Mr. Chairman.
[The prepared statement of Judge Aldisert appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge Aldisert.
We now turn to Judge Leonard Garth, who is coming to us--
you see him on the television screen, coming to us from
California. Judge Garth is a graduate of Columbia, 1942, served
in the United States Army, Lieutenant, from 1943 to 1945, and
then from the Harvard Law School where he graduated in 1952. In
1969, he was appointed to the district court by President Nixon
and then to the circuit court by President Nixon in 1973, a
lecturer at Rutgers Law School and the Seton Law Hall School;
has known Judge Alito since Judge Alito clerked for Judge Garth
back in 1976 and 1977 and has served with him on the Third
Circuit for the 15 years of Judge Alito's tenure there.
Judge Garth, we very much appreciate your being with us,
and we look forward to your testimony.
STATEMENT OF LEONARD I. GARTH, SENIOR JUDGE, U.S. COURT OF
APPEALS FOR THE THIRD CIRCUIT, CHICAGO, ILLINOIS
Judge Garth. Thank you, Senator Specter, Senator Leahy, and
the honorable members of the Senate Judiciary Committee, and,
of course, my own family of judges who have preceded me in
speaking to you today.
I, too, am privileged to appear before you today, albeit by
videoconferencing rather than in person. I cannot be with you
in person because I recently had some major spinal surgery, and
I find it extremely difficult and painful to travel.
As Senator Specter has indicated, I have served as a
Federal judge for some 36 years: as a district court judge in
New Jersey, and since August 1973 as a member of the Third
Circuit Court of Appeals.
Now, I do want to interject and say that in that respect,
perhaps Judge Aldisert is older than I am, but not by many
days. And I am almost as old as he is, but not quite as
handsome as Judge Barry of my court.
[Laughter.]
Judge Garth. I hope you will forgive that aside, but I want
to ask you for something else to forgive me. I have heard all
of my colleagues speak so eloquently and, I will use the term
that Judge Barry used, glowingly about Judge Alito. But I have
known him just a little bit longer and in a different capacity
over the course of his career.
Following his graduation from law school, he served as one
of my two law clerks in 1976 and 1977. And as you have heard,
since 1990 he has served as my colleague on the court of
appeals. During the interim years, because of the relationship
that we developed during his clerkship and the fact that both
he and I are New Jersey residents, we remained close to one
another. Hence, I think I can speak knowledgeably about Sam's
qualifications, his talents, his discretion, his honesty, his
fairness, and his integrity. These are qualities that Judge
Alito possesses now and has possessed since the very beginning
of his legal career.
Let me first tell you about Sam's clerkship with me. As you
may know, a law clerk is a judge's legal advisor and a sounding
board, if I may use that term. But he or she often becomes much
more than that--a member of the judge's extended family. And as
a result, a judge gets to know his law clerk in a particularly
personal way. I knew Sam in this personal way at the very
beginning of his career as a lawyer. For that reason, I think I
have a unique perspective to share with you about him.
I chose Sam to be my law clerk in 1976 from among the
literally hundreds of applicants who sent their resumes to me
and the other judges of our court that year. Sam was still a
law student when I interviewed him, but he struck me in that
encounter as fiercely intelligent, deeply motivated, and
extremely capable.
I did not know at that time that Sam was the son of Samuel
Alito, Sr. That is a gentleman who had impressed me very, very
much as a witness in a New Jersey redistricting case that I
heard about 1972. Once I made the connection, however, I fully
understood why Sam was so impressive and why he regarded--and
regards today--his father as a role model.
During his tenure with me, Sam bore out all my initial
impressions of his excellence--impressions which had led me to
engage him. He was a brilliant and exceptional assistant to me.
He enabled me to test judicial theories and to fashion
appropriate judgments in each case that came before our court.
I have had some 85 law clerks assisting me in chambers over
the course of my career on the bench. They have all been
extremely well qualified in all ways to serve a court of
appeals judge. Sam Alito stands out even among that very elite
group.
During the year that he was my law clerk, Sam and I
frequently took an afternoon walk near the courthouse in Newark
and discussed the cases while we walked. I can tell you that
the recommendations and arguments that Sam made about those
cases were, as my colleagues have pointed out, always reasoned,
principled, and supported by precedent. I developed then a deep
respect for Sam's analytical ability, his legal acumen, his
judgment, his institutional values, and, yes, even his sense of
humor, which, if he is confirmed, as I hope he might, will
probably compete with that of other Justices.
Few of the cases that come before our court are ``slam
dunk'' cases. Most involved difficult questions on which
reasonable people can disagree. And, generally, Sam and I
reached agreement after discussing these cases, but more than
once we did not. Even in those latter cases, the ones on which
we disagreed, I understood and respected the positions that Sam
advanced and the contours of his analyses.
Our afternoon walks invariably ended at a neighborhood
store--T.M. Ward Company--where we purchased peanuts and
coffee. I note parenthetically that Ward's has since honored
Sam by naming a special blend of coffee that he favors ``Judge
Alito's Bold Justice Blend.'' I think there are a few of us
that have that distinction.
After he left my chambers, Sam continued on in public
service, as you have heard. In a letter to the then Deputy
Assistant Attorney General Arnold Burns, I endorsed Sam's
candidacy for United States Attorney for the District of New
Jersey, and I want to just read you what I wrote. This was a
long, long time ago:
I can certify to Mr. Alito's integrity, ability,
discretion, and honesty. Above and beyond those qualities,
however, I believe his talents as a lawyer are exceptional. I
am sure that his tenure in government service since he has left
my chambers has reflected the fact that he is a thorough,
meticulous, intelligent, and resourceful attorney and that his
judgments are mature and responsible. Indeed, he was one of the
finest law clerks I have had the privilege to engage. And if I
were to rate him on the basis of 1 to 10-10 being the highest
rating--he would, without question, receive a 10-plus rating.
I stressed these same attributes when I endorsed Sam for
membership on our court several years later. He has more than
lived up to my rating and the qualities that I attributed to
him in the 15 years since he joined the court and became my
colleague.
Sam is an intellectually gifted and morally principled
judge. We have not always agreed on the outcome of every case,
as I have just recently stated. Just this fall, for example,
Sam dissented from a majority opinion that I wrote in an
Employee Retirement Income Security Act--ERISA--case. In that
case, Sam and I disagreed about how two provisions of the
statute interact. I and the other majority judge were attracted
in large part to the reasoning of the Second Circuit. Judge
Alito, on the other hand, was attracted by the reasoning of the
Seventh Circuit. Even in the cases on which we disagree,
however, I always respect Sam's opinion, just as I did during
our afternoon walks when he was my law clerk.
Sam is also a prudent judge. Make no mistake: he is no
revolutionary. He is a sound jurist, always respectful of the
institution and the precepts that led to decisions in the cases
under review.
I have heard concerns expressed about whether Judge Alito
can be fair and evenhanded. Let me assure you from my extensive
experiences with him and with my knowledge of him, going back,
as I have stated, over 30 years--that he will always vote in
accordance with the Constitution and laws as enacted by
Congress. His fairness, his judicial demeanor and actions, and
his commitment to the law, all of those qualities which my
colleagues and I agree he has, do not permit him to be
influenced by individual preferences or any personal
predilections.
As you may know, when the judges of our court meet in
conference--and I think Judge Becker referred to this in his
remarks--we are the only individuals in chambers. No law
clerks, no assistants, no administrative personnel, or indeed
anyone else attend these conferences. I can tell you with
confidence that at no time during the 15 years that Judge Alito
has served with me and with our colleagues on the court, and
the countless number of times that we have sat today in private
conference after hearing oral argument, has he ever expressed
anything that could be described as an agenda, nor has he ever
expressed any personal predilections about a case or an issue
or a principle that would affect his decisions.
He has a deep and abiding respect for the role of stare
decisis and established law. I appreciate, of course, that the
Supreme Court can retreat from its earlier decisions, but it
does so rarely and only in very special circumstances, and I am
convinced that if Judge Alito is confirmed as an Associate
Justice of the Supreme Court, he will continue to honor stare
decisis as he did as a law clerk and as he has done as a member
of our court. He will sit among those jurists whose qualities
of fairness and of principles are the loadstar of the
judiciary. In my opinion, Sam is as well qualified as the most
qualified Justices currently sitting on the Supreme Court.
A word about Sam's demeanor is in order. Sam is and always
has been reserved, soft-spoken, and thoughtful. He is also
modest, and I would even say self-effacing, and these are the
characteristics I think of when I think of Sam's personality.
It is rare to find humility such as his in someone of such
extraordinary ability.
Over the 30 years I have known Sam, I have seen him grow
professionally into the reserved, mature, independent, and
apolitical jurist that graces our court today. I regard him as
the most qualified member of our court to be considered as an
Associate Justice of the Supreme Court. I know that just as
Judge Alito has brought and brings grace and luster to the
Third Circuit, so too will he bring grace and luster to the
U.S. Supreme Court if he is confirmed.
Thank you, members of the Senate Judiciary.
Chairman Specter. Thank you very much, Judge Garth, coming
from, I have just been advised, from Phoenix, Arizona. Thank
you.
[The prepared statement of Judge Garth appears as a
submission for the record.]
Chairman Specter. Our next witness is Judge John Gibbons, a
graduate of Holy Cross in 1947 with a bachelor's, Harvard Law
School in 1950. He was nominated to the Third Circuit by
President Nixon in 1970, Chief Judge from 1987 to 1990, at
which time he resigned to become a professor of law at Seton
Hall University. He now is in the practice of law. He has known
Judge Alito for more than 20 years, when Judge Alito was a U.S.
Attorney and tried cases before Judge Gibbons.
Thank you very much for being with us today, Judge Gibbons,
and we look forward to your testimony.
STATEMENT OF JOHN J. GIBBONS, JUDGE (RETIRED), U.S. COURT OF
APPEALS, AND DIRECTOR, GIBBONS, DEL DEO, DOLAN, GRIFFINGER AND
VECCHIONE, NEWARK, NEW JERSEY
Judge Gibbons. Mr. Chairman and members of the Judiciary
Committee, as you all probably know, or as Senator Specter has
just said, I was a member of that court of appeals where Judge
Alito is now a member for 20 years, and indeed, it was my
retirement from that court 16 years ago that created the
vacancy which Judge Alito filled on the court of appeals.
Since his appointment, lawyers in the firm of which I am a
member have been regular litigators in the courts of the Third
Circuit, not only on behalf of clients who pay us handsomely
for such representation, but also frequently for the firm's
Gibbons Fellowship Program on behalf of nonpaying clients whose
cases have presented those courts with challenging human rights
issues. The Gibbons Fellowship Program is certainly a
significant part of our practice, as amply demonstrated by the
fact that since 1990, Gibbons Fellows lawsuits have resulted in
115 reported judicial decisions.
This Committee should appreciate that the Court of Appeals
for the Third Circuit has been for the 50-plus years that I
have followed or participated in its work a centrist legal
institution. An important reason why that is so is that many
years ago, the court adopted the requirement that all opinions
intended for publication must, prior to filing, be circulated
by the opinion writer not only to the members of the three-
judge panel, but also to the other active judges on the court.
The purpose of this internal operating rule was to permit each
active judge not only to comment upon the opinion writer's
treatment of Third Circuit and Supreme Court precedent, but
also to vote to take the case en banc for rehearing by the full
court if the judge thought that the opinion was outside the
bounds of settled precedents. Thus, the level of interaction
among the Third Circuit appellate judges has, for a half-
century, been unusually high.
This Committee should also appreciate that appointment to
an appellate court where one has life tenure is a transforming
experience. I remember a former judicial colleague saying to me
once after several years on the bench, ``John, what other job
in the world is there in which you can look in the mirror while
you are shaving and say to yourself, all I have to do today is
the right thing according to the law? '' A good judge puts
aside interests of former clients, interests of organizations
they have belonged to, and interests of the political
organization that may have been instrumental in one's
appointment. I personally experienced that transformation and I
witnessed it repeatedly in the judicial colleagues who joined
the court after I did.
These two points, the unusual internal cohesion of the
Third Circuit Court of Appeals and the transformative
experience of serving on a court protected by life tenure,
suggests to me that the Committee members, in determining
whether or not to vote in favor of confirming Judge Alito,
should concentrate not on what he thought or said as a recent
Princeton graduate or as a young lawyer seeking advancement as
an employee of the Department of Justice, but principally, if
not exclusively, on his record as an Article III appellate
judge.
If you look, as you should, at that 15-year record as a
whole, you cannot in good conscience conclude that Judge Alito
will bring to the Supreme Court any attitude other than the one
held by the colleague I mentioned who thought important
thoughts about judging every morning while he was shaving. He
has consistently followed the practice of carefully considering
both Supreme Court and Third Circuit precedents. Very few of
the opinions he has written for a unanimous panel or for a
panel majority have deemed his colleagues among the active
judges to vote to take the case en banc. The cases in which he
participated that produced dissenting opinions by him, or from
him, all, it seems to me, were close cases in which either the
law or the evidentiary record were such that equally
conscientious judges could quite reasonably disagree about the
outcome.
Take, for example, cases presenting challenges to State
regulations of abortion, certainly a hot-button topic for many
people who are opposing Judge Alito's confirmation. I found
four such cases in which he participated. In three of them, he
decided against State regulations that might have put a burden
on a woman's choice for an abortion. In the fourth case, about
which a lot has been said, Planned Parenthood of Southeastern
Pennsylvania v. Casey, Judge Alito dissented from a majority
opinion, holding unconstitutional the Pennsylvania spousal
consent provision for an abortion. And it is that dissent which
the opponents of his confirmation talk about most frequently.
They seem to urge that on the basis of that dissent, Judge
Alito is so far out of the mainstream of constitutional law
that his confirmation will endanger the constitutional
protection of civil rights practically across the board.
In your consideration of that dissent, I suggest that you
should take into account these points. First, at the time the
circuit considered the Pennsylvania spousal consent statute,
the Supreme Court had not yet decided whether States could
impose such a requirement, and second, the court of appeals
majority invalidated the statute. Had the Supreme Court simply
denied certiorari, that invalidation would have remained in
place. Instead, at least four Justices voted to grant
certiorari. If the issue of the statute's constitutionality was
so overwhelmingly clear, why was certiorari granted to endorse
the Third Circuit's majority position? Clearly, Planned
Parenthood v. Casey was, at the time the court of appeals
acted, a case over which conscientious judges could reasonably
disagree. Otherwise, the Supreme Court would simply have denied
certiorari.
Nothing in the Supreme Court's case law dealing with
abortion relieves the appellate judges and intermediate
appellate courts from the duty of making a conscientious effort
to fit the case before them within that case law, and the four
abortion cases in which he participated show that that is
exactly what Judge Alito has done.
Another opinion that has caught the attention of those
clamoring for Judge Alito's scalp is his dissent in United
States v. Rybar, in which he would have held that the Supreme
Court decision in Lopez prohibited Congress from regulating
mere possession of machine guns. A majority opinion upheld this
statute. Unlike Casey, the Supreme Court didn't review that
case. Thus, the question of the reach of Lopez was left open,
and when the issue reached the Ninth Circuit in the United
States v. Stewart in 2003, it adopted Judge Alito's dissenting
position. Some opponents of his confirmation have relied on
that dissent in suggesting that Judge Alito is perhaps a
captive of the right-wing gun lobby. This Committee, after
actually reading Lopez and Rybar and the Ninth Circuit case, I
suggest, cannot in good conscience find the dissent to be
anything more than a good faith effort to somewhat
unenthusiastically apply the perhaps unfortunate Supreme Court
precedent of Lopez. Indeed, in his Rybar dissenting opinion,
Judge Alito suggested how Congress could cure the Lopez
violation.
The extent to which opponents of Judge Alito's confirmation
largely ignore his overall 15-year record as a judge suggests,
at least to me, that the real target for many of the somewhat
vitriolic comments on the nomination is less him than the
executive branch administration that nominated him. The
Committee members should not think for a moment that I support
Judge Alito's nomination because I am a dedicated defender of
that administration. On the contrary, I and my firm have been
litigating with that administration for a number of years over
its treatment of detainees held at Guantanamo Bay, Cuba, and
elsewhere, and we are certainly chagrined at the position that
is being taken by the administration with respect to those
detainees.
It seems not unlikely that one or more of the detainee
cases that we are handling will be before the Supreme Court
again. I do not know the views of Judge Alito respecting the
issues that may be presented in those cases. I would not ask
him, and if I did, he would not tell me. I am confident,
however, that as an able legal scholar and a fair-minded
justice, he will give the arguments, legal and factual, that
may be presented on behalf of our clients careful and
thoughtful consideration without any predisposition in favor of
the position of the executive branch. That is more than
detainees have received from the Congress of the United States,
which recently enacted legislation stripping Federal courts of
habeas corpus jurisdiction to hear many of the detainees'
claims without even holding a Committee hearing.
Justice Alito is a careful, thoughtful, intelligent, fair-
minded jurist who will add significantly to the Court's
reputation as the necessary expositor of constitutional limits
on the political branches of the government. He should be
confirmed.
Chairman Specter. Thank you very much, Judge Gibbons.
[The prepared statement of Judge Gibbons appears as a
submission for the record.]
Chairman Specter. Our final witness on the panel is former
Third Circuit Judge Tim Lewis, a graduate of Tufts University
in 1976, a law degree from Duquesne in 1980. He served as an
Assistant United States Attorney before President Bush the
Elder appointed him to the Western District Court, and then in
1992, President Bush the Elder nominated him to the Third
Circuit. Judge Lewis resigned in 1999 and now is co-chair of
the appellate practice group at the Schnader Harrison office.
He serves as co-chair of the National Committee on the Right to
Counsel, a public service group dedicated to adequate
representation of indigents. Judge Lewis and Judge Alito served
together on the Third Circuit for 7 years.
We appreciate your being here, Judge Lewis, and the floor
is yours.
STATEMENT OF TIMOTHY K. LEWIS, JUDGE (RETIRED), U.S. COURT OF
APPEALS FOR THE THIRD CIRCUIT, AND COUNSEL, SCHNADER HARRISON
SEGAL & LEWIS LLP, WASHINGTON, D.C.
Judge Lewis. Thank you very much, Senator Specter. Thank
you, members of the Committee. It is a pleasure and an honor to
be here today.
When Thurgood Marshall announced his intention to resign as
a Justice of the U.S. Supreme Court in conference one day, the
first person to respond was Chief Justice Rehnquist. Chief
Justice Rehnquist's words were, ``No, Thurgood, no. Please
don't. We need you here.''
Shortly thereafter, when Justice Marshall had resigned, he
was interviewed, and in the course of that interview was asked
about Chief Justice Rehnquist. And during that interview he
said, ``This is the best Chief that I have ever served under.''
and went on to extol Chief Justice Rehnquist's service on the
U.S. Supreme Court.
Now, I was, quite frankly, stunned by both of those
observations when I learned them at the time, and it wasn't
until I had served for a period of time as a judge on the
United States court of appeals that it all began to make sense
to me.
It is no coincidence to anyone who is familiar with my body
of work while I served on the United States court of appeals
and my body of work since having left the court that I happen
to be sitting on the far left of this panel here this
afternoon. And yet I am here, and what I have just related
about the exchanges between Justice Marshall and Justice
Rehnquist and Justice Marshall's later observation about the
Chief Justice helps explain why I am here, because it is true
that during the time that I served with Judge Alito, there were
times when we did not agree.
I am openly and unapologetically pro-choice and always have
been. I am openly--and it is very well known--a committed human
rights and civil rights activist and am actively engaged in
that process, as my time permits and my law practice permits
today and through my law practice at Schnader Harrison Segal &
Lewis. I am very much involved in a number of endeavors that
one who is familiar with Judge Alito's background and
experience may wonder, well, why are you here today saying
positive things about his prospects as a Justice on the Supreme
Court? And the reason is that, having worked with him, I came
to respect what I think are the most important qualities for
anyone who puts on a robe, no matter what court they will serve
on, but in particular the U.S. Supreme Court, and first and
foremost among these is intellectual honesty.
As Judge Becker and others have alluded to, it is in
conference, after we have heard oral argument and are not
propped up by law clerks--we are alone as judges discussing the
cases--that one really gets to know, gets a sense of the
thinking of our colleagues. And I cannot recall one instance
during conference or during any other experience that I had
with Judge Alito, but in particular during conference, when he
exhibited anything remotely resembling an ideological bent.
That does not mean that I agreed with him, but he did not come
to conference or come to any decision that he made during the
time that I worked with him based on what I perceived to be an
ideological bent or a result-oriented demeanor or approach. He
was intellectually honest, and I would say rigorously so, even
with respect to those areas that he and I did not agree.
Second, I have no hesitation in commending his commitment
to principle, both in how he went about his work on the Third
Circuit, how he came to his decisions. It was through a very
difficult process we all would put ourselves through, but in
Sam's case I think that I can say that no one worked harder at
coming to what he thought was the right decision than Judge
Alito.
And, finally, though we did disagree, it was always
respectful, and that is what I came to understand as probably
the most important facet of appellate judging. No one--and I
mean no one--has a corner on the marketplace of ideas in terms
of what is best, what is right. We have different approaches,
and it is very important that we maintain different approaches
in positioning and in pushing forward our sense of--our
jurisprudence. They do not have to be the same. In fact, I
think that it is contrary to the best interests of democratic
government for there to be some monolithic approach to judicial
decisionmaking on the United States Supreme Court or on any
other court.
Sam Alito practiced a form of jurisprudence that I think is
best referred to as judicial restraint, judicial deference. It
is in many respects a more conservative form of jurisprudence
than was my own. And that is fine. That is perfectly fine. And
as a matter of fact, I dare say it is important, because
through the exchanges we learned from one another and I think
were a better court.
I know that this is the case on the Supreme Court, as it is
reflected in Chief Justice Rehnquist's observation when Justice
Marshall announced his resignation. And I think that it is
important that different approaches be respected.
So in the end, I am here as a matter of principle and as a
matter of my own commitment to justice, fairness, and my sense
that Sam Alito is uniformly qualified in all important respects
to serve as a Justice on the United States Supreme Court.
Thank you.
Chairman Specter. Thank you very much, Judge Lewis.
This panel, this distinguished panel, has been accorded
much more time than we customarily allow because of the very
large number of witnesses which we have. But out of deference
to your positions and your coming here and your unique
knowledge, we have done that.
I would like to ask each of you a great many questions, but
I am going to limit myself to 5 minutes. And I would urge that
the responses be sound clips. You have not had as much
experience at that as we have, but on the networks, a sound
clip goes for about 8 seconds and locally about 18 seconds. You
don't have to quite do that, but as close as you can. You can
start my clock now.
Judge Becker, the conference is a unique opportunity, as
has been explained, to really find out about what your
colleagues think. Do you think, is it your judgment that Judge
Alito would allow his personal views on a matter to influence
his decisions as a Justice?
Judge Becker. I do not think--I am confident that he would
not.
Chairman Specter. Judge Garth, you spoke about stare
decisis. You have been quoted about your views of Judge Alito
as to his approach, if confirmed, where the bounds of the
Supreme Court Justice on stare decisis are not the same as a
court of appeals judge. As Judge Gibbons has noted, the issue
of a woman's right to choose has become a very central factor
in our deliberations. Do you have any insights which you would
care to offer as to how Judge Alito would weigh the issue of
stare decisis on that particular subject?
Judge Garth. I can only say that I have heard Judge Alito
speak as to how he would approach and process any judicial
problem, and it would be presumptuous of me to even think of
how he would rule on that subject. But I can tell you that when
it comes to applying the precedents in our court and of the
Supreme Court, he has always been assiduous in the manner in
which he has applied them and he has always had good reason and
principle.
I can't say more than repeat again that I believe that
Judge Alito, when he described to the Committee how he would
rule on a case and what he would do in respect of stare
decisis, I could not express it better than he did.
Chairman Specter. Judge Barry, you have sat with him in
these private conferences, known him for a long time, back to
the days when you were in--and I had not noted that you were in
the U.S. Attorney's Office when he was an assistant. How would
you evaluate Judge Alito on his consideration of women's
issues?
Judge Barry. If I had to add anything to my initial
testimony, I would have stated more about what Sam and I did
together on this wonderful court and how reasonable he was and
how he never indicated bias of any kind.
I told you at the outset I have known Judge Alito for
almost 30 years. I have the utmost respect for him. I have
never heard him say one thing that would give me any reason to
believe that he would give other than the most careful
consideration to what you have described as women's issues.
Chairman Specter. Judge Lewis, I have a question for you,
and then I am going to propound a question for the other three
judges before my red light goes on. I would like you to be a
little more specific in your evaluation on Judge Alito as to
how he would handle the civil rights issue. I am not going to
wait for you to start to answer because my red light will go on
in advance. Then I am going to ask Judge Scirica, Judge
Aldisert, and Judge Gibbons to address the subject, which has
concerned this Committee in some detail, as to whether there is
any tilt in Judge Alito's approach to the powerful, to the
Government, as opposed to the average citizens, whom we
characterized as ``the little guy.''
Would you start, Judge Lewis, with your evaluation?
Judge Lewis. Yes, I will. Thank you, Senator.
Let me begin by saying that if I believed that Sam Alito
might be hostile to civil rights as a member of the U.S.
Supreme Court, I can guarantee you that I would not be sitting
here today. That is the first thing that I want to make clear.
My experience in civil rights cases on the Third Circuit
were primarily in the Title VII area with Judge Alito, and
there were cases in which we agreed and cases where we
disagreed. There was one in particular, the Piscataway case,
which was, for lack of a better term, a reverse discrimination
case that became an en banc matter, where I and a number of my
colleagues wound up writing dissenting opinions. But that was a
very close and I think very closely contested case having to do
with whether or not Title VII contemplated diversity as an
interest that an employer could use. And to my disagreement and
chagrin, the majority did not agree with Judge Sloviter, Judge
McKee, and myself in that case.
But I never felt that Judge Alito or any of my colleagues
who were in the majority in that case were in any sense hostile
to civil rights interests. This was a legal question, and they
came out the way that they did.
In other cases, for example, the Aman v. Cort Furniture
case, which I authored, Judge Alito was not on the panel, but
as I think Judge Gibbons mentioned, all opinions are circulated
on the Third Circuit, and so really any opinion that comes out
is the opinion of the court. I don't believe in that case,
which was another Title VII case that I think furthered the law
in some very important respects, defining code words as--racial
code words as actionable under Title VII, I believe that Judge
Alito went along with that. I was very happy that he did that.
And there were others.
My sense of civil rights matters and how a court should
approach them jurisprudentially might be a little different. I
believe in being a little more aggressive in these areas, but I
cannot argue with a more restrained approach. As long as my
argument is going to be heard and respected, I know that I have
a chance, and I believe that Sam Alito will be the type of
Justice who will listen with an open mind and will not have any
agenda-driven or result-oriented approach.
Chairman Specter. Judge Scirica, would you reply as briefly
as you can as to the question I posed?
Judge Scirica. In my 15 years with Sam Alito, I have never
seen any indication that he would favor that particular
interest.
Chairman Specter. Judge Aldisert?
Judge Aldisert. Well, I approach it from a rather personal
standpoint. Judge Alito is an American of Italian origin, and
until quite recently, Americans of Italian origin were subject
to a lot of discrimination. Quotas as to whether to get into
professional schools. A little example in my particular case,
when you consider all the Americans of Italian origin, from New
England, Connecticut, New York, New Jersey, Pennsylvania, along
the seaboard, there had never been an American of Italian
origin or these millions of Americans of Italian origin--there
had never been an American of Italian origin ever appointed to
the United States Court of Appeals until President Johnson
appointed me in 1968. So I can speak from experience. Things
are better now, but I have lived through that.
When you look at Judge Alito, his father came to the United
States as an Italian immigrant at a very early age, and I am
certain that the idea of protecting the rights of the so-called
little guy is in the genes of Samuel A. Alito, Jr.
Chairman Specter. Judge Gibbons, as briefly as you can.
Judge Gibbons. His attitude toward criminal defendants is
of some significance for our law firm because we have a very
big white-collar criminal defense practice, and my partner,
Larry Lustberg, prepared a memo on the subject. He says,
although given his prosecutorial background, Judge Alito has
been seen by many of the defense bar as pro-government. A
thorough review of his record shows that, in fact, he is a
fair-minded jurist who pays careful attention to the record
below and who takes great pains to apply precedent.
Now, he then goes on in the memo to review the series of
cases in which Judge Alito decided against the government on
many significant issues, and he concludes, while, like most
appellate judges, there are far more decisions affirming than
reversing convictions--that is certainly true of every judge
who has sat on the court of appeals--Judge Alito's
jurisprudence is properly characterized as careful, based on
precedent, and particularly attentive to the record. If that
record does not support affirmance, he reverses. He also
included an admonition to the rest of the department that you
had better know the record, because he will.
Chairman Specter. Thank you, Judge Gibbons.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman, and I
would like to thank you very much for being here. I think the
testimony was very interesting. I listened acutely. I think we
would all be very lucky if any one of us had colleagues like
you that would come forward and say the things that you all
have said.
Let me ask this question. How do you look at the
evaluations that have been done, those evaluations that say,
well, in the cases looked at, he has judged whatever percent it
was, but let us say it is 70 percent--I am just making it up--
in favor of corporations, or business, or against the little
man. How do you look at that sample and how do you regard that?
It has been written about rather extensively, anyone that would
like to try to answer it. Judge Becker?
Judge Aldisert. I would like to try that--
Senator Feinstein. Give it to Judge Becker because I have
known him longer.
Judge Becker. Senator Feinstein, first of all, you have to
keep in mind, and I think this is a national--this statistic
applies nationwide--I think somewhere between 80 and 85 percent
of cases are affirmed. So a lot of this is going to determine
who won in the district court or who won in the agency. So
those numbers are skewed by that very fact.
The only other thing I would say is I haven't analyzed
these statistics but that is nothing I have ever seen. He has
voted with me. There was a case not long ago, it was a very
thin employment discrimination case in which a woman, well, she
never got to a jury in district court. One of my colleagues
wanted to affirm. I was on the fence. And Sam wanted to
reverse. I said, OK, write it up, and we went along.
I have just never seen any evidence that he is for the big
guy against the little guy. But I think if you analyze these, I
think you will find most of the statistics come from the fact
that the big guy won in the district court and 80 to 85 percent
of those cases are affirmed, and most of those, they win out.
Senator Feinstein. Judge?
Judge Aldisert. I was just about to say the same thing, but
my good friend, Judge Becker, your figure was a little skewed
there. The percentage of reversals is not 15 percent, it is 8.7
percent, the statistics last year of all cases. In criminal
cases, in the figures of 2004, the reversal rate in criminal
cases was 5.1 percent.
Judge Becker. I always defer to a master arbiter.
Judge Barry. And, of course, it should be added that when
we are considering cases on appeal, we are operating on a
standard of review. So we are not typically looking at the
issues underlying that review.
Senator Feinstein. The underlying situation, right.
Judge Barry. That is right. We are looking at an abuse of
discretion standard. We are looking at, were the facts clearly
erroneous? So we are not starting from scratch, typically.
Senator Feinstein. Let me ask you this question. The
subject of abortion and Roe was raised, and obviously if you
have listened to the hearings, you have heard the question
going on back and forth. I was very puzzled when I read Chief
Justice Roberts's statement before us on Roe and how he
answered Senator Specter's questions. The Chief ended up by
saying that he felt that Roe was well-settled law. I think he
even added to that, very well-settled law.
Chairman Specter. He said settled beyond that.
Senator Feinstein. All right, settled beyond that. And I
asked Judge Alito, and I thought at the very least he was going
to agree with Justice Roberts, and he said, well, it all
depends upon what settled means. What do you make of that?
Judge Barry. I respectfully cannot characterize what Judge
Alito meant by that and I would much prefer not to have to try.
Senator Feinstein. That is fine. Anybody?
Judge Becker. I think we are here as fact witnesses more
than opinion witnesses, Senator Feinstein. I really would not
answer that question.
Senator Feinstein. Very good.
Judge Becker. I couldn't make a judgment on it.
Senator Feinstein. Very good. Thank you. Thank you very
much. Thanks, Mr. Chairman.
Chairman Specter. Senator Hatch?
Senator Hatch. I want to express my gratitude to all of you
judges, you out there in the West, Judge Garth, for coming here
today and helping this Committee. It is pretty apparent that I
got quite emotional when my old friend, Judge Aldisert,
testified. I really did. I got emotional because I care for you
and I watched you for years there and just have a tremendous
amount of respect. I have read your books, and you have always
sent them to me, and that has meant a lot to me. But you all
mean a lot to me.
It is no secret that, with very few exceptions, I love the
Federal courts and I love the judges, and there are very few
exceptions. There are a few that I think you can name
yourselves.
[Laughter.]
Senator Hatch. But by and large, you know, we pass
unconstitutional legislation up here all the time and--
[Laughter.]
Senator Hatch.--if it hadn't been for the courts, we would
probably not have preserved the Constitution. So I want to give
you all credit for that.
But let me just say this. By the way, just to correct the
record. What Judge, now Chief Justice Roberts, he and Judge
Alito basically said the same thing. They said, well, it is
settled as a precedent of the Court, with regard to Roe v.
Wade. That is exactly what he said, entitled to respect under
principles of stare decisis. That is basically what Judge Alito
said. And Roberts said, and it is settled as a precedent of the
Court, yes. Senator Specter asked him some more and then he
said, ``I think the initial question for a judge confronting an
issue in this area, you don't go straight to the Roe decision.
You begin with Casey, which modified the Roe framework and
reaffirmed its central holding.'' So these are maybe touchy
words, but it is important to get it right.
One of the most prominent issues in this hearing has been
how Judge Alito views the role of precedent in deciding cases.
Too often, I think, the objective seems not so much to get
insight into Judge Alito's general views about precedent, but
clues about how he will treat particular precedents.
First, let me make this point about Judge Alito's record
regarding circuit precedent. As I understand it, the appeals
court can reconsider its own precedents only when all Third
Circuit judges sit together en banc, is that correct?
Judge Becker. That is correct.
Senator Hatch. OK. It is my understanding that in his 15
years on the Third Circuit, Judge Alito has participated in 38
en banc decisions. Now, Judge Alito voted to overturn circuit
precedent in just four of those cases. Two of those decisions
were unanimous. All judges agreed. That does not look to me
like someone who plays fast and loose with precedent.
Let me just ask you, Judge Becker, and if anybody disagrees
with what Judge Becker says, I will be happy to have you
respond. Let me ask you a question about Judge Alito's handling
of certain--and the reason I ask Judge Becker, Judge Becker, as
Senator Specter said, is the 101st Senator. He came down here
and tried to help this asbestos problem and we all respect him
for that.
Let me just say, I know you have participated in more than
1,000 cases, or decisions, rather, with Judge Alito. All of
you, of course, can offer your thoughts, as well. Yesterday,
during the hearing, one of my Democratic colleagues held up
some charts with some quotes from a few cases in which Judge
Alito's colleagues criticized how he applied circuit precedent.
The picture that was painted was that Judge Alito misapplies
precedent when it suits him, suggesting, I suppose, that he
might be activist or careless in this regard on the Supreme
Court.
Now, I certainly agree that the views of his fellow judges
are particularly relevant on this point and having you here is
very valuable to us for that reason. Now, asking you all about
this here seems more useful than a few selective sentence
fragments on a chart. Realizing, Judge Becker, that judges do
not always agree on every single point every single time, how
would you characterize Judge Alito's overall view or approach
to precedent?
Judge Becker. Respectful of it. I have never seen what was
portrayed, where--
Senator Hatch. Judge, here--
Judge Becker.--I mean, Judge Alito might have disagreed
with prior precedent. He followed it unless he felt that it was
dicta, in which case it wouldn't be precedent--
Senator Hatch. Right.
Judge Becker.--or the case was distinguishable. But I have
never seen him ignore or disregard precedent.
Senator Hatch. Have any of the rest of you seen that?
Judge Scirica. No.
Senator Hatch. Judge Aldisert?
Judge Aldisert. Judge Hatch--Senator Hatch--
[Laughter.]
Judge Aldisert. I wanted to answer Senator Feinstein the
same way. In my book, ``The Judicial Process, Text Materials
and Cases,'' Second Edition, 1996, I have an entire chapter on
precedent, and one of those sections is called, ``Viability of
Precedent, or When Do You Depart.'' and there is a
sophisticated body of law, and I cite cases with Justice Sandra
Day O'Connor, Thurgood Marshall, and a few others, and there
are also some very important scholarly academic articles on it.
I think that Judge Alito's expression that it depends is a
statement that you have to consider all the factors on all the
Supreme Court cases that discuss when do we depart from
precedent, and there is a body of law that is in my casebook.
Senator Hatch. Thank you so much, and Mr. Chairman, I want
to thank all of these great judges for being here and I want to
thank you, Judge Lewis, for taking time to be here in
particular. We just really respect you. I love and respect the
Third Circuit Court of Appeals.
Chairman Specter. Thank you, Senator Hatch.
Senator Leahy?
Senator Leahy. Mr. Chairman, I realize we have some retired
and very distinguished retired judges, but some current judges.
Insofar as the current judges, if their case is appealed to the
Supreme Court and Judge Alito becomes a member of the Supreme
Court, he will have to rule on their appeal, appeals from their
decisions, and so I think rather than create a difficulty for
them or for Judge Alito, if he is confirmed, I think I will not
avail myself to ask questions of this unprecedented panel.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I just had a
question, and I think, Judge Lewis, it was a comment that you
made that raised this question in my mind. There was a point
made about the circulation of opinions among all of the judges
on the court. When a three-judge panel has tentatively made a
decision in a case and circulates an opinion, is that opinion
circulated among all of the judges and then do all of the
judges have an opportunity to comment on that in some way?
Judge Lewis. Yes, that is correct, and that is why the
opinion is the opinion of the entire court in the end, when it
is released. I should let Chief Judge Scirica address the
current practice. I have been off the court for some time, but
I assume it is done the same way, is it not?
Senator Kyl. This is interesting to me, because I practiced
before the Ninth Circuit Court of Appeals and that same
opportunity, I think, is not as available.
Judge Gibbons. Senator, that was invented by Judge Biggs in
the late 1930s.
Senator Kyl. In which--in the Third Circuit, sir?
Judge Scirica. The Third Circuit. We circulate all of our
precedential opinions to the entire court before they are ever
published. That is, before the litigants and before the public
sees them. We do not do that with a category that we call not
precedential opinions. They are handled by the panel themselves
unless there is a dissent, in which case we circulate them, as
well. Now, of course, when a litigant loses a case, that
litigant has the opportunity to file a petition for rehearing
and that goes to the entire court because the litigant usually
asks both for a panel rehearing before the original panel and
also before the entire court. And so for precedential opinions,
it gets sent to the court on two different occasions, one
before it is ever published and one after it is published.
Senator Kyl. I am curious, what happens if there is a
strong opinion by one of the judges on the court who did not
sit on the original three-judge panel that is different from
the conclusion?
Judge Scirica. Any judge on our court on the initial
circulation or even on the circulation for the petition for
rehearing may write to the entire court or may write to the
opinion writer or may write to the panel expressing his or her
disagreement. It is one of the wonderful things about an
appellate court, because we view the panel decisions that are
precedential as opinions of the court more than just the
opinion of the panel or the opinion of the author of the case.
There is often this wonderful dialog that goes back and forth
between the opinion writer or the panel and a judge who may
have concerns about what is being decided, and it sometimes can
go on for days. Sometimes, the panel will, or the author will
say, ``I want to think about this. I want to have the
opportunity to revisit this issue.'' And sometimes it takes
weeks before the panel comes back with a new opinion, often a
revised opinion. This is part of the collegial aspect of the
court.
Senator Kyl. This should be very reassuring to the
litigants--
Judge Barry. And sometimes we will go en banc before the
opinion ever issues.
Judge Becker. Or often, the panel will change its mind and
say, we got it wrong.
Senator Kyl. Well, it is very interesting and I appreciated
the opportunity to at least mention that. And then I, too, want
to thank all of you for your willingness to be here, to take
time out, but most especially to speak on behalf of a colleague
who I know you all admire a great deal, and I thank you for
that very much.
Chairman Specter. Thank you, Senator Kyl.
Senator Durbin.
Senator Durbin. Mr. Chairman, I thank the members of the
panel for their public service. I have no questions, and I
would like to associate myself with the remarks of Senator
Leahy.
Chairman Specter. Thank you very much, Senator Durbin.
Senator DeWine.
Senator DeWine. I have no questions, Mr. Chairman.
Chairman Specter. Senator Sessions.
Senator Sessions. I would just like to ask the panel, I see
one of the articles that stirred up some of this discussion
about not being an even-handed judge actually only considered
221 cases in the judge's first 6 years on the bench.
I am sure you, as professionals who have been there, your
judgment is better about his style and fairness than some
abstract numbers would be.
But I will just ask you, Judge Scirica, maybe--and if
others would like to comment, please do--on civil rights cases
that I have seen here, of the civil rights cases Judge Alito
wrote, the panel agreed with him 90 percent of the time and his
opinions were unanimous 90 percent of the time. That doesn't
sound like an extreme position to me.
What would you say about that?
Judge Scirica. Well, I would agree, and that would comport
with my recollection of these cases.
Senator Sessions. And I notice the respect Judge Lewis had
for Judge Alito. It said when he sat on panels where both the
other judges were Democratic appointees, the decision was
unanimous in 100 percent of the cases, or whatever those
statistics show. And then with regard to the immigration cases,
it says that his appeals--the average judge in the country--in
average cases, the immigrant wins asylum claims in the court of
appeals slightly over 11 percent of the time. But in Judge
Alito's record, he ruled for the immigrant seeking asylum in
fully 18 percent of the cases.
Do those numbers, Judge Scirica, strike you as sort of what
the--well, the 11 percent, is that about what you would expect?
Judge Scirica. Yes, sir.
Senator Sessions. And in the cases that he wrote opinions
on, the average court of appeals judge ruled for the immigrants
8 percent and he ruled for the immigrants 19 percent. Well, I
don't know that those numbers mean a whole lot, but I do think
they tend to rebut some of the numbers that we have seen
floating around, because your opinion of him does not reflect a
person who shows bias.
In the Rybar case, Judge Gibbons--you no longer are on the
bench, you could be honest with us right here in Congress--if
the Congress had put in an interstate commerce nexus in the
statute they passed about machine guns, like they did in ITSMV,
interstate transportation of stolen motor vehicles, or
interstate transportation of stolen property, kidnapping, or
theft from interstate shipment, it would have been upheld,
wouldn't it?
Judge Gibbons. That is what he said in his dissenting
opinion.
Senator Sessions. So the truth is that Congress missed the
boat?
Judge Gibbons. Yes, as it did with respect to this recent
unfortunate legislation.
Senator Sessions. And we could fix it as soon as we passed
a law correctly, I would submit.
I would just ask this, Judge Aldisert. I am serious about
this question, but I think Judge Roberts agreed with me that if
an individual within the heart of Pennsylvania or New Jersey
picks up a rock and kills another person, that is not a Federal
crime. Is that correct, without an interstate nexus of some
kind, that would be prosecutable solely by the State court?
Judge Becker. Unless he stole the rock out of an interstate
shipment.
Judge Lewis. It could be a violation of Federal civil
rights, also.
Judge Garth. If he killed or the person that he assaulted
was a Federal official--the President or Vice President or a
Senator.
[Laughter.]
Senator Sessions. Well, Judge Lewis said it could be a
civil rights violation if it was in a way to deny someone of
civil rights.
Judge Lewis. That is correct.
Senator Sessions. Or if it was a Federal official. But,
classically, the Federal criminal law has been tied to
interstate commerce nexus, hasn't it, Judge Aldisert?
Judge Aldisert. Yes.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
I feel like I need to say ``may it please the Court.''
Thank you all for being here. It is very important, I believe,
to have testimony from people that know this nominee. We have
heard a lot of wild and crazy, from my perspective, accusations
that have been unsubstantiated from people who don't know this
nominee as well as you do.
I want to just try to eliminate one concern that has been
expressed, and I have heard a hint of criticism about these
judges appearing as witnesses in this hearing, supposing that
perhaps there would be some conflict of interest if your
decisions would be appealed to the United States Supreme Court
and Justice Alito had to sit on it. I haven't noticed any lack
of willingness to disagree with him while you were colleagues
on the Third Circuit. That seems highly unlikely.
And for the suggestion that this is somehow unprecedented
to have judges, former and current sitting judges testify, Mr.
Chairman, I have a list of examples where sitting members of
the Federal judiciary have testified during the confirmation
proceedings of another Federal judge. And I would ask that that
be made a part of the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Cornyn. Canon 4B of the Code of Conduct for U.S.
Judges provides a judge may appear at a public hearing before a
legislative body--there are some ellipses there--on matters
concerning the law, the legal system and the administration of
justice to the extent it would generally be perceived that a
judge's judicial experience provides special expertise in the
area.
And I regret, Your Honors, that you somehow get sucked into
the contentiousness and some of the unfairness that occurs
sometimes, the innuendo that sometimes arises when you are a
witness in a contested proceeding. And as you can tell, these
hearings have become, and the confirmation process, an
adversarial process.
The unfortunate part is, as our Chairman has noted before,
it is not controlled by the rules of evidence. It could be
based on speculation, hearsay and rumor, whereas we know in a
court of law that wouldn't be admissible. And our procedures
are a lot more flexible and open-ended, and certainly there is
no standard of review that applies to judges in your
distinguished and exalted position as members of the Federal
judiciary.
Judge Aldisert, I want to say that I guess I am the only
other member of this Committee who has probably read one of
your books, but I am certainly familiar with your great work
and your writings. And, of course, as has already been noted,
Judge Becker is very familiar to the Judiciary Committee.
I want to ask both Judge Gibbons, who is no longer on the
bench, and Judge Becker--both of you have talked about the
transforming experience of crossing over from being an ordinary
lawyer, including a U.S. Attorney, and then putting on the
black robe, after you have put your hand on the Bible and taken
an oath to uphold the laws and Constitution of the United
States, so help me God, and what a different perspective that
provides, a different obligation, different responsibilities.
And I think Judge Trump Barry noticed that transformation in
this nominee when he crossed over from being a practicing
lawyer to becoming a member of the judiciary.
Judge Becker, I wonder if you just might comment. We just
have a couple of seconds here, but this morning Senator Biden
was asking questions about this nominee's views on Roe v. Wade,
perhaps as reflected in an application he made for a job in
1985. And it seemed to raise the question of, well, if that is
your view today, wouldn't you just feel free to go in and vote
to overrule it?
And it struck me because of the difference in a judge's
role from that of an advocate. He was applying for a job as
part of the Reagan administration. But on one hand, he was
talking about, well, maybe you have the power, but what Judge
Alito seemed to talk about most was legitimacy of the judicial
process and the judgments rendered by courts and why that is
such an integral part of the role judges play in our system of
government.
Would you please respond to that?
Judge Becker. Well, I agree with Judge Alito and I think,
Senator Cornyn, that you have eloquently described the
transforming experience. I know that it is within your life's
experience when you took the oath of office to be a justice of
the Texas Supreme Court. It just transforms you. You become a
different person and your obligation is to the rule of law and
you have no interest in a case.
And if I could just seguey this into your original point
which bears upon what Senator Leahy had to say in terms of
whether or not a Justice of the Supreme Court would have to
recuse on an opinion I wrote on one of our cases, I have no
interest in the case. Recusal is a function of whether or not
the party or the lawyer has an interest in the case, but I
don't have any interest in any case. None of us have any
interest in any case, and this is consistent with what Judge
Alito said and your description of that transforming
experience.
Senator Cornyn. Mr. Chairman, I would just say Judge
Gibbons and Judge Lewis are no longer members of the bench and
I am sure have experienced the liberating transformation once
you cross back over that Rubicon, perhaps, as well.
Thank you very much.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Coburn.
Senator Coburn. Thank you very much, and I appreciate so
much you all taking the time to come here. As a physician, I am
starting to learn some of the lingo of the legal profession. It
is hard, but I am going to start talking in doctor's terms so
the rest of them can't understand.
Judge Barry, I wanted to ask you, and also Judge Lewis, do
you think that there is any merit whatsoever to the allegations
that were made that Judge Alito is hostile to the rights of
women or minorities, and have you seen that in the 30 years--
have you seen any indication whatsoever either in his opinions,
his personal life, his interpersonal relations with you, or
you, Judge Lewis, that there is any indication that there is
that type of bias in this man?
Judge Barry. I have never seen it, and if I had seen it, I
would not be here today.
Senator Coburn. Judge Lewis?
Judge Lewis. I have already said that if I sensed that Sam
Alito during the time that I served with him or since then was
hostile to civil rights or would be hostile to civil rights as
a Justice of the United States Supreme Court, I absolutely
would not be here today. I am not interested in saying anything
on behalf of someone that I believe would hold views like that
or would proceed in that way.
I am basing what I am saying on my years of experience in
conference with him, discussing cases and--we have different
views and different approaches, but never would I suggest--did
it seem to me that he held any hostility to civil rights, which
is an area that I hold very dear and is very important to me
and remain committed to furthering in this country.
Senator Coburn. Thank you. Well, Mr. Chairman, I don't
think you can have a better recommendation than the people that
you work with and the people that you spend the greatest amount
of time with and the people who see you under stress who make
evaluations.
The greatest tragedy, I think, of this hearing is the
allegations that have been made that aren't substantiated based
on fact, that are substantiated on the basis of the fact that
you want to try to destroy somebody's character and undermine
their character to make them look a certain way which they are
not.
I appreciate you all's very straightforward answer and I
thank you for coming, and I yield back my time.
Chairman Specter. Thank you very much, Senator Coburn.
The question has been raised as to precedents, and Senator
Cornyn has addressed that and it is worth mentioning just a
few. Former Chief Justice Burger testified for Judge Bork.
District Judge Craig testified for Chief Justice Rehnquist.
District Judge Tanner testified for Justice Thomas.
The canons, specifically 4B, of the conduct of U.S. judges
make a specific allowance for this kind of a situation, quote,
``judicial experience provides special expertise to the area.''
And it is certainly obvious that the insights which you judges
have to Judge Alito's background are unique. When you talk
about what goes on in those conferences, you are the only ones
who are there and you have much more insight as to the opinions
he has written that you have worked with him on.
We have 30 witnesses who are coming in and that has been a
traditional part of the process, but I know of no situation
where witnesses have more to say which is relevant and weighty.
Perhaps weight is the best evidentiary characterization of what
you have had to say. A lot of things can be relevant, but
especially where you have the issue which has been before this
Committee as to Judge Alito's agenda or Judge Alito's approach
or Judge Alito's personal views dominating his judicial
determinations, this panel is right on the head.
It has been an unusual panel, but that is really not a
strike against the practice. It may be a precedent for the
future and it, I think, will be a good precedent. But whenever
you try something new, there are differing voices, but I think
it is an extraordinary contribution which this panel has made
to this process.
So, former Chief Judge Becker, Chief Judge Scirica, Judge
Barry, Judge Aldisert, Judge Gibbons, Judge Lewis, Judge Garth
from Phoenix, Arizona, you lucky fellow, we thank you all very
much for coming in.
We are going to take only a 10-minute break now. I didn't
have a chance to discuss it with Senator Leahy, but we do not
have the situation where Judge Alito is on the stand and he
needs a little longer break. We will have fresh witnesses and
tired Senators.
Ten minutes. We will resume at 5:20.
[Recess from 5:10 p.m. to 5:20 p.m.]
Chairman Specter. We will now proceed with panel three, and
our first witness is Edna Axelrod, who has known Judge Alito
for nearly 20 years, having worked with him when he was United
States Attorney. She is a sole practitioner in South Orange,
New Jersey. She served in the U.S. Attorney's Office from 1980
to 1983 and 1985 to 1994 during Judge Alito's tenure as U.S.
Attorney. She had an important position as the Chief of the
Appeals Division. She is a graduate of Duke's Law School, has a
master's degree in Law from Temple, and we welcome you here,
Ms. Axelrod.
We are going to have to be mindful of the time because we
have four panels and about 23 witnesses.
Senator Leahy. Are you going to finish tonight?
Chairman Specter. Well, I would like to, but it is subject
to negotiation with you, Senator Leahy.
Senator Leahy. Mr. Chairman, could I just ask unanimous
consent that a number of letters I have and usual things to put
in the record?
Chairman Specter. Sure. Without objection, they will be
made a part of the record.
Thank you, Ms. Axelrod, for being here, and we are starting
the clock at 5 minutes.
STATEMENT OF EDNA BALL AXELROD, ATTORNEY AT LAW, LAW OFFICES OF
EDNA BALL AXELROD, SOUTH ORANGE, NEW JERSEY
Ms. Axelrod. Thank you. Thank you, Mr. Chairman and members
of the Committee. I appreciate the opportunity to appear here
today to testify in support of the nomination of Samuel Alito.
I am a former Chief of the Appeals Division at the United
States Attorney's Office for the District of New Jersey, and
for the past 11 years I have practiced as a Federal criminal
defense attorney in northern New Jersey. At this point in these
proceedings, I am sure there is little need to provide further
comment concerning Judge Alito's legal acumen and outstanding
accomplishments. However, I hope that the Committee may find it
useful to hear the insights and observations of someone who
worked closely with Judge Alito during the period of time that
he served as United States Attorney for the District of New
Jersey.
I first met Judge Alito when I joined the United States
Attorney's Office in 1980. At that time, he was laboring in the
Appeals Division, and I was in the Frauds Division. As a
rookie, I quickly learned that if I ran into a particularly
thorny legal or procedural problem, the most knowledgeable and
approachable person to consult was Sam Alito. Although he soon
left for the Solicitor General's Office, he returned in 1987 as
United States Attorney. Shortly after his arrival, he began
selecting the supervisory staff who would assist him during his
tenure, and after reviewing my work in the Appeals Division, he
asked me to serve as Chief of Appeals. This was particularly
meaningful to me for two reasons: First, Judge Alito's
estimable reputation as an appellate and Supreme Court advocate
had preceded him, and the importance that he placed on the
appellate process was well known. Second, in 1987, it was still
unusual for women to be elevated to positions of authority in
either Government or private offices, and I was gratified to
see Judge Alito's appointments were based on merit, not gender.
As a member of the supervisor staff, I met frequently with
Judge Alito, sometimes alone but usually with other division
chiefs, to discuss ongoing significant criminal prosecutions,
appeals, and investigative initiatives. During these meetings
he openly invited the thoughts and input of everyone, asking
subtle questions to guide the discussion to areas where he had
concerns. Although it was clear that in the end he would make
up his own mind, it was equally clear that there was no danger
in advocating a position that he might ultimately reject. His
goal was to get as much information as possible so his
decisions could be firmly grounded in a comprehensive
understanding of the law and the facts.
Consistent with this approach, his stewardship of the
office was grounded in quiet confidence; his decisions and
actions were measured and thoughtful--never impulsive or purely
reactive. Although it is possible for U.S. Attorneys to use
their offices as showcases for themselves and their further
aspirations, that is, to enjoy and employ the limelight, this
was never Judge Alito's way. It was always the work, not the
image, that came first.
It is a well-known motto of Federal prosecutors--one most
often heard on those occasions when they suffer a defeat--that
``the United States wins when justice is done.'' Under the
leadership of Samuel Alito--and I should say ``Judge Alito''--
that was more than a catch-phrase. It was office policy. Judge
Alito expected the assistants in his office to work hard to
achieve and preserve convictions where the evidence supported
guilt, but he also demanded that they remain ever mindful of
the very great power that they wielded as Federal prosecutors
and the need to use that power with appropriate discretion.
Based on my experience in that office, I am confident that
Judge Alito would approach the power of being on the Supreme
Court with an equal if not heightened sense of responsibility
and care.
As I noted earlier, I am present a criminal defense
attorney, and I am also a lifelong Democrat. As such, I might
be expected to have concerns about Judge Alito's nomination.
However, in supporting his nomination, I am actually
representative of a large number of former colleagues of Judge
Alito of all political stripes who support his nomination
because they know firsthand what kind of man he is. Those of us
who know him know that he is not an ideologue and that he does
not use his position to pursue personal agendas. We have seen
his profound respect for the law and precedent and his
unfailing respect for all participants in the criminal justice
system, prosecutor, defense counsel, and defendants alike. We
know him to be a man of unquestionable ability and integrity,
one who approaches each case in an open-minded way, seeking to
apply the law fairly.
The appointment of Sandra Day O'Connor to the Supreme Court
in 1981 was an event of special importance to me. At the time I
thought that the most significant fact was that she was a
woman, the first woman on the Court, and, of course, that was
truly ground-breaking. But in time I have come to appreciate
that, more than her gender, it is her extraordinary mixture of
character and intellect that has most profited our country. As
a person of both great character and great intellect, Samuel
Alito would be a worthy successor to Justice O'Connor, and I
hope that he will be speedily confirmed.
Thank you very much.
[The prepared statement of Ms. Axelrod appears as a
submission for the record.]
Chairman Specter. Thank you, Ms. Axelrod.
Our next witness is Professor Michael Gerhardt,
distinguished professor of constitutional law at North Carolina
School of Law. Professor Gerhardt is the author of a number of
books on constitutional law, served as special consultant to
the White House on the nomination of Justice Stephen Breyer. He
received his bachelor's degree from Yale in 1978, master's from
the London School of Economics, and law degree from the
University of Chicago in 1982.
Thank you for joining us, Professor Gerhardt, and the floor
is yours for 5 minutes.
STATEMENT OF MICHAEL J. GERHARDT, SAMUEL ASHE DISTINGUISHED
PROFESSOR OF CONSTITUTIONAL LAW, UNIVERSITY OF NORTH CAROLINA
AT CHAPEL HILL LAW SCHOOL, CHAPEL HILL, NORTH CAROLINA
Mr. Gerhardt. Thank you very much, Mr. Chairman, Senator
Leahy, and other distinguished members of the Committee.
For almost 20 years, I have had the honor of teaching
constitutional law. For almost as long, I have studied the
process of Supreme Court selection in some detail and have had
the privilege and opportunity to write about it at some length.
And I come to you today with the hope that whatever expertise I
have developed in that process may be of some use to you.
In this statement, I want to just make three brief
observations as extensions of my written statement, which you
already have.
First, the Constitution allows every Senator to make a
decision about a Supreme Court nomination based on whatever
factors he or she considers to be pertinent, including judicial
philosophy. The Constitution, I believe, does not require
absolute deference to a President when it comes to making
Supreme Court nominations, nor, for that matter, does it
require hostility. The Constitution allows you, I think, to do
what you see fit. It allows you to engage in a robust dialog
about the qualifications for service on the Supreme Court.
With that in mind, I just want to give you one brief
example of what I am talking about what the Constitution allows
just to illustrate, I think, the robustness of the process that
we shouldn't be ashamed of but, in fact, should be prepared to
embrace.
Much has been said about the fact that Judge Alito has had
the most judicial experience of any nomination made to the
Supreme Court in almost 70 years, but nobody mentions who that
other nominee was. The other nominee that preceded him was
Benjamin Cardozo, and Cardozo, as we probably all know, was not
President Hoover's first choice. It wasn't even President
Hoover's second choice. In fact, he was the choice of the
Senate. And the Senators came to the President and said, in
effect--in fact, members of this Committee came to the
President and said, in effect, that this is the person we want,
here are the criteria we think are important. President Hoover
was not obliged in any way, shape, or form to accept that, but
he did. And I simply make that observation to underscore the
fact that there is an opportunity for exchange between the
Presidency and the Senate with respect to a Supreme Court
nomination, and we should be prepared and as open as possible
in talking about the qualifications for service. And, again, if
each of you believes to some extent judicial philosophy is
appropriate, it is important to say so and to act accordingly.
Second, you know better than I the important function of
this Committee as a gatekeeper. You are in the position, at
least the initial position, of being able to sort of filter out
the views and personnel you don't want to see reflected on the
Supreme Court, or you are in the position of determining what
views and personnel you do want to have on the Supreme Court.
The Supreme Court is largely a function of choices made by the
President and the Senate. The Senate and the President help to
make the Supreme Court what it is. And I think that that dual
partnership is something we ought to keep in mind because in
making determinations and judgments about a Supreme Court
nomination, the Senate has an extremely important role to play.
And the more vigorously you perform that role, I think the more
credit it does to you, and the more we can be assured that
whatever choice gets made about the people that serve on the
Court, we can have confidence that they can be there, that they
can trust the--that they are worthy of the trust you have given
them to exercise the awesome power of judicial review over the
constitutionality of not just your actions, but the actions of
other branches.
Third, I must confess--and I regret this--an error in my
written statement. I discuss in this written statement the
importance of assessing whether or not Judge Alito was a
bottom-up or top-down judge. A bottom-up judge is somebody who
decides incrementally, one at a time, and has a great deal of
respect for precedent. A top-down judge is somebody who tends
to infer principles directly from the Constitution and then
impose them from the top down. And in the course of trying to
figure out whether Judge Alito was bottom-up or top-down, I
made a mistake in not identifying Justice Harlan as one of the
Justices he most admires. I just want to sort of correct that
error. The reverence for Justice Harlan is almost universal. He
is certainly one of the Justices I most admire.
But the admiration for Justice Harlan does raise a
question, and the question is this: How, if at all, does Judge
Alito's reverence for Justice Harlan make him the same kind of
judge or a different kind of judge than other Justices who also
have admired Justice Harlan, including Justice Kennedy and
Justice Souter? Is he the same kind of judge as they are, or is
he a different kind of judge?
Reverence for Justice Harlan is obviously pertinent, it is
important, but it may only tell us so much. And I think it is
useful and very important for you not to shy away from asking
the tough questions. You have asked the tough questions. I
think it does you credit. I think that is what this process is
all about, and I am privileged to be a part of it.
Thank you.
[The prepared statement of Mr. Gerhardt appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Gerhardt.
Our next witness is Commissioner Peter Kirsanow, U.S.
Commission on Civil Rights, Partner with the law firm of
Benesch Friedlander. He is also on the board of directors of
the Center for New Black Leadership, and on the advisory board
for the National Center for Public Policy Research. His
bachelor's degree is from Cornell, law degree from Cleveland
State with honors.
Commissioner Kirsanow has reviewed Judge Alito's civil
rights record and will testify as to his conclusions in that
area.
STATEMENT OF PETER N. KIRSANOW, U.S. COMMISSION ON CIVIL
RIGHTS, AND PARTNER, BENESCH FRIEDLANDER COPLAN & ARONOFF, LLP,
CLEVELAND, OHIO
Mr. Kirsanow. Thank you, Mr. Chairman, Senator Leahy,
members of the Committee.
The U.S. Commission on Civil Rights was established
pursuant to the 1957 Civil Rights Act, among other things, to
act as a national clearinghouse for matters pertaining to
discrimination and denials of equal protection. And in
furtherance of the clearinghouse responsibility and with the
help of my assistant, I have reviewed the civil rights cases in
which Judge Alito has participated on the Third Circuit, as
well as his record as an advocate before the Supreme Court in
the context of prevailing civil rights jurisprudence.
Our examination reveals that Judge Alito's approach to
civil rights is consistent with the generally accepted textual
interpretation of the relevant constitutional and statutory
provisions, as well as governing precedent. His civil rights
opinions evince appreciable degrees of judicial precision,
modesty, restraint and discipline, and in short, his civil
rights record is exemplary, legally sound, intellectually
honest and with an appreciation and understanding of the
historical bases undergirding our civil rights laws.
Our examination also reveals that several aspects of Judge
Alito's civil rights record have been mischaracterized, some of
the criticisms misplaced. Just three brief examples.
First, some have contended that Judge Alito has a
regressive or anti-civil rights view of affirmative action, one
that is to the right of Justice O'Connor. This contention is
based on three affirmative action cases in which Judge Alito
participated on brief, while he was with the Solicitor
General's Office in the Reagan administration. These three
cases are Wygant v. Jackson Board of Education, Sheet Metal
Workers v. EEOC, and Firefighters v. Cleveland, all of which
involved expansive racial preferences as remedies for
discrimination. Notwithstanding the fact that positions
espoused as an advocate are poor proxies for interpretive
doctrine, there is nothing in the record to suggest that Judge
Alito would somehow restrict remedies currently available under
United Steelworkers v. Weber, or Johnson v. Transportation
Agency any more so than Justice O'Connor would.
Judge Alito essentially argued that rigid quotas are
unlawful, and opposition to quotas and expansive racial
preferences do not evince a hostility to affirmative action,
let alone civil rights in general.
Second, some critics have said that Judge Alito's decision
or dissent in Bray v. Marriott is evidence of his supposed
tendency to impose ``almost impossible evidentiary burdens on
Title VII plaintiffs.'' But a review of Bray shows that Judge
Alito's dissent actually steadfastly adheres to Third Circuit
precedent, and carefully applies the law to the facts, as the
majority opinion seems to dilute the commonplace standard of
proof in a Title VII case reducing or converting the burden of
production on the part of a defendant into a burden of proof.
The third contention unsupported by our examination is that
Judge Alito's civil rights record is out of the mainstream.
Judge Alito participated in 121 Third Circuit panels that
decided cases that may be termed in the traditional sense civil
rights cases. Now, one would expect that if someone were out of
the mainstream, that by definition he would rarely agree with
his colleagues on the Third Circuit, and moreover, you would
expect that he would almost never agree with his Democratic
colleagues and would vote overwhelmingly with his Republican
colleagues. But an examination of Judge Alito's extensive
record on the Third Circuit shows that his co-panelists on
civil rights cases actually agreed with his written opinions
and votes 94 percent of the time, and that is whether or not
those panelists were Republican or Democrat, and in fact,
produced unanimous decisions 90 percent of the time. Moreover,
judges appointed by Democratic Presidents actually agreed with
Judge Alito's civil rights positions at a slightly higher rate
than his Republican colleagues by a margin of 96 percent to 92
percent. In fact, judges appointed by Democratic Presidents
Johnson, Carter and Clinton agreed with Judge Alito's civil
rights position at the same or slightly higher rate than judges
appointed by President Reagan or either President Bush.
Obviously, in order to fairly assess Judge Alito's civil
rights cases, you have to look at the actual facts and
applicable law in each case, but it cannot be credibly stated
that Judge Alito is hostile to civil rights, out of the
mainstream, or extreme, without leveling the same charges
against every other judge on the court, whether Republican or
Democrat.
I respectfully submit that Judge Alito's 24-year record on
matters pertaining to civil rights demonstrates a firm and
unwavering commitment to equal protection under the law, and he
has a comprehensive and precise understanding of our civil
rights laws that will make him an outstanding addition to the
Supreme Court.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kirsanow appears as a
submission for the record.]
Chairman Specter. Thank you very much, Commissioner
Kirsanow.
Our next witness is Professor Samuel Issacharoff, Reiss
Professor of Constitutional Law at New York University School
of Law, an author of several books focusing on voting rights
and civil procedure. He had taught at the Texas Law School.
Bachelor's degree from Binghampton University in 1973 and law
degree from Yale in 1983.
Thank you for joining us, Professor, and we look forward to
your testimony.
STATEMENT OF SAMUEL ISSACHAROFF, REISS PROFESSOR OF
CONSTITUTIONAL LAW, NEW YORK UNIVERSITY, NEW YORK, NEW YORK
Mr. Issacharoff. Thank you, Mr. Chairman, Senator Leahy,
members of the Committee. I want to direct my remarks to the
question of the reapportionment cases and the significance of
the Court's role in overseeing the basic fairness and integrity
of our political process.
I raise this issue because the reapportionment cases stand
for something beyond simply the doctrine of one person/one
vote. They also stand for the role that the Court has to play
in making sure that the political process does not turn in on
itself and does not close out those who are not able to
effectively marshal their votes, their power, their support
under the rules that govern the political process.
It is significant because no Justice of the Supreme Court
over the past 35 years has hesitated to assume the
responsibility so well articulated by the Supreme Court in the
famous Carolene Products footnote. Justice Stone, in 1938, on
behalf of the Court, recognized a special need for exacting
judicial review in the case of laws, and these were his words,
``that restrict those political processes which can ordinarily
be expected to bring about repeal of undesirable legislation.''
The reapportionment cases of the 1960s, the cases that appear
to have so deeply concerned Judge Alito as a young man, were
the realization of the Carolene Products insight.
In the 40 years that have passed since the reapportionment
cases, the Supreme Court has bravely entered into the political
thicket. Sometimes the Court's role is simply what appears to
be routine, such as access to the ballot and the polling place,
sometimes it is the truly extraordinary as with Bush v. Gore.
The result of these interventions, although obviously not
without controversy, is a political system that is more open
and more participatory that at any time in our history.
It is difficult to imagine in this day and age any serious
objection to the rights identified in these cases. In Reynolds
v. Sims, for example, Chief Justice Warren wrote that ``Full
and effective participation by all citizens in State Government
requires that each citizen have an equally effective voice in
the election of members of his State legislature.''
But it is also well to recall the facts presented in these
cases. The willful failure to reapportion had transformed
American legislative districts into grossly unrepresentative
institutions in which voters of the growing cities and suburbs
found themselves unable to participate effectively in a
political process controlled by rural minorities.
In Alabama, the site of Reynolds v. Sims, one county had 41
times as many representatives per person as another. That
pattern was repeated across the country. In California, to pick
just one, Los Angeles County had one State Senator, as did
another county with one one-hundredth of its population.
While the basic principle of one person/one vote may now be
so deeply embedded in our culture as to seemingly defy any
controversy, its implementation was another matter, and I think
that is what is significant about these cases. Those whose
votes were discounted to the point of irrelevance were
repeatedly frustrated by entrenched political power. The
intervention of the Supreme Court was indispensable, indeed, it
was the single most successful remedial effort by the Supreme
Court in our history. It changed and made fundamentally more
democratic the legislative process, and it made the legislative
process one that was deserving of judicial deference.
When I teach these cases today to students, however, and
even when I was a law student in the early 1980s, the idea of
one person/one vote appears so elemental, so in keeping with
the most rudimentary sense of democracy and legitimacy, that
students cannot even fathom that a society, a democratic
society could be organized on any other basis.
I do not know how a young college student in 1970 might
have reacted, particularly when presented with the formidable
writings of Alexander Bickel. Bickel captured well the tension
between a commitment to popular sovereignty and the overriding
commands of the Constitution, and it is well to remember that
although we turn our attention here to the Court, it is
obviously the Congress that is a significant and major
institution expanding our democratic horizons, as with the
Voting Rights Act of 1965.
Nonetheless, I would suggest that the fact that the
reapportionment cases should appear on a job application in the
1980s is at least a curiosity. Perhaps it was through
recounting of an intellectual path, but perhaps an indication
of a continuing view that courts have no business in checking
the abuses of political power. If it is the latter, it should
be deeply troubling to this Committee and to the Senate, for
the issue of the day is not the intellectual trajectory of a
thoughtful college student, but the implications for the vital
role the Supreme Court plays in our democratic life.
Critical issues in the organization of our democracy remain
unsettled and are going to appear as they do before the Court.
Our system of redistricting has run amuck, the competitive
lifeblood drained by self-perpetuating insiders. This may prove
to be the same sort of structural obstacle to democratic reform
as had to be dislodged by reapportionment decisions of 40 years
ago.
The answer may not be simple, but the role of the Court is
absolutely critical. So too with campaign finance. So too with
even the mechanics of our electoral system. In all of these
areas there is reason to doubt that incumbent officials are
able to fix the political process that elected them. As Justice
Scalia has wisely cautioned, ``the first instinct of political
power is the retention of power.'' While not without
controversy or difficulty, our collective experience over the
past 40 years confirms that the Nation is much the better for
the robust attention of the Court to the health of our
democracy.
I would suggest to this Committee and to the Senate that
before confirming any nominee to the Supreme Court, the Senate
of the United States should be able to conclude with confidence
that regardless how a nominee may vote on any given case, he or
she will assume the full responsibility of protecting the
integrity of our democratic processes.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Issacharoff appears as a
submission for the record.]
Chairman Specter. Thank you, Professor.
Our next witness is Mr. Carter Phillips, one of the premier
appellate lawyers in the country. He has handled some 47 cases
before the Supreme Court of the United States, some of those as
Assistant to Former Solicitor General Rex Lee. He is a graduate
of Northwestern School of Law, a clerk for Chief Justice Warren
Burger, and rated as one of the 100 best lawyers in America by
the National Law Journal.
At your hourly, Mr. Phillips, thank you for joining us, and
how much does 5 minutes cost?
Mr. Phillips. Well, I will not answer that question, but I
will tell you that the law firm has taken a hit today.
[Laughter.]
STATEMENT OF CARTER G. PHILLIPS, MANAGING PARTNER, SIDLEY
AUSTIN, LLP, WASHINGTON, D.C.
Mr. Phillips. Thank you, Mr. Chairman and members of the
Committee.
Oftentimes it strikes me that baseball metaphors tend to be
used at these hearings, and it at least impresses me that
perhaps a tennis metaphor is more appropriate at this point
based on the testimony of Judge Alito in the last two and a
half days and the extraordinary eloquent testimony of the Third
Circuit judges in the last hour or so, it would strike me that
we ought to be at the point of game, set and match, because it
seems to me that there can be no serious question about either
the qualifications on ability or ethics or any other standard
that this Committee would want to use in reviewing the
qualifications of Judge Alito to become a Supreme Court
Justice.
You have my written testimony. I am not inclined to repeat
it at this point. One thing I have learned as an appellate
advocate is if you think you are ahead on points, you would do
well to sit down and shut up. So all I am going to do is simply
recount for you my own experiences with Judge Alito when we
were in the Solicitor General's Office, not because I think
they add all of that much, but I do think they debunk the
notion that somehow Judge Alito has long been an ideologue of
any sort.
The judge and I met when we both interviewed with Judge
McCree, who was Jimmy Carter's, President Carter's Solicitor
General. We were interviewing for a job as Assistants of the
Solicitor General. We had applied for that position prior to
the election. Neither of us knew which direction that election
was going to come out. We were seeking that position not
because we had any kind of an agenda to fill, but solely
because each of us hoped to get a very prestigious position.
Now, as it happened in that first meeting, Judge Alito and
I ended up being seated together by ourselves when all the
other members of the Solicitor General's Office went off to
another table and we had what I think is fairly described as at
least a little bit of an uncomfortable conversation because we
had assumed that we were competing for exactly the same job and
had a very interesting exchange of views about our backgrounds
and our experiences, he being an existing Assistant U.S.
Attorney with an extraordinary amount of experience as an
appellate lawyer, I being a former law clerk and, at that time,
an assistant professor of law. But we built a great friendship
based on that conversation and the fact that we both ended up
in the Solicitor General's Office. Well, what struck me is that
whether or not the Solicitor General had been Wade McCree or
whether, as it turned out, the Solicitor General was Rex Lee,
our service to the United States would have been precisely the
same.
And the only thing I would say in that regard is that
during the three-plus years that I have served with Judge Alito
in that office, I had an opportunity to talk with him almost
every day, and in that capacity, I learned an enormous amount
from him about both his compassion and his intellect and his
open-mindedness and his enthusiasm to assist all of the lawyers
in that office. He was a great lawyer. He was a tremendous oral
advocate. He went on, obviously, to a very distinguished
career. While I have my own opinions on what he has
accomplished on the Third Circuit, it seems to me I cannot add
to the eloquence of what has already been said by the judges of
that court and I would simply urge this Committee to confirm
him as a Justice. Thank you.
Chairman Specter. Thank you very much, Mr. Phillips.
[The prepared statement of Mr. Phillips appears as a
submission for the record.]
Chairman Specter. Professor Goodwin Liu is an expert in
constitutional law, civil rights, and the Supreme Court at the
University of California, Boalt Hall. He is a graduate of
Stanford with his bachelor's degree, and master's from Oxford
and law degree from Yale Law School in 1998. He served as a law
clerk for Supreme Court Justice Ruth Bader Ginsburg during the
October 2000 term.
Thank you for coming in today, Professor Liu, and we look
forward to your testimony.
STATEMENT OF GOODWIN LIU, ASSISTANT PROFESSOR OF LAW, BOALT
HALL SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA, BERKELEY,
BERKELEY, CALIFORNIA
Mr. Liu. Thank you, Mr. Chairman. I am very honored to be
here today.
I agree with all of my fellow panelists that Samuel Alito
has a very talented legal mind. I have read over 50 of his
opinions. They are very sharp, analytical, intellectually
honest. But if intellect alone were enough, then these hearings
would be unnecessary. We care about the judicial philosophy of
the nominee, and so to prepare for these hearings, I studied
Judge Alito's opinions on individual rights versus government
power.
His record is enormous, and Mr. Chairman, as you have said,
cherry-picking cases is not very informative. Neither is it
very informative to look at the entire run of all cases. What
is informative, I think, is a look at the closest, most
contested cases, cases where judges on a panel disagreed. These
are the cases most like the ones at the Supreme Court. The law
is less clear and judges have to show their stripes.
I don't think Judge Alito is an ideologue, but I think it
is important to see what the record says. So I looked at
several areas where government wields great power: immigration,
the Fourth Amendment, criminal prosecution. In these areas,
Judge Alito sat on 52 panels that divided between the
individual and the government. He voted for the individual only
four times, three times joining an en banc majority, one time
writing in dissent. In the other 48 cases, he sided with the
government. This includes all 13 cases on the Fourth Amendment,
all eight cases involving erroneous jury instructions, all four
cases involving the death penalty. On 13 occasions, his vote
for the government was a dissent from an opinion written or
joined by a Republican colleague.
Most of the counter-examples cited in these hearings are
not terribly illuminating. The constitutional violations are
clear. The holdings were unanimous. In the contested cases,
Judge Alito agreed with the government over 90 percent of the
time, far more often than other appellate judges in similar
cases, even those appointed by Republican Presidents.
Now, these figures are not dispositive. Every case is
different, and I am sure Judge Alito got it right many times.
But let me give three examples that show his instinct, I think,
to defer to government power.
The first is a memo he wrote in 1984 as Assistant to the
Solicitor General analyzing a case where police saw a burglary
suspect running across the back yard. The suspect reached a
fence and an officer called out, ``Police, halt.'' When the
suspect tried to climb the fence, the officer shot him in the
back of the head, killing him. The suspect, Edward Garner, was
an eighth grader with a stolen purse and ten dollars on his
body. He was not armed and the officer did not think he was.
The sole reason for his killing was to prevent his escape.
Judge Alito's memo, speaking for no one but himself, said,
``I think the shooting can be justified as reasonable within
the meaning of the Fourth Amendment.'' In a remarkable passage,
he argued that using deadly force to stop a fleeing suspect
rests on, and I quote, ``the general principle that the state
is justified in using whatever force is necessary to enforce
its laws.'' In 1985, the Supreme Court rejected this view.
Second, in a 2004 case, the FBI installed a secret video
camera in a suspect's hotel room. This was done without a
warrant on the ground that the FBI turned on the camera only
when the target allowed an undercover informant into the room.
Judge Alito accepted this logic, even though the camera
remained in the room day and night. The dissent called the
surveillance Orwellian, limited only by the government's self-
imposed restraint. Judge Alito seemed not to grasp that the
concept of a warrant puts a judge between the citizen and the
police precisely because our privacy is too precious to entrust
to law enforcement alone. The NSA program of warrantless
eavesdropping is also being defended by assurances of executive
self-restraint.
Finally, in 1997, there was a capital case where two Reagan
appointees, both former prosecutors, found a misleading jury
instruction unconstitutional. Judge Alito said the instruction
was ambiguous and inadvisable, but adequate to convict the
defendant of first degree murder. He also said the court should
not have heard the claim at all because defense lawyers did not
argue it in prior appeals. But the State never raised this
argument to the inmate's claim. Judge Alito raised it himself.
The court chided him for nearly crossing the line between a
judge and an advocate.
Civil liberties are sometimes seen as obstacles to law
enforcement. But as Justice Frankfurter once said, the
safeguards of liberty are often forged in cases involving not
very nice people.
Mr. Chairman, liberty is not safe in an America where
police can shoot and kill an unarmed boy to stop him from
escaping with a stolen purse, where judges occasionally aid
prosecutions by raising arguments that the State itself did not
raise, and where the FBI can install a camera where you sleep
on the promise that they won't turn it on unless they have to.
Mr. Chairman, this isn't the America we know and it isn't
the America we aspire to be. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Professor Liu.
[The prepared statement of Mr. Liu appears as a submission
for the record.]
Chairman Specter. Mr. Phillips, how would you evaluate the
comments Professor Liu has made?
Mr. Phillips. Well, with respect to the memorandum to the
Solicitor General, I think the notion that that is an
individual opinion is not a very apt description of at least
what I viewed my role when I was an Assistant to the Solicitor
General. What we did in that context, and in this particular
case, what he was doing, was proposing that an amicus brief be
filed on behalf of the United States in support of the State of
Tennessee's position. In that process, I mean, it may be that
that sentence, and I don't have the context of it to understand
it completely, but at that stage, all he is doing is proposing
that a brief be filed. It would be interesting to see what the
ultimate brief said and whether or not it staked out a position
quite as aggressive. But because that is part of the
deliberative process that goes on, it is the same deliberative
process that goes on with respect to the courts.
I mean, I don't disagree that it makes sense to look at the
most contentious cases as a legitimate way to examine that, but
again, I don't think you can take--and I do think this is a
classic instance of cherry-picking--I don't think you can take
out one or two specific examples and say this somehow reflects
anything about the body of work of a judge who has been on the
bench for 15 years and in the face of the testimony we just
heard from colleagues of his who spent literally more than
decades with him and whose view is that he comes to each case
with an open mind and thoroughly analyzes each one and performs
this in a bottom-up, not a top-down process.
Chairman Specter. Ms. Axelrod, you know Judge Alito
extensively. How would you respond to Professor Liu's
testimony?
Ms. Axelrod. Well, I had the same reaction concerning the
first case that was mentioned, when he was in a role as an
advocate and was trying to come up with the different
perspectives that you would bring to a case as an advocate for
the government, where your job is to figure out whether or not
you are going to be supporting the result below. He was doing
his job and he was doing it appropriately.
And the other cases, I think you have to look at the cases
more closely than you can in basically a soundbite during a
few-minute presentation. You have to look at the arguments that
were made on both sides. You have to look at what the standard
of review was. You need to see the facts. I am sure that the
professor analyzed these cases ably, but I would not be
persuaded simply by a short summary of them that the reasoning
was unfounded, even if I disagreed with it, which I very well
might have, without seeing more.
Chairman Specter. Commissioner Kirsanow, what is your
evaluation of Judge Alito's record as it applies to civil
rights issues with African-Americans?
Mr. Kirsanow. Well, as I indicated before, it is exemplary.
We took a look at several hundred cases, 121 specifically, and
we drew a very broad net to encompass the broadest definition
of civil rights possible, but we also drew a more narrow net
for the more traditional civil rights cases, the Title VII
cases where it is more likely that you are going to find an
African-American plaintiff.
And what we saw there is, and I referred to Bray v.
Marriott, I think it is emblematic of the kind of approach
Judge Alito has. He is very precise. Earlier on, I heard
testimony with respect to is he in favor of the little guy or
the big guy, and I think I would hearken back to Judge Alito's
opening, where he says that no one is either above the law or
below the law. I don't think that he is outcome-driven. He is
looking at upholding the law, whether or not that redounds to
the benefit of the big guy or the little guy, and I think that
is the classic example of someone who hues closely to the most
profound protections of civil rights.
Chairman Specter. Professor Issacharoff, is there any doubt
in your mind that Judge Alito will uphold the one man/one vote
rule?
Mr. Issacharoff. I don't think there is any doubt that he
would uphold one person/one vote as an abstract matter. I think
that the broader question that is raised by his earlier
comments, and I heard nothing in these hearings that really
addressed this, is a deeper one about the role of the court in
checking the abuses of incumbent power. So while I don't in any
way question that he has, as much as all the rest of us have,
internalized the one person/one vote principle, my reservation
would be on the willingness to use judicial power to check
malfunctions in the political process.
Chairman Specter. Professor Gerhardt, you say that the
Senate ought to be an active participant in the selection of
Supreme Court Justices. To what extent do you think that, with
a heavy campaign on the judicial issue, the President has
latitude to pick judges as he wants on the political spectrum,
and how could the Senate really effectuate your idea?
Mr. Gerhardt. I think the idea I am describing is the
system that we have got. I don't mean to suggest a different
kind of system, Senator. The President may do exactly as you
suggest, pick somebody based on whatever criteria he likes. I
am just suggesting that I think it is perfectly consistent with
the structure and history of our Constitution for Senators then
to provide an independent judgment of his criteria and to
assess them on whatever other criteria they think are
appropriate.
Chairman Specter. The red light went on during your
answer--
Mr. Gerhardt. Sorry.
Chairman Specter. Senator Leahy?
Senator Leahy. I think he is referring to himself,
Professor. Good to see you again.
I just want to followup on Professor Issacharoff, and I was
pleased to meet your son, Lucas, here earlier. That way, his
name is in the transcript.
Mr. Issacharoff. Thank you, Senator.
[Laughter.]
Senator Leahy. We have talked about the 1985 job
application of then Sam Alito for a job in Ed Meese's Justice
Department. He stated he developed an interest in
constitutional law motivated in large part--in large part--by
disagreement with the Warren Court decisions, particularly in
the area of reapportionment. Now, in the questions he was asked
here, he retreated from that unqualified disagreement and said
that it was based on certain details of later Warren Court
decisions, like the 1969 case, Kirkpatrick v. Preisler.
Mr. Issacharoff. Yes.
Senator Leahy. Doesn't it seem incredible that he was
telling Mr. Meese in 1985 that in 1969, as a young college
student, he was so incensed by the Kirkpatrick case, it
motivated to study constitutional law?
Mr. Issacharoff. I think the Kirkpatrick case had some
impact in the Alito household because of the particular role
that his father played. But his statement refers to an
intellectual excitement based on the writings of Professor
Bickel of Yale. Professor Bickel was not concerned with the
implementation of one person/one vote. Professor Bickel was
concerned, as was Justice Harlan at the time, that the Court
should have no business in this area whatsoever, that whatever
the political process did, whatever the malfunctions of
politics might be, the courts simply were not to be engaged in
that process.
That is the idea that was animating Professor Bickel, and
one has to assume was animating the young Sam Alito.
Senator Leahy. And, of course, Justice Harlan was one of
his heroes. Had we followed that idea of Harlan's dissent, and
others, we wouldn't have had reapportionment around this
country, would we?
Mr. Issacharoff. There were--
Senator Leahy. Unless reapportionment was done politically
by those who would reapportion themselves out of office.
Mr. Issacharoff. The history of the United States was that
for the 20th century, until we got these cases in the 1960s,
incumbent officials simply did not reapportion. They had a
constitutional duty, including this body, in the 1920s, the
Congress, the Senate of the United States, decided not to
reapportion. The Congress simply said why should we reapportion
ourselves out of business, we will just refuse, even though we
have a constitutional obligation.
The lesson was that when power decides to close in on
itself and pull the ladders up behind it, the courts have to be
there. Professor Bickel was deeply disturbed by this, and when
I read in 1985 that somebody is saying that, ``That is what
brought me to constitutional law.'' it opens questions. I don't
have an answer, but certainly I do find it puzzling.
Senator Leahy. Thank you.
Professor Liu, listening to the two cases you described,
the 10-year-old boy shot in the back by an officer who didn't
believe he was armed, and in any event, he wasn't coming at the
officer, he was leaving, the TV in the hotel room, the bedroom,
these things really bother me. And you now have the emerging
story that the President may have violated--actually, the
Congressional Research Service believes he has--and ordered
others to violate the criminal provisions of the Foreign
Intelligence Surveillance Act by spying on Americans. Do you
think from what you have seen here today that we should take
great comfort that a potential Justice Alito would stand up to
the President on those kind of issues?
Mr. Liu. Well, Senator--
Senator Leahy. And I look at how deferential he has been to
law enforcement, and I served in law enforcement, as did our
Chairman. I have a very soft, warm part in my heart for law
enforcement. The only thing in my personal office that has my
name on it is my shield from when I was in law enforcement. But
doesn't this bother you?
Mr. Liu. Well, Senator Leahy, it does, and I won't venture
any predictions as to how he would perform as a Justice. But I
would say that what he urged the Committee to do was to believe
that he would behave as a Justice as he has behaved as a Third
Circuit judge.
Let me say one thing about the memo. This memo that he
wrote in 1984 is about 13, 14 pages long. The first 10 pages of
the memorandum contain his own personal individual analysis of
this case. I urge all members of the Committee to read it if
only to discover that he uses the first person throughout the
first 10 pages of the memo. Only in the last three pages does
he discuss whether or not the United States Government should
file an amicus brief on the side of the State of Tennessee. And
what is ironic about the last three pages is that he observes
that all Federal agencies prohibit precisely this kind of use
of deadly force, and that is one of the reasons why he urged
against amicus participation in this case, because the U.S.
Government would be put into a difficult position to show that
it really meant the rule that he would have urged.
Senator Leahy. Thank you, and, Professor Gerhardt, I am
going to send you a letter. I had another question for you, but
I found very instructive your quick history lesson, as I have
when you have given longer ones. Thank you, sir.
Thank you, Mr. Chairman, and I apologize. I am going to
have to leave at this point for a while, but I know you have
everything under control.
Chairman Specter. Thank you, Senator Leahy.
Senator Kyl?
Senator Kyl. Mr. Chairman, let me just thank the witnesses
for being here. I just am moved to make one comment, though. I
cannot dispute the analysis of individual items here, but I
think in law we are all familiar with the best evidence rule.
And the best evidence of how Judge Alito would serve on the
United States Supreme Court, it seems to me, is not something
that might have motivated him to be interested in the law 30-
some years ago or something that he even wrote as a young
lawyer working in the administration but, rather, his 15 years
on the bench, Number one and, second, how his colleagues have
viewed his character as well as his judicial performance.
We have had almost 3 days to query him about all manner of
issues, and I think to try to, to use the phrase,
``cherrypick'' a particular comment that was made in a much
different kind of context and read into that something more
powerful than all of the other best evidence that we have is a
real stretch. I will just put it that way.
I, nonetheless, appreciate the effort that all of you have
made to be here to enlighten us in these hearings, and I thank
you for your testimony.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman.
I was reminded of an extraordinary observation the other
day, and that was that Robert Bork and Ruth Bader Ginsburg
agreed 91 percent of the time. It was the 9 percent when they
differed which was the major difference. That is something that
I think sometimes we lose track of here when we are looking at
overall statistics, overall figures. It is the dissents. And it
is the close dissents, as Professor Liu has pointed out they
are really important on these enormously sensitive issues
involving race, involving the disabled, involving women, that
so much of a judge's philosophy comes out.
I am interested, Professor, just if you would talk a little
bit about the jury selection cases. We have considered the two
that Judge Alito was most involved in, one which is pretty
boilerplate, I understand, the Brinson v. Vaughn case, and then
the dramatic Riley v. Taylor case, which is just extraordinary
and I think enormously distressful to many. I would be
interested if you would just talk about both and give us your
assessment.
Mr. Liu. Sure. Well, Riley v. Taylor has been discussed in
these hearings. That was a case that concerned a challenge to
racial discrimination in jury selection in the Dover County
court. It was shown that over the course of four murder trials
within the same year, including the defendants in the case, the
prosecution had struck every black potential juror to serve on
a capital jury. And the case was originally decided, actually,
with Judge Alito in the majority, but it was then en banc'd,
and Judge Sloviter ended up with a majority opinion, basically
finding that this pattern, in addition to other evidence in the
record, showed racial discrimination in the jury.
Judge Alito dissented from that view, and I think the
sentence, I think, that is most disturbing is his comparison of
that pattern to the right- or left-handedness of Presidents.
And he went further to say that, absent a careful multiple
regression analysis--I can barely say it--we can't infer from
the statistical pattern any racial discrimination.
Now, the Brinson v. Vaughn case came along 3 or 4 years
later. That was, I believe, a 2005 case in which there was a
pattern of 13, I believe, out of 14 black jurors being struck.
And Judge Alito wrote a unanimous opinion finding racial
discrimination in that case.
What is interesting about that case is that he relies on a
prior case of the Third Circuit called Holloway v. Horn, which
relies in turn on Riley v. Taylor.
Senator Kennedy. Could you, just in the very short time, in
looking through the opinions in these dissents, in areas where
Judge Alito took away the effect of a decision of a trial court
to have a jury trial, the number of cases that he took away
from the trial court, and the number of cases that he took
after there had been a jury trial, on appeal where he ruled
against the individual on that, effectively overriding or
overruling the trial court, a number in both of those areas
some rather significant cases. We haven't got a lot of time
here, but I think you get what I am driving at in terms of the
respect for the trial court and the jury verdict, whether you
feel from your own kind of analysis the appropriate kind of
respect and tradition for that.
Mr. Liu. Well, I think one area in which there is, to my
mind at least, a somewhat disconcerting pattern is in the
Fourth Amendment context. You know, much has been said about,
for example, the Doe v. Groody case. What I find puzzling about
that case is it is not that there is nothing to Judge Alito's
position. I think if you read--
Senator Kennedy. This is the strip searching of the child.
Mr. Liu. That is right. His opinion actually is, like all
of his opinions, incredibly well reasoned, very thoughtful. It
is not at all disparaging to the girl or her mother, who was
found to be illegally searched. What is interesting to me is
that in that case, there is the availability of two competing
interpretive principles. One is read the four corners of the
warrant for what it says. The other is supplement the four
corners of the warrant with underlying material that is
questionable, at least, in terms of whether or not it is
incorporated.
Given the important dignity at interest in Doe v. Groody,
it just strikes me as puzzling why he would have chosen the
second interpretive device rather than the first. And the
second one is the one that took the case out of the jury's
hands to determine whether or not the search was or was not
reasonable.
Senator Kennedy. This is the one where Judge Chertoff took
exception to Judge Alito.
Thank you very much. My time is up.
Chairman Specter. Thank you, Senator Kennedy.
Senator Sessions?
Senator Sessions. Well, on the Doe case, Mr. Phillips, Doe
v. Groody, this was a question involving a lawsuit--you, as a
Solicitor General, you have had to defend law officers for
personal damages, they are being sued. At best, there was an
appearance, was it not, that this affidavit was, in fact, made
a part of the warrant because the magistrate judge intended it
so and said it?
Mr. Phillips. Senator Sessions, that, I mean, that is, at
least in my mind, the complete answer to the Professor's
argument, which is this is not--this doesn't have anything to
do with two different analytical approaches. It has to do with
how do you apply qualified immunity and what deference do you
owe to the individual officer who is in a very precarious
position, making decisions on the fly. I think if you read the
opinion, it is quite, as he said, scholarly, thoughtful,
analytical, almost apologetic with respect to the consequences
to the individuals involved, but still recognizing at the end
of the day that qualified immunity is designed to provide
precisely the kind of gate-keeping function that the court
exercised there in order to take those kinds of issues away
from the jury because that is the only way you can protect the
greater societal interests that are implicated.
Senator Sessions. So he did a search warrant on a house
where dope dealers were there and he followed the instructions
of the magistrate. They conducted a search of the young girl in
a private chamber by a woman officer without removing all of
her clothes, just pulling down her outer garments and a blouse
up, apparently, and from the indications of the magistrate,
that was permitted. And so the question was, was he acting
within the line of scope of his employment and was this officer
subject to personal suit for money damages, isn't that correct?
Mr. Phillips. That is absolutely right, Senator.
Senator Sessions. Well, I am telling you, police officers
have a hard enough time understanding these laws of search and
seizure. They are very complicated, and the judges throw out
searches all the time when they are not proper. But to sue the
officer who is trying to do the right thing, I think Judge
Chertoff was in error and I would like to see him back on here.
I served as U.S. Attorney with him and I will ask him about
that case.
[Laughter.]
Senator Sessions. I think Judge Alito was correct. Maybe he
was not, but I think he had a good basis for that decision and
I am concerned about it.
Mr. Liu, with regard to the Kithcart case in your written
opinion here, you quote a dissenting opinion from Judge McKee
that said that--this is where you criticize Judge Alito for
holding that there was not a basis for arresting a black
individual who was in a black sports car after some armed
robberies that occurred, and so that was the message apparently
that went out, and the officers stopped a car and arrested this
individual who was black in a black sports car, and the Judge
said, that is not enough. That is basically racial profiling,
and he left open, as I understand it, the question of whether
or not the stop was legitimate. And this judge, correct me if I
am wrong, and maybe some of you prosecutors would jump in, but
Judge McKee you quote favorably here. He said, ``Just as the
record fails to establish that Officer Nelson had probable
cause to arrest any black male who happened to drive by in a
sports car, it also fails to establish reasonable suspicion to
justify stopping any and all such cars that happen to contain a
black male.''
Now, isn't that quite a difference of proof standard
between the authority of an officer to arrest someone and the
authority of an officer to do an investigative stop? Isn't that
clearly a different standard, and wasn't Judge Alito correct to
suggest that there is a different standard for the
investigative stop than it is to arrest someone?
Mr. Liu. I think that is true, Senator Sessions. There is
definitely a difference of standards. One is a reasonable
suspicion standard. The other is a probable cause standard.
In this case, I want to be absolutely clear in my
testimony. I am not criticizing Judge Alito for his result. I
am saying he is correct, but Judge McKee is saying that he
didn't go far enough.
Senator Sessions. All right. But I--
Mr. Liu. Judge McKee is dissenting to the other side of
Judge Alito by saying that by the same logic that racial
profiling prohibits the probable cause finding, it also
prohibits the reasonable suspicion finding.
Senator Sessions. In that, I think the law is clearly to
the contrary. I think officers who have that kind of
information can at least stop a vehicle. At least, there is
certainly far more authority to do that than it is and the
standards are different, pretty clearly.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Biden?
Senator Biden. Professor Gerhardt, I am just curious. Was
that the case you cited about the Hoover administration, was
that when Senator Boren went down and said to--it is a good
answer, I think--to the Chairman--Senator Boren went down, and
when he was given a list of ten people, he looked at the list
of the President and he said, ``It is a great list, Mr.
President, but you have it upside down.'' and that is how you
get the message, because when Presidents actually consult, you
do have an impact.
Let me ask you, Professor Gerhardt, and I understand if you
don't want to answer it, but where do you think on the spectrum
of the present Court, if Judge Alito is confirmed, he will end
up?
Mr. Gerhardt. It is--
Senator Biden. I know that that is guessing, but what is
your best judgment?
Mr. Gerhardt. It is a great question, Senator, and
obviously, I think it is one of the central questions in this
hearing. I can tell you this much. I know how the President
answers that. The President said he wanted to nominate somebody
in the mold of Justice Scalia and Justice Thomas, and I think
one of the questions in these hearings has been the extent to
which, for instance, Judge Alito is going to be perhaps more
like those Justices, or perhaps like some other Justices,
Justice O'Connor or Justice Harlan, as he suggested.
And so if he is going to fit that mold, then obviously the
balance shifts in a number of important cases in a certain
direction. But if he is not, then, of course, it is going to be
harder to predict.
I might venture at least this much. I think that if he is
truly going to be a bottom-up judge, as he suggests, then I
think the shift is not going to be that great. In other words,
the shift would be more modest. That is the critical thing. The
critical thing about being a bottom-up judge is that that is
the essence of modesty. There is very little margin of error
when you are a judge and you are a bottom-up judge. But if you
turn out to be a top-down judge, there is a greater potential
for margin of error, and so if he does turn out to be more like
Justice Thomas and Justice Scalia, there is a greater
possibility for error.
Senator Biden. Well, there would be an awful lot of
disappointed folks in Washington and the Nation if he turns out
to be like Justice O'Connor. A lot of people will be very upset
who are supporting him now.
Let me ask, if I may, anyone who would like to respond on
the panel. One of my greatest concerns is, and I must tell you,
I have a diminishing regard for the efficacy of hearings on
judicial nominees in terms of getting at the truth. I am not in
any way implying--
Mr. Issacharoff. Based on the panel?
[Laughter.]
Senator Biden. Yes.
[Laughter.]
Senator Biden. No, no. I am not in any way implying--across
the board, Democratic nominees, Republican nominees. It goes to
this issue, in my view, of do the people have a right to know
what they are about to put on the bench. And the part that
concerned me the most, I must tell you, is the Judge's comments
on, or failure to comment on, in at least my view, a clear
understanding of what he means by the unitary Executive. It
seems very different from what others think unitary Executive
means, and scholars that I am aware of, and his discussion
about, or failure to respond to what is now a very much
animated debate about whether or not the President can wage war
without the consent of or authority from the Congress and
whether or not, as the administration argues, the War Powers
Clause only gives the Congress the power to declare war if it
wants to when the President doesn't want to go to war, which is
the most extreme reading I have heard other than one occasion
in the Bush I administration.
So does anyone here have any doubt that there is a need for
the President, absent imminent danger, to get the consent of
the Congress before he were to invade Iraq or Syria tomorrow,
or does the President have the authority tomorrow, based on his
judgment, to invade Iraq and Syria? Does anybody want to
venture an opinion on that?
Mr. Issacharoff. I think, Senator Biden, that is the lesson
of the steel seizure case, including Judge Alito's invocation
of Justice Jackson's opinion in that case, is that the
President acts at tremendous constitutional peril when he acts
contrary to the express wishes of Congress and acts at
significant constitutional peril when he acts absent
congressional authority unless there is true military exigency
of the moment. I think that that is fairly well established.
That has been the history of the relationship between Congress
and the Executive. It has been a difficult history, and the
question of how much authorization Congress has given is a
repeated issue before the courts and has been since the Civil
War cases. But I don't think that there is any doubt on this
question constitutionally.
Senator Biden. Thank you, Mr. Chairman. My time is up.
Chairman Specter. Thank you, Senator Biden.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman. I guess I would
just have to express some reservations at trying to predict how
Judge Alito is going to rule on the bench. I can think of
famous examples where President George Herbert Walker Bush
thought David Souter was going to be of a particular frame of
mind or approach on the bench. I guess Richard Nixon probably
had some ideas about Harry Blackmun and President Eisenhower
had some ideas about Earl Warren. Judicial independence means
something, and what it hopefully means is exactly what the
Framers intended in terms of providing the flexibility, the
freedom, the independence. They have life tenure. We can't cut
their salary. Who knows? This is, I guess, a debate only
lawyers can love. It is important, but I just don't know how we
can answer the question comprehensively.
Professor Issacharoff, it is good to see you again. Of
course, I got to know you during your tenure at the University
of Texas Law School before you came up north to NYU. There have
been some questions about Judge Alito's statements, about his
concerns about the Warren Court decisions on reapportionment,
and you alluded to that in your testimony. The fact is, our
nation has a checkered history, doesn't it, in terms of
enfranchising people, making sure that everyone's vote counts
roughly the same? Back, I guess, at the beginning of our
nation, people had to have property before they could vote. We
know that some people couldn't vote at all, African-Americans,
and we fought a Civil War and amended the Constitution on that.
We know that even today, the Texas congressional redistricting
case is pending before the U.S. Supreme Court.
This remains a subject of a lot of interest and a lot of
controversy, but I just want to make sure that we are not
guilty, those of us on this side of the dais, about overstating
or reading too much, I should say, into what Judge Alito has
said. He said in college, he was motivated by a deep interest
in constitutional law, motivated in large part by disagreement
with Warren Court decisions, particularly in the areas of
criminal procedure, the Establishment Clause, and
reapportionment.
Let us talk about reapportionment, which is, I know, one of
your passions and expertise. It wasn't until 1962 when the
Supreme Court decided that those issues were justiciable in the
first place, wasn't it, in Baker v. Carr?
Mr. Issacharoff. That is correct, Senator.
Senator Cornyn. And then the principle of one person/one
vote was decided in Reynolds v. Sims in 1964, I believe. Is
that the right time?
Mr. Issacharoff. Yes.
Senator Cornyn. The right case?
Mr. Issacharoff. Yes.
Senator Cornyn. And, of course, notwithstanding what some
have tried to make out of what Judge Alito said, he has
testified here and in other areas that he considers one person/
one vote a bedrock of our democracy. You have said everybody
believes that, at least every American believes that today,
although it was fairly controversial not that many decades ago,
or at least in terms of the court's role.
What he did say, and I want to get your comment on this, is
that--and maybe it was because of his father's experience, as
you alluded to a little bit--that strict numerical precision in
terms of the size of districts, whether they be for city
councilmen, whether it be for a State representative, a State
Senator or Congressman or whatever, there was sort of the
troublesome issue of how do you deal with things like municipal
boundaries and communities of interest, lines that ordinarily
you would think define those communities of interest in a way
that you just don't want to run roughshod over. Is that a
legitimate consideration on the way to try to achieve that goal
of one person/one vote, or is that just bogus?
Mr. Issacharoff. I think, Senator--and I still have the
temptation to refer to you as Justice Cornyn--but Senator, I
think that it is absolutely a legitimate concern. I think that
one person/one vote turns out to do two things. One, it is
emblematic. It is our aspiration that everybody be equal in the
political process.
And secondarily, and perhaps more importantly, it serves as
a check on what those in power can do to try to preserve
themselves in power, and that second feature of it has been
difficult and the efforts to ratchet up mathematical exactitude
have usually come in cases that were about something completely
different. For example, in the New Jersey case in the mid-
1980s, Karcher v. Daggett, the real issue was a partisan
gerrymander and everybody understood that and the court didn't
know what to do about it, just as it has had trouble with that
issue for the decade since, and so it fell back on this
extraordinary mathematical exactitude, which, in fact, is
completely illusory because the census isn't that precise.
So I agree with you fully. I don't think that that was
where the controversy had moved in the late 1960s. I would stay
by that statement. But nonetheless, you are absolutely right
that this is a legitimate course of concern.
Senator Cornyn. Professor, thank you. My time is up. I
appreciate your response to my question. Thank you.
Chairman Specter. Thank you, Senator Cornyn.
Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman. I have been
listening. I was not here for all of it, but I was paying
attention by the video screen in the back room, and just some
observations. You know, I live on Capitol Hill with two
Democrats and the things that normally asked of them is, how
can you live with that guy? And their answer is you don't know
his heart. And then I get asked the same thing: how can you
live with those two guys? And I say you don't know his heart.
And it strikes me as I look at this panel, the three people
who testified favorably for Judge Alito know him and the three
people who didn't testify--who testified somewhat negatively
about Judge Alito don't know him. They have read some of his
cases, not all of his cases. And so it just kind of strikes me
that one of the most valuable pieces of information that this
Committee has gotten from outside witnesses was the judge panel
that came before you, the people that have worked with him for
over a decade, worked with him in a closed room. I believe they
know his heart. And I believe anyone in this room--you can take
anything that we have written at some time or said at some time
and you can make each of us look terrible.
And I only have really one question and that is for
Professor Liu. How do you explain the fact that Judge Lewis,
who is adamant about Title VII of the Civil Rights Act, his
observations about Judge Alito are completely contrary to
yours? How do you explain that? Here is a guy that knows him,
here is a guy that has very liberal leanings in terms of the
political spectrum, here is a guy that is basing his whole
legal career on civil rights. And yet he says I know this man
and there is no a bit of truth in any bias or any direction
that he goes.
How do you explain that?
Mr. Liu. Well, Senator Coburn, I certainly can't dispute
Judge Lewis's account or views on Judge Alito. I understand the
previous panel to be testifying to the integrity and
intellectual honesty of the nominee, none of which I dispute.
In fact, I conceded in the very first sentence of my testimony
that I find him also to be an intellectually honest person.
My only viewpoint, I guess, that I am offering is not
really a viewpoint at all. What I am trying to simply urge is
that some attention be paid to his record and that the record
speaks for itself. And it doesn't speak to the nominee's
intellectual--any negatives regarding the nominee's
intellectual honesty. Rather, I think it speaks more to the set
of values or instincts or the intangible qualities of judging,
I think, that every judge, every human being brings into the
world.
It is not that any judge decides to go about any case
saying, oh, I come in with this bias or I come in with that
bias. I grant that Judge Alito, like every judge, tries to be
impartial, but every judge also has a set of instincts, a
central tendency, and I think it can be revealed, not
definitively, but it can be revealed by looking at patterns
across large numbers of cases.
Senator Coburn. And you looked at 50 cases of his. Is that
correct?
Mr. Liu. Well, I have actually looked at more, but the
cases that I have--
Senator Coburn. How many more?
Mr. Liu. I have probably looked at 60 or 70 cases.
Senator Coburn. Out of 4,000?
Mr. Liu. Out of the 360 that he has written.
Senator Coburn. Written opinions on, but he still has
adjudicated over 4,000 cases.
Mr. Liu. Certainly, that is true.
Senator Coburn. All right. Thank you, Mr. Chairman. I yield
back.
Chairman Specter. Thank you, Senator Coburn.
I had hoped to finish up this evening, but the sense of the
proceeding at this point is that it is not a wise thing to do.
This panel took an hour and 15 minutes, and projecting with a
break, we would be in the ten o'clock range or perhaps even
later. That would depend upon how many Senators were here to
question, and I think in the morning we may have more
questions.
I think it is a fair observation that we are not at our
best. We started at nine, so we are in the tenth or eleventh
hour. And we have tomorrow to proceed and still meet the
schedule that I had announced early. I know that it is a likely
inconvenience to some of the people who were on the later
panels, although nobody on the latter panels, if we were to
finish tonight, would be out of this town tonight anyway. So it
is really staying over, and I know that in making your plans to
come here, you didn't know whether you would testify on
Thursday or Friday and nobody else knew whether you would
testify on Thursday or Friday. We tried to follow the Roberts
model, but on Roberts we finished up his testimony close to 11
and today we didn't start on the outside witnesses until 2:30.
That is probably more than you want to know, but I like to
tell you what is on my mind. I see some of the witnesses on the
later panels nodding an affirmative. Nobody seems to be too
distressed about calling it a day at 6:36 after starting at 9
a.m. So we will be in tomorrow morning at 9.
Senator Kennedy. Mr. Chairman, could I enter into the
record a letter from the National Association of Women's
Lawyers at an appropriate place, and then also a letter from
Professor Higginbotham, as well, at an appropriate place in the
record?
Chairman Specter. Certainly. Without objection, they will
be placed in the record at what we conclude to be an
appropriate place after consulting with you.
Thank you all very much. That concludes our hearing.
[Whereupon, at 6:36 p.m., the Committee was adjourned, to
reconvene at 9 a.m., Friday, January 13, 2006.]
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
FRIDAY, JANUARY 13, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:02 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee presiding.
Present: Senators Specter, Hatch, DeWine, Sessions, Cornyn,
Coburn, Leahy, Kennedy, Feinstein, and Schumer.
Chairman Specter. The hearings for the confirmation of
Judge Alito for the Supreme Court of the United States will now
reconvene. I have just been discussing with Senator Leahy the
allocation of time, and we had seven judges who testified
yesterday who exceeded the 5 minutes. I thought it the better
part of prudence to not bang the gavel, but allow them to go
on, but they did take some extra time, in the seven-, eight,
nine-minute range.
So I have just said to Senator Leahy that we will give
seven of the witnesses selected by Democrats five extra
minutes, or he can allocate the time as he chooses. I don't
want to split hairs over how much the exact time was, but I
think it is very important to keep the balance. And we did that
in the selection of the number, 30. In the past, it had been
divided about 18 to 12, with the majority party taking more.
But we have worked out the arrangement of 15 to 15 to keep it
level.
Senator Leahy. Mr. Chairman, if I might, you have been fair
on this. Ultimately, of course, everything has to be determined
based on what the nominee says, but the public witnesses are
important. You know, when we are deciding whether to replace
Justice Sandra Day O'Connor with Samuel Alito, I think they
help focus us, as the witnesses yesterday did, on aspects of
his record on the bench with respect to civil rights and
privacy rights.
These are long-time pioneers in our Nation's sometimes
rocky journey toward equal justice and respect for women's
rights. They are the people on the front line today. We are
going to hear from representatives of minority communities. We
have a number of written statements.
As I have said over and over again, we are the only 18
people who get to ask questions on behalf of 295 million
Americans and of generations for a long time to come. So I
think these hearings are important. Again, I thank you for your
courtesies and your fairness in keeping them going.
Chairman Specter. Thank you very much, Senator Leahy.
We now turn to our first witness on our next panel,
Professor Nora Demleitner, from the Hofstra School of Law. She
teaches and has written widely on criminal, comparative and
immigration law; Managing Editor of the Federal Sentencing
Reporter, and serves on the executive editorial board of the
American Journal of Comparative Law; a Bates graduate, summa
cum laude, and a graduate from the Yale Law School in 1992--we
have a heavy representation of Yale Law graduates here; that is
a very healthy thing--and was Symposium Editor of the Yale Law
Journal. I didn't know there was a Symposium Editor. There
wasn't one there in my time.
Thank you for joining us, Professor, and the floor is
yours.
STATEMENT OF NORA V. DEMLEITNER, VICE DEAN FOR ACADEMIC AFFAIRS
AND PROFESSOR OF LAW, HOFSTRA UNIVERSITY SCHOOL OF LAW,
HEMPSTEAD, NEW YORK
Ms. Demleitner. Thank you, Mr. Chairman, Senator Leahy,
members of the Committee. Good morning, and thank you for the
opportunity to testify today. The one thing I should--
Chairman Specter. I should have added, Professor, that you
clerked for Judge Alito after graduating from law school. I
think that ought to be on the record.
Start the clock back at 5 minutes.
Ms. Demleitner. I was about to add that. Thank you very
much.
Now, since the very early days of my clerkship, I must
admit that Judge Alito has really become my role model. I do
think that he is one of the most brilliant legal minds of our
generation, or of his generation, and he is a man of great
decency, integrity and character. And I say all of this as what
I would consider to be a left-leaning Democrat; a woman,
obviously; a member of the ACLU; and an immigrant.
And my view is not one that is unique with regard to people
who have worked with him or with regard to people who have
worked for Judge Alito. Now, all of his clerks, many of whom
are politically liberal, have signed on to a letter strongly
urging the Senate to confirm Judge Alito as Associate Justice.
A number of non-Republican legal academics who have worked with
or for Judge Alito have also issued an equally forceful
statement on his behalf.
Let me explain to you why I believe that Samuel Alito
deserves to sit on the highest Court and why his confirmation
will, in fact, not pose a threat to the rights of women, to the
rights of minorities, immigrants, or other vulnerable groups.
Now, Judge Alito does not have a political agenda. He gives
very careful consideration to the lower court record and to
prior judicial decisions. Now, let me point you to two cases
that may explain the judge's philosophy.
While I clerked for him, he had to decide the case of
Parastoo Fatin. Ms. Fatin had left Iran in part to be escaping
the regime of Ayatollah Khomeini. She applied for asylum in the
United States, but was denied by the immigration court and by
the Board of Immigration Appeals.
Now, without revealing any confidences, I can tell you that
Judge Alito was very much moved by the personal tragedy of the
situation and the moral dilemma Ms. Fatin would face. If
returned to Iran, she would either be unable to speak her deep
feminist convictions or the Iranian regime would penalize her.
Now, the problem with her case was that there was really an
absence of favorable case law and, even worse, a very thin
record that indicates only very limited opposition on her part
to the Iranian regime.
Now, the judge did not see himself in a position to help
Ms. Fatin, who was, however, ultimately permitted to stay in
the United States. He, however, did take this opportunity to
write one of the most progressive opinions on gender-based
asylum. Now, his decision was the first to recognize that
gender alone could constitute a basis for asylum. This
revolution in asylum law has not been widely recognized outside
a very small group of asylum practitioners, and neither has
Judge Alito gotten a whole lot of credit for garnering the
votes of both of his fellow panelists for this decision, one of
whom was a Nixon appointee.
Now, the Fatin case hasn't gotten a lot of attention, but
you have spent part of the day yesterday on the Rybar case,
where Judge Alito dissented. Now, I think you should read the
case a little differently than the way in which it has been
portrayed. Now, let me just set the context.
In 1995, the Supreme Court decided Lopez, Justice O'Connor
joining the majority striking down the possession of machine
guns on school grounds as unconstitutional. Now, I think a lot
of commentators expected this to create a major shift in lower
court jurisprudence. This did not happen, I think, in part
because the lower courts read the decision extremely narrowly
and arguably incorrectly.
Now, Judge Alito, who has been, I think, generally labeled
as an anti-criminal defendant judge, was very much willing to
follow Supreme Court precedent to the point where it would
necessitate the dismissal of a host of criminal indictments. At
the same time, he took pains to note that Congress could very
easily remedy the problem with the statute by indicating in the
record that there was a connection between the possession of
machine guns and interstate commerce. Now, let me also point
you to the fact that a blue ribbon ABA task force has
increasingly critiqued the increasing Federalization of
criminal law.
Now, Judge Alito's record, I think, indicates, and Rybar
confirms, that he will follow Supreme Court cases very
carefully, and that he will read congressional legislation very
carefully. He has also used, I think, his prior background
experience very effectively in working, for example, on
sentencing reform with the Constitution Project and at one
point as an advisory board member of the Federal Sentencing
Reporter.
I believe overall that his criminal background experience
will inform the judge's decision, but it will surely not bias
him in one way or the other. He will be able to strike a
practical balance that is informed, but not predetermined by
his background.
And for all those reasons, I believe very strongly that he
deserves to be confirmed as the Court's next Associate Justice.
[The prepared statement of Ms. Demleitner appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor.
We now turn to Professor Erwin Chemerinsky, the Alston &
Bird Professor of Law and Political Science at Duke. Prior to
coming to Duke in 2004, he had been for 21 years at the
University of Southern California Law School, where he was the
Irmas Professor of Public Interest Law. He is a graduate of
Northwestern University with a bachelor's degree, and a law
degree from Harvard. Last year, he was named by Legal Affairs
as one of the top 20 legal thinkers in America.
Thank you for coming in today, Professor, and the floor is
yours.
STATEMENT OF ERWIN CHEMERINSKY, ALSTON & BIRD PROFESSOR OF LAW
AND POLITICAL SCIENCE, DUKE UNIVERSITY LAW SCHOOL, DURHAM,
NORTH CAROLINA
Mr. Chemerinsky. Thank you, Mr. Chairman, Senator Leahy,
distinguished Senators. It is truly an honor and a privilege to
testify at these historic hearings.
It is impossible to overstate the importance of this
nomination to the future of constitutional law. In recent
years, the Supreme Court was often referred to as the O'Connor
Court because Sandra Day O'Connor so often has been in the
majority in 5-4 decisions in crucial areas: protecting
reproductive freedom, enforcing the separation of church and
state, limiting Presidential power, and advancing racial
justice. Replacing her has the possibility of dramatic changes
in so many areas of constitutional law.
A crucial question for this Committee is what will be the
effect of Samuel Alito on the Supreme Court. I want to focus on
one area, Executive power. I choose this area because no area
of constitutional law is likely to be more important in years
ahead than this.
As you know, in recent years the Bush administration has
made unprecedented claims of expansive Presidential power, such
as the claim of authority to detain American citizens as enemy
combatants without meeting the Constitution's requirements for
warrant, grand jury, or trial by jury; the claim of authority
to torture human beings, in violation of international law; the
claim of authority to eavesdrop on conversations of Americans
without complying with the Fourth Amendment or the Foreign
Intelligence Surveillance Act; the claim of authority to hold
American citizens indefinitely and citizens of other countries
indefinitely as enemy combatants.
Now, my goal here isn't to discuss the merits of any of
these issues; instead, to point to the fact that separation of
powers is likely to be an enormously important issue in the
years ahead. And, of course, there is no need to remind this
body of the crucial role that checks and balances and
separation of powers play in our constitutional structure.
Some of the most important Supreme Court cases in history
have been those where the Court has said no to assertions of
Presidential power, such as in Youngstown Sheet and Tube v.
Sawyer in striking down President Truman's seizure of the steel
mills, and United States v. Nixon in saying that President
Nixon had to reveal the Watergate tapes.
A key question for this Committee is whether Samuel Alito
will continue this tradition of enforcing checks and balances
or whether he will be a rubber stamp for Presidential power. I
have carefully read the writings, the speeches and the
decisions of Samuel Alito in this area and they all point in
one direction--a very troubling pattern of great deference to
Executive authority.
I have closely followed the hearings this week and I know
you are familiar with the examples. To mention just a few, in
1984 while in the Solicitor General's office, Samuel Alito
wrote a memo saying that he believed that the Attorney General
should have absolute immunity to civil suits for money damages
of engaging in illegal wiretapping, a position the Supreme
Court rejected in language that seems so appropriate now in
saying there was too great a danger of violation of rights from
executive officials who, in their zeal to protect national
security, would go too far.
The next year, he said there should be increased use of
Presidential signing statements. He said, quote, ``The
President should have the last word as to the meaning of
statutes,'' which would mean an increase in Executive power.
As you know, in a number of writings and speeches, he said
he believed in the unitary Executive theory. Now, there was a
good deal of discussion this week as to what that means. But if
you look at the literature of constitutional law, those who
believe in a unitary Executive truly want a radical change in
American Government. They believe that independent regulatory
agencies like the Securities and Exchange Commission or the
Federal Communications Commission are unconstitutional. They
believe the special prosecutor is unconstitutional. They reject
the ability of Congress to limit the Executive.
Now, as a judge on the Third Circuit, Judge Alito has not
had the opportunity to review assertions of Presidential power,
but there have been many cases where he has considered
assertions of law enforcement authority. Over and again, he
comes down on the side of law enforcement.
I think his dissenting opinions are particularly revealing
because Judge Becker said he rarely dissents. One case, I
think, shows Judge Alito's overall philosophy and it is one
discussed yesterday at the end of the day, Doe v. Groody. This,
of course, was the case where the police strip-searched a
mother and her 10-year-old daughter who were suspected of no
crime.
As Carter Phillips said yesterday, this was an issue of
qualified immunity. That means did the officers violate clearly
established law that a reasonable officer--should the officer
have known that it violates the Constitution? Senators, any
police officer, any judge should know that strip-searching a
10-year-old girl who is suspected of nothing violated the
Constitution. Senators, this is one of so many cases where
Judge Alito deferred to law enforcement.
I am here for a simple reason. I believe that at this point
in time it is too dangerous to have a person like Samuel Alito,
with his writings and records on Executive power, on the U.S.
Supreme Court.
Thank you.
[The prepared statement of Mr. Chemerinsky appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor.
We now turn to Professor Anthony Kronman. After teaching at
the University of Chicago Law School and Minnesota Law School,
Professor Kronman came to Yale, where he has been on the
faculty for 16 years and was the dean of the law school from
1994 to the year 2004, and is the Sterling Professor of Law at
Yale.
He has his undergraduate degree from Williams in 1968, with
highest honors, a Ph.D. in philosophy, and a law degree from
Yale in 1975, when he was a classmate of Judge Alito.
Thank you for being with us today, Professor, and the floor
is yours.
STATEMENT OF ANTHONY KRONMAN, STERLING PROFESSOR OF LAW AND
FORMER DEAN, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT
Mr. Kronman. Thank you, Mr. Chairman, Senator Leahy, other
members of the Committee. I am grateful for the opportunity to
appear this morning and offer my testimony.
I have known Sam Alito for 33 years, since we met in the
fall of 1972 as members of the entering class at the Yale Law
School. Over the next 3 years, we took nearly a third of our
law school courses together. We worked on the law journal
together. We debated in the moot court program. I had a chance
to observe Sam Alito at close range and to form an estimate of
his character.
Sam was hard-working and ferociously bright. No one, I
think, would challenge that, but that wasn't the first thing
that impressed me about Sam. What impressed me first and most
emphatically was his generosity and gentleness. When Sam spoke
in class or out, others listened. But when others spoke, Sam
listened, and not just in the superficial sense of waiting
politely until they had finished, but in the deeper and more
consequential sense of straining to grasp the good sense of
their position and to see it in its most attractive light.
Sam always spoke with modesty, but even when he was
defending a position that he believed clearly to be right, did
so with the knowledge that he might be wrong. Learned Hand once
described the spirit of liberty as the spirit ``that is not too
sure of itself.'' That is a phrase that has always had a
special meaning for me and it well describes the quality in Sam
that I noticed from the start.
I noticed something else and admired something else as
well, and that was Sam's faith in the law. Sam believed in the
integrity of the law and in the essential fairness of its
processes. Anyone who has studied the law knows that it is not
a mechanical system. It requires moral judgments at many
points.
But there is all the difference in the world between a
person who approaches the law from the outside and views it as
an instrument for the advancement of some program of one kind
or another and a person who approaches it from the inside and
whose fundamental, leading allegiance is to the law itself.
Sam falls clearly in that second category. He had, so far
as I could tell, no political agenda of any kind. I would have
described him in law school as a lawyer's lawyer, and if you
had asked me on the day we graduated whether he was a Democrat,
as I was then and am today, or a Republican, I couldn't have
told you.
My knowledge of Sam Alito is based almost entirely on my
personal acquaintance with the man, but since his nomination to
the Supreme Court, I have attempted, as have many others, to
glean at least a sense of his judicial temperament by reading a
few of his opinions. I haven't read many. I haven't made a
systematic study of them, but the ones that I have read suggest
to me rather strongly that the judicial temperament that I
discern in these opinions is entirely consistent with the human
temperament of the man I came to know and admire more than 30
years ago.
The temperament of the judge, as I see it, is marked by
modesty, by caution, by deference to others in different roles
with different responsibilities, by an acute appreciation of
the limitations of his own office, and by a deep and abiding
respect for the past.
There is a name that we give to all of these qualities,
taken together. We call them judiciousness, and in calling them
that we recognize that they are the special virtues of a judge.
Judge Alito has been a judicious judge and my confidence that
he will be a judicious Justice is based on my personal
knowledge of the man and my belief that his judicial
temperament is rooted in his human character, which is the
deepest and strongest foundation it could have.
Thank you very much.
[The prepared statement of Mr. Kronman appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Kronman.
We turn now to Ms. Beth Nolan, a partner in Crowell &
Moring's Litigation Group. She has a broad practice which
focuses on constitutional and public policy issues. Ms. Nolan
held prestigious and high-ranking positions in the Clinton
administration and the Department of Justice in the Office of
Legal Counsel. She had been a clerk to Chief Judge Collins
Seitz, of the Third Circuit, has an undergraduate degree from
Scripps College and a law degree, magna cum laude, from
Georgetown in 1980.
Thank you for being with us today, Ms. Nolan, and we look
forward to your testimony.
STATEMENT OF BETH NOLAN, PARTNER, CROWELL & MORING, LLP,
WASHINGTON, D.C.
Ms. Nolan. Thank you, Mr. Chairman, Senator Leahy, members
of the Committee. I am delighted to be here today, and thank
you for inviting me to provide my views.
I want to address one issue: how Judge Alito, if he should
become Justice Alito, would approach questions of Executive
power. I have served, as you mentioned, Mr. Chairman, in the
White House as Counsel to the President and in political and
career positions in the Office of Legal Counsel in the Clinton
and Reagan administrations.
And as might be expected of one who has served as Legal
Counsel to the President, I believe it is essential to defend
the power of the President to undertake his constitutionally
assigned responsibilities and to resist illegitimate incursions
on that power. And certainly, in my position as White House
Counsel, I sometimes was in conflict with Congress, as each
branch struggled to assert its views of its authority.
This does not mean, however, that the Executive should
assert a view of its power that is virtually unconstrained or
that fails to take account of the constitutional powers of
Congress. Presidential power should be interpreted even by
lawyers for the President with proper respect for the
coordinate branches, not solely to maximize Presidential power.
Judge Alito's service, as has been mentioned, on the Third
Circuit has not offered him much opportunity to address issues
of Executive power, but we do have some indication of his
views, and I find particularly instructive and troubling his
2000 Federalist Society remarks in which he announced his
support of the unitary Executive theory. What he means by that
support is a critical question.
It is a small phrase in one way, ``unitary Executive,'' but
it has almost limitless import to many of its adherents. At one
level, it embodies the concept of Presidential control over all
executive functions; as Professor Chemerinsky mentioned, a
concept that has been soundly rejected by the Supreme Court.
But the phrase also often serves to embrace a bundle of
expansive interpretations of the President's substantive powers
and correspondingly stringent limits on the legislative and
judicial branches. This is the apparent meaning of the phrase
in many of this administration's signing statements claiming
broad powers for the President.
In his Federalist Society speech, Judge Alito endorsed the
theory of the unitary Executive as developed during the period
he served in the Office of Legal Counsel as a supervising
deputy. An important question is how he views OLC precedents
from that time. In one opinion from that time involving covert
activities, OLC expressed the President's authority in sweeping
terms, adopting Justice Sutherland's dicta from a very
different context to assert that the President's authority to
act in the field of international relations is plenary,
exclusive and subject to no legal limitations, save those
derived from the applicable provisions of the Constitution
itself, while declaring that Congress had only those powers in
the area of foreign affairs that directly involve the exercise
of legal authority over U.S. citizens.
This would seem to mean that the President is essentially
above the law in the areas of foreign affairs, national
security and war, and Congress is powerless to act as a
constraint against Presidential overreaching in these areas. It
is a fair question whether Judge Alito agrees with these
sweeping views.
This is not just of historical interest, of course. That
version of unitary Executive from the 1980s sounds remarkably
similar to the assertions of unreviewable and unconstrained
powers the current President has asserted with regard to this
authority to ignore the laws passed by Congress, such as those
forbidding torture and those regulating electronic
surveillance. These issues may well come before the Supreme
Court.
Judge Alito indicated over 20 years ago his strenuous
disagreement with the usurpation by the judiciary of the
decisionmaking authority of political branches. Does this
signal that he will defer to the executive branch's positions
on its power and its claims that these positions are largely
unreviewable, or will he, as Justice O'Connor did in Hamdi, see
a clear role for the courts in protecting our constitutional
balance and hence our civil liberties? Judge Alito's statements
about Executive power raise legitimate and serious questions
that should be explored.
[The prepared statement of Ms. Nolan appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Nolan.
Our next witness is Professor Charles Fried, of the Harvard
Law School, an expert in the areas of constitutional, legal and
moral philosophy. From 1985 to 1989, he was Solicitor General
of the United States, and from 1995 through 1999 he was an
Associate Justice of the Supreme Judicial Court of
Massachusetts. He holds a bachelor's degree from Princeton, a
doctor of law from Columbia, and both a bachelor's and master's
from Oxford University. Professor Fried, in his capacity as
Solicitor General, was Judge Alito's superior when Judge Alito
worked in that office.
Thank you for joining us, Professor Fried, and we look
forward to your testimony.
STATEMENT OF CHARLES FRIED, FORMER SOLICITOR GENERAL OF THE
UNITED STATES, AND BENEFICIAL PROFESSOR OF LAW, HARVARD LAW
SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Fried. Thank you, Chairman Specter, and I thank the
members of the Committee for inviting me.
I think what I can most usefully do is cast some light on
Judge Alito's--and if I slip into ``Sam,'' please forgive me,
because we were a small and very colleaguely and friendly
office--Judge Alito's work in that office.
The Reagan administration, no doubt, had a point of view
about the law, just as did the FDR administration in 1933 or
the JFK administration in 1961. That is not unusual. That is
what elections are about. Part of that view encompassed the
notion that the lower courts had gone too far in limiting the
ability of law enforcement; that the lower courts had moved too
far away from an appropriate view of affirmative action, as
expressed by Justice Powell in Bakke, toward quotas. And I
suppose emblematic of the notion that courts sometimes just
make things up was the notion that Roe v. Wade was incorrectly
decided, a notion which, may I say, was shared by people across
the political spectrum--Professor Paul Freund; Archibald Cox
expressed that view as late as 1985; and Dean Ely.
Now, the first job of the staff of the Solicitor General's
office was to make sure that when the Solicitor General
presented the Solicitor General's client's position to the
Supreme Court, this was done in a professional, correct and
respectful way.
That office had career lawyers, some of whom stretched back
to the time of Lyndon Johnson. I myself appointed as deputies
people who I knew to be Democrats, liberal Democrats. None of
that bothered me or bothered them because we were a
professional office and they understood that their work was
professional work. That is exactly how Judge Alito viewed his
work.
If I look at the two examples that have been much featured
in these discussions, his memo to me in the Thornburgh case on
Roe v. Wade--it is said that he argued that Roe v. Wade should
be overruled. He did not. You need only read that memo because
he said in that memo that we should not argue that Roe v. Wade
should be overruled. I didn't follow that advice, but that was
what the advice was.
Similarly, it said that he argued for the absolute immunity
of the Attorney General in connection with wiretaps. He did
not. What he said was I don't question that immunity, but we
should not propose that argument; we should not make that
argument to the Court.
Now, in 1985 he wanted a job in the administration, and at
that point he took on a different role and he spoke in a
different tone of voice. I think that is perfectly
understandable and appropriate. And when, 15 years later, he
became a judge--when, 15 years ago, he became a judge, he once
again assumed a different role. His whole career shows that he
understands the different between a professional lawyer, an
advocate, and a judge. And no more eloquent testimony of that
understanding can be had than the wonderful testimony of his
colleagues, Democrat and Republican, liberal and conservative,
who served with him for those 15 years.
I believe that it is perfectly appropriate for this panel,
for this Committee, to have probed Judge Alito's disposition.
Everybody has a disposition. He is in the mainstream. He tends
toward the right bank of the mainstream, I agree. When this
Senate approved two wonderful judges to be Justices, Justice
Breyer and Justice Ginsburg, it was perfectly plain that they
tended toward the left bank of the mainstream and they were
confirmed, and properly so. I believe Judge Alito should be as
well.
[The prepared statement of Mr. Fried appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Fried.
Our next witness is Professor Laurence Tribe, Loeb
University Professor at Harvard University and Professor of
Constitutional Law at the Harvard Law School. Professor Tribe
has argued before the U.S. Supreme Court over 33 times, served
as a law clerk to Justice Potter Stewart, and received his
bachelor's degree from Harvard College, summa cum laude, in
1962, and his law degree also from Harvard, magna cum laude, in
1966.
Professor Tribe, the floor is yours.
STATEMENT OF LAURENCE H. TRIBE, CARL M. LOEB UNIVERSITY
PROFESSOR AND PROFESSOR OF CONSTITUTIONAL LAW, HARVARD LAW
SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Tribe. Thank you, Mr. Chairman. It is a great honor to
be here on this very important occasion.
I am not here to endorse the nomination of Judge Alito, as
I did with my most recent testimony before this Committee on a
Supreme Court nomination with Justice Kennedy. I am not here to
oppose his nomination, as I did several months before that time
with Robert Bork. And I am not here to lecture the Committee on
its responsibilities or its role. I don't think that is my
role.
I think the only useful function that I can perform is to
ensure to the limited extent I can that Senators not cast their
votes with, to borrow an image from a Kubrick movie, their eyes
wide shut.
It is quite clear that there are two central concerns in
the country and in the Senate with respect to this nomination,
and they do not relate, honestly, to what a truly admirable,
collegial, modest, thoughtful and brilliant fellow Sam Alito
is. And I don't mean to call him ``Sam.'' I don't really know
him the way that my colleague, Charles, does.
They relate to whether Justice Alito might, by casting a
decisive fifth vote on many cases, narrow the scope of personal
liberty, especially for women, and broaden the scope of
Presidential power at a time when we see dramatically the
dangers of an unfettered Executive by weakening the ability of
both Congress and the courts to restrict Presidential
assertions of authority.
A word first about liberty. It is certainly true that in
the Solicitor General's office the memorandum that Judge Alito
wrote for the Solicitor General did not urge that the Court be
confronted frontally, overrule Roe. But he made it clear even
then that the strategy he thought wise to pursue was a step-by-
step process toward the ultimate goal of overruling Roe.
That is the only prospect on the table. I assure you that
if the Supreme Court actually overrules Roe, I will have
thousands of students to tell that I predicted the wrong thing.
That is not the danger. They won't say Roe v. Wade is hereby
overruled. What they will do--and I am saying ``will'' because
I am assuming that confirmation will occur. Maybe it won't, but
with the vote of Judge Alito as Justice Alito, the Court will
cut back on Roe v. Wade step by step, not just to the point
where, as the moderate American center has it, abortion is
cautiously restricted, but to the point where the fundamental
underlying right to liberty becomes a hollow shell.
It is the liberty interest which occurs not only in Roe,
but in the right to die and in many cases that we can't predict
over the next century, and certainly over the 30 years that
Justice Alito would serve--it is that underlying liberty which
is at stake. And it is crucial to know that Judge Alito
dramatically misstated the current state of the law, and I say
that with deference and respect, but it was clear.
When pushed on whether he still believed, as he said, not
in his role as a Government lawyer but in his personal capacity
that he believed the Constitution does not protect a right to
abortion--when he was asked, do you still believe that, he
said, well, I would approach it by starting with Casey. Casey,
in 1992, he said, began and ended with precedent, stare
decisis. Casey simply followed Roe. And he thereby avoided the
issue.
That is not true. Casey split the baby in half; that is,
Casey said there are two fundamental questions here. One, does
the woman have a fundamental liberty at stake when she is
pregnant and wants to make a decision? And No. 2, assuming she
does, at what point does the state's interest in the fetus
trump the woman's liberty?
On the liberty issue, the Court did not rely on stare
decisis and Roe. The moderate Justices who wrote the joint
opinion, Justices O'Connor and Kennedy and Souter, said that on
the underlying issue of liberty, we agree clearly the woman's
liberty is important, special, not just like the right to fix
prices, because if we didn't think that and if we had a case
where a teenage girl was being forced to have an abortion, her
liberty wouldn't be special either. And therefore we must
conclude, without relying on Roe, this is a liberty deserving
of special protection.
Never in the descriptions that you heard from Judge Alito
with respect to the issues in Roe did he confront the question,
does he too believe that that liberty is special or does he, as
did Robert Bork and as do many, believe that there is no
special liberty. Simply because the woman happens to have a
fetus inside her, her interest is no greater than my interest
in learning how to play tennis.
So it seems to me clear that the indications we have of
Judge Alito's belief are that he does not have a conviction
that that liberty is special, and he is unwilling not only to
commit to treating this as a so-called super precedent; he is
not even willing to indicate to this Committee that he believes
that the Court has a special role in protecting intimate
personal liberties.
Now, with respect to consolidating the powers of the
President, I want to associate myself completely with the
remarks of Beth Nolan. It is very clear that with respect to
the unitary Executive theory that is being espoused that what
you saw in the instance of Judge Alito's testimony was not a
forthright description of what he said he believed--
Chairman Specter. Professor Tribe, you are a minute-and-a-
half over. If you could summarize, I would appreciate it.
Mr. Tribe. I am sorry. I will certainly summarize.
When he spoke in November of 2000, after Morrison was
decided, he outlined a strategy for consolidating the power of
the President, notwithstanding Morrison. And I think it is easy
to explain, but I won't try to do it over time. The distinction
he tried to draw between the President's control of functions
within his power and the scope of Executive power is a
completely phony distinction.
Chairman Specter. Professor Tribe, did you say you were not
testifying against Judge Alito?
Mr. Tribe. I am not recommending any action. I am
recommending that everybody, because I think it is foolish--
nobody really cares what I think.
Chairman Specter. Aside from your recommendation, are you
saying you are not testifying against Judge Alito?
Mr. Tribe. I am not testifying for or against Judge Alito.
I am explaining why I am very troubled by his views. Obviously,
it follows from that that I would be hard-pressed to recommend
his confirmation.
[The prepared statement of Mr. Tribe appears as a
submission for the record.]
Chairman Specter. The clock needs to start at 5 minutes
even for the Chairman and for everybody. I had already started
the 5-minute round, but we will proceed. And as we all know,
after the panel testifies, each Senator has 5 minutes of
questioning.
Professor Fried, you testified in the confirmation hearing
of Chief Justice Roberts that you thought Roe was wrong
decided, but you also thought that Roe should not be overruled.
And that is based on the reliance and upon the precedents and
upon stare decisis.
You have worked closely with Judge Alito. I know you have
followed his career. What is your sense as to how Judge Alito
will approach the Roe issue if it should come before the Court
for reversal or being sustained in the context of your
understanding of his approach to stare decisis?
Mr. Fried. Well, I think it is a version, but only a
version of what my colleague and friend, Larry Tribe, has said.
I think he will not--and Larry agrees with that--move toward a
frontal overruling, just as he has been urged and others have
urged should happen. That is my belief, and I could be quite
wrong. I could be quite wrong about that, but that is my
belief.
Now, the idea that he would chip away at it--I am not sure
I know what that means. When the Casey decision came down and
Justice O'Connor--and it is clearly Justice O'Connor--moved
from the very strict, almost abortion-on-demand standards of
Roe toward the undue burden standard, a cry went up from the
community which I think Professor Tribe is associated with that
this was a disaster. But, in fact, it was a reasonable thing to
do.
And we do not know what the future holds, but I don't
expect him to do things which would be other than in the
reasonable tradition of Casey, which I agree with Professor
Tribe is a much better decision and a much better-founded
decision than Roe.
Chairman Specter. Ms. Nolan, the critical issue which the
Congress is going to be looking at and this Committee is going
to hold a hearing on is the President's power on eavesdropping
without a warrant, in contravention of the specific provisions
of the Foreign Intelligence Surveillance Act.
During the Clinton administration, Deputy Attorney General
Jaime Gorelick testified--I see you nodding; you know she
testified that the President had inherent authority to conduct
those warrantless searches.
What have you seen--aside from the generalizations of
unitary power, anything specific in the record of Judge Alito
that he has a view on that critical issue?
Ms. Nolan. First of all, I just want to be clear that
Deputy Attorney General Gorelick's testimony was about inherent
authority in the absence of a statutory provision. It was
physical searches not covered by FISA, so just to clarify that.
Chairman Specter. Well, she testified during the Clinton
administration, which was long after FISA was adopted.
Ms. Nolan. Yes, but it didn't cover physical searches and
that was the question at that time. It was part of the Ames
case. And, in fact, the administration brought to Congress a
request that FISA be amended to cover physical searches.
Chairman Specter. OK, on to Judge Alito.
Ms. Nolan. I am not aware of anything in Judge Alito's
record with regard to that.
Chairman Specter. Professor Chemerinsky, do you think--you
comment on the issue as to Judge Alito as to whether he would
be a rubber stamp or not for Executive power. Do you think he
would be a rubber stamp.
Mr. Chemerinsky. Everything that I could find in his record
points to tremendous deference to Executive authority.
Chairman Specter. Well, tremendous deference is a little
different from being a rubber stamp.
Mr. Chemerinsky. I think the key question that this
Committee has to face is will this be a Justice who on these
issues that we are talking about come before the Court will be
willing to enforce checks and balances. In light of his entire
career before going on the bench being in the executive branch,
in light of his writings when he was in the Solicitor General's
office, the speeches that he has given and the opinions he has
written on the Third Circuit, I don't find anything to indicate
that he will be enforcing checks and balances.
Chairman Specter. So you think he would be a rubber stamp?
Mr. Chemerinsky. I think the record here does speak for
itself. I think if we can't find anything that points to that
he will enforce checks and balances--
Chairman Specter. I have to interrupt you. I want to ask a
question of Professor Kronman and Professor Demleitner. There
has been a lot of talk about Judge Alito and whether he is
deferential to the powerful and to the government.
You, Professor Demleitner, were his clerk. You know him
pretty well. You know him, Professor Kronman, for several
decades. I would like you to address your sense of him on that
issue.
We will start with you, Professor Demleitner.
Ms. Demleitner. I have never seen anything while I clerked
for him or in subsequent years that led me to believe that he
had an agenda or any kind of plan to favor particular groups
over others. He really, in my experience, looks at each case
individually, and I am sure he was surprised when he saw the
statistics adding up how often he voted for a corporation or
for an individual.
Quite to the contrary, I think his opening statement was a
very powerful one in which he addressed his own background, and
I think he indicates that he would not be inclined to favor big
government or big corporate interests over individual
interests.
Chairman Specter. Professor Kronman?
Mr. Kronman. I would agree with that. I have no reason to
think that Judge Alito begins with a strong dispositional
inclination to always favor governmental power over individual
rights. He does, I think, have an inclination to be respectful
of those in positions of institutional authority who have
wrestled with questions that come before his court and to take
seriously the thought they have given to those questions and to
weigh them appropriately.
Chairman Specter. Thank you very much.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
I am curious, and I listened very carefully, Professor
Chemerinsky--did I pronounce that correctly, Chemerinsky?
Mr. Chemerinsky. Yes, you did. Thank you.
Senator Leahy. Thank you. In 2004, in the Hamdi case--and I
am sure you are very familiar with that--the Supreme Court
considered whether due process required that a citizen of this
country who is being held as an enemy combatant should be
afforded a meaningful opportunity to challenge the factual
basis for the detention.
Justice O'Connor's decision for the Court upheld the
fundamental principle of judicial review over Executive
authority. She said, in effect, that even if you are at war,
whether a declared war or a war on terror or whatever, it is
not a blank check for the President when it comes to the rights
of the Nation's citizens.
Now, the unitary Executive theory which Judge Alito
espoused in remarks just as recently as 5 years ago was
championed in dissent by Justice Thomas in Hamdi, saying that
the war powers of the President couldn't be balanced away by
the Court.
Well, I am going to ask you this and then I will ask Ms.
Nolan the same question. What are the implications for the
rights of Americans to be free from governmental intrusion were
Justice Thomas's views to prevail rather than Justice
O'Connor's?
Mr. Chemerinsky. It is an enormously important question.
Hamdi was a tremendous victory for all American citizens
because, as you say, the Supreme Court said that before an
American citizen can be held as an enemy combatant, there must
be due process--notice of the charges, an opportunity to be
heard, representation by counsel.
There was only one dissent directly to that and that was
Justice Thomas, who advances the unitary Executive theory as
the reason why the President should be able to hold individuals
without due process. You asked, well, what might be the
implications of this?
Well, the question would be can the President engage in
electronic eavesdropping, in violation of the Foreign
Intelligence Surveillance Act? It seems clear what the unitary
Executive theory would say about that. Can the President hold
an American citizen as an enemy combatant without a warrant for
arrest, a grand jury indictment, or a jury trial? I can think
of nothing more antithetical to the Constitution, but the
unitary Executive theory would seem to say yes.
Senator Leahy. Ms. Nolan, what would you say about that?
The professor added this question of wiretapping outside the
Foreign Intelligence Surveillance Act. If you could go to my
original question, but also tell me what would you have given
as advice to the President of the United States if he said, ``I
am going to bypass FISA, and I am just going to go wiretap on
my own innate authority.''
Ms. Nolan. Well, here, I am going to show my credentials as
the lawyer to the President and say that I am not exactly sure
because we don't know the full contours of the program. So I
want to be clear that it is possible that the President could
bring something to me that would make me say under these
circumstances of emergency powers--
Senator Leahy. Let's go by what you have seen in the press.
Ms. Nolan. By what I have seen, I would say you have to
follow FISA or you have to go to Congress and get it amended.
Senator Leahy. And do you agree with Professor Chemerinsky
that as to the theory of the unitary Executive, we would be in
a much different world if that theory had prevailed in the
Supreme Court, rather than Justice O'Connor's view in Hamdi?
Ms. Nolan. Absolutely, and I think the electronic
surveillance is a perfect example of this theory going to the
next step, which it is based on this unitary Executive theory
and the commander-in-chief power. But the theater of war now is
the entire world, including the United States, and the end of
the war may be never when we are talking about the war on
terror. And so we are not talking about limited emergency
Presidential powers in a very short period of time.
Senator Leahy. We are talking about powers being used for
the rest of my lifetime and your lifetime.
Ms. Nolan. That is correct.
Senator Leahy. And if I might, because the time is
limited--and I would like to pursue that because I think you
are absolutely right. If we say it is a war on terror, nations
have faced terrorist threats throughout their history. Look at
Europe, look at other countries. Do we set aside our
Constitution on the claim that we may face these threats?
Professor Tribe, you and I have talked about a number of
issues over the years, and I appreciate all the help you have
given both me and this Committee. Last month, we passed a
McCain amendment that prohibited inhumane, degrading treatment
of detainees by U.S. personnel under all circumstances, which
was originally strongly, strongly opposed by the
administration; the White House's polling and published polling
showed that their opposition was not a sustainable position.
They worked out a deal with Senator McCain, and the
President, with great fanfare, signed the McCain amendment into
law, but, of course, then very quietly issued a statement, in
effect, construing what the law was and exempting or carving
out an exemption for the Executive.
Now, let's say there was a violation brought before the
courts on the McCain amendment prohibiting cruel, inhumane and
degrading conduct, and it came before a court. What weight
would a court give the President's signing statement? Would the
court give equal weight to the statute overwhelming passed by
Congress, signed into law by the President? Would they give
equal weight to that as they would to this signing statement by
the President which carved out exceptions to the law?
Mr. Tribe. Senator, under current law, a clear majority of
the Supreme Court and most circuit courts would say that
although in cases of ambiguity the understanding of the
President of the law's meaning at the time it is signed might
be a factor to consider, when, as in this case, the law was
clear, or as clear as one can be in talking about gradations of
methods of interrogation, the McCain law, the statute and the
Levin-Graham compromise, or whichever way it was sequenced, is
the law.
And the statement made by the President of the United
States on December 30 of 2005 that this will be enforced by the
President only in accord with his power over the unitary
Executive, a phrase that is constantly used by this
administration, and when that was understood to mean that he
will decide in his unfettered discretion when the method of
interrogation crosses the McCain line and is cruel and
inhumane, that will be given no weight.
But there is no way, consistent with his expressed beliefs,
that a Justice Alito could go along with that view; that is,
under his view, which would be, I think, quite similar to the
view of Justice Thomas dissenting in Hamdi, it is up to the
President to decide how he will, through his subordinates in
the unitary Executive branch, carry out his authority as
commander in chief, especially given the authorization for the
use of military force.
And it is interesting that when asked by Senator Durbin
about the role of the unitary Executive theory in Hamdi, which
goes directly to the question whether American citizens could
be detained indefinitely or made subject to eavesdropping under
the broad authority of the authorization for the use of
military force notwithstanding FISA, he said, well, I am not
sure that Justice Thomas referred to the unitary Executive
theory. Well, in fact, he did. Just read his opinion.
He relies heavily on and names--he says because the unitary
Executive must have discretion to decide how to carry out the
war, it is his views that will prevail. But it would not be on
the theory that the President's understanding of the law trumps
Congress's intent. It would rather be on the theory that the
President has unfettered power to control the entire executive
branch within the reach of his authority.
Now, let me, if I might, just say why this distinction
between scope, the reach of his authority, and control is not a
coherent one. Yes, it is true that the unitary Executive theory
would not suddenly add to the executive branch a distinct lump
of law-making powers. For example, the power that Truman
exercised in the steel crisis; the President couldn't suddenly,
under the unitary Executive theory, gain the power of eminent
domain.
But the President does have the power to disregard Acts of
Congress that would impinge on his carrying out of an executive
function. And under the views that were expressed by Judge
Alito in his testimony and the views that were really the
underpinning of the unitary Executive theory when it was cooked
up on a creative storm in the Office of Legal Counsel in the
period when Judge Alito was there, the underpinnings included
the notion that the President has inherent power over foreign
affairs, war-making and the executive.
Chairman Specter. Professor Tribe, we are way over time on
this section. If you could wrap up that answer--
Mr. Tribe. It is wrapped up.
Chairman Specter.--I want to be deferential to Senator
Leahy, who has a followup. This is not a precedent now.
Senator Leahy. No, no, no, that is OK. Actually, my
followup was going to go into this subject, so I was interested
in the answer.
Chairman Specter. OK, if you are sure.
Senator Hatch.
Senator Leahy. Thank you. Thank you very much, Professor
Tribe.
Senator Hatch. Well, I have to apologize to this brilliant
panel because I was not here. I was down at the Blair House
with the Chancellor of Germany that I needed to do, and I have
respect for all of you. I just have one question. Maybe,
Professor Fried, you could assist me with this.
Could you please--you know, we have had some difference of
opinion as to what settled law is in this body. A common
question to ask is do you believe Roe v. Wade is settled law or
any number of other opinions as well.
Professor Fried, could you explain the difference between
settled law and settled precedent? Because, as I heard both of
the--as I heard both now-Chief Justice Roberts and Sam Alito,
Judge Alito, they basically both said that they believe that
Roe v. Wade and a number of other cases are settled precedents.
Now, I think what I would like you to do is could you
please explain the terms ``settled law'' and ``settled
precedent'' so that we all understand it once and for all, and
whether the two witnesses, now-Chief Justice Roberts when he
was Judge Roberts and Judge Alito, whether they were consistent
in their answers on that particular issue.
Mr. Fried. I am afraid I am unable to say what the
difference between settled law and settled precedent is. I
think that came out during the very excellent questioning by
Senator Feinstein, and Judge Alito's answers, I think, were
admirable.
Chief Justice Roberts answered Senator Feinstein and came
up with the statement of settled law, settled precedent. I
don't think that there was an attempt to make some distinction
between those two concepts. But what he was suggesting is that
this is something that is so well understood that it would be
really extremely disruptive and unfortunately disruptive to
overrule it.
Now, Judge Alito--I am sorry. This was taken by members of
this body and in the press as an absolute commitment how Judge
Roberts would vote. I don't believe he meant it as that. And
Judge Alito, to his credit, when he was asked that question,
was so scrupulous about giving a commitment, which he
absolutely must not do, and which I don't think any member of
this panel would want him to do, to make a commitment, that he
avoided a formulation which had come to be made the equivalent
of commitment, of an oath that I shall never do that. No judge,
no person who aspires to be on a court, should ever make a
commitment about how he or she will vote. I think you all agree
with that. And I think Judge Alito, though it is causing
trouble for him and will cause trouble for him, was unwilling
to enter that territory because of his very admirable
scrupulousness.
Senator Hatch. Well, thank you, Mr. Chairman. I just wanted
to clarify that, and I think that does clarify that, because
that is the way I interpreted it as well. But thank you for
answering that.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
To come back to this unitary Executive, Judge Alito was
asked frequently about his view about this and also about its
impact upon the administrative agencies. And he responded
during the course of the hearings that the Humphrey's Executor
and Morrison cases upheld the powers of Congress to create the
independent agencies and tried to leave it at that.
Of course, what is enormously interesting was his statement
that his dissent in the Morrison case, where he took exception
to Morrison, he says, ``But perhaps the Morrison decision can
be read in a way that heeds if not the constitutional text that
I mentioned, at least the objectives for setting up a unitary
Executive that could lead to a fairly strong degree of
Presidential control over the work of the administrative
agencies in the areas of policymaking.''
So this is his view. We would appreciate an understanding
what the law is. I think Professor Tribe indicated what he
thought would be the decision. But this is his view.
And then in his work at the Justice Department at OLC on
signing statements--and I will include the appropriate
paragraph, but let me just in the issue of time mention his
statement here. ``Since the President's approval is just as
important as that of the House or Senate, it seems to follow
that the President's understanding of the bill should be just
as important as that of Congress.'' That is rather, at least
for me, and I think for most legislators, a bizarre concept. I
thought we were the legislative branch.
But then he continues: ``From the perspective of the
executive branch, the issue of the interpretive signing
statements would have two chief advantages: first, it would
increase the power of the Executive to shape the law''--
``increase the power of the Executive to shape the law; and,
second, by forcing some rethinking by courts, scholars, and
litigants, it may help to curb the prevalent abuses of
legislative history.''
The question is, Are we talking about someone that has a
different understanding of the balance between the Executive
and the Congress and the judiciary in terms of the makings of
law? It seems to me that this is an attempt to tip the--to
change that balance and tip it more towards the Executive at a
time when we have certainly the challenges that are out here
before the country to make it fairer, more equitable, to deal
with the problems and challenges that we are facing in the
country in terms of opportunity. Professor Tribe?
Mr. Tribe. Well, I think I would underscore one aspect of
what you were quoting, Senator Kennedy. Those statements that
were made by Judge Alito about how he understands and how he
believes one could shape the relationship among the branches of
Government after Morrison, which was the decision upholding the
validity of the independent counsel law and the decision
rejecting Congress's--sort of rejecting the attack on
Congress's role with respect to the Executive.
When Judge Alito made those statements, he was not working
for the Government. He was not speaking in some other role. He
was a judge. He had been a judge of the United States Court of
Appeals for the Third Circuit for about 10 years. The statement
was made on November 17, 2000, to a gathering of the Federalist
Society, obviously a group exercising considerable influence
with what was then the likely new administration. That was 10
days after the votes were counted in the election of 2000. It
was 10 days after now-President Bush had declared victory even
though the recounts were going on.
So he was speaking to the decisionmakers who would perhaps
decide--he was already discussed as a possible nominee to the
Supreme Court--who would decide whether he would remain on the
Third Circuit. And he was saying to that group, ``I still
believe in what we were arguing back in 1986 at OLC.'' He talks
about the ``Gospel according to OLC.'' He says, ``I still
believe in that gospel.'' He is speaking as a judge, and he
says, ``Under that gospel, we have a way of giving the
President more power.''
I cannot imagine more direct evidence--
Senator Kennedy. I am sorry to interrupt you, but I have
very brief time. Just how would that change the relationship
between the Executive and Congress?
Mr. Tribe. Well, it would make it much harder for Congress
to say you cannot interfere with the SEC in the following way,
you cannot override the directives of the Fed. Even the
independence of the Federal Reserve Board, which could be
distinguished on grounds that historically monetary control was
outside the Executive power, but that is shaky ground when you
believe in the full unitary Executive. In theory, it could take
over the conduct of all of the agencies because there are only
three branches of Government, and they belong in the Executive.
Senator Kennedy. My time is up, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
The Committee is going to break very briefly for the
memorial service for David Rosenbaum, which is being held at
10:30 in this building. A number of members of the Committee
have expressed an interest in going there. I do not intend to
stay for the full ceremony. I will be back. Others may stay
longer. But I just wanted to point that out, and we will be
breaking at about 10:20 or so.
Now, Senator Sessions?
Senator Leahy. Mr. Chairman, could I just ask unanimous
consent to place in the records several news articles regarding
this whole issue?
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Sessions?
Senator Sessions. Professor Demleitner, I found your
comments insightful, and from your perspective, as you said, a
left-leaning Democrat, an ACLU member, and who worked at the
Criminal Justice Clinic while you were at Yale. And you told
the story about being with Judge Alito as his clerk, and you
saw something that concerned you in an opinion, and you asked
him about it and he took the transcript home that night to read
it. Would you share briefly how that came about and what that
meant to you as a young law clerk?
Ms. Demleitner. Of course. I would be happy to. Thank you
for asking, Senator.
I think it was in the fall of my clerkship, and as you said
correctly, I had worked in the prison clinic at Yale, and
obviously it was representing prison inmates, and so I had a
very pro-defense outlook, which I think I still have today. And
so clerking for a former Federal prosecutor was somewhat--I
guess I was somewhat apprehensive about that. But from the very
first day on, I think Judge Alito made it very clear that he
wanted to hear all kinds of arguments, and I was, I think,
generally inclined to argue to him that he should vote to
reverse convictions.
There was one particular case that I remember very
distinctly. It was a bribery case, and I had read the record, I
had read the lower court transcript, and I thought there was
some reason why he should vote to reverse. And, you know, I
think a lot of other judges would have said, No, I don't see
it, and just left it at that.
He took the entire lower court record home, took my memo
home, and the next morning, when he came back, it was very
clear he had spent quite a bit of time with it. He had read it.
He had digested it. He sat me down and explained to me why I
was wrong. He was right.
But I was so impressed with it because he didn't just
laugh, you know, this is one of Nora's other theories to set
someone free, but he really took it seriously. And he did this
with every single case.
So I actually wanted to respectfully disagree with
Professor Tribe on this issue because I think collegiality,
brilliance, listening to others, which Professor Kronman had
talked about, are very important on a court that consists of
only nine members, because I think it shows he will be open
minded, he will listen. He always listens, and I think that is
very important, and he can be moved. I mean I remember writing
memos to him and discussing cases with him where I saw this is
his position, and he came out of oral argument and came out of
the bench meeting with the judges afterwards, and he had
changed his mind. So he has not said he is nondoctrinaire, and
I think that is important to know about him.
Senator Sessions. That is consistent with what his
colleagues on the bench have said, that is for sure. You
mentioned the Rybar case. I agree with you on that, and in
fact, in that case he ruled for the little guy against the
prosecutors and the Government, who wanted to put the man in
jail. He threw out the conviction. People have forgotten that
in the course of the discussions.
Ms. Nolan, I remember you served as legal counsel in the
opportunities that we had to chat, and you point out that you
believe it is essential to defend the power of the President to
undertake his constitutional assigned responsibilities, whether
considering the exercise of his powers under the Appointments
Clause or under the Commander-in-Chief Clause. You had to do
that in that position in Department of Justice. You note that:
In my view the executive branch is right to resist
inappropriate incursions on its power from the legislative and
judicial branches, and we should thus expect that executive
branch lawyers will strongly defend Executive powers.
Just briefly, before we get into some of my questions,
Congress is never reluctant to expand its power, and oftentimes
to diminish Executive power, and it is a constant tension
there, is it not, from your perspective? You served on the
President Clinton--
Ms. Nolan. There is definitely a tension. I do think
Congress is sometimes reluctant, but there is definitely a
tension.
Senator Sessions. Professor Fried, most of us, I think, are
not familiar with this idea of unitary Executive. I have heard
it complained for many years--and I assume this is the genesis
of it--that these ABC agencies, these alphabetical entities
that are quasi a part of the executive branch, but nobody
controls them, is somehow contrary to our three branches of
Government concept, and you have served in the Department of
Justice, you have been Solicitor General, you are now a
professor of law. Could you share with us the tensions that
might exist and how we might think about these issues?
Mr. Fried. I would be glad to, but only if the Chairman
will give me the time.
Chairman Specter. Professor Fried, to the extent you can,
would you make it brief?
Mr. Fried. I have a talent for making things brief.
[Laughter.]
Mr. Fried. Yes. First of all, Morrison v. Olson, the
independent counsel case, was the crucial case on the unitary
Executive. It was my bitter experience to have argued that case
and lost it 7-1. I always tell my class that if that had come
up later and had been styled ``Clinton against Starr'', I would
have won it, because by then it became perfectly obvious what
an abomination that Independent Counsel Law was, how it had
been misused, and how it tore the fabric of our constitutional
system.
I think what has been said about the unitary Executive in
these hearings is very misleading. The unitary Executive says
nothing at all, nothing about whether the President must obey
the law. It talks about the President's power to control the
executive branch. That is the subject. And in this, the unitary
Executive theory is not an invention of the Reagan Justice
Department or the Office of Legal Counsel, it was propounded in
the first administration of Franklin Delano Roosevelt, who
objected to the powers of the Controller General, who tried to
fire a Federal trade commissioner, and who referred to himself
as the general manager of the executive branch. That is the
origin of the notion in FDR's administration.
Chairman Specter. Thank you very much, Professor Fried, and
thank you, Senator Sessions.
I had asked you to be brief because Senator Feinstein wants
to question before our break, and that is imminent.
Senator Feinstein?
Senator Feinstein. Thank you very much. I would like to
quickly go down the line and ask each witness which present or
past justice do you think Judge Alito will most be like,
please? If you do not, Dr. Chemerinsky, we will come back. Do
you have a view?
Mr. Chemerinsky. Sure. Your Honor, having read over 200
opinions written by Judge Alito, I think ideologically he is
closest on the current Court to Justice Scalia, which, of
course, is exactly what President Bush said he wanted in
appointing a Justice to the Court.
Mr. Kronman. I would name Justice John Harlan, who Judge
Alito identified as one of his four heroes on the Supreme
Court.
Ms. Nolan. I think it is likely to be Justice Scalia,
although I think he may be more aggressive on Executive power
than Justice Scalia has been in all areas.
Mr. Fried. It is certainly not Justice Scalia, because he
has not sworn allegiance to any of the theology which Justice
Scalia has propounded, never on any occasion. I think it is
Robert Jackson.
Mr. Tribe. I only wish it were Jackson or Harlan. I think
he would be--I do not know that I accept the question as being
sort of directly--
Senator Feinstein. You do not have to answer if you do not
have--
Mr. Tribe. I would not mind answering. I think he is
somewhere--
[Laughter.]
Mr. Tribe [continuing]. Between Scalia and Thomas, and I
could explain the differences, but I do not think he is
anything like Jackson or Harlan.
Senator Feinstein. Thank you.
Mr. Fried, I listened to your testimony on Justice Roberts
with great interest. In a dialog you had with Senator Specter,
I want to quote what you said. You said, talking about Roe,
``It is not only that it's been reaffirmed as to abortion, but
that it has ramified, it has struck roots, so it has been cited
and used in the Lawrence case . . . in some of the opinions in
the right-to-die cases, in the Troxel case, which is the
grandparent visiting right case. So it is not only that it is
there and it is a big tree, but it has ramified and exfoliated,
and it would be an enormous disruption. So you not only get
branches, you get leaves.''
And then you went on to say, ``Since I do not know Judge
Roberts except most casually, and I certainly have never
discussed it, if you want a prediction from me, I would predict
that he would never vote--not never--but he would not vote to
overrule it for the reasons that I have given.''
Would you make the same prediction about Judge Alito?
Mr. Fried. I would, and I should say that after Judge Alito
left my office, which was late in 1985, I think I have spoken
to him three times, and then maybe 15 words. So it is a guess
there as it was with Roberts, but, yes, that would be my
prediction.
Senator Feinstein. Thank you.
Now, my question of anyone who would care to answer is
about the value of a Presidential signing statement. If it is
true--and it is--that the legislature passes legislation, makes
findings of fact, that legislative intent is generally based on
those who formulate the legislation and pass it, does a
Presidential signing statement shape the law?
Mr. Fried. I think that this has been much misunderstood
here too. The Presidential Signing Statement Initiative, which
I was involved in, I must say, was principally devised to curb
the abuses of legislative history and legislative reports in
which staff often--and I am afraid we continue to see that--
with the assistance of outside groups and lobbyists--different
groups, different lobbyists--but with their assistance, plant
little stink bombs in the legislative history, which then
flower in later litigation.
[Laughter.]
Mr. Fried. The point of the signing statement was, if you
like, a kind of Airwick against those stink bombs.
[Laughter.]
Senator Feinstein. You have aroused the staff.
Mr. Tribe. There may be a lot of staff-oriented stink
bombs, but the power to inject a poison pill in the legislation
is what we see in the Signing Statement Initiative. And
whatever was the original intent under Charles's tutelage, what
has happened under the current administration is totally
different. There are something like 100 examples now of
references in these signing statements to the unitary
Executive, and they are being used, they are being used to give
the President the kind of control that not only FDR, but all
the way back to George Washington you can find examples of the
President saying, ``I am the President. This is my
Government.'' But it is a big fallacy to say, as my friend
Charles Fried did, that this has nothing to do with the power
of Congress. Congress often enacts legislation to structure the
executive branch and to limit the power of the President as the
head of the branch, to tell the limbs of that tree that Charles
described, and the leaves, exactly what to do.
Chairman Specter. Thank you very much, Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Chairman Specter. We are going to adjourn for a--
Senator Coburn. Senator Specter, I will defer my questions
so that we will not have to have the panel come back, if that
would be OK, and I will submit some questions.
Chairman Specter. You are entitled to your round.
Senator Coburn. But I think in all courtesy to our
distinguished panel, this would release them, and I will be
happy to submit some questions for the record.
Chairman Specter. All right. We will proceed in that manner
at your suggestion.
As I had said earlier, New York Times reporter, David
Rosenbaum, a memorial service is being held for him. he was
brutally murdered on the streets of Washington very recently.
We will recess for just a few moments. I would like the next
panel to be ready and the Senators to be ready.
[Recess at 10:05 a.m. to 10:40 a.m.]
Chairman Specter. The hearing will resume.
The first witness on our next panel, Panel 5, is Mr. Fred
Gray, senior partner at Gray, Langford, Sapp, McGowan, Gray &
Nathanson, a veteran civil rights attorney with an
extraordinary record of representation. At the age of 24, he
represented Ms. Rosa Parks, whose involvement in the historic
refusal to give up her seat on the bus to a white man is so
well known. That action initiated the Montgomery bus boycott.
He was Dr. Martin Luther King, Jr.'s first civil rights lawyer.
In 2004, Mr. Gray received the ABA Thurgood Marshall Award for
his contributions to civil rights. A graduate of National
Christian Institute, Alabama State University, and Case Western
Reserve. Thank you for joining us, Mr. Gray.
I haven't had an indication from Senator Leahy about whom
they would like to give extra time to, but my sense is that you
would be on the list, so we are going to set the clock at 10
minutes for you. You may proceed.
STATEMENT OF FRED D. GRAY, SENIOR PARTNER, GRAY, LANGFORD,
SAPP, MCGOWAN, GRAY & NATHANSON, TUSKEGEE, ALABAMA
Mr. Gray. Thank you very much, Mr. Chairman.
Chairman Specter. By way of explanation, the judges talked
longer yesterday, and I thought it appropriate not to interrupt
them, and I want to give the extra time to this panel. If
Senator Leahy comes in and cuts you off, Mr. Gray, just
remember I gave you 10 minutes.
[Laughter.]
Mr. Gray. Thank you very much, Mr. Chairman. And to my
Senator, Senator Sessions, who represents us well in the
Senate, to the other members of the Committee, of course, I am
Fred Gray. I live in Tuskegee, Alabama, with offices there and
in Montgomery. I appreciate this Committee inviting me to
appear. I consider it an honor.
For over 50 years, I have filed almost every imaginable
type civil rights case in Alabama. Many of those cases have
resulted in Supreme Court rulings and many of them precedent-
setting cases in which the Court declared unconstitutional
certain State and city ordinances, including in the field of
registration and reapportionment.
As one who has been in the trenches and still is in the
trenches, I appear today to attest to the tremendous importance
of the reapportionment cases, those cases decided by the Warren
Court, one of which I actually litigated and was my brainchild,
the case of Gomillion v. Lightfoot.
I am still troubled, extremely troubled by Judge Alito's
comments made in his application, notwithstanding the testimony
before this Committee. The reapportionment cases decided by the
Warren Court made certain that the Federal courts had the power
to ensure that voting rights were meaningfully protected. These
rights had been violated by many of our States since
Reconstruction. The cases illuminate the inequities of
malapportionment which deprived African-Americans of voting
strength across the Nation. In my view, there is no more
important body of law than that generated in the field of voter
registration and in civil and human rights.
African-Americans in Alabama and other Southern States for
years, even before Browder v. Gayle, which is the case that
integrated the buses and which was a unanimous case of the
Warren Court, were actively working toward obtaining the right
to vote. For example, in my hometown now, Tuskegee, Alabama,
the home of Tuskegee University where Booker T. Washington was
its first president, where George Washington Carver made many
of his scientific discoveries, and the home of the Tuskegee
Airmen, African-Americans in that county filed lawsuits as far
back as 1945 in order to obtain the right to vote.
After years of litigation, when we were finally able to get
approximately 400 African-Americans registered for an upcoming
municipal election, in 1957 the Alabama Legislature passed a
law which changed the city limits of the city of Tuskegee from
a square to a 26-side figure, excluding all but three or four
African-Americans and leaving all the whites in the city. And
then the State said, ``We are not denying you the right to
vote. We are simply changing the political boundaries of the
city of Tuskegee, and you cannot vote now in the city elections
because you are no longer there.'' I thought that was wrong,
and so did the Supreme Court. We filed the case of Gomillion v.
Lightfoot. That case substantially strengthened the law in
securing the right to vote for African-Americans.
The Gomillion case was the first significant
reapportionment case decided by the Warren Court. In a
unanimous decision, the Court held that the boundary change
violated the 15th Amendment. Just as importantly, the Court
rejected the argument that impairment of voting rights could
not be challenged in the face of a State's unrestricted power
to realign its political subdivisions. The Court stated: ``When
a legislature thus singles out a readily isolated segment of a
racial minority for special discriminatory treatment, it
violates the 15th Amendment....Apart from all else, these
considerations lift this controversy out of the so-called
`political arena' and into the conventional sphere of
constitutional litigation.''
There is no question in my mind that it gave rise--
Gomillion v. Lightfoot did--to the other subsequent cases you
have heard about, great reapportionment cases, Baker v. Carr,
Gray v. Sanders, Reynolds v. Sims.
I cannot overstate to this Committee the importance of
these cases, for they laid the foundation for our democracy.
The reapportionment cases enshrining the principle that every
citizen has a right to an equally effective vote, rather than
the right to simply cast a ballot. State legislatures could not
dilute the votes of racial minorities by perpetuating unequal
voting districts. And, most importantly, the reapportionment
cases also established principles for challenges ``at-large''
and ``multi-member'' electoral systems enacted by many of the
Southern States after the passage of the Voting Rights Act.
When I filed the Gomillion case, we had very few African-
Americans registered to vote and had no legislators. I was one
of the first two in 1970. Now Alabama has--and across the
Nation there are over 9,000 registered--9,800 appointed and
elected officials, and they are there because of the result of
the Warren Court's decisions in Gomillion, Baker, Gray,
Reynolds, and these other cases enacted by legislation since
that time. So we have these persons serving with honor and
distinction, from city council to the Congress.
However, we still need a strong Supreme Court to continue
to enforce these laws. I have seen in my home State, as fast as
we get one law stricken, they will enact another. Now that we
have a proportionate number of African-Americans in the
legislature, we want to be sure that we have a strong Supreme
Court that will not permit that to be changed.
I respectfully submit and suggest that this Committee
carefully scrutinize Judge Alito's disagreement with these
cases. A nominee to the Supreme Court who has a judicial
philosophy that is set against the Warren Court and against the
reapportionment cases is, in effect, saying that he would turn
the clock back. If this occurred, not only would African-
Americans lose, the entire Nation would lose the great richness
of their contributions as we are currently enjoying. In my
opinion, a Supreme Court Justice with these views would impede
instead of protecting the right to vote.
In conclusion, I submit that the next appointee to the
Supreme Court should favor the protection of voting rights and
should strengthen, and not weaken, the voting rights case law
as developed by the Warren Court.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Gray appears as a submission
for the record.]
Chairman Specter. Thank you, Mr. Gray, and thank you for
your remarkable service on civil rights and voting rights. Your
listing of cases and listing of clients is enormously
impressive, and it has been a great contribution to America.
Mr. Gray. Thank you very much, Mr. Chairman.
Chairman Specter. We turn now to Ms. Kate Michelman, who
for 18 years, up until 2004, was president of the National
Abortion and Reproductive Rights Action League, more properly
known as NARAL Pro-Choice America. Prior to joining NARAL in
1985, she was Executive Director of Planned Parenthood in
Harrisburg, Pennsylvania, where she expanded the range of
reproductive health services available in the area. She also
trained medical students and residents in child development as
clinical assistant professor in the Department of Psychiatry at
Pennsylvania State University School of Medicine. And it is
worthy of brief comment that we two Pennsylvanians have had
many discussions on this issue at the same health club.
Remarkable what the health clubs will do.
Ms. Michelman. We miss you.
Chairman Specter. What is that?
Ms. Michelman. I said we miss you over there.
Chairman Specter. Well, they don't have a squash court.
[Laughter.]
Ms. Michelman. I know that was a big mistake on their part.
Chairman Specter. I had to change health clubs except for
the Senate gym, where I see Senator Kennedy.
[Laughter.]
Chairman Specter. What is your time--
Senator Kennedy. Can we take you up on that?
Chairman Specter. We are going to put your time at 10
minutes, Ms. Michelman, and we look forward to your testimony.
STATEMENT OF KATE MICHELMAN, FORMER PRESIDENT, NATIONAL
ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE (NARAL) PRO-
CHOICE AMERICA, WASHINGTON, D.C.
Ms. Michelman. Thank you, Senator. Mr. Chairman, Senator
Leahy, who is not here, and members of the Committee, it is my
pleasure to talk with you today, and I must say I am deeply
honored to be sitting next to this great man, Mr. Gray.
Certainly for many days we have heard many legal experts
and constitutional law theorists, but I think the voices of
real people whose lives will be affected by the potential
confirmation of Judge Alito have been absent from this
discussion. And I am here as one woman among millions whose
lives could be indelibly shaped by the confirmation of this
judge.
In 1969, I was a young, stay-at-home mother of three little
girls, a practicing Catholic who had accepted the church's
teachings about birth control and abortion. The notion that
abortion might be an issue I would face in my own life never,
ever occurred to me until the day my husband suddenly abandoned
me and our family. In time, with nothing to live on, we were
forced onto welfare. Soon after he left, I discovered I was
pregnant. After a very long period of soul searching, of
balancing my moral and religious values about the newly
developing life, with my responsibility to my three young
daughters, I decided to have an abortion.
I might add, Mr. Chairman, that of the countless women I
have encountered throughout my life, not one has made a
decision about abortion without first contemplating the gravity
of that choice. Not one needed the tutelage or supervision of
the State to understand her own ethical values much less to be
reminded to consult them. And every single one of them deserve
the respect and protection afforded by Roe v. Wade.
Now, because all of this occurred prior to Roe, I was
legally prevented from acting privately on my decision. I was
compelled to submit to two interrogations before an all-male
panel of doctors, who probed every aspect of my private life,
from my sex life with my husband, to whether I was capable of
dressing my children. Eventually they gave me their permission.
I was awaiting the procedure when a nurse arrived to tell me
that State law imposed yet another humiliating burden. The
Government required me to obtain my husband's consent. I was
forced to leave the hospital, find where he was living, and ask
him to give me his permission.
Now, this was incredibly humiliating, and an experience
that awakened me to a lifetime of activism. I tell you this
story not to get your sympathy, I tell this story because this
nomination poses a real threat that women will once again face
the dreadful choice between the degradation of the Review Board
and the danger of the back alley, and this is neither hyperbole
nor hype. It is the simple demonstrable reality of the
situation.
Predicting how any given judge will decide any given case
is a Washington parlor game, in my view, that distracts from
the central issue. That issue is whether we any longer will
recognize limits on the Government's authority to reach into
the most intimate areas of our private lives. There is nothing
in Judge Alito's lengthy public record to suggest that he
recognizes such limits for anyone, and even less so for women,
and there is much in his record that indicates, I think,
clearly and beyond the boundaries of reasonable dispute, that
he rejects the idea of privacy, personal privacy, as a
fundamental American ideal.
A woman's right to choose is a powerful manifestation of
privacy, but it is one right among many, and all of them should
concern us. There is no sense in Judge Alito's writings or
rulings that privacy is a fundamental constitutional right. In
his record, not only are individuals often powerless against
the prerogatives of the State, individuals are more often than
not simply absent all together. In many ways, what Judge Alito
has written is less disturbing than what he omits, any sense of
how his legal rulings bear on real people whose lives are
shaped by his decisions.
When he ruled that a Pennsylvania law requiring women to
notify their husbands before obtaining an abortion was not ``an
undue burden,'' there was no sense that a woman like me ever
existed or even mattered. When he wrote that commonly used
methods of birth control could be classified as methods of
abortion, there was no indication he considered the women who
would be forced into unwanted pregnancies. His writings contain
ample veneration for the State, but I think place little value
on the individuals whom Government exists to serve, protect and
respect.
I have been involved in many Supreme Court nominations, but
frankly, none more important than this one, nor as dangerous,
for the contrast between Judge Alito and the Justice he would
replace is quite stark. As the first woman to serve on the
Court, Justice O'Connor brought a very unique perspective to
the law that is evident in her opinions, upholding a woman's
right to choice, protecting women from discrimination, and
defending affirmative action. Quite often--you have talked
about this a lot--she has been the decisive vote in 5-4 cases,
whose balance Judge Alito would now tip the other way.
Here, Mr. Chairman, it is important to note that Justice
O'Connor is a judicial conservative, who has not always fully
protected constitutional rights and liberties, but she crafted
opinions that retained meaningful protections for rights that
other Justices sought to deny completely.
But the most disturbing difference between these two
jurists is not simply the conclusions they reach, but also how
they reach them. Justice O'Connor considered each case with
careful attention to what the law means and who it affects, for
she knows that that is the essence of justice. In Judge Alito's
approach to the law, there is neither justice, nor regard for
women's human dignity.
Judge Alito has parried challenges to his record by
promising an open mind and a respect for precedent. We must ask
whether this assurance offered only now, can be allowed to
outweigh the totality of this man's record. Millions of
American women whose lives, privacy and dignity have a place in
this debate would have to conclude no.
Thank you.
[The prepared statement of Ms. Michelman appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Michelman.
Our next witness is Professor Ronald Sullivan, Associate
Clinical Professor of Law at Yale. He is a graduate of
Morehouse College in 1989, and a law degree from Harvard in
1994. He served for 1 year in Nairobi, Kenya as a visiting
attorney for the Law Society of Kenya, and in that capacity was
on a committee charged with drafting a new constitution for
Kenya.
We very much appreciate your coming in today, Professor
Sullivan, and the floor is yours, and the clock will start at
10 minutes.
STATEMENT OF RONALD S. SULLIVAN, JR., ASSOCIATE CLINICAL
PROFESSOR OF LAW, AND SENIOR FELLOW, JAMESTOWN PROJECT, YALE
LAW SCHOOL, NEW HAVEN, CONNECTICUT
Mr. Sullivan. Thank you very much, Senator Specter, and
Senator Leahy in his absence, members of the Committee. Thank
you for inviting me to testify at this very important
expression of our democracy.
I have been asked to comment on Judge Alito's Fourth
Amendment jurisprudence. Two broad themes follow from his
record. First, Judge Alito's Fourth Amendment opinions reveal a
clear pattern of privileging Government power when it comes
into conflict with individual liberty. Indeed, in the 17
opinions that the nominee has authored regarding the Fourth
Amendment, in his more than 15 years on the bench, Judge Alito
has ruled to suppress evidence only once.
The second broad theme is that Judge Alito is a skilled,
legal writer with a sharp analytical mind. Almost none of his
opinions appears to be a radical departure from accepted
jurisprudential conventions. Rather, his constitutional
criminal procedure decisions, read together, demonstrate a
pattern that cannot be ignored. In over 50 constitutional
criminal procedure cases that I have reviewed, Judge Alito
ruled in the government's favor over 90 percent of the time. To
borrow an old phrase, as the government goes, so goes Judge
Alito in a criminal law context.
But the point I make here is more than a mere statistical
correlation. I want to make a deeper and more substantive
point. Judge Alito's tendency to privilege government power in
a criminal context represents a failing in his jurisprudence
for the following three reasons.
Number 1: Judge Alito criminal law corpus demonstrates a
judicial philosophy that improperly subordinates privacy,
dignity and autonomy concerns to the interest of the
government.
Number 2: Even when the government undeniably violates the
Fourth Amendment, Judge Alito employs legal rules to excuse the
government for its misbehavior.
Number 3: Judge Alito shifts from a strict constructionist
to an activist jurist at times when the government's interest
so dictates.
Let me briefly address each of these propositions in turn,
and of course, I give much greater detail in my written
statement. First, privacy and dignity concerns. Groody v. Doe
has been discussed all week, and I assure you I shall not be
redundant. Let me simply invite the Committee to read my
comparison of Groody with another one of his cases, Leveto v.
Lapina. In Groody, Judge Alito was only able to muster up one
clause, not even a full sentence, giving voice to the highest
order dignity concerns involved or implicated in the strip
search of a 10-year-old girl. Compare this to Leveto, a tax
evasion case involving the search of a wealthy veterinarian and
his spouse, who was wearing a nightgown, where Judge Alito
devotes four entire pages of text to express the ``indignity''
or ``stigma'' concerns associated with the illegal search. In
no other, I repeat, no other Fourth Amendment case that Judge
Alito authored, did he spend even a fraction of the time
expressing the dignitary objections that he did in Leveto. One
is forced to wonder whether Judge Alito has a more robust
appreciation for the privacy and dignity concerns of the
wealthy or the class of individuals typically charged with tax
evasion or crimes of that sort.
In the area of what I have characterized as excusing
governmental misbehavior, Judge Alito frequently uses the good
faith exception or the qualified immunity doctrine to cure an
otherwise illegal search. Indeed, in nearly one-third of his
Fourth Amendment cases, Judge Alito excuses the government's
unconstitutional invasion of our privacy. Now, the insidious
effect, the on-the-ground effect of the heavy reliance on the
good faith exception or the qualified immunity exception is
that the exceptions tend to swallow up the rule. This gives
government officials the perverse incentive to knowingly
violate the constitutional rights of our citizens because no
practical consequences follow.
So Judge Alito's rulings will take the following form.
There was no substantive violation of the Fourth Amendment,
therefore, conviction affirmed; or, yes, there was a
substantive violation of the Fourth Amendment, as in the Leveto
case, and it was a horrible violation, but even though there
was a violation, I am going to interpose a qualified immunity
defense, and the government is therefore shielded from civil
liability. This form of argument can be seen throughout his
jurisprudence.
Now to the strict constructionist argument. Judge Alito was
praised by many as being a true conservative jurist, a strict
constructionist, and that proposition has been almost assumed,
as I have listened to the hearings this week. But that he is a
strict constructionist is not true all of the time. A review of
his entire criminal law jurisprudence demonstrates that Judge
Alito shifts his interpretive style when necessary to rule in
accord with the government's interests.
Two of Judge Alito's opinions illustrate my claim, Sandoval
v. Reno and U.S. v. Lake. In Sandoval, Judge Alito employs a
literalistic and plain meaning construction of the relevant
statute to limit, to limit the scope of a defendant's rights.
There is a very technical habeas issue that I will not go into,
but essentially Judge Alito said--he cited the captions in the
relevance statute in bold letters and all caps twice, and said,
``This is all we have to look at. This answers the question to
congressional intent.'' And that is within the norm of judicial
reasoning for a strict constructionist. But he uses this
interpretive style to limit the scope of a defendant's right.
But in Lake he shifts his interpretive style and uses a
broad, liberal even, statutory construction to augment the
scope of government power. More specifically in Lake, Judge
Alito found that a car, located the functional equivalent of a
city block away from its owner and out of its owner's eyesight,
was nonetheless in the ``presence of the owner.'' To do so,
Judge Alito relied on a Ninth Circuit, yes, a Ninth Circuit
Court of Appeals ruling to articulate a remarkably broad
definition of ``presence.'' This sort of shifting jurisprudence
begins to look like it is result driven and not restrained in
the jurisprudential tradition in which Judge Alito positions
himself.
We are living in a moment where the Executive is making
extraordinary claims of authority to conduct investigations of
U.S. citizens. The delicate balance between liberty and safety
that the Framers fought so hard to erect, and that their
successor generations fought so hard to maintain, needs our
continued vigilance to sustain.
In the United States perhaps no right is regarded as more
sacred, more worthy of vigilant protection, than the right of
each and every individual to be free from government intrusion
without the unquestionable authority of the law. Judge Alito,
on my read of his constitutional criminal procedure opinions,
shows an inadequate consideration for the important values that
underwrite these norms of individual liberty, the very norms
upon which this constitutional democracy relies for its
sustenance. This Committee and this Committee's decision on
whether to consent to Judge Alito's nomination will have a
profound impact on how liberty is realized in the United
States.
In addition to Judge Alito's constitutional criminal
procedure decisions, I have reviewed nearly 415 of Judge
Alito's opinions under both the auspices of the Alito Project
at Yale, where a number of my colleagues and I reviewed all 415
of his opinions, and under the auspices of the Jamestown
Project at Yale, where I serve as a Senior Fellow. While I have
not studied in detail all 415 of his opinions--and I should say
the opinions that he authored, which I found to be most
instructive--I find this tendency to be consistent with other
areas of the law as well.
That said, I would like to thank the Committee for the
opportunity to share my remarks with you, and I look forward to
answering any questions that the Committee may have.
[The prepared statement of Mr. Sullivan appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Sullivan.
We now turn to Professor Amanda Frost, Assistant Professor
of Law at American University's Washington College of Law. She
is a graduate of Harvard College, 1993, with a bachelor's
degree and a law degree from Harvard Law School in 1997. Her
areas of specialization include civil procedure in Federal
courts, and is the author of several Law Review articles. As
staff attorney for the Public Citizen's Litigation Group, she
has litigated cases before the U.S. Supreme Court and Federal
Courts of Appeals. She was a consultant for the Shanghai
Municipal Government in drafting open government legislation.
Thank you for being with us today, Professor Frost, and we
will set the clock at 10 minutes for your testimony.
STATEMENT OF AMANDA FROST, ASSISTANT PROFESSOR OF LAW,
WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY, WASHINGTON,
D.C.
Ms. Frost. Thank you. Mr. Chairman, Senator Leahy and
members of the Committee, I feel honored to have the
opportunity to testify at these important proceedings. My
comments today are about reforms that are needed, and the
procedures and practices that govern recusal of Federal judges.
Your consideration of Judge Alito may be affected by your
views about whether he should have recused himself from certain
cases while sitting on the United States Court of Appeals for
the Third Circuit. That is why I wanted to discuss with you
today certain problematic recusal practices that too often have
led Federal judges into situations into which their recusal
decisions undermine the public faith in the judiciary.
Because the reputation of the judiciary is affected as much
by the appearance as the reality of bias, Congress has enacted
a statute, 28 USC section 455, that provides, ``Any justice,
judge or magistrate judge of the United States, shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.'' By using this language,
Congress sought to ensure that even when a judge is certain
that he or she could be impartial, that judge must step aside
if members of the public might reasonably disagree.
In essence, the law requires a judge to recuse even in
borderline cases in which the possibility of bias or appearance
of bias is slight.
I think this is a good standard, but a key problem with the
statute is that it contains no procedural mechanisms to govern
the recusal decision. It does not say how the parties are to
seek recusal, does not say how evidence about a judge's
potential biases or conflicts are to be shared with the
parties, does not clarify who should make the recusal decision,
or whether that person should articulate any reasons for making
that decision.
So, for example, Supreme Court Justices recuse themselves
in dozens of cases a year, and they almost never explain why
they are doing so. When a party files a motion seeking a
Justice's recusal, which is a rare event and something that
most parties would be reluctant to do, there is no formal
process through which the entire Court considers and decides
that motion. Instead, it is sent to the one Justice whose
impartiality is being questioned, and that Justice makes the
decision on his or her own, often without explanation.
This procedural vacuum has, I believe, been the cause for
recurring controversies over judges' failures to recuse,
controversies that undermine the very goal of section 455 to
protect the integrity of the judicial branch.
I want to give just a few examples of some of the recusal
problems that have occurred over many years. In 1969, Supreme
Court nominee Clement Haynsworth failed to be confirmed for
that position, in part due to revelations that while sitting on
the Fourth Circuit he had sat on a number of cases in which he
had a small financial interest.
In 1972, then-Associate Justice William Rehnquist was
criticized for sitting and hearing a case that he had commented
on publicly while he was in the Department of Justice.
In 2004, most of us remember, Justice Scalia made a
controversial decision not to recuse himself from a case in
which Vice President Cheney was a party, despite having
vacationed with the Vice President shortly after the Supreme
Court had agreed to hear the case.
And then most recently, Judge Samuel Alito has been
questioned by this Committee for his failure to recuse himself
from a case in which Vanguard was a party, despite the fact
that he owned mutual funds with Vanguard, and as stated in his
1990 Judiciary Committee questionnaire that he would recuse
himself from all such cases.
What everyone's views are about whether the individual
judges and Justices in these examples should have recused
themselves--and I recognize there is differences of opinion on
that--but whatever your views are, I think most would agree
that the process by which that decision was made did not work
to foster public confidence in the judiciary. These problems
with the recusal law are particularly evident and disturbing at
the Supreme Court level. When a district court judge or circuit
court judge fails to recuse themselves, that decision may be
reviewed by a higher court.
As I said, when a Supreme Court Justice faces a question of
recusal, the Justice makes the decision on his or her own and
there is obviously going to be no review of that decision.
There is no higher court.
Furthermore, the stakes are simply that much higher at the
Supreme Court, which hears the most divisive and important
cases and which sets the law for the Nation.
Finally, the Supreme Court is the public face of the
judiciary, and because of this, their recusal practices are
more likely to have a negative effect on the public's
perception of the Judiciary.
I propose a series of procedural reforms that could be made
either by the Justices themselves in a rule, or by Congress, by
amending the recusal laws. First, there should be more
transparency. Judges should be required to inform the parties
and the public of any information that would be relevant to the
recusal question. Even if they do not think recusal is
required, the parties should be given full information, and the
public as well.
Second, when judges do decide to recuse themselves, they
should at least issue a brief explanation explaining why. That
will provide a body of precedent to guide future litigants and
judges facing these difficult recusal situations.
And third, when a judge does not decide or does not think
it is clear that he should recuse himself, that judge should
turn that decision over to his colleagues, or at the very least
consult his colleagues, rather than make the decision on his
own.
With these reforms in place, I think we would better
protect both the reputation of the judiciary and of the judges
who serve the public.
Thank you for inviting me to share my views with you today.
[The prepared statement of Ms. Frost appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Frost.
We now turn to Professor John Flym, professor of law at
Northwestern. He has taught Professional Responsibility and
Advanced Criminal Procedure. He served as counsel to Ms.
Shantee Maharaj, the plaintiff in the 2002 case where Judge
Alito ruled in favor of the Vanguard Mutual Fund. He got his
bachelor's degree from Columbia in 1961 and his law degree from
Harvard.
Thank you for agreeing to be a witness here today,
Professor Flym, and we look forward to your testimony.
STATEMENT OF JOHN G.S. FLYM, RETIRED PROFESSOR OF LAW,
NORTHEASTERN UNIVERSITY SCHOOL OF LAW, BOSTON, MASSACHUSETTS
Mr. Flym. Thank you, Mr. Chairman, Senator Leahy, members
of the Committee. I am honored to be before you today.
I would like to make one correction, if you please. It is a
common error, but I have taught at Northeastern University,
which is in Boston.
I am indeed the lawyer who challenged Judge Alito's failure
to recuse in the Monga case, the Monga/Vanguard case.
What I would like to do now is to address three points, one
of which was particularly addressed by Senator Hatch yesterday
in his questioning of John Payton, the Eighth Federal Circuit
representative. Does the law require Judge Alito to recuse
given his investments in Vanguard?
Now, my colleague Amanda Frost addressed Provision (a) of
the statute, which speaks in general terms and states the
general principle based on the appearance. A judge shall recuse
if someone could reasonably question the judge's impartiality.
Section (b), however, is the applicable provision. Section (b)
doesn't state a general proposition. It states a specific
proposition. Among them (b)(4) says that a judge shall recuse
if the judge has a financial interest in a party to the case.
It then goes on in subsection (d) to define what ``financial
interest'' means, and it says a financial interest means a
financial interest, ``however small,'' and then it goes on to
list the various exceptions.
Now, Judge Alito in his answers filed in the questionnaire
which he submitted to this Committee relies on the third
exception in subsection (d), the one which plainly has nothing
whatsoever to do with mutual funds. It has to do with
interests, for example, in insurance policies. The one
exception that does address mutual funds is the one raised by
Senator Hatch, but it says the opposite of what Senator Hatch
suggested yesterday. It says that one of the exceptions is that
an investment in a mutual fund shall not be regarded as a
financial interest in the securities held in the fund's
portfolio. Now, that is an obvious proportion. It has nothing
whatsoever to do with simply saying that an investment in
mutual funds doesn't qualify as an interest, as a financial
interest within the meaning of subsection (b), because if it
did, Congress would simply have defined what--it would simply
have said in the exceptions that financial interest doesn't
include an investment in a mutual fund. That is what the
statute says.
Now, the statute goes back to 1974. It would be astonishing
if there weren't interpretations, case law of the statute.
There are lots of interpretations. The Second Circuit in 2002,
that is, the year before Judge Alito wrote the December 10th
letter to Judge Scirica saying, ``After I received the November
2003 motion that I should have recused myself, I reviewed the
law, and having reviewed the law, I concluded that the statute
doesn't require me to recuse. But, nevertheless, I am going to
do that so that you can appoint a panel to consider the pending
motion.'' He did not recuse from the case. A more important
detail than might otherwise appear.
Now, in his statement to this Committee, his reliance on
the third exception for insurance policies is unexplainable. It
is incoherent. It has nothing whatsoever to do with mutual
funds. The first exception, with due respect to Senator Hatch,
says the opposite of what the Senator suggested yesterday. It
says mutual funds do count as financial interests. These simply
do not include investments that the fund makes in the
securities, that is, the securities which are listed in the
fund's portfolio.
Now, I, like everyone else, have been enormously impressed
by all of the testimony, particularly his colleagues and
everyone who has worked with judges, that he is a brilliant
man, that he studies the law very carefully, that he pays
particular attention to the arguments presented to him because
he is a fair-minded man.
Now, at the time that he wrote this letter, he had the
benefit of the motion, which included everything that I have
just told you, including the case law and the analysis, and a
lot more. It is inconceivable to me that he could have made the
statement that he made in his letter to Judge Scirica and in
his questionnaire to this Committee.
I will now move on to a second point. The second point is
part of what he testified to. He said that he is--and I think
this was in response to the question by Senator Kennedy: ``And
I am one of those judges that you described who take recusal
very, very seriously.'' Is that a credible statement?
He also says that it never crossed his mind that there was
a recusal issue when he looked at the Vanguard case. The name
``Vanguard'' is plastered all over the documents. We are
talking about literally dozens and maybe hundreds of references
to Vanguard, including in the opinion that he himself authored.
He made a pledge to this Committee in 1990, which I assume
he did after reading and understanding what the 1974 recusal
statute said, he continued to invest in Vanguard over the years
and watched his investments grow into the hundreds of thousands
of dollars. I have heard estimates that run way beyond the
$370,000 which has been mentioned here. And while he was
sitting on the appeal in the Vanguard case, he continued to
make investments, both before and after the opinion.
Now, I would like now to move to a third point, which I
consider to be perhaps most important in a sense--not most
important, but just as important. I spent 40 years of my
professional life representing the little guy. My client, Ms.
Maharaj, exemplifies the little guy. She has nothing, not one
penny. All she had was the IRA which, by law, passed to her at
the death of her husband in 1996.
Now, that IRA is supposed to be sacrosanct. The Supreme
Court has held in a trilogy, beginning with Guidry in the
1980s, Patterson in 1992, and most recently, Rousey in 2005,
that creditors can't reach IRAs.
Now, just as has been suggested with respect to how the Roe
decision may be undone through small, creative exceptions to
that ruling, likewise here what the judge did--and I am
confident that he did read the record and that he understood
all too well what was at stake--was go out of his way on the
most dubious of legal principles to rely on the supposed
decision of the Massachusetts court, which, in fact, is on
appeal--I argued the appeal in October. There is no decision
yet. We don't know how the Massachusetts court will decide. But
all of the law which I set out in my motion makes it clear that
he had no business relying on that Massachusetts decision.
What that means is that, with respect to IRAs only, never
mind the other forms of retirement savings, 40-plus million
Americans with their savings in IRAs, with more than $2.3
trillion in those IRAs, could see the security in what they
thought were sacrosanct savings beyond the reach of any
creditors, no qualification, as the Patterson court said in
1992, all of a sudden threatened the same way that the
employees of IBM suddenly woke up to discover that their
pensions were pretty much smoke and mirrors.
Thank you very much, members of the Committee. I realize
that I spoke with some passion. I had promised myself to be
calm and collected, but I confess that unless--but for the fact
that President Bush nominated Judge Alito, no one would ever
have heard of Ms. Maharaj or the Vanguard case and Judge
Alito's role in it.
Thank you.
[The prepared statement of Mr. Flym appears as a submission
for the record.]
Chairman Specter. Thank you very much, Professor Flym.
Mr. Gray, beginning my 5 minutes of questioning with the
issue of voting rights, which you have testified about so
eloquently, are you at all comforted by Judge Alito's statement
that the principle of one person/one vote is firmly embedded in
the law of the land and he will follow that?
Mr. Gray. Well, I am still troubled by the fact. I am glad
to hear that. And if what that means is that if he is confirmed
he will be the type of Justice protecting civil rights and
human rights that Hugo Black did when he was on the Court, then
I would be happy to have him serve. But I don't remember--and I
think the first time I recall that he made this statement is
after it was raised in these hearings.
I would think if he was sincere about it, realizing what he
had said in 1985, that he would have disclosed the fact that,
``I said that then, but my position now is entirely
different,'' and would have been rather candid upright before
the matter was raised, I am troubled that we would even have a
nominee who would have to explain this. Because if these rights
are so embedded, then there should never have been any
statement the way it was in the first place.
Chairman Specter. Ms. Michelman, on the Roe issue, which is
a matter of enormous importance, I started my questioning of
Judge Alito with that subject, as I did with Chief Justice
Roberts. And we have had the examples of Justice O'Connor, who
was against abortion rights before she came to the Court, and
Justice Kennedy against abortion rights, and a lot of worry
about Justice Souter. And you have the political process where
the judicial appointments are part of the process. And you
heard Judge Alito talk about the precedents and the culture of
the country and being embedded and a living document, which is
very different from what some others have testified to in
recent times.
You have watched this situation very closely, and you have
noted who some of the other prospective nominees are, at least
reported. If Judge Alito is rejected, what do you think the
prospects are of getting a nominee whom you like better?
Ms. Michelman. Well, Senator, it is true that the President
won the election and he has the right to nominate Justices who
share his values and his views. He made it very clear that his
model Justices were Scalia and Thomas, whose views about
women's constitutional legal rights, including the right to
choose, are a danger to American women and to their lives and
their health and their dignity. So he has that right, but you
share a co-equal responsibility, and the American public, the
individuals in this Nation have only a voice in this process
through you. And I would answer you by saying that I think
every nominee has to be evaluated on his or her merits, on his
or her record, on his or her views, judicial and philosophical
views included. And we have to take one at a time. And if that
nominee's record is clearly a danger to the constitutional and
fundamental rights of the American people, then I think that
nominee should be defeated, and we will take on the next one.
But I think the President has, you know, made his case on
this nomination. I think Judge Alito's record--and if you look
at the totality of his record, his service in the Justice
Department, his service on the court, it is very clear that he
will move the Court in a very different and dangerous direction
for women's legal rights. And--
Chairman Specter. I want to ask you one more question, and
my time is almost up. You have commented about the other
issues, philosophical--you have enumerated them, but we have
been over Executive and legislative power. We have been over
congressional power, affirmative action, many items. Do you
think that a nominee ought to be rejected on the basis of a
single issue?
Ms. Michelman. I don't consider the right to privacy,
personal privacy, the right to dignity and autonomy and control
over one's life as a single issue. I do think it is profound
and will have enormously important implications for women, for
men, for families in this Nation. And I do indeed think it is
so serious and profound that he should be rejected on those
grounds, even if there were no others, and I would subscribe
there are other grounds.
Chairman Specter. Well, thank you very much for your
testimony, Ms. Michelman--
Ms. Michelman. You are welcome.
Chairman Specter [continuing]. And for your service. You
have been in the forefront of this issue for a long time, and I
know how deeply you feel about it. And I thank you for sharing
with us your personal experiences. They are not easy to testify
about.
Senator Leahy?
Senator Leahy. I would concur with that. I thought of that
prior to your testimony when reading the article about you
yesterday in the Post, a story I was familiar with. And you are
one of the reasons I came back. I was at a friend's memorial
service and will return to that right after my questioning.
Ms. Michelman. Thank you.
Senator Leahy. But you are absolutely right that there is
an awesome responsibility in the Senate in the choice, first
with the 18 of us here, who are the only 18 people in America
who got to question Judge Alito, if you don't count the first
vetting they had by Vice President Cheney, Karl Rove, and
Scooter Libby a day or two before he was nominated by the
President. As to that, of course, we are not privy to what was
said or what assurances were made, nor was he about to share
that with us.
Mr. Gray, I am glad you are here. You spent a lifetime, a
very distinguished lifetime, fighting for those denied the
right to equal protection, equal dignity. I know that after you
graduated law school, you immediately went to work defending
two icons of America, Rosa Parks and Dr. Martin Luther King,
Jr., in the Montgomery bus boycott.
We have heard Judge Alito say that one of the things that
motivated him was his objection to Baker v. Carr, the
reapportionment case. We heard Justice Frankfurter, who
delivered a scathing dissent in that. And we know the position
of the second Justice Harlan, who Judge Alito admires, who
feels very strongly that Baker was wrong.
How important was it that the Supreme Court didn't follow
these attitudes, didn't follow Justice Harlan's lead, and
instead intervened in the 1960s to correct massive disparities
in the size of voting districts, the underrepresentation of
voters from urban areas, and to ensure the removal of poll
taxes and other barriers to minorities to vote? What is the
difference it makes in America today that the dissenters did
not win?
Mr. Gray. The difference is then, prior to these decisions,
and even prior to Brown v. Board of Education, and prior to
Gomillion v. Lightfoot and Browder v. Gayle, the case that
desegregated the buses, we had very few African-Americans and
other minorities registered. We had little or no African-
Americans in public office. For example, in my state, in 1957
we had none. Now my State has approximately the same number of
persons in our State legislature. It mirrors the population. We
now have thousands of African-Americans and other minorities
who are holding public office, and an additional thousand that
those public office holders have appointed to elected office.
Senator Leahy. When you started this fight, did you very
believe you would see an African-American mayor, an African-
American sheriff in some of--
Mr. Gray. No, sir. And the first one since Reconstruction
was Lucius Amerson in my county. I got him elected, but I
couldn't get elected to the State legislature.
Senator Leahy. That is why I raised that. You anticipated
what I was raising.
Ms. Michelman, you know about the job application of Judge
Alito to the Meese Justice Department. He said he personally
believes very strongly the Constitution does not protect the
right to an abortion. In your reading of Judge Alito's
writings, but especially your observations of the past few days
of these hearings, have you seen or heard anything to reassure
you that Judge Alito's personal beliefs about constitutional
privacy will not affect his decisions as a judge?
Ms. Michelman. No, I haven't. In fact, I don't think there
is--again, if you go back to his memo you are referencing, the
work he did in the Justice Department, and his record on the
court, his decisions on the court I think reveal very clearly
that he does not believe deeply in a fundamental right of
privacy and apply that belief that the Constitution protects
that fundamental right of privacy to individuals.
So, no, I am not--I am deeply concerned that Judge Alito
not only was proud and discussed very openly how proud he was
to be a part of an administration that repeatedly sought the
Court to overrule Roe and overrule other privacy cases, but
that he actually laid out a strategy for the administration to
pursue the overruling of Roe in an incremental strategy, to
pursue taking away the right of women to decide for themselves
and to keep the government out of these very private decisions.
He laid out a strategy that you could keep Roe in place as a
shell, not overturn it directly, but incrementally dismantle
those rights. And the States, by the way, have--the anti-choice
movement in this country has pursued that strategy very
effectively and there are now hundreds of laws that really
burden women, both financially and emotionally, when they are
trying to make responsible choices.
No, I have no confidence at all that Judge Alito, when
faced with the question of whether women should decide or
whether the government, State and Federal, has the right to
interfere in these intimate decisions that women make, that he
will come down on the side of the government.
Senator Leahy. My time is up.
Ms. Michelman. Thank you.
Senator Leahy. I just want to thank all five of you for
being here. I know that it is not easy to come and very
publicly oppose somebody who has the backing of the President
of the United States and the backing of so many powerful
Senators to be on the U.S. Supreme Court. But it goes to the
tradition of speaking truth to power, and I thank you all.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. I think I will reserve my time, Mr.
Chairman.
Chairman Specter. Senator Kennedy?
Senator Kennedy. Thank you. Five minutes, a number of areas
to cover.
First, I thank all of you for being here. And, Dr. Gray, in
the application, the 1985 application and where the nominee
points out, ``In college, I developed a deep interest in
constitutional law, motivated in large part by disagreements
with Warren Court decisions, particularly in the areas of
criminal procedure, the Establishment Clause, and
reapportionment.''
Just very, very quickly, how important--in terms of having
our Nation, a fairer and more just Nation--how important are
those Warren Court decisions on reapportionment? And just
quickly, what would this country look like if they had not made
those judgments? Would we be a different Nation?
Mr. Gray. We would be a different Nation, and it would all
appear to be whites and no persons of color would have very
little if any involvement in it.
Senator Kennedy. Professor Sullivan, I want to ask you
about the impact of Judge Alito on average Americans. This is
something we have heard from the power structures around here.
I want to hear what impact you believe his service on the Court
would have for average Americans, and I want to clarify that
not all Fourth Amendment cases are criminal cases, there are
civil cases too. Could you comment about that?
Mr. Sullivan. Yes, that is correct.
Senator Kennedy. The idea that sometimes innocent people
are caught up on these police searches and bring Fourth
Amendment charges.
Mr. Sullivan. Yes. In Groody, for example, which we have
talked about a lot, it was a civil damages case. Congress has
provided a remedy for our citizens when their rights have been
violated, their constitutional rights, in this case search and
seizure rights.
Let me say that the Warren Court, in answer to your
question, set forth a jurisprudence with respect to the Fourth,
Fifth and Sixth Amendment, that in effect, limited the scope of
police power vis-a-vis the average citizen, that there are some
rights deeply enshrined in the Constitution that we all have
from the highest and most powerful to the average Joe, and that
is what the Fourth, Fifth and Sixth Amendment protect.
My read of Judge Alito's jurisprudence in this area is that
he weakens the protections. He is very deferential to
institutions and would allow law enforcement practices to
expand in a way that I suggest to you would have a negative and
detrimental impact on the nonpowerful in our country.
Senator Kennedy. Professor Flym, just on this issue of
recusal, is it your understanding that under the existing code
of conduct for U.S. judges, that Judge Alito should have
complied, should have recused himself, and should have
established on his letter of recusal or on the system,
Vanguard, and that he failed to do so with his interpretation
of the ethic?
Mr. Flym. Absolutely, Senator. But in addition to the Code
of Judicial Conduct that is frequently understood in terms of
ethical rules, the statute enacted by Congress in 1964 trumps
whatever else may be adopted, and it is unmistakably clear that
he had an obligation to recuse.
Senator Kennedy. Ms. Michelman, I want to first of all
thank you. That was a splendid performance on Meet the Press.
Ms. Michelman. Thank you.
Senator Kennedy. In response to the questions, just to pick
up on the Chairman's thought where you talked about the dignity
of women. You touched on it here now. I would just like you to
use up whatever time I have in talking about what you think the
implications would be by this nominee, just on women's issues
just generally. I think you have spoken very, very eloquently
on the choice issue. Obviously, refer to that if you would too,
but I am very, very interested in this broad view of yours
about both the dignity of women, women in the family, women in
our society, the role that they are playing, and a bit about
what kind of country we would be if we did not have justices
that protected that, and what kind of country we can become if
they do.
Ms. Michelman. Thank you, Senator, also for your generous
comment about my Meet the Press performance. We should not
forget that women have had a long and hard journey to full
equality in this Nation. It has only been 84 years since we
have had the right to vote. So it has been a long and difficult
journey, and one that has taken great effort, and both as a
political movement, but also through the law, to have
recognized that we could vote, we could own property, we could
get charge accounts--which I was denied the right to have a
charge account because I was not married in 1969. It was
shocking.
So it has been a very long and arduous journey. Women's
equality and full capacity to be partners, equal partners with
men in the socioeconomic political life of this Nation is
dependent on our right to determine the course of our lives,
our right to education, our right to employment, our right to
equal pay. All of these things are determined by our right to
control our lives, and we absolutely need a legal system that
recognizes, respects women's dignity and autonomy, including
our right to determine when to become mothers and under what
circumstances, and even whether. It is hard to find the words
to adequately express how important that is.
Senator Kennedy. Thank you.
My time is up. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
Without objection, there will be placed in the record a
large group of letters relevant to the issue, and I want to
remind everybody on the Committee that under Committee
practices, that as with the proceeding on Chief Justice
Roberts, all questions must be submitted within 24 hours of the
close of the hearing, which will be a little later today,
perhaps even shortly.
Senator Hatch?
Senator Hatch. Let me just greet all of you and thank you
for being here. Dr. Gray, I have tremendous respect for you.
You have led a lot of fights in this country under very, very
trying circumstances. Having been born on the other side of the
street myself, I understand a little bit about how tough that
might be from time to time, but I am sure not nearly as much as
you understand it.
Mr. Gray. Thank you, Senator.
Senator Hatch. Ms. Michelman, it is always nice to see you.
Ms. Michelman. Good to see you too.
Senator Hatch. As you know, I have respect for other points
of view as well.
Mr. Sullivan, nice to get acquainted with you. Ms. Frost,
with you.
Mr. Flym, I have to say I disagree with you, as do almost
every ethics expert I know, including the American Bar
Association, but I appreciate your advocacy for your client.
That is always appreciated by me, and respect you for it.
I just wanted to greet all of you and let you know that we
appreciate you coming.
Chairman Specter. Thank you, Senator Hatch.
Senator Sessions?
Senator Sessions. Mr. Gray, it is a delight to have you
here. You are certainly one of Alabama's most distinguished
citizens.
Mr. Chairman, Mr. Gray just completed tenure as President
of the Alabama Bar Association and traveled the State
extensively and talked on these subjects, and I think, reminded
people a lot about just what our situation has been and how far
we have come and things that we still need to do. So, Mr. Gray
is an extraordinary leader, capable of holding any high office
in this country, and it is a pleasure to get to know him.
I have read with great interest his book, ``Bus Ride to
Justice.'' He talks about that first bus boycott in the '50s
with Rosa Parks and Martin Luther King, and the tension, and
the work, and the enthusiasm, and the courage that was shown at
that time. It is really remarkable, and it is important for us
to remember it. We have a lot of things to do, but, Mr. Gray, I
thank you for your service.
Mr. Gray. Thank you very much, Senator, and I even talk
about the judgeship which was not to be in that book too.
Senator Sessions. Well, we have both been there, have we
not?
[Laughter.]
Mr. Gray. Yes, sir.
Senator Sessions. We may have a little more jaundiced eye
than some around here about this process.
Mr. Gray. That is correct.
Senator Sessions. When you came out of college, I notice in
your book you mention several times you had a commitment in the
'50s, ``destroying everything segregated I could find.''
Mr. Gray. That was the motivating factor, Senator, as to
why I became a lawyer, and I wish this nominee had that kind of
commitment. If so, I would not feel uncomfortable and would not
be troubled.
Senator Sessions. But Gomillion v. Lightfoot was--I mean
you had the Vivian Malone case at the University of Alabama,
you were involved in that, the syphilis study at Tuskegee, the
Gomillion v. Lightfoot, and of course, Rosa Parks case. But on
Gomillion you made an argument that I think at first appeared
not to be. I mean, Colegrove v. Green was a Supreme Court case
that seemed to stand squarely in your way. In fact, you lost it
in earlier rounds of the Court, but you had a vision that this
gerrymander of that city was directly driven to deny people the
right to vote, and that was your idea and your concept. Would
you just share that?
Mr. Gray. Yes, sir, that is exactly the thing, and I
illustrated it by having a map drawn to scale of the old city
limits and the new city limits, showing where the blacks were
excluded, and go all the way in to include whites. And I think
that case, no question, set the precedent for these other
cases. If Reynolds v. Sims had been first, I do not think we
would have won, but with Gomillion, which shows an extreme
situation, but the purpose of the State in all of these cases
was the same, and that was to avoid minorities from voting.
I am glad we have passed that, but we still have, even in
Alabama, major cases. The higher education case, the Knight
case is still pending. We still have cases--and Lee v. Macon
that I filed in '63, elementary school cases, where there are
no degrees in, and now my sons are handling those cases, and we
still have a teacher testing case in Alabama that is still
pending. So we need to have a strong Supreme Court if we are
going to continue to make progress.
Senator Sessions. I would point out a couple of things.
First, it took a reversal of precedent to make this happen, so
sometimes bad precedent ought not to be kept on the books. We
have been talking about precedent and stare decisis an awful
lot here, and I wanted to mention that.
I would just say, Mr. Gray, I think, as Judge Alito has
explained it, his father was a nonpartisan clerk for the New
Jersey legislature. They were trying to redistrict the
legislature, and the court was ignoring classical, geographical
or political boundaries, counties and that kind of thing, and
that is where his frustration came, not with the concept, which
he has affirmed clearly here, of one man/one vote.
Mr. Gray. I want to thank you, Senator, and I want to
publicly thank you for doing what you have done in helping the
Tuskegee Human and Civil Rights Multicultural Center, which is
designed to preserve some of this rich history in that part of
the State, and I want to thank you for it.
Senator Sessions. And we can thank Chairman Specter for
helping us some on that.
Mr. Gray. Thank you very much.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Specter. You were not going to conclude, Senator
Sessions, without saying why you can thank Senator Specter.
Senator Sessions. For helping us with the Tuskegee Human
and Civil Rights Center. Thank you, sir.
[Laughter.]
Chairman Specter. Senator Coburn.
Senator Sessions. You have always been accommodating.
Senator Coburn. Senator, I will defer. There is obviously a
very distinguished panel before us, each a leader in their own
way, respected for their advocacy and their heart, and their
desire to make our country better. The fact that you would come
here today and put forward your views lends great credibility
to the process, and places more responsibility on us to hear
every point of view as we make a consideration on this nominee,
and I thank you for coming.
Thank you.
Chairman Specter. Thank you very much, Senator Coburn.
Thank you, Mr. Gray and Ms. Michelman, Professor Sullivan,
Professor Frost, Professor Flym. We will take a 5-minute recess
while the next and final panel comes forward.
[Recess at 11:57 a.m. to 12:04 p.m.]
Chairman Specter. The Committee will resume.
The Committee will resume. Let's have order in the hearing
room, please.
Our first panelist on the sixth and final panel is Kate
Pringle from the Litigation Department of Friedman, Kaplan,
Seiler and Adelman, a graduate with honors from American
University in 1990, cum laude from Georgetown University Law
Center, editor-in-chief of the Law Journal there. Ms. Pringle
was one of Judge Alito's clerks in the 1993-94 term.
Thank you for joining us, Ms. Pringle, and the floor is
yours for 5 minutes.
STATEMENT OF KATHERINE L. PRINGLE, PARTNER, FRIEDMAN KAPLAN
SEILER & ADELMAN, LLP, NEW YORK, NEW YORK
Ms. Pringle. Mr. Chairman and honorable members of the
Committee, thank you very much. I greatly appreciate the
opportunity to share my experiences with and personal
observations of Judge Alito, for whom I did clerk in 1993 to
1994 and who has served as my mentor since that time.
First, let me explain briefly the job of a law clerk. It is
the law clerk's job to provide legal research to the judge, to
assist him in his analysis, and generally to act as a sounding
board in the difficult process of deciding cases. As Judge
Garth indicated yesterday, it is an unusually close
professional relationship.
I began my clerkship for Judge Alito upon my graduate from
Georgetown Law School. I was then--as I am now--a committed and
active Democrat. I had heard from some of my professors that
Judge Alito had a reputation as a conservative, and I,
therefore, expected his to be an ideologically charged
chambers, in which I would battle to defend my liberal ideals
against his conservative ones.
But what I found was something very different than what I
had expected. I learned in my year with Judge Alito that his
approach to judging is not about personal ideology or ambition,
but about hard work and devotion to law and justice.
I would like to share with you several things that I
learned about Judge Alito during the time I which I worked with
him.
First, I learned that Judge Alito reaches his decisions by
working through cases from the bottom up, not the top down, to
use a phrase that we heard from Judge Roberts. Judge Alito
taught me to try to ignore my personal predispositions and to
come to each case with an open mind. He taught me to work
carefully through an analysis of the facts of the case and the
legal precedents, and to try to find the resolution that flowed
from that analysis.
Judge Alito consistently applied this bottom-up approach.
He approached every case without a personal agenda and with a
commitment to careful and methodical review. His approach was
demanding. He read and reread the record of each case, the
decisions cited, and the relevant decisions that the parties
had failed to cite. I remember him building a model from string
and paper to try to figure out the events of one case, and I
remember him physically acting out the events of another, all
in an attempt to truly understand the facts. He worked hard on
every case, large or small, and he sought to find the result
that flowed from the facts and the law, divorced from any
personal bias or interest.
Second, I learned that Judge Alito is interested in, and
respectful of, differing points of view. The law clerks with
whom I worked spanned the ideological spectrum. I later learned
that this is typical and that Judge Alito selects law clerks
with widely varying backgrounds political outlooks, and
personal views. This led to lively debates amongst the law
clerks. In my experience, Judge Alito was never dismissive of
any point of view. He encouraged our input, challenged each of
us to substantiate our views, and listened carefully to the
points that each of us made.
Judge Alito treated advocates before him with that same
respect. He asked probing questions, which he refused to let
the advocates sidestep. But he was never caustic or rude, and
he always appreciated the honest efforts of an advocate.
Judge Alito was similarly respectful of the differing
opinions of his fellow judges on the Third Circuit. He sought
to forge consensus where consensus could be reached. When he
dissented from another judge's views, he did so in a respectful
and intellectually honest way. The appreciation that all of
Judge Alito's colleagues on the bench have for him is reflected
in the outpouring of support at these hearings from other
judges on the Third Circuit.
Finally, I learned that Judge Alito approaches his job with
personal humility and a great respect for the institution of
the courts. What I saw was a person cognizant of the limited
role assigned to him by the Constitution to interpret the law
as established by written law and prior precedent. Judge Alito
did not, in my experience, ever treat a case as a platform for
a personal agenda or ambition. Rather, his decisions are
limited to the issue at hand. They demonstrate an effort to
interpret honestly and faithfully apply the law to the parties
that seek justice before him.
Apart from his judicial approach, Judge Alito was a
thoughtful and generous boss. He took the time to get to know
his clerks and to learn about us and our families. He had none
of the personal arrogance that sometimes attends power.
It was my great privilege to work with and learn from Judge
Alito at the outset of my career. Many of Judge Alito's law
clerks, both men and women, both Republicans and Democrats,
have traveled to Washington to be here for these hearings. We
are all here because we feel strongly about Judge Alito's
talent and character. We all believe that he will be an
outstanding Justice of the U.S. Supreme Court.
Thank you very much.
[The prepared statement of Ms. Pringle appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Pringle.
Our next witness is Congressman Charles Gonzalez.
Representative Gonzalez was first elected to the House in 1998.
He is a member of the House Energy and Commerce Committee. He
served as a Texas Regional Whip for the Democratic Caucus and
as Chair of the Hispanic Caucus Civil Rights Task Force.
Congressman Gonzalez has been Chair of the House Judiciary
Initiative for the Congressional Hispanic Caucus.
There is a little extra time left over from the time given
to the judges yesterday, so we are going to start the clock at
8 minutes for each of the witnesses invited by the Democrats,
and you have 8 minutes, Representative Gonzalez.
STATEMENT OF HON. CHARLES A. GONZALEZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Gonzalez. Well, thank you very much,
Chairman Specter, and, of course, Senator Kennedy. And today I
am representing the Congressional Hispanic Caucus in my
capacity as the Chairman of the Hispanic Judiciary Initiative
and Task Force on Civil Rights.
The Hispanic Caucus was obviously disappointed that the
President did not nominate a highly qualified Hispanic to the
bench. We did not expect a Hispanic to be nominated for the
sake of being a Hispanic. We did expect the administration to
have recognized the need for our Nation's highest Court to
reflect the Nation's diversity in all its forms--thought,
experience, and expression.
The Hispanic Caucus's policy with respect to the evaluation
of nominees for judicial vacancies requires an extensive
examination of each nominee in order to assess the following:
his or her commitment to equal justice and right of access to
the courts, his or her efforts in support for Congress's
constitutional authority to pass civil rights legislation, and
his or her efforts in support of protecting employment,
immigrant, and voting rights, as well as educational and
political access for all Americans.
Our process is also assisted by the excellent work of many
legal and advocacy organizations, and I would like to
especially thank the Mexican American Legal Defense and
Educational Fund for their efforts to assist us in our work.
Allow me to highlight a few areas that cause the Hispanic
Caucus great concern:
Discrimination in jury selection, Pemberthy v. Beyer. Judge
Alito's ruling would allow the use of language to serve as a
pretext to discriminate on the basis of ethnicity.
Voting Rights Act violation, Jenkins v. Manning. Judge
Alito appears to have joined the majority opinion in that case.
It dealt with at-large school district voting systems. Judge
Alito, along with the majority--and we are assuming that that
is what he signed off on--found no violation of the Voting
Rights Act even though historically only 3 out of 10 black
candidates over a 10-year period were elected.
Constitutional rights of noncitizens. His 1986 memo to FBI
Director William Webster, in which Judge Alito appears to
ignore precedent, cited old law to accommodate denying
constitutional protections to immigrants.
Commerce Clause application. You all have discussed the
United States v. Rybar case. Judge Alito's reasoning would
seriously hamper Congress from passing laws to address civil
rights abuses.
Equal employment opportunity, Bray v. Marriott Hotels,
which you have also touched on. Judge Alito would impose a
standard that deviates from accepted legal norms, making it
extremely difficult to prove discrimination based on race or
gender.
The Hispanic Caucus wishes to acknowledge the indispensable
role the U.S. Senate plays in determining the composition of
the Supreme Court. We know that the nominee will be someone of
President Bush's choosing. However, this does not necessarily
mean that the Supreme Court should be a mere extension of the
executive branch. The Nation's Founding Fathers did not intend
it to be and, therefore, subjected the President's nominees to
Senate approval by way of advice and consent.
There may be a good-faith disagreement as to the
appropriate parameters limiting the types of questions asked of
the nominee by this Committee, but no one would argue that
questions establishing a nominee's judicial philosophy are
universally contemplated under advice and consent. The Hispanic
Caucus is aware that political, social, and economic forces in
any society play to the advantage of the employer over the
employee, the able-bodied over the disabled, the citizen over
the immigrant, the majority over the minority, the wealthy over
the poor, and the state over the individual. But in this
country, it has been the third branch of Government, the
judicial branch, which has countered the tendency to abuse this
innate ``advantage'' by acting as the great equalizer
regardless of one's status.
For the Hispanic Caucus, the desired judicial philosophy is
a simple one and is best expressed in the following quotation:
``There is so much to be done that demands the full capacities
of our hearts and souls, but, truly, where shall we begin?
Perhaps I will begin with you? Keep in mind...that if your life
is without value, so is mine. If the law does not protect you,
it will not, in the end, protect me.''
The Hispanic Caucus does not believe that Judge Alito's
writings and decisions embrace this simple but profound
judicial sentiment. We do not argue that he possesses a
brilliant legal mind and has had an accomplished career. And I
will state that we do not believe that he is a racist or a
bigot. But this is not the controlling issue. The issue is what
judicial philosophy guides and motivates such a gifted and
talented person in his decisionmaking process. In the end this
should not be a question of party affiliation or conservative
versus liberal beliefs. Any Republican, any Democrat, any
conservative, or any liberal should share a judicial compass
that points them to the inevitable truth that indeed ``if the
law does not protect you'' then it protects no one.
I will be recommending to the Congressional Hispanic Caucus
that it oppose this nomination. Thank you very much.
[The prepared statement of Representative Gonzalez appears
as a submission for the record.]
Chairman Specter. Thank you, Representative Gonzalez.
We now turn to another Member of the House of
Representatives. Representative Debbie Wasserman Schultz serves
the 20th Congressional District of Florida. Her resume notes--
and since it is on her resume, I will read it--she is the first
Jewish Congresswoman ever elected from Florida to the House.
She serves on the Financial Services Committee and the
Committee on the Judiciary.
Thank you for joining us, Congresswoman Wasserman Schultz,
and you have 8 minutes.
STATEMENT OF HON. DEBBIE WASSERMAN SCHULTZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Representative Wasserman Schultz. Thank you very much. Good
afternoon, Mr. Chairman, Senators. I am honored to speak to you
as you consider the nomination of an individual to a lifetime
position on the Supreme Court. And I come before you today in
several capacities.
First, I am here as a Member of Congress, proudly
representing the people of South Florida.
Second, I am here as a member of a generation that
benefited from long-fought Supreme Court battles, resulting in
equal rights for all Americans, which is a fundamental
principle of our democracy.
Third, I am here in my most rewarding role: as the mother
of three young children who will come of age in an America
guided by many of the decisions that this Court will make.
I cannot imagine my children's future in an America without
privacy rights and the civil rights and liberties that all
Americans enjoy today.
These are the reasons that I am here today, to express the
concerns about the rights and freedoms that, based on his
record, I believe would be threatened by Judge Alito's
elevation to the Supreme Court. And, therefore, I urge you to
reject his nomination.
By now we are all very familiar with Judge Alito's writings
and views on reproductive rights, each one indicating a
different nuance of his opinion on a woman's right to choose.
But really here is the bottom line: You are considering a
nominee who wrote a memo urging the courts to restrict a
woman's right to make her own reproductive choices. Judge Alito
ruled, actually ruled in support of spousal notification. In
essence, he is comfortable putting a woman's constitutional
right to make decisions about her body in the hands of her
spouse as soon as she signs her marriage license.
This blatant disregard for individual rights is why our
Founding Fathers designed a meaningful system of checks and
balances. And once any branch of Government surrenders itself
to the others, that authority is difficult to regain.
Now, I come from a State where Executive power and
Government intrusion on privacy rights has been repeatedly
abused. Florida's Governor pushed the State legislature to
grant him authority to overturn a judicial decision in the
Terry Schiavo case, and Congress inserted itself into that
family's private tragedy.
Ultimately, the case could have reached the Supreme Court.
Now, let's think about this for a minute. Can America risk
Justice Alito, a Supreme Court Justice Alito, casting the
deciding vote to drag us through another tragic saga similar to
the Terry Schiavo case? I don't think America can endure
another Terry Schiavo case.
In another disturbing privacy matter, Judge Alito's lack of
judgment, I believe, was appalling. In this case, a police
officer strip-searched a 10-year-old girl and her mother. They
were not named in the search warrant; they were simply on the
premises.
According to the Boston Globe, the 10-year-old girl's
lawyer later reported Judge Alito as saying, ``Why do you keep
bringing up the fact that this case involves the strip-search
of a 10-year-old child?''
Why? Because this was not a simple case of whether or not
the officers exceeded their investigative authority. It
escalated to an unconscionable level.
Judge Alito was the only member of a three-judge panel who
found the strip-search of the 10-year-old acceptable under his
interpretation of the law.
Now, I am horrified that someone could strip-search my
children because of selective interpretation of a warrant.
And as you consider this nomination, I ask you to reflect:
Would you be comfortable if your own child was the subject of a
strip-search? Based on his record, would you be comfortable if
your little girl was the plaintiff with Judge Alito as the
deciding vote?
The standard must be higher when cases involve the most
vulnerable members of our society--our children. When
enforcement authorities lapse, our courts must not.
Now, despite his questionable affiliations with
discriminatory organizations such as the Concerned Alumni of
Princeton, there is no question, as has been acknowledged by
many others, that Judge Alito had impressive education
credentials and he had led a distinguished career. But
credentials alone do not qualify an individual for elevation to
the Supreme Court.
Senators, as you contemplate the profound influence Justice
O'Connor's successor will have on the lives, liberties, and
legal protections of Americans for decades to come, I ask you
to consider that Judge Alito is a nominee who will replace one
of only two women Justices. This really reflects a missed
opportunity to retain or even expand, as my colleague referred
to, the existing diversity of the Court.
Now, I distinctly remember the feeling that I had in 1981,
Mr. Chairman, when I was 14 years old and I first heard that a
woman would serve on the Supreme Court. It proved to me what my
parents had told me my whole life: that in America, little
girls really can grow up and be anything that they want to be.
That is an amazing thing about this country, and it is one that
we really need to carefully think about, especially with the
selection and elevation of a Supreme Court nominee. The message
that we send to little girls in America really needs to be a
strong one when it comes to nominations like this one.
The Supreme Court, Senators, is the final arbiter in our
Nation, and today you stand as the guardians to its membership.
From Marbury v. Madison to Brown v. Board of Education, the
fingerprints of the U.S. Senate have subtly steered the highest
Court in this Nation time and again. And long after we have
completed our public service here, the decisions made by the
Supreme Court will continue to impact all Americans, and
history will really judge your decision.
And I just want to close by just asking you to think about
the role of the legislative branch. I have served as a
legislator in the State legislature or in the Congress for the
last 13 years, and I think we should zealously guard our
legislative authority. We are, after all, the only directly
elected branch of Government. And I think we need to carefully
think about how this nominee thinks about our role in the
governmental process. I think many of his views have
demonstrated that given his belief in a unitary Executive or,
at the very least, the strength of the Executive, we should
carefully think about how we believe our role as legislators
would be compromised if he was elevated to the Supreme Court.
Thank you very much for this opportunity.
[The prepared statement of Representative Wasserman Schultz
appears as a submission for the record.]
Chairman Specter. Thank you very much, Congresswoman
Wasserman Schultz.
Our next witness is Mr. Jack White, associate in the San
Francisco law firm of Kirkland and Ellis, graduated magna cum
laude from Pepperdine Law School, editor in chief of the Law
Review there; bachelor's degree from the United States Military
Academy at West Point, served as an active duty officer in the
Army, and continues to serve as a captain in the Reserve. He
is, according to his resume, a dedicated member of the ACLU and
NAACP. He was one of Judge Alito's law clerks in the 2003-04
term.
Thank you for coming from San Francisco, Mr. White, and the
floor is yours, but only for 5 minutes.
STATEMENT OF JACK WHITE, ASSOCIATE, KIRKLAND AND ELLIS, LLP,
SAN FRANCISCO, CALIFORNIA
Mr. White. Thank you, Mr. Chairman, Senator Kennedy. I
appreciate the opportunity to testify here today.
In order to provide some context for my comments, I would
like to share some personal information about myself. I am the
son of African-American parents born in the segregated South.
Their respect for the recognition of civil liberties that
enabled them to succeed and raise principled children
inculcated the same respect in me. This respect is what led me
to become a member of the NAACP and the ACLU. The same respect
for our freedoms as Americans encouraged me to serve our
country after graduating from West Point on active duty in the
United States Army.
Now, as I clerked for Judge Alito, I saw a deep sense of
duty, diligence, humanity, and respect for his role as a
Federal appellate judge. Judge Alito required searching
analysis of the factual and procedural background of every
case. He required thorough evaluation of the applicable law in
every case. He uniformly applied the relevant law to the
specific facts of every case. Judge Alito recognized that every
case was the most important case to the parties and attorneys
with something at stake. There was no wavering from this
consistent, predictable method of his judicial decisionmaking
process. Working for Judge Alito, I saw in him an abiding
loyalty to a fair judicial process as opposed to an enslaved
inclination toward a political or personal ideology.
What I found most intriguing and particularly exceptional
about Judge Alito's judicial decisionmaking process was the
conspicuous absence of personal predilections. I never
witnessed an occasion when personal or ideological beliefs
motivated a specific outcome in a case. Indeed, after a year of
working closely with the judge on cases concerning a wide
variety of legal issues, I left New Jersey without knowing
Judge Alito's personal beliefs on any of them. Now, the reason
I didn't know his personal beliefs on all of these issues was
that the jurist's ideology was never an issue in a case that
Judge Alito heard. Indeed, it is never an issue in any case. My
fellow former law clerks have uniformly agreed, and we have
communicated this notion to the Committee in a letter that we
have provided.
Although Judge Alito's sense of duty, diligence, and
commitment to the decisionmaking process have inspired the
collective support of his former law clerks, there is an
additional characteristic that also heavily impressed me. On a
daily basis, Judge Alito dealt with a wide variety of
individuals, including law clerks, fellow judges, experienced
attorneys, inexperienced attorneys, court staff, law students,
and individuals throughout the community. Without fail, I saw
Judge Alito treat everyone, every individual, with dignity and
respect. In fact, on one occasion, my parents went to New
Jersey to visit their son. Judge Alito suggested that I bring
them to his chambers. Now, because oral arguments were rapidly
approaching, I thought that the judge would shake their hand
and we would quickly be on our way. Over an hour later, my
parents left his office understanding my extreme regard for
this jurist. At the end of the day, my parents left believing
that meeting them was the highlight of Judge Alito's day.
Perhaps it was.
Working for Judge Alito provided me with the opportunity to
witness American justice at work. I saw a jurist with an
abiding respect for the strength, purpose, and authority of our
Constitution, and a particular regard for the limited role of
the judiciary envisioned by the Framers of our Constitution.
From my experience, I will feel confident with Judge Alito
serving as an Associate Justice on the Supreme Court,
interpreting las that affect me.
Thank you, Mr. Chairman.
[The prepared statement of Mr. White appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. White.
We turn now to Mr. Reginald Turner, president of the
National Bar Association, partner in the Detroit law firm of
Clark, Hill, practiced labor law and employment law and
governmental relations for over 15 years, served as president
of the Michigan State Bar Association, was a White House
fellow, a graduate of Wayne University, where he got his
bachelor's degree, and a law degree from the University of
Michigan Law School.
We welcome you, Mr. Turner, and you have 8 minutes to
testify.
STATEMENT OF REGINALD M. TURNER, JR., PRESIDENT, NATIONAL BAR
ASSOCIATION, WASHINGTON, D.C.
Mr. Turner. Thank you very much, Mr. Chairman and Senators.
It is an extraordinary honor for me to be here today to testify
on behalf of the National Bar Association.
Our association was founded in 1925 at a difficult time in
our Nation's history when lawyers of color could not belong to
the American Bar Association or many of the State bars and
other voluntary bar associations around the country. Today, we
represent a network of over 20,000 lawyers with 80 affiliates
around the world.
The National Bar has established a rigorous process for
evaluating judicial nominees. We take a position on a
nomination only after an exhaustive evaluation of the nominee's
record.
Judge Alito was evaluated consistent with this process. The
results of our review are troubling to us, and we cannot
support this nomination. We don't take this position lightly.
With President Bush's nominations that exceed 200 in number, we
have only taken positions either without support for or in
opposition to three of President Bush's nominees.
We understand that Judge Alito has solid educational and
professional credentials, but these credentials alone are not
sufficient, in our view, for a lawyer or judge to be an
Associate Justice of the U.S. Supreme Court. We strongly
believe that a nominee to our Nation's highest Court must share
an unequivocal commitment to the basic rights and liberties
afforded to all Americans under the United States Constitution.
In this country, race and the treatment of racial issues by
the judiciary profoundly affect every aspect of American life
and play critical roles in the formulation of social, economic,
and political agendas. Accordingly, the National Bar
Association has adopted a standard to determine whether a
Federal judicial nominee will interpret the Constitution and
laws to advance our great Nation's slow but steady progress
toward equality of opportunity.
Unfortunately, our legal system is not as colorblind as it
aspires to be. In Grutter v. Bollinger, Supreme Court Justice
Sandra Day O'Connor acknowledged that. She said, and I quote,
``...in a society, like our own...race unfortunately still
matters.'' Thus, judicial nominees should be able to articulate
support for constitutional principles, statutes, and legal
doctrines that serve to extend the blessings of liberty to all
Americans.
In sharp contrast to Justice O'Connor's philosophy, Judge
Alito's work as a lawyer and as a judge reveal a hostility to
these basic civil rights and civil liberties that makes his
nomination particularly troublesome to the National Bar
Association. His philosophy as a lawyer is revealed in his 1985
application for the position of Deputy Assistant Attorney
General. Among other things in that application, then-Attorney
Alito expressed disagreement with well-established Supreme
Court precedents that relate to fundamental rights. Attorney
Alito indicated at the time that he was attracted to
constitutional law because of his ``disagreement with Warren
Court decisions,'' including a series of landmark decisions
that established the constitutional principle of one person/one
vote. Under this fundamental doctrine, every citizen of the
United States has the right to an equally effective vote,
rather than the mere right to cast a ballot.
We heard Fred Gray testify a few moments ago very
eloquently about the impact of the Warren Court decisions that
upheld the provision of one person/one vote. We heard of the
tremendous impact on the inclusion in our Nation's cadre of
elected officials of people of color for the very first time in
many States in the Southern part of this United States and in
States around the country. We have heard of the tremendous
progress made as a result of those decisions, progress which
would not exist today if Judge Alito's views on this issue had
carried the day.
In addition, Judge Alito expressed opposition to programs
designed to increase diversity in education and employment. He
mischaracterized these programs as ``quota systems'' when, in
fact, many of these programs were benign efforts on the part of
educational institutions and employers to promote opportunities
for those who traditionally had been disenfranchised from the
mainstream of American society.
At the same time, then-attorney Alito proudly listed his
membership in Concerned Alumni of Princeton, a group that
advocated quotas for children of alumni of Princeton in an
effort to reduce the admissions of women and minorities to that
prestigious university.
Although these writings are 20 years old, they are relevant
today because the views espoused by attorney Alito are
reflected in the judicial record of Judge Alito. His judicial
opinions evidence an agenda to reverse hard-fought civil rights
gains and to limit improperly the authority and power of
Congress, particularly in the area of providing remedies to
unlawful discrimination and protecting the health, welfare, and
safety of the American people.
Just to summarize some of these points, Judge Alito has
been the most frequent dissenter among the Third Circuit Court
of Appeals judges since his appointment in 1990. According to
estimates by University of Chicago law professor Cass Sunstein,
more than 90 percent of Judge Alito's dissents take positions
more conservative than those of his colleagues. He rejected the
views of a majority of his court, as well as the rulings of six
other Federal appellate courts, when he reasoned that the
Federal law limiting the possession and transfer of machine
guns was unconstitutional.
In civil rights cases where the Third Circuit was divided,
Judge Alito opposed civil rights protections more than any of
his colleagues. Indeed, he has advocated positions detrimental
to civil rights 85 percent of the time and has filed solo
dissents in more than a third of these cases.
In one civil rights case, Sheridan v. Dupont, all 10 of
Judge Alito's colleagues--appointed by Republicans and
Democrats alike--agreed that a sex discrimination victim's case
was properly submitted to the jury, contrary to Judge Alito's
sole dissent.
In Doe v. Groody, Judge Alito's dissent condoned the strip-
search of a 10-year-old girl and her mother, even though they
were not named in the warrant that authorized the search. The
majority opinion by then-Judge Michael Chertoff criticized
Judge Alito's view as threatening to turn the search warrant
requirement into ``little more than the cliche `rubber stamp.'
''
In his dissent in Bray v. Marriott, Judge Alito argued for
imposing an evidentiary burden on victims of discrimination
that, according to the majority, would have eviscerated legal
protections under Title VII of the Civil Rights Act. In
particular, the majority contended that Judge Alito's position
would protect employers from liability even in situations where
employment discrimination was the result of conscious racial
bias.
In conclusion, on the basis of our thorough review of Judge
Alito's record, the National Bar Association cannot support the
nomination of Judge Alito to the U.S. Supreme Court. For
several decades, Judge Alito has championed limitations on
civil rights and voting, resulting in curtailed educational and
employment opportunities for people of color and women. If his
views had prevailed in many cases, our Nation would not be far
beyond the regrettable days when opportunities for Americans,
like retiring Justice Sandra Day O'Connor and the late Justice
Thurgood Marshall, were truncated on the basis of gender and
race. Now is not the time for retrenchment. Now is the time for
America to step forward into the 21st century and open the
doors of mainstream society for the benefit and protection of
all Americans.
Again, thank you very much for the opportunity to testify.
[The prepared statement of Mr. Turner appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. Turner.
Our final witness on this panel--and our final witness--is
Mr. Theodore Shaw, Director-Counsel and President of the NAACP
Legal Defense and Educational Fund here in Washington, D.C.; a
graduate of Wesleyan University with honors and from Columbia
University Law School, where he was a Charles Evans Hughes
Fellow. He has also served in the Office of Civil Rights in the
Department of Justice.
Welcome, Mr. Shaw, and you have some of that extra time.
The clock is set at 8 minutes.
STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW
YORK
Mr. Shaw. Thank you, Mr. Chairman. In his absence, I would
like to thank Senator Leahy and, of course, Senator Kennedy and
the other Senators who are members of the Judiciary Committee.
Let me make one small clarification. While we have a
Washington, D.C., office, the Legal Defense Fund headquarters
are in New York, and I am a New Yorker.
I am acutely aware that I am the last witness on the last
panel of these hearings, so I will come right to the point. You
have my written testimony, and I would like to request that the
NAACP Legal Defense and Educational Fund, Inc.'s report on the
nomination of Judge Alito to the position of Associate Justice
of the Supreme Court be entered into the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Mr. Shaw. Thank you, Mr. Chairman.
We at the Legal Defense Fund do not relish opposition to a
nominee to the Supreme Court or, for that matter, any court,
and our ordinary posture is to take no position on nominees to
the Federal courts. So I am not here with any pleasure.
I am not here to challenge Judge Alito's intellect or his
integrity. I am not here to engage in the politics of personal
demonization, which takes all of us on a low road that leads us
to a place where I think we are all diminished.
Many fine people have testified on both sides of this
nomination, people whom I know and respect and admire, and I
think it is very important to understand that people of good
will may differ on this nomination and the substantive issues
that lead them to take positions on this nomination.
I, with all due respect, hasten to add that there is
nothing remarkable about colleagues on the Federal bench and
former law clerks taking positions in support of this nominee.
Collegiality is a very, very important commodity on the bench,
and, of course, I think it is quite a heady thing to know
someone who is being nominated to the Supreme Court. I don't
suggest that that is why they support him. I am saying that
they know him personally. But this is not about personality and
it is not personal.
We are compelled to testify in opposition to the nomination
of Judge Alito to the U.S. Supreme Court based on a standard
that the judge himself articulated. I think it is the correct
standard. He said, ``If you want to know what kind of Justice I
would be on the Supreme Court, look at my record on the court
of appeals.''
That is exactly what we have done, and it is only on that
basis that we have arrived at the position that we have taken.
I want to encourage all of the members of the Judiciary
Committee to read our report in full. Our review of his record
has convinced us that his confirmation to the Supreme Court
would cause a substantial shift in the Court's civil rights
jurisprudence in a manner that would make it significantly more
difficult for civil rights plaintiffs to prevail.
In his 15 years on the bench, Judge Alito has a record in
civil rights that is extremely troubling to us. For example, in
all that time he has voted for employment discrimination
plaintiffs who are African-Americans on the merits of their
cases twice. Some might say that that is a reflection of the
strength of the cases that are coming before the court these
days. We believe it is not, and without going into the detail
that other people have gone into already--it would be
redundant--I point to, for example, the Bray case--and I think
it is very instructive--where Judge Alito took a position that
appeared to us, at least, to be gratuitous.
The issue there was whether the jury would get an
employment discrimination, whether it would go to the jury. And
the reason proffered by the employer for the adverse employment
decision claimed to be discriminatory, was proven and shown,
demonstrated to be pretextual under the law as the majority saw
it, and I think logic supports it. An inference can be drawn by
a jury that the motivations were in fact discriminatory once
the pretext has been exposed.
Judge Alito, it seemed to us, worked hard to arrive at a
conclusion that that case should not even go to the jury, and
it demonstrates a cramped and narrow reading of Title VII and
civil rights laws, which we believe is symptomatic of his views
on civil rights issues in general.
I want to be very clear, because one of the members of this
Committee raised the issue of whether anyone was alleging that
Judge Alito harbors a bias. I want to be very clear on behalf
of the Legal Defense Fund, that we are not saying that he
harbors racial bias or that he is a racist. That would, as I
indicated before, diminish all of us. Whatever his reason for
ruling the way he does in cases, the record is consistently
clear, as my colleague and friend, Reginald Turner, has
indicated, and as our report has indicated. It is very
difficult for African-American plaintiffs in civil rights cases
to prevail.
Now, it is not limited to African-American plaintiffs, but
those are the individuals whom we represent at the Legal
Defense Fund. Certainly, his view of interpretation of civil
rights laws extends to gender discrimination, some of the cases
which we have highlighted in our report, and it extends to
other areas with respect to individual rights.
Now, we believe that his views with respect to
reinforcement, which have been here, are deeply troubling. We
believe in the area of criminal justice his views are
troubling, but I particularly want to point to an area about
which we have a deep concern. The analogy with baseball has
been very popular--and I want to end on this point--before this
Committee and in these nominations. And Judge Alito, at one
time, used to like to say about affirmative action that Henry
Aaron would not be regarded as the all-time home run king and
hero that he is if the fences had been moved in whenever he
came to bat. I think that reflects a fundamental
misunderstanding about affirmative action. The issue, with
respect to civil rights and affirmative action advocates is not
about asking that the fences be moved in, it is about asking
about an opportunity to take the field, to stand at the plate,
it is about an opportunity to play the game. And that is, I
think, a fundamental difference in how one views the world with
respect to issues of race these days.
I would like to conclude by saying that no one more than
those of us at the Legal Defense Fund in this Nation would be
happier if in fact our views are misplaced. And I am told, or
we are told, we read that he will certainly be confirmed. We
think that is before the Senate Judiciary Committee. But no one
would be happier if our views are misplaced. We hope that that
is right if he is confirmed. But we cannot take a position
based upon hope. We have taken a position based upon his
record, and we reluctantly and regretfully conclude that we
must oppose Judge Alito's nomination to the United States
Supreme Court.
Thank you.
[The prepared statement of Mr. Shaw appears as a submission
for the record.]
Chairman Specter. Thank you, Mr. Shaw.
And now my 5 minutes of questioning. Mr. White, when you
served as Judge Alito's law clerk--and you have identified in
your brochure your membership in the NAACP and ACLU--what was
your sense of his view of equality of African-Americans,
equality of opportunity?
Mr. White. When I served I worked with him on several cases
where race issues arose among blacks and whites and other types
of race issues. Mr. Shaw, for whom I have the utmost respect,
says that it is not about personality, it is not about the
person, and I respectfully disagree. Judge Alito, when he was
testifying, he said he has an open mind. During my testimony I
said that Judge Alito treats everyone the same, and I also
mentioned that he looks at every case as a brand new case. My
experience was that he did look with an open mind, and that it
is not personal. I have to respectfully disagree with that as
well. It is kind of personal.
On the street that I live I am the only African-American,
and I can walk down the street without being racially profiled.
Judge Alito has ruled that racial profiling is incorrect. So
that is very personal to me. In my experience, he was very fair
and open-minded.
Chairman Specter. Thank you, Mr. White.
I want to move to Mr. Turner at this point. Judge Tim Lewis
testified yesterday, had been on the Third Circuit with Judge
Alito for several years, an African-American. Identified
himself as being very strongly pro-choice and very active in
civil rights issues, and said that he would never consider
supporting Judge Alito if there was any doubt in his mind as to
Judge Alito's dedication to civil liberties. Do the views of
Judge Lewis, Mr. White, who worked with him closely, have any
impact on your thinking?
Mr. Turner. Well, I would agree with my colleague and dear
friend, Ted Shaw, that the folks who have worked with a lawyer
or judge very closely in the course of their careers will have
developed friendship and camaraderie with that person in ways
that would promote good feelings about that person's character,
temperament and ability.
Chairman Specter. You think a little bias for Judge Alito?
Mr. Turner. I would not use the word bias. That is a very
positive--
Chairman Specter. Wait a minute. That is why I used it.
Mr. Turner. Mr. Chairman--
Chairman Specter. Wait a minute. You do not have to use it.
[Laughter.]
Mr. Turner. Thank you, Mr. Chairman. Our view of Judge
Alito is based upon his record as a lawyer and as a judge. It
is based on his writings during the time that he was a lawyer
in the Justice Department, and on the basis of his rulings from
the bench, which have presented an ultra-conservative tendency
to rule against people of color and women in cases involving
discrimination, and to rule in favor of employers and other
institutions that have sought to--
Chairman Specter. Thank you, Mr. Turner. I have to move on
to Congresswoman Wasserman Schultz.
Mr. Turner. Thank you, Mr. Chairman.
Chairman Specter. You know the political process, the
election of Presidents and campaign issues, and I am sure your
deep interest in this issue has led you to see the other
reported prospects for the Supreme Court should Judge Alito be
rejected, and you have heard Judge Alito's statements about
what he would consider on stare decisis. Do you think if Judge
Alito is rejected you will get somebody you like better?
Representative Wasserman Schultz. I am hopeful--I recognize
that the President, obviously, has the right to nominate a
conservative. And I am a Democrat, and I recognize that given
that the President is a Republican that that is likely what he
would do with almost any nominee.
But Americans have the right to expect that he will not
nominate an extremist, and I agree with Mr. Shaw and Mr.
Turner, it is well expected that colleagues of his--I served in
the State Senate. I understand what collegiality is. Colleagues
of his, former law clerks, they are going to express--
Chairman Specter. Thank you, Congresswoman Wasserman
Schultz.
One last question, Ms. Pringle and also Mr. White. Ms.
Pringle, two parts. What do you think about as concerns about
women's issues? And both Mr. White and Ms. Pringle, there has
been concern that Judge Alito may favor the powerful in the
Government. You both clerked for him, saw him on specific
cases. I would like your evaluation on that. Ms. Pringle?
Ms. Pringle. I found that the Judge approached each case
without a predisposition toward one party or the other. He does
have respect for law enforcement, but I also felt that he had
respect for the individual plaintiffs or the individual parties
who came before him, and treated them in a fair and open-minded
way.
And I also think that--I understand the comments that have
been made about personal relationships bearing on a witness's
testimony, but I do think that a 15-year record gives an
opportunity for every group to find something that they like or
dislike.
What I wish is that everyone on the Committee had had the
opportunity that I have had to really get to know this person,
because I believe that the concerns about his character and his
approach to judging would be alleviated by that opportunity to
really know and work with this person.
Chairman Specter. Mr. White?
Mr. White. Judge Alito's testimony and his record show that
he has ruled in favor of the Government, and he has ruled in
favor of what has been called the little guy, and from my
experience, he always ruled fairly after thorough evaluation of
the facts and application of relevant law.
Chairman Specter. Thank you. Senator Leahy?
Senator Leahy. As I just came, I was going to let Senator
Kennedy go.
Chairman Specter. Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman. I was interested
in Mr. Shaw and Mr. Turner's reactions to the significance of
Judge Alito's opinion in that Riley v. Taylor case, where he
analogized statistics on left-handed Presidents and right-
handed Presidents to statistical evidence of discrimination in
jury selection. You are familiar with this case where they
struck three blacks from the jury and a black defendant was
sentenced to death. Judge Alito found no cause to reject that,
and used this right-hand, left-hand analogy. Are you familiar
with that case? And maybe you would comment on that briefly.
Has that got a ring to you, and does it within the community?
It was such a startling fact situation, certainly for me. I am
just wondering your own response, reaction.
Mr. Shaw. Senator Kennedy, the Legal Defense Fund has
litigated issues involving discrimination in jury selection
almost throughout its existence. In fact, the late Judge
Constance Baker Motley, when she was a Legal Defense Fund
lawyer, argued Swain v. Alabama in the Supreme Court, which set
a standard that existed for many years, which was inadequate to
protect against discrimination in jury selection. The Legal
Defense Fund litigated Batson v. Kentucky, which changed that
standard.
We believe that Judge Alito's comparison of race
discrimination with people who are left- or right-handed really
trivializes the significance of race discrimination and the
history of race discrimination, and a continuing problem with
respect to jury selection.
And within the Third Circuit, Philadelphia itself and the
District Attorney's Office recently, has had some terrible
problems that have been exposed with respect to intentional
discrimination with respect to jury selection.
Senator Kennedy. I will ask Mr. Turner, but just this last
comment to Dr. Gray's comment about the continuing ongoing
challenge that we are facing, I think there are many of us in
the Congress who just think, ``Well, the next thing up is the
Voting Rights Act,'' but that is really the only thing that is
out there. I think what has been mentioned by Mr. Shaw and also
Mr. Turner and Dr. Gray, is that this is an ongoing, continuing
everyday battle in almost every part of the country, including
my part of the country.
Mr. Turner. Yes. Thank you, Senator Kennedy. I agree with
you wholeheartedly, and in fact, Justice Sandra Day O'Connor,
as I quoted in my remarks, understands that, unfortunately, in
this Nation race still matters. Our justice system is not as
blind as it aspires to be, as we would all like for it to be,
and it is particularly reprehensible for attorneys to use
racial bias in the selection of jurors. Jurors are central,
critical to our American system of justice. It is through the
jury as fact-finder that we commonly seek to find truth in our
justice system, and where that process is subverted on the
basis of racial discrimination, particularly in a death penalty
case, we strike at the very heart of what I know we all believe
to be fundamental principles of justice in our society, and we
believe Judge Alito's position and his remarks certainly
minimize those important principles, if not completely
disregard them.
Senator Kennedy. Just in the brief time left, just one
question, and that is how the Supreme Court looks to all of
you. You represent different traditions, women, Hispanics,
blacks. We want the Supreme Court to be universally respected
and their decisions respected, and I think most of us believe
that to the extent that it can reflect what our society has
become in its diversity, and with all of its dynamism and its
creativity, and evolving opportunity. I am just wondering
whether any of you have a reaction. I think the Congressman has
mentioned--I know we are short in time, but if each of you
could just take just half a minute or so to tell us what you
think in terms of this nominee versus what we are really
hopeful of achieving in terms of a Supreme Court that is going
to be reflective of our country and our society. Are you
concerned about it? Should it make a difference? Does it make a
difference? What do you think? Just go down the line. I know my
time is up. This will be my last question, obviously.
Ms. Pringle. I personally would like to see more women
justices on the Supreme Court, and I hope that is something
that we will aspire to as a country, but I am also pleased to
see an Italian-American, first generation, lawyer on the
Supreme Court as well.
Representative Gonzalez. And as a Hispanic, of course, it
would be important to have a Hispanic on the Supreme Court of
Texas, but Senator, at the end of the day, in final analysis,
the truth is, give us anybody up there who will give us a fair
shake and is not predisposed, and when we have a President who
says, ``I am going to be nominating individuals more in the
mode of Scalia and Thomas,'' he gives us great cause to pause
and ponder and question.
Representative Wasserman Schultz. This nomination is
particularly important because of who Judge Alito would be
replacing. He is replacing the first woman to ever serve on the
Supreme Court, and he is replacing someone who has consistently
been the key swing vote in very significant cases that matter
to women and minorities in this country, and he has very
divergent views from Justice O'Connor, and I think that is
incredibly important to know.
Senator Kennedy. Mr. White?
Mr. White. I think it is extremely important to have a
Supreme Court that reflects the people for whom it is
interpreting the laws. In the absence of an African-American
nominee, I think that Judge Alito was an excellent choice.
Mr. Turner. Thank you, Senator Kennedy. I believe diversity
may be America's greatest asset, and when we fail to embrace
our Nation's diversity, particularly in an area as important as
judicial appointments, we polarize our Nation at a time when
unity and tolerance of diversity is critically important to our
continued advancement as a great Nation, critical to our
national security and our productivity.
Mr. Shaw. Senator Kennedy, I think we are long past the
time when a Latino, a Hispanic ought to be on the Supreme
Court. I believe diversity on the Supreme Court is important,
but I am more concerned about the substance of the Supreme
Court. The Court has been divided in race cases for the last 25
years with a narrow 5-4 edge in most cases. Justice O'Connor
was the deciding vote in many of those cases. We did not always
get her vote, but it was in play. That is what we are concerned
about with respect to this nomination.
Senator Kennedy. Thank you, Mr. Chairman.
Thank all of our panel.
Chairman Specter. Senator Leahy?
Senator Leahy. Mr. Chairman, most of the questions have
been asked, so I am not going to ask them again. I have read
carefully the statements of each one of you, and I appreciate
you being here, and I apologize, as I did to others earlier,
about having to leave for the memorial service.
Representative Wasserman Schultz, having you here, I could
not resist. I had asked Judge Alito several questions about the
very deeply personal matter of Terri Schiavo from your State. I
was offended, as many others were, at the number of people in
elective office running before the cameras to try to grandstand
in what was a terrible family tragedy. We saw them trying to
overrule the State of Florida. I forgot the number of times the
State courts in Florida faced this issue.
Representative Wasserman Schultz. Twenty.
Senator Leahy. Twenty. I knew it was a lot. Some Members of
Congress were attacking the judges who upheld the State court
rulings because it fit their political purposes. The Florida
legislatures passed an unconstitutional measure allowing
Governor Bush to intervene. Actually a colleague of yours in
the other body even issued a congressional subpoena to prevent
Terri Schiavo's medical decisions.
I mention this sad and somewhat outrageous conduct of
people who know better, but in every single case were attacking
the independence of the judiciary. Do you have a sense whether
Judge Alito would be one who would value an independent
judiciary? I ask this in light of the questions I have asked
him on the unitary Executive, and the situation we now see
where the President can sort of write sidebars to everything
from torture legislation to spying.
Representative Wasserman Schultz. I think that that is an
extremely important question, and Judge Alito's record is
emblematic of the problems with the Terri Schiavo case. His
views on privacy are extremely important. In that case you had
the Congress insert itself into a family's private tragedy. You
had the State legislature give our own Governor the
unconstitutional right to overturn a judicial decision. You
had, time and again, the Supreme Court rule that this was a
matter that should be decided in State court, and decided not
to take the case up. And I think it is a very important
question. If that case had gone to the Supreme Court and you
had the question of whether Congress actually had the right to
insert itself into Terri Schiavo's private family tragedy, how
would Judge Alito have ruled?
He has very troubling views about the power and the
authority of the Executive, and I think that we need to make
sure that we zealously guard our legislative authority and make
sure that we have a Justice on the Supreme Court that supports
the system of checks and balances, and I do not think that
Judge Alito's record demonstrates that he does.
Senator Leahy. Thank you. Thank you very much.
Mr. Chairman, thank you for your patience.
Chairman Specter. Thank you. There are two more items that
I want to cover, but we will first of all let the panel go.
Thank you very much, Ms. Pringle, Congressman Gonzalez,
Congresswoman Wasserman Schultz, Mr. White, Mr. Turner and Mr.
Shaw. You have been a very enlightening panel, and I know how
deeply all of your views are held. That is one thing we have
seen in this hearing. Nobody is casual about Judge Alito.
Everybody is very decisive. Emotions run deep.
Two items I want to cover, one in a colloquy with my
distinguished ranking member, that is the future schedule on
Judge Alito, and then I intend to announce my own decision on
my vote now that the hearing is over.
The issue of scheduling has been extraordinarily difficult,
as Senator Leahy and I have wrestled with that problem.
Preliminarily, let me say that it has been a pleasure to work
with Senator Leahy, and I think our collegiality has been
demonstrated in many ways, mostly by all of the pictures taken
where we were huddled together so that our voice do not carry
too far beyond, and also with a sense of humor. In the bad old
days, when I had no hair, the only way that Senator Leahy and I
could be told apart was by color of our ties.
[Laughter.]
Senator Leahy. Of course, you are still wearing the red
tie.
Chairman Specter. I am glad to have some hair.
But the scheduling issue has been an important one, and it
was a difficult issue as to when we would schedule these
hearings. The President, as is well known, wanted the matter
decided before Christmas, and it seemed to me that was not
realistic. We had to do it right and not do it fast. And then
the issue came up, OK, not before Christmas, then when? And I
wanted to start the hearings the day after New Year's. I wanted
to start them on January 2nd. And the Democrats have a right,
under our Committee practices, to delay for a week, and it
seemed to me that that week could be given from the 2nd to the
9th, and that would be the week's delay. Senator Leahy and I
are under--we have a lot to consider. We have Committee members
who have views, and we have caucuses which have views.
But at any rate, we came to terms on what I thought was
done, and Senator Leahy and I then went up to the radio-TV
gallery, and I want to read a bit of the discussion which we
had there. I do not do this in a legalistic sense to mind
Senator Leahy. I do it to set the parameters as to where we
have been and the views that my Committee members have and
which I have. This is the transcript.
But at any rate, Senator Leahy and I have worked through
it, and said it could be delayed a week in any event by any
Senator who wants to hold it over for a week, that we would put
that week back at the start on the 9th with the good faith
understanding that our intent would be to go to the Executive
Committee meeting on the 17th, the day after the Martin Luther
King holiday, so that the schedule will be that we will start
hearings at noon on the 9th, will have them on Tuesday the
10th, Wednesday the 11th, Thursday the 12th, Friday the 13th,
and Saturday the 14th if necessary. Then we will go to the
Exec. on the 17th, and here we cannot get everybody bound in
writing to waive in advance, but Pat Leahy and Arlen Specter
have had no problems, nor have we anybody on the Committee of
not fulfilling what we have said we would do as a matter of
good faith intent, which would put the Executive Session on the
17th. We finished that with Chief Justice Roberts in the
morning.
And then we would go to the 18th, 19th and 20th for floor
debate, with a vote on the 20th.
There is more dialog, and Senator Leahy then put in a
limitation, quote, ``Obviously, this leaves room if something
extraordinary comes up that neither, frankly, neither Senator
Specter nor I anticipate or expect,'' close quote. And I did
not object to that. Seemed to me that that was a reasonable
condition which might change what I had said earlier.
It is my intention to adhere to that schedule and to set
the Executive Committee meeting for next Tuesday, the 17th in
Dirksen 226, our regular hearing room, at 11 a.m.
Senator Leahy?
Senator Leahy. Of course, we did this on November 3rd, and
the discussion was had by--you are absolutely right, by Senator
Frist, who was responding to the--I will not characterize it as
pressure, but the direction he had received from the White
House to move forward prior to Christmas. You may recall that
Senator Frist had first said that the Senate would adjourn for
the year in the first week in October, and then under every
conceivable circumstance, the week before Thanksgiving, and
instead there was a joyful singing of Christmas carols in the
halls as we were finishing up just a few days before Christmas.
Had we followed what the White House had told Senator Frist
they wanted and gone before Christmas, of course, we could not
have even had the hearing. We were having votes every 10
minutes. It would have been chaotic. It would not have been the
dignified and thorough kind of hearing we had here.
On January 2nd, of course, was a holiday, we could not come
back that day and start the hearings. As I stated at the press
conference, it would have meant destroying any of the staff's
attempt to have any time over the holidays with their families.
They had lost much of the family time during the normal school
vacations in August because we had to prepare for the Roberts
hearings. This was, of course, the third nominee of the
President for this seat.
I would have much preferred, as you know, for a personal
reason to have had it the first week during January because of
long, long, long standing personal plans for this week, which I
canceled, because otherwise it would have meant canceling
everybody's time with their families at Christmas.
I had been told that a number of our members are going to
be home for Martin Luther King events this weekend, will not be
back on time on Tuesday, and so they will exercise their
rights. And as you and I discussed privately prior to that
press conference, of course, any Senator could exercise their
right to put it over, a right that you and I--both of us have
served as Chairman--something you and I have always protected.
I understand from something the majority leader said that,
again, even though the Court does not come back in until the
latter part of February, that the White House has told him they
want the debate to begin before the President's State of the
Union, even if we had--I do not have a calendar before me--but
even if we put this over from next Tuesday to the following
Tuesday, there is no reason why then it could not be on the
floor on Wednesday, which is still 6 days prior to the State of
the Union. Just in case you are wondering.
[Laughter.]
Chairman Specter. This is about the first time Senator
Leahy and I have not agreed on something, but there has to be a
first time for everything.
Senator Leahy. I agree you are a superb Chairman. We can
agree on that I hope.
Chairman Specter. The reciprocity of respect, I think, is
pretty evident, the way we have conducted these hearings. And I
appreciate what Senator Leahy has said about the full and
fair--and he used the word dignified--I think they are
dignified. There is a Latin maxim, the exception proves the
rule. There might have been 4 minutes in the hearing when it
was not dignified, but we worked through that as well. About
the only thing the respective parties have been able to agree
to on this whole proceeding is that Senator Leahy and I have
functioned collegially and have produced a full and fair and
dignified hearing.
As far as I am concerned, we are going to proceed on the
17th at 11, and if the right of the--
Senator Leahy. The right of any Senator.
Chairman Specter. Well, if they are held over, they are
held over. I had thought we had--I do not fault Senator Leahy.
I had thought that the Democratic Caucus knew what we were
doing, and they certainly knew about it after we said it, but
we will work through this problem like many, many others. This
is not a gigantic problem.
Senator Leahy. I think one of the problems is that--whether
this affected it or not, I think the fact that the time that we
were going to wrap up the session, the time which is determined
by the leadership, by the majority leadership, kept changing,
kept changing almost day by day, by day, by day, by day, and it
probably has put all the pressure on everything else. I would
hope that we could work this out. Maybe you and I can--we have
each other on speed dial at home, and Senator Specter has heard
many descriptions about my farm house--let us get some of these
hearings out of the way, and you and I can sit up there and
have dinner and have a good time, but we will talk about this
over the weekend.
Chairman Specter. Thank you, Senator Leahy.
Let me now move to the final item of the Committee hearing,
and that is the announcement of my position. And I intend to
vote to support Judge Alito's nomination for Associate Justice
to the Supreme Court, and I do not do that as a matter of
having a party-line vote or as a matter of party loyalty. If I
thought that Judge Alito should not be on the Supreme Court, I
would vote no, just as I did with Judge Bork.
My commitment to the President as Chairman of this
Committee is to give his nominees prompt hearings and to vote
them out of Committee. And I have always believed in that.
Before I became Chairman, I believed that there had been too
many delays on both sides. Both Democrats and Republicans have
delayed hearings on judicial nominees, and that led us to an
escalation of events and filibusters and possibility of the
constitutional or nuclear option. We have worked through that,
and Senator Leahy and I were instrumental in avoiding what
could have been a really cataclysmic event in the Senate. And I
have always believed in voting people out of Committee.
I recall the days when matters were bottled up in the
Committee, and I never agreed with that. And I voted against
Judge Bork in Committee, but I voted to send his nomination to
the floor. So in fulfilling my commitments to the President and
the Republican Caucus to have prompt hearings and to vote
people out of Committee, I believed in that before I was
Chairman, and I believe in it now. And after fulfilling those
duties, whether I vote aye or nay, that is my independent
judgment. Under separation of powers, Senators are separate
from the executive branch. It would be inappropriate to make a
commitment on a vote in advance in any way, and I prize that
independence very highly.
With respect to Judge Alito's qualifications, I think that
they are agreed to, no doubt about the quality of his academic
standing at Princeton and Yale or his erudition or his
scholarship, working in the Solicitor General's Office and
Office of Legal Counsel, then 15 years on the bench. We could
not have held these hearings when we did, into January, because
there was so much to do. And this Committee has worked very,
very hard, and I thank not only the members of the Committee
but the staffs. The staffs of this Committee didn't have an
August. There was no recess to get ready for Judge Roberts'
hearings. We didn't have a December or a November. We haven't
had much of a January.
Senator Leahy. January is not too good so far.
[Laughter.]
Chairman Specter. But we wanted to do it right, and I think
we have done it right. We have gone very deeply into Judge
Alito's background and studied his record.
With respect to the answers which Judge Alito gave, there
are going to be differences of views. I thought we had to hear
his answers before coming to judgment, and I have urged
colleagues on both sides of the aisle not to make up their
minds before the hearings are over. There has been an enormous
amount of publicity about Judge Alito, as there was about White
House Counsel Harriet Miers. And as I have said before, Ms.
Miers was run out of town on a rail. The nomination was decided
in the radio talk shows, TV talk shows, on the op-ed pages, and
not by the Committee, which is what the Constitution says
should be done. The Senate should make the decision and it
ought to have a hearing in this Committee.
And we kept a level playing field for Judge Alito, and I
was frankly a little concerned about the opening statements on
both sides--a lot of accusations on one side and a lot of
hyperbole on the other. And this is not a court of law, but I
wanted Judge Alito to have a chance to explain where he stood
and not to come to conclusions from the testimony. It was
important to come from him.
I think that his answers in a sense went farther than any
in the past because he did not say that he would not respond
because the case might come before the Court. He ultimately
refused to give judgments as to how he would vote, but when the
issue was raised, he discussed the considerations that would be
involved on Executive power, a really very important subject,
as to whether the resolution for the authorization of use of
force comprehends authority to engage in electronic
surveillance, and I don't think it does. The Foreign
Intelligence Surveillance Act is specific on that point.
But we are going to have a hearing, and we hope to hear
from--we expect to hear from the Attorney General on the
question of whether there is constitutional authority for the
President to override a statute because of his Article II
power. Those questions were put to Judge Alito, and he
responded with the kinds of considerations which would be
involved. And I think he touched all the bases there, but he
was not going to say how he was going to rule, nor should he.
When it came to the question of court-stripping and the
amendment taking away habeas corpus jurisdiction from the
Federal courts on detainees, I think that is an atrocious piece
of legislation. I believe it will be declared unconstitutional.
But when he was asked about that, he talked about the
considerations involved, not how he was going to decide it.
And on congressional power, I think he agreed that the
method of reasoning of Supreme Court Justices is not superior
to the method of reasoning of Congress, and that there oughtn't
be flabby tests, as we talked about Justice Scalia's dissent on
the Americans with Disabilities Act.
When it came to Roe v. Wade, I think he went about as far
as he could go. He started off by saying that he agreed with
Griswold, a constitutional right of privacy in the Liberty
Clause, and that it would apply to single people as well in
Eisenstadt, and that when he was dealing with Casey, the issue
of reliance was very important, that he thought it was critical
by analogy to what Chief Justice Rehnquist had done in Miranda,
that it was a critical factor as to whether a decision was
embedded in the culture of the community. And I certainly think
from my own point of view Roe is. And he agreed that it was a
living Constitution, subject to change, as Cardozo said in
Palco with the mores and values of the people.
And we had a lot of discussion as to his views on Roe v.
Wade and what then-Judge Roberts had said. And from my reading,
I don't think there is a dime's worth of difference between
what Chief Justice Roberts said and what Judge Alito said about
that. Both relied heavily on precedents, but said that they
would not make a final commitment, nor should they have made a
final commitment.
I think the judicial panel was very instructive, and there
had been some precedents for it in the past, although this
broke new ground in having as many testify as they did. And the
practice after judges hear arguments to go into conference to
discuss it is one which is not widely understood by people, and
Judge Alito went into conferences. he and Judge Becker had sat
on more than a thousand cases. I believe Judge Becker testified
they disagreed only 15 times. Judge Becker received the Devitt
Award as the Outstanding Federal Jurist a couple of years ago.
Of course, I know Judge Becker very well because we went to
college and law school together, and he has been a close
friend. But he didn't exert any undue influence on me. But he
testified that Judge Alito had no agenda and was not an
ideologue. And so did Chief Judge Scirica. And, of course, I
know the Third Circuit because it is my circuit. I have argued
a lot of cases in the Third Circuit and had a hand in the
appointment of Judge Scirica to both the district court and the
court of appeals, and Judge Barry.
And then I thought the testimony of Judge Timothy Lewis was
very influential, and just a word about Judge Lewis. I first
heard about him in about 1990 when he was an Assistant U.S.
Attorney in Pittsburgh, an African-American. And Senator Heinz
and I were very interested in diversifying the court, having an
African-American. Hard to find a Republican African-American.
Still is pretty hard to find. And when we found one, I wanted
him on the district court bench. And I heard about him one
morning in Pittsburgh, saw him that afternoon in the hotel
lobby, and talked to Senator Heinz about him the next day. And
he was put on the district court, a very fast time, then on the
court of appeals in 1992. And I have known him for more than 15
years, and when he says after knowing Judge Alito as he did,
sitting with him, and Judge Lewis being dedicated to pro-choice
and to civil rights, active on the ACLU and pro-choice, that he
wouldn't testify for him if there was a doubt in his mind, I
thought that was significant.
We have gone beyond asking some of the witnesses what
happens if Judge Alito is rejected. This was an issue in the
Presidential campaign on both sides. Senator Kerrey said he
would appoint someone who was pro-choice, and I think President
Bush said he would not use a litmus test. And I don't use a
litmus test myself. But at least from those who have been
reported in the press who would be considered, I put that
question to Congresswoman Wasserman Schultz and to Ms. Kate
Michelman, whom would they expect to find who would give more
credence, thoughtfulness, and the precedents in the field.
Well, those are some of my reasons for supporting Judge
Alito. I will prepare a written statement, but I thought it
important to state my views now that the hearings are over. I
know that I have already been asked many times by the press how
I am going to vote, and I don't want to be coy and I don't want
to hold back. And if the Senate was in session now, I would
wait until the Senate was in session to go to the floor to make
a statement. But that is how I think it through.
Senator Leahy?
Senator Leahy. I will just be very brief, Mr. Chairman. I
was following with interest what you were saying, also the
interest and the history in Pennsylvania--as you know, one of
my favorite States. I visit there often, in fact, drive through
there the one time a year when I drive to Vermont, usually
during the August recess, this time with a trunkload weighted
down with all of then-Judge Roberts's writings.
You had mentioned one thing about voting against a Supreme
Court Justice in Committee, but then voting to go on the floor.
I think that is a good practice. I joined you on that
particular nominee. I had at least a couple nominees for the
Supreme Court whom I voted against in Committee as I stated
what my position was. But I then voted that they go to the
floor of the Senate because I thought for a Supreme Court
Justice, we ought to all at least follow the Senate procedures
where a hundred of us could decide what procedure to follow and
have a vote. That is one of the reasons why I felt so
frustrated with the 61--you were not Chairman, but the 61 of
President Clinton's judicial nominees who were never allowed to
have a vote in Committee but were basically pocket-
filibustered. I thought it was a bad practice then. I think it
is a bad practice, as I said, a lot of the partisanship that
you and I have worked very, very hard to lower, that you and I
have tried to go back to the type of Senate it was when both of
us came here.
I will work with you, of course, on the scheduling of this.
I had obviously not realized, one, that we would go so late in
the year, but, two, that we would have a number who are not
prepared to vote on Tuesday and will just follow the normal
rules. But there will be no problem then in voting the
following Tuesday. You have actually picked up a couple days by
having the markup on a Tuesday, not a Thursday, voting the
following Tuesday, and I guess it would be on the floor then
Wednesday and off we go.
Excuse me. This is not emotion. It is a Friday afternoon
voice. And as I said, I expect you and I will talk over the
weekend. I admire you as a Senator. I admire your work as
Chairman. I have often said that of all the Senators, you were
my number 2 choice to be Chairman of this Committee.
[Laughter.]
Senator Leahy. Unfortunately, I don't get my number 1
unless the Democrats are back in the majority.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Leahy. Thank you.
Chairman Specter. Thank you very much for a full, fair, and
dignified hearing.
And that, ladies and gentlemen, concludes the nomination
hearing for Judge Samuel A. Alito, Jr. for the Supreme Court of
the United States.
[Whereupon, at 1:34 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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