Samuel A. Alito, Jr.

<
Speaker, Title, Party Statements
Senator Arlen Specter (PA)
Chairman
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge alito. 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 alito. 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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Senator Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you very much, Senator Leahy. Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you very much, Senator Hatch. Senator Kennedy?
Senator Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Kennedy. Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you very much, Senator Grassley. Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Biden. Senator Kyl?
Senator Jon Kyl (AZ)
Senator
(R)
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.
Senator Herb Kohl (WI)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Kohl. Senator DeWine.
Senator Mike DeWine (OH)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator DeWine. Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Feinstein. Senator Sessions.
Senator Jeff Sessions (AL)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Mr. Chairman, I think.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. This is called the potted plant routine, Russ. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. I am so anxious for the recess, I jumped the gun a little. [Laughter.]
Senator Russ Feingold (WI)
Senator
(D)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. Shall I wait or go ahead, Mr. Chairman? [Pause.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Graham, you may begin.
Senator Lindsey Graham (SC)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Graham. Senator Schumer.
Senator Chuck Schumer (NY)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Schumer. Senator Cornyn.
Senator John Cornyn (TX)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Cornyn. Senator Durbin?
Senator Dick Durbin (IL)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Durbin. Senator Brownback?
Senator Sam Brownback (KS)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Sam Brownback (KS)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Senator Tom Coburn (OK)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Senator Frank Lautenberg (NJ)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Lautenberg, do you care to make a recommendation on the nominee?
Senator Frank Lautenberg (NJ)
Senator
(D)
Senator Lautenberg. I care to present the evidence, just the evidence, Mr. Chairman, and we will let the record speak for itself.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Governor Christine Todd Whitman
Governor Whitman.
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Judge Alito. You may be seated, and we welcome whatever opening comments you care to make.
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.] 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 Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Well, Griswold dealt with the right to privacy on contraception for married women. Do you agree with that?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Do you agree also with Eisenstadt which carried forward Griswold to single people?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do agree with the result in Eisenstadt.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I think that Chief Justice Rehnquist there was getting at a very important point, and--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Think he was right?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Would you agree with Cardozo on Palco that it represents the values of a changing society?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I personally would not get into categorizing precedents as super precedents or super duper precedents, or any--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Did you say ``super duper?'' [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Right.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Good.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Any sort of categorization like that--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. I like that. [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. How about being reaffirmed 38 times?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Just balance it on Orrin's head.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Put that over by Leahy.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. So you would approach it with an open mind notwithstanding your 1985 statement?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.]
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Well, my red light went on. Senator Leahy?
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, Judge, good morning.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Good morning, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. And Congress has done that, and it is certainly an expression of a very deep value of our country.
Senator Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. And those Fourth Amendment rights are pretty significant, are they not?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They are very significant.
Senator Patrick Leahy (VT)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, he would not. That was settled in that case. The Supreme Court held that the Attorney General does not have--
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But you did believe so then?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. You did say in the memo, ``I do not question that the Attorney General should have this immunity.''
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is correct, and the background of that, if I could just explain very briefly--
Senator Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No. Absolutely, it is the job of the judiciary to enforce the Constitution.
Senator Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Sure.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do think you are, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. OK.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Or my background either, Judge, or my background either. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Leahy. Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I certainly was not a founding member.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You were not a board member?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was not a board member.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Or, for that matter, you were not even an active member of the organization, to the best of your recollection?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't believe I did anything that was active in relation to this organization.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Absolutely no, Senator, no.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I felt that that would be your answer. I really did. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Tough question, Orrin. Tough question.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. It is a good question, though. It is one that kind of overcomes the implications that you were.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do, Senator, and someone not from any sort of exalted economic status.
Senator Orrin Hatch (UT)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Sure.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You were a proud member of the ROTC.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Did you enjoy your time in the ROTC and in the Army afterward?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct. It was very extensively damaged.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Was anybody injured?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. By pro se, explain that.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It's a case where the plaintiff was not represented by a lawyer. She was representing--she was representing--
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Paying for her own counsel and represented herself.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. In other words, there was never any possibility of you benefiting financially no matter how that case came out. Is that right?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Absolutely no chance.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And you actually did recuse yourself when the question was eventually raised, even though you didn't have to.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Did you genuinely feel that you were either legally or ethically required to recuse under those circumstances?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I did not think the code required--
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You were just going beyond, which has been your philosophy and--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right.
Senator Orrin Hatch (UT)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, all will be made a part of the record.
Senator Orrin Hatch (UT)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I did, Senator, and that is what I have tried to do throughout my time on the bench.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Now, when the new panel of judges looked at this case, how did they rule?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They ruled the same way that we had, and we had ruled the same way that the district court did.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have, yes.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Thank you, Judge.
Senator Arlen Specter (PA)
Chairman
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I believe that they did. I believe that some of them at least addressed that specifically--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Do you know specifically whether they did or not?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I believe they addressed it in their letter, so they must have been aware of it.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It had, Senator, but I had nothing to gain financially by--
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They are, and that's a very inapt phrase, and I--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Excuse me?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. So you have changed your mind?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Kennedy, you are correct. We have a timer over here. We are trying to get the time fixed.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. All right. If I would know when I have 10 minutes left?
Senator Arlen Specter (PA)
Chairman
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Thank you, Chair.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. And give Senator Kennedy two more minutes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. There you go. [Laughter.] Senator Kennedy. Be quiet over there, scurrilous dogs. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Seniority has privileges.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. No, the--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Let him finish, Senator Kennedy.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. In accordance with our practices, if you want them in the record, they will be there, without objection.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Would that have any effect or impact on independent agencies?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Grassley?
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Absolutely not, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I certainly do, Senator. Each branch has very important individual responsibilities and they should all perform their responsibilities.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. So clarify for me. Do you believe that the President of the United States is above the law and the Constitution?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Nobody in this country is above the law, and that includes the President.
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Thank you, Judge Alito.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Grassley. Senator Biden?
Senator Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator Biden. Well, Judge--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. But nothing like that was presented to us in that case, as I remember it.
Senator Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I like the way you look, Dianne. You look OK.
Senator Joe Biden (DE)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They did.
Senator Joe Biden (DE)
Senator
(D)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
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 Jon Kyl (AZ)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Of who eventually has the last say about Executive power, which would be the President?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Right.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
\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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Thank you very much, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
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 Jon Kyl (AZ)
Senator
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, they will be made a part of the record.
Senator Jon Kyl (AZ)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Long after you were gone from the school.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Jon Kyl (AZ)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think that's exactly right, Senator. Often there are conflicting freedoms and that makes the case difficult.
Senator Jon Kyl (AZ)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I noted a tax case too, or a case involving tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think it's well over 4,000 on the merits.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct, Senator.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, Senator, that is correct.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, it's not accurate.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Do you recall cases in which you upheld the discrimination claims of racial minorities?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
Senator Kyl. And you were the lone dissenter in that case, is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was the dissenter in that case.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. And your position was what?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right, Senator.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's certainly correct, Senator.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's exactly correct.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Thank you. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you very much, Senator Kyl. Senator Kohl?
Senator Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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.''
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was, and that was in--I saw that quoted in the paper yesterday. I think that was in 19--
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Not necessarily expressing your own real views?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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'' ?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you, Judge. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Kohl. Senator DeWine?
Senator Mike DeWine (OH)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection.
Senator Mike DeWine (OH)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator DeWine, your unanimous consent request is granted.
Senator Mike DeWine (OH)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
Senator DeWine. Oh, go ahead. [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
Senator DeWine. Thank you, Judge.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator DeWine. Senator Feinstein?
Senator Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I was just asking you about Lopez, but--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Lopez is--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein [continuing]. If you do not want to answer, that is OK.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. It is not hypothetical. I am just asking you if there were findings, as you said, you might have sustained the law--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. And I read it like that. I think it would have been--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I am just asking you, would you have sustained the law for findings--
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, in Chittister--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Do you see a contradiction in that?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. But I am asking you what the special justification would be, that you mentioned this morning, to overcome precedence and reliance?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. My question was a different one, respectfully.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I am sorry, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Roe has--sorry.
Senator Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Well, and you did say that you believe the Constitution provides a right of privacy.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Senator, I don't--I do not equate the situation of a married woman with the situation of a minor--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I know you keep saying that, but I keep going back to the words and they seem to say something else.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do--
Senator Dianne Feinstein (CA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you. I've run out of time. I'll continue this next session. Thank you.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Feinstein. Senator Sessions?
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Can I interrupt you there? And you are talking about the appellate court.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Jeff Sessions (AL)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Now, oral argument means the lawyers for each party come and orally argue the case before the court, is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right, and--
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Now, you should not have made up your mind even at that point, should you?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is correct.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. And that's the Thornburgh case that you're referring to, Senator.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thornburgh.
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, that's correct.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator Sessions. And did they follow your suggestions?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, they did not. They argued that Roe v. Wade should be overruled and the Supreme Court rejected that--
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, that's correct. That was the statute.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do, all too well. [Laughter.]
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. You know what it would be on the Supreme Court?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I actually don't know exactly, no.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. It's a little more, I think, not much. Do you think you can live on that?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I can. I've lived on a Federal judge's salary up to this point.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Have a sigh of relief there. They can increase it, though, right?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They can, yes. [Laughter.]
Senator Jeff Sessions (AL)
Senator
(R)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes. Yes, it can.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions [continuing]. In their opinion?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Does anybody review the Supreme Court's review?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No. No.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, I don't think that's reviewable.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. And aren't there things that the Executive branch can do that are not reviewable?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. There are certainly some things that are not reviewable. Vetoes are not reviewable. Pardons are not reviewable.
Senator Jeff Sessions (AL)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It was a State magistrate.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I agree. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Sessions. Thank you,
Samuel A. Alito, Jr.
Nominee
(R)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. We now turn to Senator Feingold for 30 minutes.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Judge, thank you for all your patience today and throughout this process.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Thank you, Senator.
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. You do not recall whether this issue or the question of--
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. But you do not recall whether or not this was covered in the practice session?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. And in fact, the recent events that have led to this dispute--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. And the recent--
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold [continuing]. And the possibility--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. And the recent events.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold [continuing]. That it may come before you, right, Judge?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct, but--
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. I just asked--were there no comments or--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. The comments that I've received--
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. No advice?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Let him answer the question, Senator Feingold.
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. In general, yes, they've given me feedback, mostly about the form of the question--the form of the answers.
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Not as to the substance of the question, no, Senator.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Only as to the style?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. And again, I am not suggesting that. I am asking whether or not--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, I just want to make that clear.
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. So you don't recall whether you notified them or not?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do not know.
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold [continuing]. Isn't it?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. But you don't think it was a computer glitch anymore, do you?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Judge.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Mr. Chairman?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. On this particular issue, could I take just 2 minutes out of my next round?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. If you want to comment, you may, and Senator Feingold can have an opportunity to respond.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, it did, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator Feingold. Mr. Chairman?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Feingold, do you care to--
Senator Russ Feingold (WI)
Senator
(D)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, I did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. No. 2, these ethics professors have concluded that, right?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. No. 3, you have tried to comport with the highest standards of ethics during your whole 15 years on the bench, right?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have tried to do that and to go beyond what--
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. No. 4, I believe we will have judges from that court who will say that you have.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Feingold?
Senator Russ Feingold (WI)
Senator
(D)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Because he was mistaken, that is why.
Senator Arlen Specter (PA)
Chairman
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I want my 2 minutes back.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Anything at about 5:30 in the afternoon is welcome. [Laughter.] Chairman Specter. Senator Graham?
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is a hard question to answer and--
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Good.
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It certainly is.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It certainly is, yes.
Senator Lindsey Graham (SC)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is certainly true.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is correct.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is the principle of the Hamdi case.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Hamdi speaks to the situation of an individual who was caught on the battlefield.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That was the holding in Padilla.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yes.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, that was the holding of the lower court in--of Padilla, yes.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I am not aware of such a case.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I am not aware of a precedent that addresses the issue.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, let me help you. There were two cases. One of them involved six saboteurs, the In Re Quirin--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Quirin case, yes.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, they sustained what was done under the circumstances that I described.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, that would be a precedent, then, wouldn't it?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It is the precedent, yes.
Senator Lindsey Graham (SC)
Senator
(R)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Eisentrager.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, you know it. Tell me what the court decided there.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, they were--as I recall, they were Germans who were found in China assisting the Japanese--
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. China and not Japan. You are right.
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. We don't have to go back that far.
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have some familiarity with it.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you believe it has been good for our country to be a signatory to that convention?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think it has, but it's not really my area of authority. That's Congress's area of authority.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I'm not familiar with such a case, but I can't say whether there might be some case or not.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's what was involved in Hamdi.
Senator Lindsey Graham (SC)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. There is a statute that we have on the books against torture. Are you familiar with that statute?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. The Convention Against Torture, well, the statutes implementing the Convention Against Torture.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And the statute provides the death penalty for somebody who violates the conventions as a possible punishment.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right. If death results, the death penalty is available.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, they were.
Senator Lindsey Graham (SC)
Senator
(R)
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''?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. Are you a strict constructionist?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think it depends on what you mean by that phrase, and if you--
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have heard the term used.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, if a strict constructionist is a judge who doesn't make things up, then I'm a strict constructionist.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. There you go. [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I agree with that, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have a certain self-interest in the answer to that question.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I thought you might. [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think that--
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It is a majority.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Speaking in my personal capacity or in my judicial capacity? [Laughter.]
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Your judicial capacity.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator, I just don't think I should answer questions like--constitutional questions like that. I need to know--
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, when--there are certain questions that seem perfectly clear, and I guess there is no harm in answering--
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. You know what? I remember this phrase from law school--
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is that a super duper precedent?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, then--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito.--I'm not too happy to do.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It certainly is, yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. No matter whether that client is popular or not or the position is popular or not. Is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Consistent with ethical obligations and professional responsibility, yes, indeed.
Senator Lindsey Graham (SC)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Graham. Senator Schumer?
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator--
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. No, I am not. I am asking you what you believe is in the Constitution.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. You are asking me my view of a question that--
Senator Chuck Schumer (NY)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Does the Constitution protect the right to free speech?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Certainly, it does. That is in the First Amendment.
Senator Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator, I think--
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have not changed my opinion of my mother-in- law. That's a question--
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. I am glad you haven't. She seems nice.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito.--I can answer that question.
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It is a strong principle--
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Correct.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Plessy was overruled by Brown.
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes.
Senator Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I agree with the statement.
Senator Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. How about what Justice Thomas--what do you think of what he is doing?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I don't think I should comment on all of those cases.
Senator Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, I don't.
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, but I had been in the Department of Justice at the time of--
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. I know, but it was a voluntary interview with some New Jersey news outlet, is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, and I've tried to follow Third Circuit precedents while I've been--
Senator Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Senator, could I just respond to that--
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Please, the time is yours.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Does not always, but sometimes--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Let him finish his answer, Senator Schumer.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. I am sorry.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. But, sir, it can trump stare decisis, does not always, but can. Is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Thank you. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Schumer. Senator Cornyn?
Senator John Cornyn (TX)
Senator
(R)
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? ''
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I am familiar with that question.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No. The word that appears in the Constitution is ``liberty.''
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. And outside of, let's say, the Fourth Amendment, perhaps, does a right to privacy appear, explicitly stated, in the Constitution?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator Cornyn. And the reason it is protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, that is my view of it.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is correct.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, I wasn't. I was not.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, she did.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator Cornyn. And you didn't say the State couldn't criminalize possession of a machine gun, did you?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, that's correct. He was a criminal defendant.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. You didn't rule for the government?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, let's talk about Casey. That was a 1992 decision by the U.S. Supreme Court. Isn't that correct, sir?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, that's what they held.
Senator John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you very much.
Senator Arlen Specter (PA)
Chairman
(R)
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.]
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I wasn't asked whether she had stopped beating me. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Oh, please don't. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. I have been vastly--
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I will certify that he is very, very funny. Just don't do the other two hours. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. That raises the question as to what else you will certify to, Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. That is enough for today. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
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
Senator Arlen Specter (PA)
Chairman
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you very much, Mr. Chairman.
Senator Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Certainly, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Is it the settled law of the land?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. How do you see it?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Do women and minorities have anything to do with that?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Let me ask you, if I might, to reflect on a couple other things. You are a Bruce Springsteen fan?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I am to some degree, yes.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I guess most people in New Jersey would be, they should be.
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Do you care to respond, Judge Alito?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you very much, Judge Alito. Senator Brownback?
Senator Sam Brownback (KS)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do. He was a fine--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Sam Brownback (KS)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator Brownback. Wait, let me just ask you, was Plessy wrong, Plessy v. Ferguson?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Plessy was certainly wrong.
Senator Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It certainly would be a factor that you would consider in determining whether to overrule it.
Senator Sam Brownback (KS)
Senator
(R)
Senator Brownback. But obviously--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. A doctrine that you would consider.
Senator Sam Brownback (KS)
Senator
(R)
Senator Brownback. Obviously, Brown over turned it, and thank goodness it did. Correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Certainly.
Senator Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator Brownback. They don't.
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It certainly was repugnant to the Equal Protection Clause.
Senator Sam Brownback (KS)
Senator
(R)
Senator Brownback. And the vision of human dignity, isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think they are repugnant to the traditions of our country. I don't think there is any question about that.
Senator Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes, it is, Senator.
Senator Sam Brownback (KS)
Senator
(R)
Senator Brownback. Because these are coming up so much in front of the Court, are these types of displays, you feel, generally constitutionally permissible?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Brownback. Senator Coburn?
Senator Tom Coburn (OK)
Senator
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, they will be made a part of the record.
Senator Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. It is not expressly mentioned in the Constitution.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. It is actually a procedure of common English law, correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's its origin, yes.
Senator Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't know the exact figure, Senator.
Senator Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
Senator Coburn. At the time.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. At the time.
Senator Tom Coburn (OK)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Tom Coburn (OK)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. All of those documents, without objection, will be made a part of the record.
Senator Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct.
Senator Tom Coburn (OK)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. She was--the vote was 90 something to a small number. I know that, yes.
Senator Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Equality on method of reasoning?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think that Congress's ability to reason is fully equal to that of the judiciary and I think Congress--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. And you think that even after appearing here for a day and a half? [Laughter.]
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have always thought that and nothing has changed my mind about that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I am starting to worry about you. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. How about just fair notice? Never mind mathematical certainty.
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Where did it come from? Where did the Boerne test on proportionate and congruence come from if not thin air?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. You have taken a position on this issue?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Be careful how you answer.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Be careful how you answer everything, as you have been.
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I will keep an open mind despite the position I took on the Third Circuit. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Would you say it would be consistent with what Justice Jackson said?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I think it certainly is consistent with what Justice Jackson said.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Which decision do you personally agree with, hers or the dissent by Justice Thomas?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But you are not going to say which of the two decisions you agree with.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But in the past you criticized Morrison. Are you saying now that you are comfortable with Morrison, that you accept it?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. So do you hold today that the Independent Counsel statute was beyond the congressional authority to authorize--to enact?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No. I don't think that was ever my position.
Senator Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Of course, he could fire his whole cabinet today if he wanted to. We all accept that.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Do you believe the President has the power to curtail investigations, for example, by the Department of Justice?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't think--
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. The Department of Justice is under him.
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But could he order them to stop an investigation?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, you'd have to look at the facts of the case and the particular officer that we're talking about.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Could he order the FBI to conduct surveillance in a way not authorized by statute?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Is that settled law?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. And the other part of my question is Laidlaw, is it settled law?
Samuel A. Alito, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Leahy. Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Most employment discrimination cases really are decided at the lower level.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Most of them are, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And when they get up to your level, it is generally decided on technical or procedural bases. Am I wrong in that?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, that is correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And sometimes you have to uphold the law, even though you may be uncomfortable with the law yourself.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. We have to decide the cases on the facts that are in the record and the law that applies.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You would have given him his day in court, right--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I would have, yes--
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch [continuing]. If it had been up to you?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. What did you do there?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. This was a woman with disabilities, right?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right, a woman who was trying to get--
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And she sought Social Security benefits.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. She had a job as an elevator operator, if I recall.
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. So in other words, you stood up for the person seeking rights here. The Supreme Court overruled you.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Oh my goodness. In the landmark case of, how do you pronounce it, Fatin v. INS?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. ``Fatten,'' I think.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That is what I've tried to do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And where you have been in dissent, you have tried to do it to the best of your ability.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. That's right, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I don't think initial service means 12 years away--
Senator Orrin Hatch (UT)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Hatch. Senator Kennedy?
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Senator--
Senator Ted Kennedy (MA)
Senator
(D)
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''?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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 Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, I will be glad to explain it.
Senator Ted Kennedy (MA)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Senator, I--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy [continuing]. If we followed your interpretation?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. When did it stop, then? When did you think that your pledge to the Committee halted, after how many years? Six months?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, Senator, I don't--
Senator Ted Kennedy (MA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator, as I said--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. That is my question.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have no specific recollection of joining the organization.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't recall seeing the magazine. I might--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. But you know that they had a magazine?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I have been--I have learned of that in recent weeks.
Senator Ted Kennedy (MA)
Senator
(D)
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 Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Finish the last line.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Finish the last line. ``And homosexuals are''--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. ``And now here come women.''
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. If the Senator would let me just--
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Yes, I-- [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Can I get 2 more minutes from my friend? Just to continue along--I apologize, Judge. Did you read this article?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Well, could you think of any context that they could be--
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't think I was aware of that until recent weeks when I was informed of it.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was not aware of it until very recently.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I don't believe that I saw the article.
Senator Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Do you think that these are conservative views?
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator--I'm sorry.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Briefly, please.
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. They're not my documents, Senator, and I have no--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Do you think they would be helpful to us?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito [continuing]. Opinion about it whatsoever.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Do you think they would be helpful?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Senator, I don't believe I had any active involvement with this group.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Well--
Samuel A. Alito, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. You did get a letter, are you saying?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Well, now wait a minute. You don't know what I got. I am about to--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Of course, I do, Senator, since I sent it.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Well, the sender--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. I have got it right here.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter [continuing]. Doesn't necessarily know what the recipient gets, Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. I have got it right here.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. You are not in the position to say what I received. If you will bear with me for just one minute--
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. But I am in a position to say what I sent to you on December 22, so I renew my--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. You are in a position to tell me what you sent.
Senator Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Mr. Chairman, I would appeal the ruling of the Chair on this. I want--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. There has been no ruling of the Chair,
Senator Ted Kennedy (MA)
Senator
(D)
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--
Senator Arlen Specter (PA)
Chairman
(R)
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 Chuck Grassley (IA)
Senator
(R)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Isn't it true that the words ``one person/one vote'' weren't even in your statement?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Those words are not in my statement.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Just to make--go ahead.
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do. I think it's a fundamental part of our constitutional law.
Senator Chuck Grassley (IA)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, they will be made a part of the record.
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I'm quite sure I've never written or spoken about its constitutionality.
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I certainly don't, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Thank you, Senator Grassley. That will be all. We will recess until 2 o'clock.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Mr. Chairman?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Yes, Senator Kennedy?
Senator Ted Kennedy (MA)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Like all requests, unanimous consent for the record, they are granted.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Mr. Chairman? Mr. Chairman?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Senator Durbin?
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Mr. Chairman, I--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. I just want it known that we are now into the lunch hour, but go ahead, Senator Durbin.
Senator Dick Durbin (IL)
Senator
(D)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Could I also, Mr. Chairman, on this--
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator Leahy. In fact--
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. He did already, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Now Senator Leahy is recognized into the lunch hour.
Senator Patrick Leahy (VT)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you.
Senator Arlen Specter (PA)
Chairman
(R)
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 Joe Biden (DE)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator Biden. You referenced in your dissent in Casey the Thornburgh case. What was the issue in Thornburgh?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Thornburgh concerned--
Senator Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?''
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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.
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. Well, I wasn't.
Senator Joe Biden (DE)
Senator
(D)
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--
Samuel A. Alito, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator Biden. You had about 300 women, if I am guessing right, when you got admitted, roughly. When were you admitted?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I was admitted in 1968. It was not coeducational. It went coeducational while I was there--
Senator Joe Biden (DE)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you very much, Mr. Chairman, and I will make it brief.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. You have 2 minutes.
Senator Dick Durbin (IL)
Senator
(D)
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--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Does this involve Senator Hatch, Senator Durbin?
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. It does. Senator Hatch raised the question that I had said-- [Laughter.]
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin [continuing]. That this position--
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Shouldn't we have Senator Hatch here?
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. If you want to wait, I will wait.
Senator Arlen Specter (PA)
Chairman
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman Specter. Without objection, it will be made a part of the record.
Senator Jon Kyl (AZ)
Senator
(R)
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?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. No, Senator.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I believe you said you vehemently disagreed with it, is that correct?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I do. I deplore those things.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. And would disavow it?
Samuel A. Alito, Jr.
Nominee
(R)
Judge Alito. I disavow it. I would never associate myself with those things.
Senator Jon Kyl (AZ)
Senator
(R)
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?